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Jenner & Block represents Advanced Energy Economy (AEE) in a matter regarding the participation of energy efficiency resources in wholesale electricity markets in the United States. Many of AEE’s 500 members manufacture and/or operate advanced energy technology resources, including electric storage and distributed energy resources, including demand response and aggregated energy efficiency resources.
AEE sought an order declaring, among other things, that FERC has exclusive jurisdiction over the rates, terms and conditions under which energy efficiency resources are sold in wholesale electricity markets, and that electric retail regulatory authorities cannot bar the participation of such resources in those markets without FERC permission. The request stemmed from a proposal by a market operator to give electric retail regulatory authorities permission to restrict or bar energy efficiency resources from participating in its markets.
On December 1, FERC granted AEE’s petition in part, affirming that FERC has exclusive jurisdiction over all energy efficiency resource participation in wholesale energy markets, because those resources directly affect wholesale electricity rates. The decision preserves the ability of energy efficiency resources to participate in wholesale markets on equal footing with other resources, allowing suppliers of such resources to remain in the business. Restrictions on, or the elimination of, energy efficiency resources’ ability to participate in FERC-jurisdictional wholesale electricity markets has a value of hundreds of millions of dollars.