THE FUTURE ENERGY JOBS ACT SHAFT: HOW ILLINOIS’ NEW ZERO EMISSION STANDARD IS ANTICOMPETITIVE, OR, WHY SOME ENVIRONMENTALISTS OPPOSE THE CLEAN POWER PLAN

Annika Kolasa, Esq.†

Abstract The Future Energy Jobs Act, signed into law by Illinois Governor Bruce Rauner on December 7, 2016, once implemented, will create a compliance market to trade nuclear energy zero emission credits (ZECs) in much the same way as renewable energy credits, using the social cost of carbon to measure nuclear energy’s value in reducing greenhouse gas emissions. The problem is threefold: (1) A zero emission standard would create a previously unrecognized revenue stream in the carbon-avoidance attribute of nuclear energy. This would save some nuclear reactors owned by Exelon from the early retirement they had been facing due to fair competition from cheaper wind energy. (2) The Environmental Protection Agency (EPA), in its final Clean Power Plan (CPP) rule, has made clear that existing nuclear generation will not be able to “count” as emission reduction because, technically, no emissions are being reduced through the continued operation of the same plants. New nuclear plants would need to be built or capacity would need to be increased at existing plants in order for this bill to fulfill its purported purpose. (3) The future of the CPP is becoming increasingly uncertain, as President Trump has vowed to rescind it (having recently signed an executive order to start that process) and Scott Pruitt (who as Oklahoma’s Attorney General had sued over the CPP) is now head of the EPA. In the absence of any compelling necessity to ascribe societal value to emissions from nuclear plants, and having done so in a manner that flies in the face of the EPA’s proposed CPP regulations, critics say the Act amounts to a $235 million annual subsidy to Exelon—paid for by its customers. Furthermore, because nuclear energy is federally regulated, health and safety issues are out of the state’s purview—meaning Illinois would be forfeiting control over these

† Annika Kolasa is a 2015 graduate of Vermont Law School, where she also earned a Certificate in Energy Law from the Institute for Energy and the Environment. Many thanks to Kevin Jones, Michael Dworkin, and the rest of the Institute for much of the foundational knowledge underlying this Article.

177 178 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 aspects of its energy production to Nuclear Regulatory Commissioners appointed by the President. Through House Resolution 1146, the Illinois House of Representatives (98th General Assembly) directed state agencies to study the impacts of closing three unprofitable nuclear plants on grid reliability, electric rates, and in-state jobs, but the resulting report is severely distorted in the Future Energy Jobs Act and in Exelon’s promotional materials. Closing the state’s unprofitable nuclear plants could decrease electricity costs over the long run, would not significantly impact electric grid reliability within the State, and would create more jobs over five years than keeping them open, according to the report. Energy policy dictates in-state spending for years to come, and consumers could be on the hook for bad energy investments. Therefore, Illinois should consider the environmental, reliability, and economic impacts of nuclear energy as compared to the alternative of increased renewable generation and non-energy alternatives (such as energy efficiency and demand response) as it continues to develop its energy policy.

TABLE OF CONTENTS I. Introduction ...... 179 II. Background ...... 181 A. Energy Regulation in the United States ...... 181 B. Electricity Generation in Illinois ...... 183 C. Nuclear Regulation in the United States ...... 188 III. The Clean Power Plan Would Encourage Increased Reliance on Nuclear Energy ...... 191 A. Climate Change ...... 191 B. Emissions Trading ...... 191 C. Clean Power Plan ...... 193 IV. The Origins of Illinois’ Zero Emission Standard ...... 197 A. H.R. 1146 Report ...... 197 1. Rate Impacts ...... 198 2. Employment Impacts ...... 201 3. Reliability Impacts...... 202 4. Environmental Impacts ...... 205 5. A Solution Without a Problem ...... 205 B. Legislative History ...... 206 C. Future Energy Jobs Act ...... 208 1. FEJA Supports Increased Development of Renewable Energy, Energy Efficiency, and Demand Response ...... 209 2. Illinois’ Zero Emission Standard Is Not Reasonable in Light of the H.R. 1146 Report ...... 211 V. Health and Environmental Risks of Nuclear Power ...... 214 A. Groundwater Risks ...... 215 B. Spent Fuel Risks ...... 217 C. Generalized Health Risks ...... 218 D. Meltdown Risks ...... 219 No. 1] FUTURE ENERGY JOBS SHAFT 179

E. Security Risks ...... 220 VI. Recommendations ...... 220 A. Future of the Clean Power Plan ...... 220 B. Recommendations for Future Agency Action Under FEJA ...... 223 VII. Conclusion ...... 225 VIII. Appendix ...... 227

I. INTRODUCTION Illinois: abundant pastures, sun-kissed prairies, sixty-three miles of freshwater coastline—and eleven nuclear reactors, more than any other state.1 Though they have provided Illinoisans cheap electricity for decades, a few reactors now face retirement because wind energy is cheaper in comparison. The Clean Power Plan (CPP), America’s first attempt at setting binding carbon dioxide emission restrictions, would promote new nuclear energy as a solution to global warming by putting a price on carbon emissions, creating a market for emission avoidance credits from nuclear energy.2 Such a market could extend the life of Illinois’ nuclear plants by requiring in- and out-of-state utilities to purchase nuclear emission avoidance credits. Presently, though, implementation of the CPP is being held up in the courts.3 And now, under a Trump Administration, its fate has become even more uncertain.4 President Trump has vowed to rescind the Clean Power Plan, and his recent Executive Order on Promoting Energy Independence and Economic Growth directs agency heads to immediately review regulations that may burden domestic energy development.5 The new head of the Environmental Protection Agency (EPA), Scott Pruitt, was the Attorney General of Oklahoma who, along with twenty-six other states, filed the petitions that now has the CPP held up in court.6 On December 7, 2016, Illinois Governor Bruce Rauner signed the Future Energy Jobs Act into law, establishing a zero emission standard for Illinois. Described as “shotgun” legislation, the bill was introduced, amended seven

1. Fact Sheet: Illinois and Nuclear Energy, NUCLEAR ENERGY INST. (2015), http://www.nei.org/ Master-Document-Folder/Backgrounders/Fact-Sheets/Illinois. 2. Clean Power Plan for Existing Power Plants, EPA, https://www.epa.gov/cleanpowerplan/clean- power-plan-existing-power-plants (last visited Mar. 12, 2017). 3. LINDA TSANG & ALEXANDRA M. WYATT, CONG. RESEARCH SERV., R44480, CLEAN POWER PLAN: LEGAL BACKGROUND AND PENDING LITIGATION IN WEST VIRGINIA V. EPA 1 (2017), http://www.ourenergy policy.org/wp-content/uploads/2017/01/R44480.pdf; Michael Biesecker, US Appeals Court Hears Arguments in Clean Power Plan Case, U.S. NEWS (Sept. 27, 2016, 1:46 PM), http://www.usnews.com/news/politics/ articles/2016-09-27/dc-appeals-court-set-to-hear-clean-power-plan-case. 4. Peter Nelson, RFF on the Issues: Assessing Trump’s Promise to Eliminate the Clean Power Plan, RESOURCES FOR FUTURE (Jan. 26, 2017), http://www.rff.org/blog/2017/rff-issues-assessing-trump-s-promise- eliminate-clean-power-plan. 5. Press Release, The White House, Presidential Executive Order on Promoting Energy Independence and Economic Growth (Mar. 28, 2017) [hereinafter Trump Executive Order], https://www.whitehouse.gov/the- press-office/2017/03/28/presidential-executive-order-promoting-energy-independence-and-economi-1. 6. Id.; TSANG & WYATT, supra note 3, at 10; Bobby Magill, 4 Critical Energy Issues to Watch in 2017, SCI. AM. (Dec. 29, 2016), https://www.scientificamerican.com/article/4-critical-energy-issues-to-watch-in- 2017. 180 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 times, and passed all within forty-eight hours at the end of the legislative veto session.7 It does have many progressive policies to support renewable energy generation, efficiency, and demand response. However, at the core of the Act is the valuation of nuclear energy generation for its environmental attribute of emitting no carbon dioxide. The Democratic Legislature and Republican Governor came together to pass this bill despite the lack of corresponding federal regulation. If the Clean Power Plan is upheld, Illinois’ new zero emission standard would not even comply with the proposed EPA regulations because the category of eligible carbon-free sources is too broad. Passage of the Future Energy Jobs Act follows on the heels of a similar zero emission standard in New York, which Exelon also supported. Exelon’s executive vice president of governmental and regulatory affairs and public policy, Joe Dominguez, told E&E News that discussions are already going on in Ohio, Pennsylvania, and New Jersey regarding legislation to preserve plants—despite none of those states having nuclear plants operating in the red.8 Energy policy is important because energy investments serve a large amount of people and last for decades. Nuclear energy, in particular, is centered on expensive plants that take years to build. While the CPP is stayed pending judicial review, the Illinois General Assembly should take the opportunity to examine its new legislation, as the decisions made this session could lock residential consumers into unnecessarily high electricity rates for decades to come. While waiting for the Supreme Court to rule on the Clean Power Plan and the Trump Administration to implement its policy proposals, environmentalists may find it curious that Illinois’ new energy policy promotes nuclear energy alongside renewables as environmentally friendly. The Future Energy Jobs Act, like the CPP, regulates CO2 emissions and includes no valuation for the environmental issues associated with nuclear power generation—a selective, rather than comprehensive, valuation of externalities that benefits the nuclear industry.9 Valuing carbon emissions already makes fossil fuels more expensive, and nuclear energy cheaper in comparison, but zero emission standards create an entirely new source of value for nuclear energy. Although nuclear power plants emit almost no carbon dioxide during their lifecycle (unlike those for coal, oil, and natural gas),10 nuclear energy has its own environmental problems.11 And these problems have yet to be addressed. As

7. Kari Lydersen, Illinois Energy Bill: After Race to the Finish, What Does It All Mean?, MIDWEST ENERGY NEWS (Dec. 8, 2016), http://midwestenergynews.com/2016/12/08/illinois-energy-bill-after-race-to- the-finish-what-does-it-all-mean/. 8. Jeffrey Tomich, Industry Sees “Snowball Effect” in N.Y., Ill. Policy Wins, E&E NEWS: ENERGYWIRE (Feb. 9, 2017), http://www.eenews.net/stories/1060049775. 9. Luke Brothers, An Orwellian View of Nuclear Energy: War Is Peace, Freedom Is Slavery, and Nuclear Energy Is Green, NUCLEAR AGE PEACE FOUND. (Apr. 5, 2005), https://www.wagingpeace.org/an- orwellian-view-of-nuclear-energy-war-is-peace-freedom-is-slavery-and-nuclear-energy-is-green/. 10. Greenhouse Gas Emissions Avoided Through Use of Nuclear Energy, WORLD NUCLEAR ASS’N, http://www.world-nuclear.org/nuclear-basics/greenhouse-gas-emissions-avoided.aspx (last visited Mar. 12, 2017). 11. See, e.g., Dean Kyne & Bob Bolin, Emerging Environmental Justice Issues in Nuclear Power and Radioactive Contamination, 13 INT’L J. ENVIRON. RES. & PUB. HEALTH 700 (describing risk of radiation No. 1] FUTURE ENERGY JOBS SHAFT 181

America marches boldly towards a “clean” energy future, policymakers may be putting the environment, the groundwater, and the people at risk by encouraging continued and increased reliance on nuclear energy.

