Rate Regulation Redux

Abstract

In the 1990s, the Federal Energy Regulatory Commission (FERC) stopped treating power generation as a regulated monopoly and supported the development of competitive electricity markets. Competition has encouraged innovation and reduced costs, but the payment system FERC and grid operators developed has struggled to provide low-cost electricity without leaving itself vulnerable to market power abuses. In a payment system based on marginal costs, generators necessary for grid reliability cannot recover their fixed costs unless they charge high prices when supply is scarce. However, because these generators have market power, permitting them to recover their fixed costs leaves energy markets vulnerable to market manipulation. To mitigate market power abuses, every grid operator in the United States has introduced offer caps that limit revenues available in energy markets. Offer caps can prevent some generators from recovering their fixed costs, leading to a “missing money” problem as critical suppliers are forced out of business and potential new entrants cannot cover their start-up costs. Today, growing penetration of renewables is exacerbating the missing money problem. Regulators and grid operators are responding by administratively pricing certain resources and supporting specific units deemed too important to retire. These interventions lead to excess capacity and undermine competitive markets. As a result, current regulatory responses to the missing money problem recreate the inefficiencies that competitive markets were designed to solve, and they do so under questionable legal authority and at the expense of a clean energy grid. Rather than quietly revive cost-of-service rate regulation, this Article argues that FERC should simplify reserve requirements, stop counteracting state clean energy programs, and support the development of competitive markets for services that support grid reliability. Specifically, FERC and grid operators need not administratively reprice resources or force load-serving entities (LSEs), which distribute electricity to consumers, to transact with specific generators. Instead, the Commission should support long-term resource procurement markets that would be built on top of today’s short-term energy markets. Wholesale markets would consist primarily of short-term energy dispatch and balancing markets. They would not be relied on to ensure that revenues are sufficient to maintain resource adequacy.If LSEs were permitted to determine for themselves how to comply with resource procurement requirements, they could balance renewable policies, flexibility needs, and reserve mandates. This approach would maintain reliability while respecting FERC’s jurisdictional limits. Most importantly, it would prevent the Commission from quietly reviving cost-of-service regulation in regions that ostensibly abandoned that market structure decades ago.