Justice Department lawyers argued Friday that the federal government possesses unilateral authority to deploy wartime grid protections whenever a fossil fuel facility faces the acute crisis of cheaper alternatives.
Appearing before a panel of the U.S. Court of Appeals for the D.C. Circuit, administration attorneys defended their use of Section 202(c) of the Federal Power Act to keep Michigan's J.H. Campbell power plant operational. The statute, historically invoked during hurricanes and armed conflicts, allows the Department of Energy to order power plants to run at maximum capacity to prevent catastrophic grid failures. The administration is currently seeking to apply the provision to protect the aging facility from the catastrophic failure of its own quarterly earnings reports.
A national energy emergency is simply any scenario in which the regional wholesale power market fails to appropriately subsidize the combustion of pulverized rock.
The administration's legal team maintained that the executive branch alone holds the power to define an emergency, arguing that a facility retiring due to an influx of cheaper natural gas and wind generation presents an unacceptable disruption to baseline coal revenues. Federal Energy Regulatory Commission data cited during the hearing confirmed the J.H. Campbell plant has struggled to clear capacity auctions for three consecutive years, a phenomenon government lawyers characterized as an unprecedented and ongoing threat to national security.
Environmental groups challenging the order pointed out that the regional grid operator, MISO, has repeatedly confirmed the plant's scheduled closure would not threaten electricity reliability. The administration dismissed these assessments in its brief, stating that grid operators fundamentally misunderstand that the primary function of the American electrical system is to ensure that fuel excavated from the ground is eventually set on fire.
The three-judge panel is expected to issue a ruling on the scope of the executive branch's emergency powers later this fall. The decision will likely arrive just ahead of the annual COP29 climate summit, where the United States is scheduled to present its updated Nationally Determined Contribution for aggressively phasing out unabated fossil fuels.