II. BACKGROUND

A. Energy Regulation in the United States The energy industry occupies a unique niche in America’s free market. Everyone uses electricity; yet, American consumers have little to no say in policy decisions at the state or federal level. Customers see a number on a bill, and they pay it. Some progress has been made: for the past fifteen years Illinoisans have had the power to vote with their dollars by changing residential electricity suppliers.12 Even so, public policy can position specific industries to be winners and losers in the energy marketplace, thus limiting the choices available to consumers and, by extension, their ability to affect policy. For public infrastructure, a free market does not quite work, as economies of scale mean it is cheaper for everyone and less wasteful to have one or two large companies shouldering major investments.13 In the early days of electricity, mazes of power lines from an array of suppliers choked American cities. In 1907, Samuel Insull consolidated twenty different companies to create Commonwealth Edison, which, like most other utilities, has long been a practical monopoly in its service territory.14 The Public Utility Holding Company Act of 1935 created some vertically integrated utilities owning both the generation and transmission components, while giving the federal government authority over transmission (and wholesale sales of power).15 States, however, retained jurisdiction over distribution rates and siting for generation and transmission.16 Now, independent systems operators (ISOs) or contamination by nuclear power plants); Milton Kazmeyer, Two Environmental Problems of Nuclear Power for Generating Electricity, SCIENCING, http://sciencing.com/two-environmental-problems-nuclear-power- generating-electricity-19948.html (last visited Mar. 12, 2017) (describing environmental dangers of nuclear power); Groundwater Contamination (Tritium) at Nuclear Plants, U.S. NUCLEAR REG. COMM’N, https://www.nrc.gov/reactors/operating/ops-experience/grndwtr-contam-tritium.html (last updated July 13, 2016) (identifying instances of groundwater contamination by nuclear power plants). 12. Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 61 Fed. Reg. 21,540 (May 10, 1996) [hereinafter Open Access Order] (codified at 18 C.F.R. pts. 35, 385); Retail Electric Competition Act of 2006, Ill. Pub. Act 94-1095 (H.B. 4977) (2007) (codified as amended at 220 ILL. COMP. STAT. 5/20 (2016)); Illinois Restructuring Active, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/ electricity/policies/restructuring/illinois.html (last updated Sept. 2009). 13. But see MATTHEW H. BROWN & RICHARD P. SEDANO, NAT’L COUNCIL ON ELEC. POL’Y, ELECTRICAL TRANSMISSION: A PRIMER 1, 3 (June 2004), https://energy.gov/sites/prod/files/oeprod/Documents andMedia/primer.pdf (explaining how municipal utilities are guaranteed federal backing for bonds to fund infrastructure investment). The low profit margin for services often means that existing companies with the capital to serve larger areas have more to gain than municipal utilities from infrastructure investments. 14. Id.; Public vs. Private Power: From FDR to Today, FRONTLINE, http://www.pbs.org/wgbh/pages/ frontline/shows/blackout/regulation/timeline.html (last visited Feb. 19, 2017). 15. Pub. L. No. 74-333, 49 Stat. 803; see also FRONTLINE, supra note 14 (providing history and overview of the Public Utility Holding Company Act of 1935). 16. How Regulations Evolved, PENN ST.: ENERGY INDUSTRY APPLICATIONS OF GIS, https://www.e- education.psu.edu/geog469/node/210 (last visited Feb. 19, 2017). 182 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 regional transmission operators (RTOs) (which are region-based and often multi-state) own the transmission lines for each service territory.17 The market has also opened up state by state for retail consumers to choose alternative electric suppliers, which are guaranteed equal tariffs through the transmission infrastructure.18 Illinois has portions of its electricity grid on two transmission organizations—the majority of the state is on the Midcontinent Independent System Operator (MISO), and the Chicago area is on the PJM Interconnection, as shown in Figure 1 below.

Figure 1. Regional Transmission Organizations with Territory in Illinois19

The goal of utility ratemaking is to offset the monopoly power inherent in public infrastructure by setting prices in a way that mimics a competitive free market, with an allowance for the influence of public policy.20 State utility commissions set rates: they are limited on the low end by the Fifth Amendment’s Taking Clause (which entitles utilities to due process), and on the high end by the requirements that a utility’s investment be useful, prudent, just, and reasonable.21 The basic formula to determine the price that utilities can charge is R = O + B(r), where the rate level (R) is equal to the operating costs (O), such as administrative expenses and taxes, plus the investors’ allowed rate of return (r) multiplied by the rate base (B), which includes the cost of the plant and equipment.22 Since state utility commissions fix the allowable rate of return, a utility’s best way of increasing its own income is to increase the rate base. In

17. NAT’L RES. DEF. COUNCIL, REGIONAL TRANSMISSION ORGANIZATIONS: RECOMMENDATIONS FOR THE WEST 1–2 (Apr. 2016), https://www.nrdc.org/sites/default/files/regional-transmission-organizations-west- ib.pdf. 18. Open Access Order, supra note 12. 19. Regional Transmission Organizations (RTO)/Independent System Operators, FED. ENERGY REG. COMM’N, https://www.ferc.gov/industries/electric/indus-act/rto.asp (last visited Feb. 14, 2017). 20. Jim Clarkson, Public Utility Ratemaking 101 (The Problems of Rate Base, Cost Passthrough), MASTERRESOURCE (Mar. 24, 2016), https://www.masterresource.org/public-utility-regulation/public-utility- ratemaking-101/. 21. JOSEPH P. TOMAIN & RICHARD D. CUDAHY, ENERGY LAW IN A NUTSHELL 130–36 (2004). 22. Id. at 130. No. 1] FUTURE ENERGY JOBS SHAFT 183 other words, build more expensive plants. Enter the capital attraction function: utilities must be profitable enough to attract investment from private capital.23 However, the utility’s investment must be reasonable. In 1945, the Supreme Court held that due process cannot be applied to restore values lost by operation of economic forces.24 In Market Street Railway Co. v. Railroad Commission, a San Francisco railway company had been running a deteriorating trolley system against a competing municipal line.25 The company could not sustain itself off its $0.05 fare and did not even try to make repairs.26 It raised the fare to $0.07, but the Railroad Commission reduced the fare to $0.06.27 By the time the case reached the Supreme Court, the streetcars had been sold to the City of San Francisco, but there was still a question of whether customers deserved their pennies back.28 The Court looked at 1944’s Federal Power Commission v. Hope Natural Gas Co., which stated that a return on investment “should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital” and to “compensate its investors for the risks assumed.”29 In Hope Natural Gas Co., the Court had tempered the profit of a successful industry. But, in Market Street Railway Co., Judge Jackson noted that “if there were no public regulation at all, [the Railway Company] would be a particularly ailing unit of a generally sick industry.”30 The Court then held that those same considerations: [O]bviously are inapplicable to a company whose financial integrity already is hopelessly undermined, which could not attract capital on any possible rate, and where investors recognize as lost a part of what they have put in. . . . [R]egulation does not assure that the regulated business make a profit.31

B. Electricity Generation in Illinois In Illinois, the Illinois Power Agency, an independent agency, develops long-term plans, administers energy programs, and runs the procurement process for residential and small commercial customers of ComEd and Ameren.32 Electricity rates and siting are regulated by the Illinois Commerce Commission (ICC), a five-member board appointed by the Governor and confirmed by the State Senate for five-year terms, with no more than three

23. Id. 24. Market St. Ry. Co. v. R.R. Comm’n, 324 U.S. 548, 567–68 (1945) (“The due process clause has been applied to prevent governmental destruction of existing economic values. It has not and cannot be applied to insure values or to restore values that have been lost by the operation of economic forces.”). 25. Id. at 560–67. 26. Id. at 563. 27. Id. at 557. Technically, that rate never went into effect due to a delay from the Commission and a stay from the Court, and the city maintained the $0.07 rate after it bought the cars. Id. 28. Id. at 553. 29. Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 603, 605 (1944). 30. Market St. Ry. Co., 324 U.S. at 548, 554. 31. Id. at 565. 32. Welcome to the Illinois Power Agency, ILL. POWER AGENCY, https://www.illinois.gov/sites/ipa/ Pages/default.aspx (last visited Mar. 1, 2017). 184 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 commissioners belonging to the same party.33 Brien Sheahan, former Illinois Republican Party General Counsel and University of Illinois graduate, was the chairman throughout the years discussed in this Article.34 Governor Rauner nominated Sadzi Martha Oliva to be the next ICC commissioner, and she has been active in the role since January 2017.35 With a J.D. from Loyola University Chicago School of Law and a B.A. from DePaul University, she has previously served as the ethics officer for the Illinois Department of Financial and Professional Regulation and has chaired the Illinois Governor’s Office Administrative Hearings Review Committee.36 Energy is measured in two ways: In megawatts (MW) for capacity, i.e., the amount of energy that a plant is capable of producing at any given moment; and in megawatt-hours (MWh) for the amount of energy over time that a plant produces. Although it is important for a service territory to have enough capacity, this capacity must also be flexible so it can increase or decrease with demand and not overload transmission lines. Electricity generation in Illinois comprises primarily coal and nuclear energy, but wind is rapidly increasing its share of total generation, from less than 3,000,000 MWh in 2009 to more than 10,000,000 MWh in 2014 (Table 1).37 Total wind energy capacity has increased from around 1,500 MW in 2009 to over 3,500 MW in 2014 (Table 2). In terms of generating capacity, natural gas is also a major player, but some of that capacity goes unused by design—it is available at times of high demand so everyone still has power.

