The US Supreme Court decision to sharply curtail the power of federal agencies to interpret law governing their work could mean a big change for the battery and energy storge industry.
Industry leaders, including Roger Miksad of Battery Council International, are not commenting for now but insiders said it represents “a big change.”
The judges voted 6-3 on 28 June to overrule a landmark decision from 1984 which had become known as the ‘Chevron doctrine’. That meant if a law was ambiguous and unable to clarify a dispute, a federal agency would have the power to interpret the law, as long as it was reasonable or permissible (both terms used). Lawyers said it has been referenced some 18,000 times by federal courts. The Supreme Court ruling will thus have wide-reaching effects, they say. The judges ruled by forcing courts to pretend that ambiguities are necessarily delegations, “Chevron prevents judges from judging.”
International law firm Dentons said a series of Supreme Court rulings signal an intention to crack down on federal agency authority, including the regulation of energy by the Federal Energy Regulatory Commission (FERC). “These cases together represent a significant blow to federal agency authority, and likely portend a substantial increase in administrative law litigation,” it said in a statement.
The Loper Bright Enterprises v. Raimondo case, in which the court ruled that in cases governed by the Administrative Procedures Act, courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.
Dentons said this could have a significant impact on FERC’s ability to further the government’s clean energy transition effort where statutes are silent or ambiguous as to the treatment of new energy resources. This particularly relates to battery storage, demand response and energy efficiency, it said.
Dentons referred to a case on 2 July, when the court ordered a judicial review by the DC Circuit to reconsider FERC’s decision that a 160MW solar-battery project in Montana could be treated as a “qualifying facility” under the Public Utility Regulatory Policies Act, even though it exceeds that act’s 80MW eligibility limit because the 160MW plant is only capable of injecting 80MW onto the grid.
Wiley, the Washington DC law firm, said the overturning raises many questions, including what weight will be given to an agency’s interpretation in future litigation. “…Loper Bright will not reopen every major environmental law holding or make it impossible for agencies to prevail,” it said in a statement. That and another case have changed the underpinnings of administrative law in important ways, it added.
Nat Keohane, president of the Center for Climate and Energy Solutions, blasted the ruling, calling it an “arrogation of power.” He said: “The lack of humility is breathtaking. For 40 years, the Chevron doctrine has been a bedrock of good governance. It recognises that Congress cannot anticipate every future contingency. It also recognises that courts lack the information and expertise to apply Congressional intent to what are often highly detailed and specialised topics.” Agencies, on the other hand, are staffed with experts, he added.
Jimmy Stewart, VP of sales and marketing at battery manufacturing equipment company Mac Engineering said – in a personal capacity – the ruling “will remove the 40 years of big government forcing the farmers and landowners to give up their land for wind turbines and solar panels that charge non-lead acid batteries.
“It will also remove the all-electric vehicle mandate that was put in place to force the car industry to move away from gas-powered engines and allow them to put their R&D funds into better fuel powered technology such as high-tech combustion. I see this as a win-win for the lead acid business.”
