Dover Dixon Horne member Randy Bynum joined 17 other former state public utility commissioners in filing an amicus brief regarding the Environmental Protection Agency’s Clean Power Plan before the Federal Court of Appeals for the DC Circuit. Mr. Bynum served the State of Arkansas as a Commissioner on the Arkansas Public Service Commission from 2003-2007. As the brief summarizes:
Lost in the litigation of EPA’s Power Plan is its permanent and irreversible impact on state regulators and state institutions. The Power Plan traduces state utility regulation, the Federal Power Act, current state institutional arrangements, and the regulatory compact. The expansiveness of the ‘system’ EPA deems regulable under the Power Plan eliminates the authority of state institutions. This includes where to regulate utilities, how to regulate utilities, and when to regulate utilities. All of these state institutional prerogatives, and the attendant exercise of states’ historic police powers, become subordinate to the Power Plan’s requirement that state air regulators, with EPA behind them, control the electric generation mix and the dispatch of that generation mix within any given state. EPA’s use of subcategory performance standards does not mitigate these institutional impacts, as the Power Plan’s subcategory performance standards are the product of a nationwide, system-wide resource planning exercise. Rather, EPA’s Power Plan nullifies the regulatory compact, long held as the basis by which utilities and regulators keep faith, and more important, the electricity flowing. The only historic role left to state utility regulators is to present customers with the bill for the Power Plan’s implementation.