Table 1. Electric Power Industry Generation by Primary Source—Illinois38

2009 2010 2011 2012 2013 2014 Total 193,864,357 201,351,872 199,499,728 197,565,363 203,004,919 202,143,878 Coal 89,966,860 93,611,365 90,013,325 80,826,778 87,927,139 87,282,390 Hydroelectric 136,380 118,543 140,462 111,208 120,295 132,298 Natural gas 4,494,720 5,723,733 5,955,800 11,188,975 6,827,686 5,465,425 Nuclear 95,473,920 96,189,587 95,823,196 96,401,309 97,131,436 97,857,900 Other 61,820 300,095 298,862 299,461 284,645 281,632 Other biomass 709,743 670,260 637,580 615,193 607,986 566,372 Other gas 88,374 160,645 318,549 293,590 355,950 338,093 Petroleum 112,531 109,744 84,240 71,382 72,432 86,756 Solar 16 14,145 14,062 30,657 52,120 50,117 Wind 2,819,532 4,453,634 6,213,132 7,726,810 9,625,229 10,082,894

33. About the ICC, ILL. COM. COMM’N, https://www.icc.illinois.gov/about.aspx (last visited Mar. 1, 2017). 34. Brien J. Sheahan, Chairman, ILL. COM. COMM’N, https://www.icc.illinois.gov/cc/Sheahan.aspx (last visited Mar. 1, 2017). 35. Press Release, Ill. Com. Comm’n, Governor Rauner Appoints Sadzi Martha Oliva to a Five-Year Term as ICC Commissioner (Jan. 25, 2017), https://www.icc.illinois.gov/downloads/public/Governor%20 Rauner%20Appoints%20Sadzi%20Martha%20Oliva.pdf. Pending Illinois Senate approval. Id. 36. Id. 37. Illinois Electricity Profile 2014, U.S. ENERGY INFO. ADMIN. (Mar. 24, 2016), http://www.eia.gov/ electricity/state/archive/2014/Illinois/. 38. Id. tbl.5. All figures are in MWh. Compared to other forms of generation, wind in Illinois has increased greatly since 2009. No. 1] FUTURE ENERGY JOBS SHAFT 185

Table 2. Electric Power Industry Capacity by Primary Source—Illinois39

2009 2010 2011 2012 2013 2014 Total 44,033 44,127 43,830 45,146 44,950 44,727 Coal 15,852 15,551 14,857 15,574 15,498 15,255 Hydroelectric 34 34 34 34 34 34 Natural gas 13,806 13,771 13,578 13,530 13,355 13,387 Nuclear 11,441 11,441 11,486 11,541 11,578 11,564 Other 20 20 0 5 0 3 Other biomass 139 123 124 132 127 125 Other gas 47 125 118 118 118 118 Petroleum 1,090 1,106 887 663 683 682 Solar 9 9 9 29 32 32 Wind 1,596 1,946 2,737 3,520 3,525 3,527

Nuclear is by far the most efficient fuel-based energy source: one uranium pellet the size of a pinky tip holds as much energy as a ton of coal.40 Nuclear energy has provided reliable baseload capacity to Illinois since Dresden Unit 1 in Grundy County—the nation’s first full-scale privately financed nuclear power plant—became operational in 1960.41 With the University of Chicago responsible for pivotal nuclear developments including the atomic bomb,42 it is no small wonder Illinois became a nuclear generation center. Producing around 100,000,000 MWh annually, nuclear reactors account for nearly half the generation capacity in Illinois and power the five highest-capacity plants: Braidwood, Byron, Lasalle, Quad Cities, and Dresden (see Table A-1 in the Appendix).43 Illinois has such an abundance of electricity that it exports about 20% of it every year.44 Nuclear energy is also incredibly reliable, as plants only shut down for refueling every eighteen to twenty-four months.45 Illinois’ operating reactors boasted a 96.2% capacity factor46 from 2011 to 2014.47 This is why, despite the low capacity of nuclear compared to other sources (Tables 1 and 2, above),

39. Id. tbl.4. All figures are in MW. 40. Nuclear: Education, EXELON, http://www.exeloncorp.com/companies/exelon-generation/nuclear/ Pages/education.aspx (last visited Feb. 19, 2017). 41. Locations: Dresden Generating Station, EXELON, http://www.exeloncorp.com/locations/power- plants/dresden-generating-station (last visited Feb. 19, 2017). 42. Steve Koppes, How the First Chain Reaction Changed Science, U. CHI., http://www.uchicago.edu/ features/how_the_first_chain_reaction_changed_science/ (last visited Feb. 19, 2017). 43. U.S. ENERGY INFO. ADMIN., supra note 37. 44. ILL. COM. COMM’N ET AL., POTENTIAL NUCLEAR POWER PLANT CLOSINGS IN ILLINOIS: IMPACTS AND MARKET-BASED SOLUTIONS 5, 27 (Jan. 5, 2015) [hereinafter H.R. 1146 REPORT], http://www.ilga.gov/ reports/special/Report_Potential%20Nuclear%20Power%20Plant%20Closings%20in%20IL.pdf. 45. Nuclear: Reliability, EXELON, http://www.exeloncorp.com/companies/exelon-generation/nuclear/ Pages/reliability.aspx (last visited Feb. 14, 2017). 46. “Capacity factor . . . is electricity produced compared to the maximum that could be produced.” NUCLEAR ENERGY INST., supra note 1. 47. NUCLEAR ENERGY INST., THE IMPACT OF EXELON’S NUCLEAR FLEET ON THE ILLINOIS ECONOMY (Sept. 2014), http://www.nuclearmatters.com/resources/reports-studies/document/Impact-of-Exelons-Nuclear- Fleet-on-the-Illinois-Economy-Final-9-29-14.pdf. The Illinois Department of Commerce and Economic Opportunity found that this report overstated the value and economic impact of nuclear generation, and that it made aggressive assumptions, including that the Quad Cities plant would operate without a license and that no decommissioning funds would be spent in the next fifteen years. H.R. 1146 REPORT, supra note 44, at 149–50. 186 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 its total share of generation is much higher.48 While this means nuclear energy provides a cheap, constant, and carbon-free source of energy, the downside of such a large-scale and intense energy source is that it stays on—production cannot be ramped down incrementally during periods of low demand like it can with natural gas. Nuclear power is a boon to local economies. Illinois’ nuclear facilities employ over 5,900 people in highly skilled positions and pay over $290 million in state and local taxes.49 Exelon, the largest utility in the United States, owns all six of Illinois’ nuclear plants and maintains its headquarters in downtown Chicago.50 In Rock Island County, home to the Quad Cities plant, Exelon pays $7.7 million annually in taxes, $4.4 million of which goes to the school district.51 A March 2014 News-Gazette article outlined the impact of the Clinton plant on its community: During the last few decades, tax revenues from Exelon helped build a new courthouse for DeWitt County, a modern library in Clinton and new elementary and junior high schools in town. . . . . Jeff Holmes, superintendent of the Clinton school district for the last 12 years, said if federal dollars aren’t counted, Exelon provides about 53 percent of local property taxes for the district.52 In 2016, Exelon announced plans to close the 1,098-MW Clinton single unit reactor and both units at the Quad Cities plant.53 Combined, the two facilities had cost the company $800 million over seven years.54 The Byron generating station is also unprofitable, but Exelon has yet to officially announce its closure.55 Addressing rumors of a plant closure, Superintendent Holmes said, “We know that the state of Illinois will not make that up in terms of general state aid . . . . The impact is significant.”56 Energy is bought both years ahead, at capacity auctions, which reserve MW of generation to meet the expected demand, and in real time when it is needed.57 Nuclear plants historically were good candidates for capacity

48. H.R. 1146 REPORT, supra note 44, at 24. 49. NUCLEAR ENERGY INST., supra note 1. 50. Our Locations, EXELON, http://www.exeloncorp.com/locations?region=Illinois (last visited Feb. 19, 2017). 51. Amy Trimble, Letter: State Should Support Exelon, Nuclear Energy, ST. J.-REG. (Sept. 1, 2016, 8:03 PM), http://www.sj-r.com/opinion/20160901/letter-state-should-support-exelon-nuclear-energy. 52. Don Dodson, For Clinton Residents, Nuclear Plant’s “Impact Is Significant”, NEWS-GAZETTE (Mar. 30, 2014, 6:00 AM), http://www.news-gazette.com/news/local/2014-03-30/clinton-residents-nuclear- plants-impact-significant.html. 53. Kennedy Maize, Exelon, America’s Leading Nuclear Generator, Keeps the Faith on Nukes, POWER (July 25, 2016), http://www.powermag.com/exelon-americas-leading-nuclear-generator-keeps-the-faith-on- nukes/. 54. Id. 55. Cynthia Dizikes, Exelon Defers Decision to Close 2 of Its Illinois Nuclear Plants, CHI. TRIB. (Sept. 10, 2015, 4:11 PM), http://www.chicagotribune.com/news/local/breaking/ct-exelon-defers-nuclear-closures- met-20150910-story.html. 56. Dodson, supra note 52. 57. ROBERT KING ET AL., THE DEBATE ABOUT DEMAND RESPONSE AND WHOLESALE ELECTRICITY MARKETS 1, 7 (Oct. 2015), https://eepartnership.org/wp-content/uploads/2015/10/The-Debate-About-Demand- Response-Final-10.28.15.pdf (“Many wholesale markets have also evolved a separate ‘capacity market,’ No. 1] FUTURE ENERGY JOBS SHAFT 187 auctions, but both the Byron and Quad Cities plants were priced out in the 2017–2018 auction for the PJM grid.58 The MISO grid, where the Clinton plant bids, offers one-fifth of the PJM price due to abundant wind.59 Additionally, since nuclear reactors cannot be ramped down, some plants now have to pay the grid operator to unload energy during periods of excess generation.60 In both of Illinois’ RTOs, nuclear power is losing its cost effectiveness. Illinois is well suited for wind generation due to its vast plains.61 As the Seventh Circuit Court of Appeals noted in 2013 when approving a tariff to fund new transmission lines to transport wind energy, “The use of wind power in lieu of power generated by burning fossil fuels reduces both the nation’s dependence on foreign oil and emissions of carbon dioxide. And its cost is falling as technology improves.”62 In the U.S. Energy Information Administration’s (EIA) projections of the levelized cost of electricity (LCOE), wind energy had a total system LCOE of $58/MWh63 for plants entering service in 2022 (see Table A-2 in the Appendix).64 Advanced nuclear energy was almost twice as expensive, at $99.7/MWh.65 Solar was around $75/MWh and natural gas around $55/MWh, but the cost associated with natural gas is largely in maintaining a supply of it, and gas prices on the market have a tendency to fluctuate.66 In calculating the difference between LCOE and levelized avoided costs of electricity (LACE)—a number that indicates how much it costs to build each type of plant compared to the cost of other energy sources—the EIA estimated wind at $1.5/MWh, solar at $8.5/MWh, and nuclear at −$38.3/MWh (see Table A-3 in the Appendix).67 When LACE is higher than LCOE, this indicates the technology is economical to build.68 The differences in these numbers show that onshore wind turbines are much cheaper to build than nuclear reactors. The negative value of nuclear shows that the cost of building a nuclear plant exceeds its value to the system by $38 per MWh.69 through which system operators hold an auction to acquire the commitment of generators to make a certain level of power capacity available at designated future times.”). 58. H.R. 1146 REPORT, supra note 44. 59. Herman K. Trabish, Wind Generation Hits Records, Mitigates Price Spikes During Cold Snap, UTIL. DIVE (Jan. 13, 2015), http://www.utilitydive.com/news/wind-generation-hits-records-mitigates-price- spikes-during-cold-snap/351057/. 60. Julie Wernau & Alex Richards, As Exelon Threatens to Shut Nuclear Plants, Illinois Town Fears Fallout, CHI. TRIB. (Mar. 9, 2014), http://articles.chicagotribune.com/2014-03-09/business/ct-exelon-closing- nuclear-plants-0308-biz-20140309_1_quad-cities-plant-byron-plant-exelon. 61. Kevin Borgia, From the Windy Plains to the Windy City, PEORIA MAGS.: INTERBUSINESS ISSUES (Oct. 2016), http://www.peoriamagazines.com/ibi/2016/oct/windy-plains-windy-city. 62. Ill. Com. Comm’n, v. Fed. Energy Reg. Comm’n, 721 F.3d 764, 775 (7th Cir. 2013). 63. A megawatt-hour is the amount of energy it takes to power an apartment building for an hour. 64. U.S. ENERGY INFO. ADMIN., LEVELIZED COST AND LEVELIZED AVOIDED COST OF NEW GENERATION RESOURCES IN THE ANNUAL ENERGY OUTLOOK 2016, at 6 tbl.1a (Aug. 2016), http://www.eia.gov/outlooks/aeo/pdf/electricity_generation.pdf. These estimates do not take the Clean Power Plan into account. 65. Id. 66. Id. 67. Id. at 10 tbl.4a. 68. Id. at 4. 69. Id. at 5. 188 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Experts concur that the price of nuclear energy is prohibitive. Environmentalist and energy expert Amory Lovins notes that although increased reliance on nuclear generation would lower our use of coal, it is more expensive than renewable generation.70 “[I]f you buy more nuclear plants,” he said, “you’re going to get about two to ten times less climate solution per dollar, and you’ll get it about twenty to forty times slower, than if you buy instead the cheaper, faster stuff.”71 Compared to the $71 billion of private capital invested in renewables other than large hydroelectric plants in 2007, “Wall Street is not putting a penny of private capital into the [nuclear] industry,” despite an abundance of subsidies.72

