Senate Infrastructure Bill Would Empower EIA To Compel LSEs To Report "Financial Or Contractual Agreements" For Power To EIA

The U.S. Senate "infrastructure" bill (H.R.3684, S.Amdt.2137) would empower the Energy Information Administration to compel LSEs to report to the EIA financial or contractual agreements for power and generation resource type attributes

S.Amdt.2137 would provide that, "to the extent that the Administrator determines necessary, and in a manner designed to protect confidential information, require each load-serving entity to submit additional information as needed to determine the delivered generation resource mix of the load-serving entity, including financial or contractual agreements for power and generation resource type attributes with respect to power owned by or retired by the load-serving entity."

Such reporting is included as part of a requirement for EIA to provide data to the public on the delivered generation resource mix of the electricity system

More broadly, the amendment would also direct EIA to, "establish a system to provide to the public timely data on the operations of load-serving entities in the electricity grids of the United States," though no additional specific power is granted to EIA to require LSE compliance with this broader provision

Under the amendment, the term "load-serving entity" has the meaning given the term in section 217(a) of the Federal Power Act (16 U.S.C. 824q(a)).

16 U.S.C. 824q(a)) has the following definitions:

The term "load-serving entity" means a distribution utility or an electric utility that has a service obligation.

The term "service obligation" means a requirement applicable to, or the exercise of authority granted to, an electric utility under Federal, State, or local law or under long-term contracts to provide electric service to end-users or to a distribution utility.

The term "distribution utility" means an electric utility that has a service obligation to end-users or to a State utility or electric cooperative that, directly or indirectly, through one or more additional State utilities or electric cooperatives, provides electric service to end-users

The term "electric utility" is not defined under 16 U.S.C. 824q(a)

However, under 16 U.S.C. § 2602(4) the term "electric utility" means any person, State agency, or Federal agency, which sells electric energy.

Retail suppliers engaged in balancing sales in FERC-jurisdictional RTOs are considered electric utilities for FERC jurisdictional purposes.

The amendment would also require, "Each electric utility shall promote the use of demand-response and demand flexibility practices by commercial, residential, and industrial consumers to reduce electricity consumption during periods of unusually high demand."

This section of the bill amends 16 U.S. Code § 2621 which defines electric utility as, "any person, State agency, or Federal agency, which sells electric energy," and which also has a specific definition for "nonregulated electric utility", which means, "any electric utility other than a State regulated electric utility" (whether retail suppliers are "regulated", let alone "rate regulated" by state regulators is open for debate, especially with recent decisions in New York and statutory changes in Connecticut)

While all electric utilities would be required to "promote" the use of demand-response, the only specific compliance action is with respect to state agencies with ratemaking authority

The amendment provides that, "Each State regulatory authority shall consider establishing rate mechanisms allowing an electric utility with respect to which the State regulatory authority has ratemaking authority to timely recover the costs of promoting demand-response and demand flexibility practices."

The amendment would also require each "electric utility for which the State has ratemaking authority" and each "nonregulated utility" to consider measures to promote greater electrification of the transportation sector including rates that, "promote affordable and equitable electric vehicle charging options for residential, commercial, and public electric vehicle charging infrastructure."

The amendment also includes $6 billion in funding for nuclear plants at risk of closure, including those in competitive markets, under a program to be run by the Department of Energy