Department of Energy exceeded its authority by ordering power plant to stay open, OPC filing says
BALTIMORE – The U.S. Department of Energy’s May 31 emergency order to keep the Eddystone power plant near Philadelphia available after its planned retirement exceeded DOE’s authority, the Office of People’s Counsel told the federal agency today.
Each of the entities responsible for ensuring reliability in the region—including the North American Electric Reliability Corporation (NERC) and PJM Interconnection, LLC—determined that the Eddystone units are not needed to address reliability concerns, and so there was no emergency to be addressed and no need to charge ratepayers to keep the plants running, OPC’s filing explained.
“These 50-year-old units have been planned for retirement since 2023 and have hardly been used over the past five years,” Maryland People’s Counsel David S. Lapp said. “While DOE can order plants to stay available in emergency situations, no such emergency justified its order on Eddystone.”
The DOE has authority to require a power plant to stay open where sudden, unexpected circumstances require immediate action—an “emergency,” OPC’s filing explains. Orders can last only 90 days in most situations, the agency has rarely used the authority, and when it has, it has typically been in response to acute crises brought on by severe weather, OPC’s filing explains.
OPC explains that no such circumstances are present with respect to Eddystone. Constellation Energy, which owns the plant, notified PJM of its plan to retire the two 380-megawatt fossil-fuel units at Eddystone on May 31, 2025, because the “continued operation of these [Eddystone] units is expected to be uneconomic,” OPC’s filing explains. In February 2024, PJM told Constellation that deactivating the units would cause “no reliability violations” and that it could retire the units “sooner if desired.”
While PJM has noted “growing” concerns about the adequacy of its resources to maintain reliability, for this summer PJM found a low risk of supply shortages—a level of risk that meets the usual reliability standards. Separately, NERC, which establishes the regulatory framework for maintaining regional reliability, found a “low risk” in PJM of insufficient resources to meet reliability demands this summer.
DOE’s order fails to support a finding that PJM is facing an emergency requiring the continued operation of Eddystone, but rather cites to future non-emergency risks that are insufficient to support its order, OPC argues.
Importantly, a DOE order keeping available power plants that are otherwise scheduled for retirement creates additional cost burdens for customers. DOE’s Eddystone order triggered an accelerated process at PJM to consider how the costs of keeping the plant online will be shared among customers in the PJM region. That cost proposal is now being considered by federal regulators. DOE’s Eddystone order, the filing notes, appears to anticipate future similar orders relating to other power plants retiring in PJM.
“We are concerned that DOE’s Eddystone order marks just the first of more orders to keep power plants running at potentially high costs for customers in the PJM region,” Lapp said. “Utility customers already burdened with escalating rates should not be further burdened with costs for keeping old power plants available when PJM has determined that resources are adequate and reliability risks low.”
Several other consumer advocate offices joined in support of OPC’s filing, including the Delaware Division of the Public Advocate, the Illinois Office of the Attorney General, the Illinois Citizen’s Utility Board, and New Jersey Division of Rate Counsel.
The Maryland Office of People’s Counsel is an independent state agency that represents Maryland’s residential consumers of electric, natural gas, telecommunications, private water and certain transportation matters before the Public Service Commission, federal regulatory agencies and the courts.
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