C. Nuclear Regulation in the United States Unlike other forms of energy, nuclear generation is regulated federally. In 1946, after President Truman had shown the world the catastrophic power of the atomic bomb, Congress enacted the Atomic Energy Act, creating the Atomic Energy Commission (AEC) to regulate the peaceful use of nuclear material.73 Seven years later, President Eisenhower in his “Atoms for Peace” speech signaled the move towards nuclear energy development, which an amended Atomic Energy Act in 1954 made possible.74 The Price-Anderson Nuclear Industries Indemnity Act of 1957 removed a substantial barrier to private sector participation in the nuclear industry by ensuring availability of about $10 billion in omnibus coverage from pooled insurance to compensate members of the public who incur damages from nuclear or radiological incidents.75 Congress originally intended the Act to be an interim measure, as it had hoped the insurance industry would eventually step up.76 Wall Street was not interested, however, as the liability was (and is) too great.77 For example, in the absence of a national repository, every reactor has spent fuel stored on site—if the water level ever drops in just one of these pools, the resulting fire could lead to over $56 billion in damages—multiple times the federal limit.78 Under the Act’s 2005 revision, reactor licensees are

70. Interview by Amy Goodman with Amory Lovins, Chief Scientist, Rocky Mountain Institute, Amory Lovins: Expanding Nuclear Power Makes Climate Change Worse, DEMOCRACY NOW! (July 16, 2008), https://www.democracynow.org/2008/7/16/amory_lovins_expanding_nuclear_power_makes. 71. Id. The cheaper, faster stuff mentioned include: renewables, efficiency, and cogeneration on recovered waste heat. Id. 72. Id. 73. JAY M. GUTIERREZ & ALEX S. POLONSKY, FUNDAMENTALS OF NUCLEAR REGULATION IN THE UNITED STATES 3–7 (2d ed. 2007). 74. Id. at 3. The AEC maintained responsibility for the military application of nuclear material, including weapons development. Id. at 6. 75. CTR. FOR NUCLEAR SCI. & TECH. INFO., THE PRICE-ANDERSON ACT 1–2 (Nov. 2005), http://www. ans.org/pi/ps/docs/ps54-bi.pdf. Nuclear energy operators (and suppliers, construction companies, etc.) enjoy federal limitations on liability in the case of an accident. Id. 76. Diane Curran & Scott Denman, Presentation at Vermont Law School Class: America’s Energy Crisis (July 25, 2014). 77. Id. 78. Id. In 2007 there were over 53,000 metric tons of irradiated nuclear fuel stored at reactor sites in the U.S. GUTIERREZ & POLONSKY, supra note 73, at 215. France and Japan reprocess their spent fuel. Id. at 216. No. 1] FUTURE ENERGY JOBS SHAFT 189 required to purchase the maximum amount of insurance available on the private market (about $300 million) and contribute up to $95.8 million per reactor to a secondary insurance pool (which is not paid in until required).79 In the event of a nuclear incident exceeding $10 billion in damages, Congress would have to appropriate additional funds in order for claimants to be compensated.80 Because it limits liability and drives down the cost of borrowing for nuclear companies, the Price-Anderson Act is an entrenched federal nuclear subsidy.81 The 1960s brought an increase in environmental regulation, including the National Environmental Policy Act, which together with the rising cost of capital and fuel has made nuclear plants less economical than anticipated.82 The industry was already in decline when, in 1979, the Three Mile Island Unit 2 reactor in Pennsylvania malfunctioned, leading to a severe core meltdown.83 Although the small radioactive releases had no effect on plant workers or the public, the incident put an economic chill on the burgeoning nuclear industry.84 Increased regulatory oversight after the accident contributed to increased environmental assurances but also increased costs.85 Production tax credits and loan guarantees in the new millennium led to a nuclear renaissance in the early 2000s, which seemed to be collapsing a decade later as actual costs exceeded prior estimates.86 Nuclear energy remains federally regulated, now by the Nuclear Regulatory Commission (NRC), an independent regulatory agency.87 Instead of reporting to the President, the NRC is overseen by a variety of congressional committees depending on the nature of the activity.88 As there are few opportunities to develop nuclear expertise outside the industry, commissioners often seem to have a revolving door with the industry they regulate.89 Although the purpose of designating a federal agency as independent is to insulate it from the political process, some experts note that the agency is “pulled by many competing political influences.”90 The NRC’s constitutional authority stems from national security and interstate commerce.91 Though the NRC does enter into “Memoranda of

79. CTR. FOR NUCLEAR SCI. & TECH. INFO., supra note 75, at 1. The secondary pool, underwritten by American Nuclear Insurers, spreads the risk: one-third to domestic and two-thirds to international insurers. Id. at 2. 80. Id. 81. Curran & Denman, supra note 76. 82. INT’L ATOMIC ENERGY AGENCY, NUCLEAR TECHNOLOGY REVIEW 2004, at 46–47 (Aug. 2004), https://www.iaea.org/About/Policy/GC/GC48/Documents/gc48inf-4_new.pdf. 83. Id. at 47; Three Mile Island Accident, BACKGROUNDER (U.S. Nuclear Reg. Comm’n Office Pub. Affairs), Feb. 2013, https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.pdf. 84. Duquesne Light Co. v. Barasch, 488 U.S. 299, 299 (1989). 85. Three Mile Island Accident, supra note 83, at 3. Three Mile Island is currently owned by Exelon. H.R. 1146 REPORT, supra note 44, at 63. 86. Curran & Denman, supra note 76. 87. GUTIERREZ & POLONSKY, supra note 73, at 7. 88. Office of Congressional Affairs, U.S. NUCLEAR REG. COMM’N, https://www.nrc.gov/about- nrc/organization/ocafuncdesc.html (last visited Feb. 19, 2017). 89. Curran & Denman, supra note 76. 90. GUTIERREZ & POLONSKY, supra note 73, at 8. 91. Id. at 3. 190 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Understanding” with states to further define each party’s role,92 federal regulations preempt state regulation when it relates to “the safety and ‘nuclear’ aspects of energy generation.”93 The only way for states to participate in nuclear safety regulation is to ask for a hearing from the NRC, which is hard to obtain, and at which only a fraction of the desired issues are raised.94 Additionally, the highly technical nature of nuclear energy tends to preclude public participation in the matter.95 Section 274 of the Atomic Energy Act allows the NRC to cede authority over source, byproduct, and small amounts of nuclear materials, but not the radiological and national security aspects of construction.96 In 2013, a federal appeals court ruled that Vermont could not pass legislation closing its nuclear plant because it was preempted by the federal government’s existing nuclear safety regulations.97 However, states are allowed to regulate nuclear energy for economic reasons.98 The Supreme Court in 1983 upheld California’s moratorium against construction of new plants until the cost of disposing of high-level radioactive waste could be determined.99 The aftermath of the Three Mile Island incident in Pennsylvania provides another example of state legislatures limiting the nuclear industry for economic reasons. Duquesne Power and Light, a Pennsylvania utilities company, was part of a 1967 joint venture to open seven new nuclear plants, but in 1980, after substantial preliminary construction costs were invested, construction on four of these plants was cancelled.100 The company hoped to make back the cost of its investment through rate increases, but the Pennsylvania State Legislature passed a law prohibiting recovery of costs incurred from building facilities that were not used and useful.101 In 1989, the U.S. Supreme Court ultimately clarified, in Duquesne Light Co., that the public is under no obligation to pay for bad energy investments.102 More importantly, though, the decision highlights the role of state legislatures in asserting this right.103

92. See generally Memoranda of Understanding, U.S. NUCLEAR REG. COMM’N, https://www.nrc.gov/ reading-rm/doc-collections/memo-understanding/ (making available all Memoranda of Understanding) (last visited Feb. 19, 2017). 93. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212 (1983). 94. Curran & Denman, supra note 76. 95. See BENJAMIN K. SOVACOOL ET AL., ENERGY SECURITY, EQUALITY, AND JUSTICE, 121–24 (2015) (“The history of the nuclear industry demonstrates that authoritarian tendencies are unavoidable in energy systems that are large-scale, highly centralized and integrated, capital-intensive, [and] based on the deployment of sophisticated technology . . . .”). 96. GUTIERREZ & POLONSKY, supra note 73, at 194–96. 97. Energy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393, 398 (2d Cir. 2013). 98. Id. at 436. 99. Pac. Gas & Elec. Co., 461 U.S. at 214. 100. Duquesne Light Co. v. Barasch, 488 U.S. 299, 299 (1989). 101. Id. at 303. 102. Id. at 304. 103. Id. No. 1] FUTURE ENERGY JOBS SHAFT 191

III. THE CLEAN POWER PLAN WOULD ENCOURAGE INCREASED RELIANCE ON NUCLEAR ENERGY

A. Climate Change “The harms associated with climate change are serious and well recognized,” according to the Supreme Court.104 Scientific consensus and the “Government’s own objective assessment of the relevant science” concur that global warming could increase sea levels, weather event ferocity, and spread of disease; as well as irreversibly alter ecosystems and reduce snowpack, with the latter having “direct and important economic consequences.”105 Some experts even argue that rising sea levels are flooding farmland across the developing world, causing food prices to rise, and creating the economic instability that is a major factor to the increase of terrorism.106 In directing the EPA to regulate man-made CO2 emissions, the Court cited a National Research Council report that had concluded greenhouse gases were in fact “accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise.”107

B. Emissions Trading Emissions credit trading is most states’ current method of enforcing their CO2 emission reduction goals. The trading compliance system creates a category of commodity—the energy attribute—to be purchased by either utilities or companies looking to lower their carbon footprint.108 Solar, wind, hydropower, biomass, and other resources, depending on the state, are allotted one “renewable attribute” for each MWh of renewable energy produced, and this product, the renewable energy credit (REC), is given a unique renewable identification number (RIN) and can be sold separately from the energy.109 Then, the situation becomes a little more abstract—the utility can no longer call that energy “renewable” if the REC has been sold—the right to call its energy renewable has already been bought by, say, an organic yogurt company, to be printed next to a little windmill on the package.110 Utilities buy or sell RECs on interstate credit tracking systems—in states with renewable portfolio standards (RPS), utilities are required to purchase RECs

104. Massachusetts v. EPA, 549 U.S. 497, 499 (2007). 105. Id. 106. Tim Folger, Rising Seas, NAT’L GEOGRAPHIC (Sept. 2013), http://www.nationalgeographic.com/ magazine/2013/09/rising-seas-coastal-impact-climate-change/; Justin Gillis, Flooding of Coast, Caused by Global Warming, Has Already Begun, N.Y. TIMES (Sept. 3, 2016), https://www.nytimes.com/2016/09/04/ science/flooding-of-coast-caused-by-global-warming-has-already-begun.html. 107. Massachusetts, 549 U.S. at 511 (emphasis added). 108. About GATS, PJM ENV’T INFO. SERV., https://www.pjm-eis.com/getting-started/about-GATS.aspx (last visited Feb. 19, 2017). 109. Robert Wisner, Renewable Identification Numbers (RINs) and Government Biofuels Blending Mandates, AGRIC. MKTG. RES. CTR. (Apr. 2009), http://www.agmrc.org/renewable-energy/biofuels biorefining-general/renewable-identification-numbers-rins-and-government-biofuels-blending-mandates/. 110. The energy would then be characterized as “residual mix”—another way of saying the energy is now indistinguishable from any other on the grid. 192 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 proportionate to a percentage of their retail load.111 If a utility does not want to purchase RECs, it has to pay a penalty, an alternative compliance payment (ACP).112 The price of this payment in each state is what determines the price of its RECs.113 Web-based credit compliance tracking systems are a convenient way to trade energy attributes: they allow credits to be banked for months or years, allow purchasers to support renewable energy from wider geographical areas, and provide the flexibility to sell attributes either with the energy or independently (unbundled).114 They also incentivize energy companies to invest in lower-polluting types of energy. States have developed a variety of different RPSs and some alternative standards that include sources such as energy efficiency, nuclear, clean coal, and natural gas. Illinois already has a standard for clean coal.115 Energy attributes are harder to keep track of than solid commodities. A 2007 Berkeley report prepared for the Department of Energy expressed concerns that most tracking systems were “not set up to track whether or not an individual derived attribute has been sold separately. . . . [F]or all practical purposes the tracking systems cannot verify that all required attributes are in fact present.”116 Consequently, there has been some fraud in tracking systems. “[I]t was so easy to get credits for RINs online, with no supervision for it,” said Philip Rivkin, who is serving a ten-year prison sentence for fraudulently creating and selling sixty million biofuel credits under the renewable fuels program.117 His diesel facility, opened in 2009, never produced any biodiesel.118 Rodney Hailey, a Maryland man sentenced in 2012 for biodiesel fraud, made over $9 million selling thirty-two million credits he said were

111. Renewable Energy Certificates (RECs), U.S. DEP’T ENERGY: GREEN POWER NETWORK, http://apps3.eere.energy.gov/greenpower/markets/certificates.shtml (last visited Feb. 19, 2017); Most States Have Renewable Portfolio Standards, U.S. ENERGY INFO. ADMIN. (Feb. 3, 2012), http://www.eia.gov/ todayinenergy/detail.php?id=4850. What about non-RPS states? Vermont, for example, does not have a renewable portfolio standard. Instead, it has a goal relating to the percentage of generation sited in state. Consequently, Vermont utilities can sell RECs out of state for profit. The Burlington Electric Department, for example, sells solar credits out of state and then purchases less expensive biomass credits so it can continue to market its energy to consumers as partially renewable. See Michael Bielawski, Vermont’s All-Renewable Claims Based on Uneven RECs Market, VT. WATCHDOG (Nov. 28, 2016), http://watchdog.org/ 282645/renewable-energy-credits-created-equal/; Mike Polhamus, Vermont Attorney General Warns Solar Companies to Stop “False Marketing”, BRATTLEBORO REFORMER (Dec. 23, 2015, 2:20 PM), http://www. reformer.com/stories/vermont-attorney-general-warns-solar-companies-to-stop-false-marketing,294722. The Clean Power Plan would eliminate this loophole. 112. FAQs, PJM ENVT’L. INFO. SERV., https://www.pjm-eis.com/getting-started/faq.aspx#gengatsq3 (last visited Feb. 19, 2017). 113. Id. 114. EDWARD A. HOLT & RYAN H. WISER, THE TREATMENT OF RENEWABLE ENERGY CERTIFICATES, EMISSIONS ALLOWANCES, AND GREEN POWER PROGRAMS IN STATE RENEWABLES PORTFOLIO STANDARDS 3 (Apr. 2007), https://emp.lbl.gov/sites/all/files/report-lbnl-62574.pdf. 115. Illinois Enacts Clean Coal Portfolio Standard, POWER (Jan. 14, 2009), http://www.powermag.com/ illinois-enacts-clean-coal-portfolio-standard. 116. HOLT & WISER, supra note 114, at 21. 117. Laurel Brubaker Calkins, Biodiesel Producer Gets 10-Year Prison Sentence for Fraud Scheme, BLOOMBERG (Mar. 7, 2016, 5:30 PM), https://www.bloomberg.com/news/articles/2016-03-07/biodiesel- producer-gets-10-year-prison-sentence-for-fraud-scheme. 118. Id. No. 1] FUTURE ENERGY JOBS SHAFT 193 made from food waste.119 When EPA inspectors, tipped off by neighbors, tried to visit his facility, he told them he had just sold all of his equipment.120 In Indiana, three brothers fraudulently made $145 million over two years re- selling, as renewable, biofuel they purchased from New Jersey, where it had already been stripped of its renewable attributes.121 The more glaring problems have been fixed,122 but there is still some inherent difficulty in keeping track of an abstract commodity.

C. Clean Power Plan Under the Clean Power Plan—America’s first attempt at setting binding CO2 emission requirements for power plants—Illinois’ electric generating units would be required to decrease their CO2 emissions by 42% (from 2012 levels) by 2030.123 “Clean” power may conjure images of solar panels and windmills, but it is a broad category that also includes carbon capture and sequestration; biomass; natural gas combined cycle; and nuclear energy.124 The CPP is currently in limbo. In February 2016, the Supreme Court ruled to halt implementation of the plan while various legal challenges are addressed.125 Moreover, President Trump has promised to eliminate it.126 Today, the EPA regulates carbon dioxide, though this did not arise from its own initiative. In 1970, in order to more effectively address smog in major cities, Congress amended the Clean Air Act to require the newly created EPA to set air quality standards based on current science.127 The Act also requires states to develop and submit plans for existing sources of pollutants whenever the EPA creates a standard for a new source, and requires the EPA to then review the states’ implementation and enforcement of those air quality standards.128 In 2005, the State of Massachusetts and various groups sued the EPA for not regulating motor vehicle emissions, alleging harm to the coastline

119. Ann E. Marimow & Juliet Eilperin, Renewable-Fuels Fraud Cases Expose Weakness in EPA Program, WASH. POST (Apr. 14, 2012), https://www.washingtonpost.com/local/crime/renewable-fuels-fraud- cases-expose-weakness-in-epa-program/2012/04/14/gIQAtGKbHT_story.html. 120. Id. 121. Three Brothers Plead Guilty to $145 Million Biofuels Fraud Scheme in Indiana, U.S. ATT’Y’S OFF. S. DIST. IND. (Apr. 29, 2015), https://www.justice.gov/usao-sdin/pr/three-brothers-plead-guilty-145-million- biofuels-fraud-scheme-indiana-0. 122. Id. 123. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661, 64,824–25 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60); JONATHAN L. RAMSEUR & JAMES E. MCCARTHY, CONG. RESEARCH SERV., R44145, EPA’S CLEAN POWER PLAN: HIGHLIGHTS OF THE FINAL RULE 12 tbl.A-1, 14 tbl.A-2 (2016). 124. CTR. FOR CLIMATE & ENERGY SOLUTIONS, CLEAN ENERGY STANDARDS: STATE AND FEDERAL POLICY OPTIONS AND IMPLICATIONS, at vii (Nov. 2011), https://www.c2es.org/docUploads/Clean-Energy- Standards-State-and-Federal-Policy-Options-and-Implications.pdf. 125. TSANG & WYATT, supra note 3, at 1. Speculation as to its future is addressed in Section VI.A. 126. Nelson, supra note 4; see also Trump Executive Order, supra note 5. 127. Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42 U.S.C. §§ 7401–671 (2012)); see also EPA, THE CLEAN AIR ACT IN A NUTSHELL: HOW IT WORKS (2013), https://www.epa.gov/sites/production/files/2015-05/documents/caa_nutshell.pdf (providing an overview of the Clean Air Amendments of 1970). 128. Clean Air Amendments §§ 108–10, 84 Stat. at 1678–83. 194 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 due to rising sea levels.129 The EPA defended its inaction in the D.C. Circuit Court of Appeals, which had exclusive jurisdiction under the Act, saying the science was not out on whether a decrease in CO2 emissions could affect global warming, and besides, motor vehicle emissions were only one source.130 In 2007, the Supreme Court held that the EPA could not decline to regulate CO2 emissions from new passenger vehicles, making carbon dioxide a “pollutant regulated by the EPA,”131 and triggering a requirement to regulate emissions from stationary sources; in other words, power plants.132 The idea of a cap-and-trade system for regulating emissions has existed for over a decade, but only recently has the idea gained traction for nuclear energy. The 2007 Energy Independence and Security Act, signed into law by President George W. Bush, expanded the cap-and-trade system for renewable fuels, signifying a shift to a market-based approach to energy policy.133 One provision that did not make it in the final bill was a mandate on utilities to acquire 15% of their generation from renewable sources.134 “Nuclear energy produces no greenhouse gases,” stated President Bush as he toured the Browns Ferry nuclear power plant around the time the Senate passed the bill; “If you’re interested in cleaning up the air you ought to be for nuclear power.”135 President Obama, in his 2011 State of the Union address, spoke about a clean energy standard (CES) of 80% by 2035 that would include wind, solar, nuclear, clean coal, and natural gas.136 Senators Jeff Bingaman (D-New Mexico) and Lisa Murkowski (R-Alaska) circulated a white paper on a CES that year, and in 2012, Senator Bingaman introduced the Clean Energy Standard Act.137 The 2012 standard would have required a percentage of each large utility’s sales to be from clean energy sources, increasing from 24% in 2015 to 84% in 2035.138 “Clean” energy here meant wind, solar, geothermal, biomass, landfill gas, municipal solid waste, and nuclear and hydropower placed in service after 1991.139 In an analysis of the Act, the Energy Information Administration found that nuclear generation would increase substantially under the policy—eighty gigawatts by 2035 compared to less

129. Massachusetts v. EPA, 415 F.3d 50, 53 (D.C. Cir. 2005), rev’d, 549 U.S. 497 (2007). 130. Id. 131. Massachusetts, 549 U.S. at 534. 132. See JEREMY M. TARR ET AL., REGULATING CARBON DIOXIDE UNDER SECTION 111(D) OF THE CLEAN AIR ACT: OPTIONS, LIMITS, AND IMPACTS 5–6 (Jan. 2013), https://nicholasinstitute.duke.edu/sites/default/ files/publications/ni_r_13-01.pdf (providing background on greenhouse gas regulations). 133. Fact Sheet: Energy Independence and Security Act of 2007, WHITE HOUSE (Dec. 19, 2007), https://georgewbush-whitehouse.archives.gov/news/releases/2007/12/20071219-1.html. To clarify, renewable fuels are biomass-based: the burning of carbon such as trees or corn that can be regrown. Solar and wind, in contrast, are energy sources that do not require fuel. 134. Steven Mufson, Senate Passes Energy Bill Without House Tax Package, WASH. POST (Dec. 14, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/12/13/AR2007121301847.html. 135. Sholnn Freeman, Senate Passes Energy Bill, WASH. POST (June 22, 2007), http://www.washington post.com/wp-dyn/content/article/2007/06/21/AR2007062101026.html. 136. JENNY HEETER & LORI BIRD, INCLUDING ALTERNATIVE RESOURCES IN STATE RENEWABLE PORTFOLIO STANDARDS: CURRENT DESIGN AND IMPLEMENTATION EXPERIENCE 1 (Nov. 2012). 137. Id. at 1–2. 138. U.S. ENERGY INFO. ADMIN., ANALYSIS OF THE CLEAN ENERGY STANDARD ACT OF 2012, at 1 (May 2012), https://www.eia.gov/analysis/requests/bces12/pdf/cesbing.pdf. 139. Id. No. 1] FUTURE ENERGY JOBS SHAFT 195 than ten gigawatts in a reference case projection.140 Even older units would be more economical compared to fossil fuels because their generating capacity was removed from the baseline in calculating CES requirements.141 The bill never became law, and Congress has yet to come together around CO2 emission reduction standards for power plants. It is in this environment that the EPA, an executive agency, promulgated the Clean Power Plan through the provisions of the existing Clean Air Act.142 Section 111(d) of the Clean Air Act (CAA) provides a three-step process for regulating pollutants.143 First, the EPA creates guideline documents based on the best system of emission reduction (BSER) for each pollutant.144 Second, states create performance standards and plans for implementation and enforcement, and then, in the third step, states submit their plans to the EPA, which must approve (or deny) the plans.145 States also have the option to decline to enforce the regulations, in which case the EPA would write plans for these states.146 Congress intended the Clean Air Act to be flexible, providing states leeway to structure their own compliance, but if the EPA rejects a plan, it can create its own for the state.147 The EPA had some hiccups fitting its new duty to regulate carbon emissions within the framework provided by Congress’s Clean Air Act. The final version of the rule implementing the CPP differs significantly from the proposed rule in a few respects. It gives states until 2022 to implement emission reduction measures, alters the methodology behind its CO2 reduction targets, and includes a Clean Energy Incentive Program to encourage additional emission reduction measures including allotting double RECs to installations in low-income communities.148 The final rule also includes a reliability safety valve, which would allow a plant a ninety-day reprieve from emission restrictions. Intended to be used only in an emergency situation, it would apply if a nuclear plant had to cease operations “unexpectedly” and higher-emitting sources’ share of generation were increased to compensate.149 In its BSER guidelines, the EPA’s original CPP proposal included new and existing nuclear generation alongside renewable energy as “potential

140. Id. at 3. 141. Id. 142. Fact Sheet: Overview of the Clean Power Plan, EPA, https://www.epa.gov/cleanpowerplan/fact- sheet-overview-clean-power-plan (last visited Feb. 19, 2017). In legal terms, the CAA is the enabling act through which Congress granted the EPA its authority to make rules (such as the CPP) that regulate emissions. 143. Clean Air Amendments of 1970, Pub. L. No. 91-604, § 111(d), 84 Stat. 1676, 1684 (1970) (codified as amended at 42 U.S.C. § 7411 (2012)); 40 C.F.R. § 60.22 (2016); see also TARR ET AL., supra note 132, at 6–7 (providing an overview of the Clean Air Act and the corresponding federal regulations). 144. 42 U.S.C. § 7411(a)(1); 40 C.F.R. § 60.22(b). 145. 42 U.S.C. § 7411(a)(1). 146. Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014, 80 Fed. Reg. 64,966 (proposed Oct. 23, 2015) (to be codified at 40 C.F.R. pts. 60, 62, 78). 147. TARR ET AL., supra note 132, at 7. 148. RAMSEUR & MCCARTHY, supra note 123, at 10, 11. 149. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661, 64,878 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60) (stayed pending judicial review). 196 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 sources of lower- or zero-CO2 generation that could replace higher-CO2 generation from affected [electric generating units].”150 According to the EPA’s Opportunities for Nuclear Power CPP fact sheet, “[n]uclear power is part of an ‘all the above’ energy strategy that supports economic growth and job creation, enhances our nation’s energy security, and protects the planet for future generations.”151 In its final rule published in October 2015, the EPA chose not to include new nuclear generation in its BSER guidelines: Investments in new nuclear capacity are very large capital-intensive investments that require substantial lead times. By comparison, investments in new RE [renewable energy] generating capacity are individually smaller and require shorter lead times. Also, important recent trends evidenced in RE development, such as rapidly growing investment and rapidly decreasing costs, are not as clearly evidenced in nuclear generation. We view these factors as distinguishing the under-construction nuclear units from RE generating capacity, indicating that the new nuclear capacity is likely of higher cost and therefore less appropriate for inclusion in the BSER.152

Although new nuclear energy is one way to reduce CO2 emissions, it is far from the best way. The EPA also chose not to recognize preservation of existing nuclear capacity in the BSER guidelines; that would be “inappropriate” because continuing to run the same generators at the same rate would not reduce emissions below current levels.153 However, the BSER guidelines are merely suggestions. According to the EPA’s National Framework for States CPP fact sheet: While EPA identified a mix of four “building blocks” that make up the best system of emission reductions under the Clean Air Act, a state does not have to put in place the same mix of strategies that EPA used to set the goal. States are in charge of these programs and can draw on a wide range of tools . . . .154 While each state has a specific reduction requirement under the Clean Power Plan, the states that manage their own compliance programs are free to choose a mass-based or rate-based plan to meet their specific goal.155 Mass- based plans are for the proactive states that want to create their own emission reduction programs.156 They give the state much more latitude to regulate, and

150. Id. at 64,729. 151. EPA, CLEAN POWER PLAN FACT SHEET: OPPORTUNITIES FOR NUCLEAR POWER 1 (Nov. 5, 2015), https://www.epa.gov/sites/production/files/2015-11/documents/fs-cpp-nuclear.pdf. 152. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64,729. 153. Id. Nuclear energy is still accounted for in a way: states that already rely on nuclear energy have lower carbon emissions to begin with, so they have less to reduce. Id. Compared to carbon emitters, they become more cost effective. Id.; see also RAMSEUR & MCCARTHY, supra note 123, at 9. 154. EPA, CLEAN POWER PLAN FACT SHEET: NATIONAL FRAMEWORK FOR STATES 1 (2014), https://www.epa.gov/sites/production/files/2014-05/documents/20140602fs-setting-goals.pdf. 155. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64,666. 156. Id. at 2. No. 1] FUTURE ENERGY JOBS SHAFT 197 can include programs like demand-side energy efficiency that affect more entities than just power plants.157 In contrast, rate-based plans apply federally enforceable emission standards directly to power plants.158 The REC trading compliance program is expanded to include a category of “emission rate credits” (ERCs) that utilities are required to purchase, and a framework to ensure compliance.159 Neither type of plan allows existing nuclear generation to be eligible for 160 CO2 reduction credits. However, for both types, new (post-2012) nuclear energy and capacity additions to existing plants are considered an eligible carbon-free source that can sell ERCs on the trading compliance market— despite the fact that the BSER guidelines explicitly exclude new nuclear because it is expensive and takes too long to build.161 After all, the best system of emission reduction was only a guideline. What does the EPA have to say about this? “[T]he requirements ensure that measures that may be used in a state plan are treated consistently (to the extent possible) with EPA’s assessment of the BSER.”162 One may be wondering at this point why the EPA would write these guidelines if it did not intend to enforce them. The BSER guidelines still could serve as a tool to guide states in developing their energy plans. Considerations of cost-effectiveness and reasonableness should underlie state energy policies as they are ostensibly created in the public interest. But if they do not, as Market Street Railway Co. and Duquesne Light Co. demonstrate, ratepayers can challenge utilities’ ability to earn a return on bad investments. The EPA’s guidelines are just one piece of evidence that, along with the EIA’s LCOE/LACE projections, supports the conclusion Exelon already made: nuclear energy is no longer profitable.

IV. THE ORIGINS OF ILLINOIS’ ZERO EMISSION STANDARD

A. H.R. 1146 Report In 2014, through House Resolution 1146, the Illinois House of Representatives commissioned various state agencies to study the potential effects of Exelon closing its Quad Cities (two-reactor), Clinton, and Byron (two-reactor) plants, and to prepare a report discussing their findings.163 House Resolution 1146 also requested market-based solutions “that will ensure that the premature closure of these nuclear power plants does not occur and that the dire consequences to the economy, jobs, and the environment are averted.”164

157. Id. 158. Id. 159. Id. 160. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64,902. 161. Id. at 64,729. 162. Id. at 64,896. 163. H.R. Res. 1146, 98th Gen. Assemb. (Ill. 2015) (enacted), http://www.ilga.gov/legislation/98/HR/ 09800HR1146.htm. 164. Id. Note that “dire consequences to the economy, jobs, and the environment” are premises, rather 198 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

When the H.R. 1146 Report, entitled “Potential Nuclear Plant Closings in Illinois,” first came out, Exelon released a statement stating, “The report makes clear that the future of Illinois’ nuclear power plants should be an issue of statewide concern.”165

1. Rate Impacts In the Illinois Commerce Commission’s section of the report evaluating rate impacts, the ICC analyzed revenues relative to avoided costs of decommissioning the plant.166 As decommissioning is an eventual reality, this cost will be paid somewhere down the line—$1 billion for Illinois’ two-reactor Zion plant, for example.167 The ICC looked at data from Exelon’s SEC findings, the EPA’s Integrated Planning Model, and the Energy Information Administration to determine comparative locational marginal price (LMP), a measure of wholesale electricity costs based on location.168 (It noted that the EPA’s cost figures were considerably higher.169) Comparing average annual LMPs, it noticed a sharp decline in 2008 that persisted through 2013: the average LMP declined 38% between the two periods of 2007–2008 and 2009– 2013, representing lower prices available for Exelon’s nuclear energy.170 The Quad Cities plants received the lowest prices, followed by Clinton and Byron.171 Locational marginal price fluctuates in accordance with demand, so closure of one plant could increase the energy prices and thus revenues for other plants in Exelon’s fleet.172 Due to limited data, it was “not entirely clear whether or not Exelon’s Illinois plants earn sufficient revenues to cover their operating costs.”173 Using the EPA model “as a kind of ‘worst-case scenario,’” the ICC produced a chart of the price increases needed to restore profitability to each plant (Figure 2).174 It found that every reactor at all six plants studied would require a price increase in order to break even with the 2007–2013 average.175 The Quad Cities 1 reactor would require a price increase of 50%.176 The ICC then examined the impact of pending greenhouse gas regulations (the CPP) on nuclear profitability, finding that analyses by the EPA, MISO, EIA, and NERA Economic Consulting Inc. all showed increases in prices due to new CO2 reduction policies.177 The EIA estimated price increases of 17% to 48%, than conclusions, in the report. Id. at 1, 2. 165. Press Release, Exelon, Exelon Statement on Illinois Nuclear Power Plant Report (Jan. 12, 2015), http://www.exeloncorp.com/newsroom/Pages/pr_20150112_EXC_StateNuclearReport.aspx. 166. H.R. 1146 REPORT, supra note 44, at 8, 28. 167. Id. at 134. 168. Id. at 29. 169. Id. at 30. 170. Id. at 34. 171. Id. at 37. 172. Id. 173. Id. at 39. 174. Id. at 39–40. 175. Id. at 40. 176. Id. 177. Id. No. 1] FUTURE ENERGY JOBS SHAFT 199

MISO estimated 9% to 14%, and NERA projected at least a 15% increase of delivered electricity prices.178 The EPA found the price increases to still be lower than the base case of no CPP.179

Figure 2. Real Price Increases Required to Equal EPA-Modeled Production Costs180

The ICC used PJM projections to evaluate rate impacts for the year 2019.181 Although PJM was also modeling 2022, 2025, and 2029, it chose 2019 because that was the first year for which no bids had been entered in the capacity auction.182 PJM predicted a rate increase of 1.2% to 2.7% in the Ameren Illinois zone of MISO in 2019 due to the Clinton plant retirement, depending on the price of natural gas, among other things.183 It found that retirement of the Byron and Quad Cities plants would decrease electric rates by 0.3% in the Ameren Illinois zone under the base case.184 For ComEd, PJM’s own grid, the change was more pronounced—an 8.1% increase for retiring the

178. Id. at 41, 43. 179. Id. at 44. 180. Id. at 40. 181. Id. at 55. 182. Id. at 55 n.57. 183. Id. at 56. 184. Id. at 57. This may be due to the resultant decrease in area capacity and Clinton being able to sell its excess generation instead of paying to unload it, as it currently is. Although PJM and MISO are separate grids they are interconnected and can purchase energy from each other to balance their loads. 200 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Byron, Quad Cities, and Clinton plants; 9.9% in the high natural gas price scenario.185 Only retiring the Quad Cities plant would increase rates by 3.7%.186 The Illinois Institute of Technology estimated a 9.1% to 11% LMP increase and a 7.6% to 11.8% increase in load payments in 2018 with the retirement of all three plants.187 The ICC also evaluated long-term rate impacts of the proposed nuclear plant closures. “Usually, nuclear plant closures are not sudden unheralded events,” it noted, and “a nuclear power plant’s closure . . . would have a less dramatic impact on the nuclear energy market than it would have in the short- run if the event were unanticipated.”188 Generators bid into capacity auctions three years in advance, so that allows three years for new renewable energy (RE), energy efficiency (EE), or demand response (DR) to come online to fill the gap.189 The purpose of regulation is to mimic the competitive market, and it generally does so successfully. The LMP increases with grid congestion, serving as a market signal to RTOs and utilities as to the most profitable location of new energy investment, so an increased LMP would make other energy, demand response, and efficiency more profitable in comparison.190 As renewable energy construction has short lead times, rate impacts felt in 2019 could be corrected for by additional generation within a few years. A variety of RTO-funded projects to alleviate reliability concerns could also moderate a sudden increase in energy market prices.191 Together, such reactions would expand supply, contract demand, and allow for more efficient utilization of resources, all of which would ameliorate or even overcome the increase in prices due to the closure of the plant by itself. That is, in the long run, the closure of a particular power plant could reduce rather than increase prices, as newer more efficient faculties are introduced to the power grid.192 The ICC’s rate impact report included an analysis from Monitoring Analytics (the independent market monitor for PJM) that looked at a “near worst case” scenario where Byron and Quad Cities plants are unavailable on a particularly hot summer day.193 Though it saw LMP increase 26.6% in the

185. Id. at 58. 186. Id. 187. Id. at 61–62. 188. Id. at 63. 189. Id. at 63–64. 190. Id. at 64. 191. Id. 192. Id. at 64–65 (emphasis added). “Faculties” designates that, in addition to generating facilities (power plants), the proposed range of projects would also include non-energy alternatives such as demand response, efficiency, and energy storage. 193. Id. at 62; see also MONITORING ANALYTICS, REPORT FOR THE ILLINOIS COMMERCE COMMISSION: NUCLEAR PLANT RETIREMENT IMPACT PRELIMINARY ANALYSIS OF HIGH LOAD DAY 5–6 (Oct. 30, 2014), in H.R. 1146 REPORT, supra note 44, app. at 218 (page number refers to PDF version). Monitoring Analytics seems to have taken issue with the study’s parameters, as one scenario did not include natural gas plants that were already under construction. “Not surprisingly,” begins the conclusion, “removing 4,165 MW of low cost energy from the PJM energy market would result in higher energy prices, especially when the cost of energy from the efficient combined cycles that would likely replace them is not accounted for.” Id. at 5. Monitoring Analytics recommended that a decision to retire the plants be based on “[a] careful, independent review” of the economics of the plant, and offered that “[t]he information to do such a review is available to the IMM No. 1] FUTURE ENERGY JOBS SHAFT 201

ComEd zone, Monitoring Analytics noted in the conclusion: The fact that energy market prices would increase does not support providing subsidies to these plants in order to forestall retirement . . . . If a well structured wholesale power market does not provide enough revenue to support one or both plants, then an appropriate conclusion would be that the clear market signal is to retire one or both plants.194

2. Employment Impacts The Illinois Department of Commerce and Economic Opportunity (DCEO) evaluated employment impacts due to nuclear plant retirement. It found 2,500 direct and 4,431 indirect job losses due to the three plant closures, but also found that these losses could be mitigated to the tune of 9,600 new efficiency and renewable jobs by 2019 and $120 million in annual energy savings due to lower electricity prices.195 In a five-year forward analysis, the DCEO concluded, “much of the immediate negative economic impact can be mitigated through a concerted initiative to fully-develop all economically viable energy efficiency and potential wind and solar resources.”196 Wind turbine production and installation could create 4,700 jobs annually for five years, with 1,500 indirect jobs from construction spending over the same time period, while operation and maintenance could add 170 jobs per year—that is 31,840 jobs over five years for Illinois’ wind industry alone based on reasonable growth projections.197 And that is before considering an additional 3,500 solar and 650 energy efficiency jobs each year.198 Additionally, lower electric rates would save consumers $18.3 million, creating 88 additional jobs per year to the tune of 440 by 2020. Figure 3 below is the DCEO’s summary of annual employment impacts on Illinois’ energy industry, subtracting nuclear job losses from gains in the wind, solar, and efficiency energy sectors.199 It shows a net gain of 661 new jobs in 2016, 1,610 new jobs in 2017, and 2,738 net new jobs in 2018. (The net impact for 2020 is negative because solar and wind installations to replace the retired nuclear plants will be complete).200 For 2019, however, the figure shows a net decrease of 4,093 energy jobs. The negative value in this cell is incorrect: 5,344 wind + 5,328 solar + 352 efficiency jobs − 6,931 nuclear jobs = a net increase of 4,093 jobs.201

[Independent Market Monitor]” and that “[t]he IMM routinely does such analyses as part of the IMM’s required retirement review process as well as part of the IMM’s review of capacity market offers.” Id. at 6. 194. H.R. 1146 REPORT, supra note 44, at 62–63 (citation omitted). 195. Id. at 125. 196. Id. at 145. 197. Id. at 141. DCEO looked at wind projects that have been permitted and those that have been proposed. Id. 198. Id. at 137, 143. 199. Id. at 144. 200. Id. 201. See id. 202 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Figure 3. DCEO Summary of Annual Employment Impacts of Nuclear Retirement202

The DCEO also discussed stabilizing effects following large employment shocks.203 After a plant closure, residents tend to move or commute elsewhere to work, easing burdens on local government that mitigate the pressures of declining tax revenue.204 Lower price levels lead to lower wages and lower real estate, attracting new residents and businesses and creating new employment opportunities.205 Additionally, decommissioning brings in more jobs and spending, enough so that it should also be considered a stabilizing factor in the long term.206 “In the long run,” the report states, “there are factors that can lead to a healthy, though likely somewhat smaller, regional economy.”207

3. Reliability Impacts The Illinois Power Agency (IPA) report analyzed grid reliability under four scenarios—a base case, a nuclear retirement case, a polar vortex case, and a high load and high coal retirements case, with all but the base case assuming

202. Id. at 144 fig.18. Though the wind and solar projections are direct jobs, the nuclear job number appears to include 2,500 direct and 4,431 indirect jobs. Id. at 125. The efficiency projections are taken from the indirect jobs created due to reductions in statewide energy use instead of the 650 annual direct efficiency jobs expected to result from meeting a 2020 target energy efficiency level increase. Id. at 137. Notwithstanding these deficiencies, the table still shows a net increase in in-state jobs due to nuclear retirement. 203. Id. at 133. 204. Id. at 134. 205. Id. 206. Id. 207. Id. No. 1] FUTURE ENERGY JOBS SHAFT 203 retirement of the Quad Cities, Byron, and Clinton plants.208 In the summary of its findings, the IPA’s reliability analysis found that premature nuclear retirement of four at-risk plants would “generally not degrade regional reliability in either the PJM or MISO [energy grid] below the relevant standard,” largely because Illinois currently exports 21% of its electricity.209 In its analysis of the results for the nuclear retirement case, the IPA states, “[T]he reliability impact of retiring these three at-risk nuclear plants is minimal and reliability in MISO, PJM and the State of Illinois is below the target reliability standard of less than 0.1 LOLE [loss of load expectation] in the Nuclear Retirement Case.”210 It also noted that in the MISO territory, which houses the Clinton plant, Illinois’ grid “exceeds reliability levels found in many other zones of MISO,” and would have “[e]xcellent expected reliability” in the nuclear retirement case.211 The high load and high coal retirements case is the only one in which the impact to reliability exceeds the relative standard, and that is only in parts of MISO outside Illinois.212 The IPA did say that in stress cases, “[s]ubstandard resource adequacy could occur,” but that this could be due to non-nuclear stresses and could be kept within the standard through the use of demand response.213 The IPA found that the 2014 polar vortex put stress on the grid, not as a result of shortages of physical capacity, but because existing capacity was unavailable and demand response customers did not reduce their loads when called upon to do so.214 Demand response, a non-electricity means of dealing with reliability issues, decreases total load when it is too high. It relies on conscious consumers to allow the utility to curtail their consumption at a set number of times per season, or follow a dynamic price scheme that more closely tracks the grid price of electricity at any given time of day.215 Large commercial and industrial customers can negotiate arrangements that are more specific. It is up to local utilities to implement demand response.216 Currently, ComEd has a variety of programs for commercial and residential customers with smart meters.217 But, for a once-in-a-season event like the polar vortex, the alternative might be as simple as sending a text message. A 2012 ComEd pilot program (not referenced in the H.R. 1146 Report) explored customers’ reactions to dynamic pricing plans that utilized smart

208. Id. at 70–71. 209. Id. at 81 (emphasis added). 210. Id. at 93. 211. Id. at 94. 212. Id. at 106. 213. Id. at 81–82. 214. Id. at 84. 215. Id. at 71, 76; Demand Response, U.S. DEP’T ENERGY, https://energy.gov/oe/services/technology- development/smart-grid/demand-response (last visited Mar. 12, 2017). 216. Id. 217. Get Paid to Use Less, COMED, https://www.comed.com/WaysToSave/ForYourBusiness/Pages/ DemandResponse.aspx (last visited Mar. 12, 2017); Smart Meters for Your Home, COMED, https://www. comed.com/SmartEnergy/SmartMeterSmartGrid/Pages/ForYourHome.aspx (last visited Mar. 12, 2017). 204 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 meters to better reflect the changing hourly price of electricity.218 An Electric Power Research Institute (EPRI) analysis of the pilot program found that “an important subset of the participants on the dynamic rate applications exhibited statistically significant reductions in electricity use in response to elevated event-day prices,” reducing their load 14% to 20% during peak hours.219 Even without a financial incentive, customer notification produced a small amount of load reduction “by raising customer awareness of supply cost on certain days of the year.”220 As a whole, the study found no statistical difference, but EPRI attributes that to its parameters: customers were automatically enrolled but given a choice to opt out, and “ComEd’s educational material may not have been particularly effective in actively engaging participants.”221 The study did find that some consumers were more satisfied with dynamic rate structures, showing that demand response is an emission-reduction method deserving of further exploration.222 At the time of the H.R. 1146 Report, the D.C. Circuit Court of Appeals had ruled that the Federal Energy Regulatory Commission (FERC) had exceeded its authority under the Federal Power Act in seeking to regulate demand response via FERC Order 745.223 The order had required RTOs to compensate demand response providers at the same rate as generators.224 The court said the order was direct regulation of the retail market, which was the states’ purview.225 Without equal compensation, the future of demand response looked bleak.226 But, in a 6-2 decision in January 2016, the Supreme Court reversed.227 Writing for the majority, Justice Kagan said that wholesale regulation is supposed to affect retail rates, and that FERC was acting within its authority.228 Now, experts predict DR market size in the United States could expand by $200 million in one year alone. The former FERC Chief who had issued the order said the decision would increase competition for DR, distribute generation and battery storage, and “drive down wholesale energy prices by billions of dollars each year.”229

218. Christopher Casey & Kevin B. Jones, Customer-Centric Leadership in Smart Grid Implementation: Empowering Customers to Make Intelligent Energy Choices, 26 ELEC. J. 98, 106 (2013). 219. Id. at 107. 220. Id. 221. Id. 222. Id. at 107–08. 223. H.R. 1146 REPORT, supra note 44, at 49. 224. Gavin Bade, Updated: Supreme Court Upholds FERC Order 745, Affirming Federal Role in Demand Response, UTILITY DIVE (Jan. 25, 2016), http://www.utilitydive.com/news/updated-supreme-court- upholds-ferc-order-745-affirming-federal-role-in-de/412668/. The overarching category that includes demand response and electric generating units is “load serving entities.” Id. 225. H.R. 1146 REPORT, supra note 44, at 49. 226. See id. at 50 (stating the “case may portend an eventual elimination of demand response” but that PJM nonetheless found DR critical for wholesale demand, and included DR in their proposal for a new high- performance capacity category). 227. FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016); see also Bade, supra note 224 (providing an overview of the case). 228. Elec. Power Supply Ass’n, 136 S. Ct. at 766, 775–77, 784. Justice Scalia wrote the dissent. Id. at 784 (Scalia, J., dissenting). 229. Bade, supra note 224. No. 1] FUTURE ENERGY JOBS SHAFT 205

In the CPP’s final rule, the EPA also contemplated whether compliance with greenhouse gas (GHG) regulations might impact grid reliability during extreme weather events such as the polar vortex of 2013–2014.230 Even in the case of a reliability event, the EPA found it “highly unlikely” that approved state plan activities would conflict with the maintenance of electric reliability, “except in the case of a state plan that puts relatively inflexible requirements on specific EGUs [electric generating units].”231 Although it found that some generators may need to run at a higher level to accommodate increased demand, since compliance is to be demonstrated over two to three years, “such a short-term event would not cause affected EGUs to be out of compliance with their applicable emission standards.”232 It hints at states’ responsibilities regarding reliability: “[s]tates can also ensure that this is true by developing plans that allow adequate compliance flexibility to accommodate such short- term events.”233

4. Environmental Impacts The Illinois EPA calculated the potential costs of the three nuclear plant closings both in terms of dollars and in the societal costs of carbon.234 It found that dirtier sources would replace nuclear, creating societal costs of $2.5 to $10.3 billion due to increased carbon emissions.235 The Illinois EPA modeled four scenarios replacing the nuclear plant as a fuel source, but only one of the scenarios included meeting the requirements of the Clean Air Act—and that was with one plant retirement and a maximum of 9% renewable.236 There was no real analysis done replacing nuclear with renewable energy. Additionally, there was no analysis done of the environmental impacts of nuclear generation, a topic that will be discussed later in this Article.237

5. A Solution Without a Problem In the H.R. 1146 Report, which was written with the assumption that the CPP would take effect in 2016,238 the Illinois Commerce Commission noted economic benefits to the state if nuclear is used to meet the CPP’s CO2 reduction goals: Notably, nuclear power stations emit no CO2 or other greenhouse gases. Thus, owners of nuclear power stations would benefit from the price increases but would not incur any of the costs of

230. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661, 64,878 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60). 231. Id. 232. Id. 233. Id. 234. H.R. 1146 REPORT, supra note 44, at 112, 122. 235. Id. at 118–22. 236. Id. at 121. 237. See infra Part V. 238. H.R. Res. 1146, 98th Gen. Assemb. (Ill. 2015) (enacted), http://www.ilga.gov/legislation/98/HR/ 09800HR1146.htm. 206 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

implementing the regulations. . . . [A] least-cost plan to comply with the EPA’s GHG/CO2 emission rules would likely include policies to retain and possibly expand the generating capacity of Illinois’ existing nuclear power stations.239 Market-based “Solution 4” was a low carbon portfolio standard that would create a trading compliance program for low carbon energy credits (LCECs) from nuclear sources.240 Emission rate credits, zero emission credits, and low carbon energy credits are all the same concept: creating a market for a previously unrecognized “environmental” attribute of nuclear energy similar to the one for RECs.241 The report pointed to Ohio and Indiana as examples, despite the fact that Ohio’s alternative energy portfolio standard only includes third-generation nuclear designs, which would not apply to any of Illinois’ nuclear facilities.242 Anticipating the CPP’s intention to include new nuclear alongside renewables as an eligible zero emission source, the report’s afterword suggests that “as neighboring states address Clean Power Plan compliance, new clean energy investments by Illinois may offer first-mover advantages in increasingly carbon-constrained energy markets.”243 Under the CPP, Illinois could benefit from exporting credits along with its nuclear energy. However, the Future Energy Jobs Act (as discussed below) includes existing nuclear generation as an eligible zero emission credit (ZEC) source, so Illinois would need to amend the standard before it could sell the resultant credits to other states.244 Rather than being a market-based solution, the zero emission standard “solution” fixes the market in favor of nuclear energy.

B. Legislative History Two competing bills emerged in the 2015 Illinois General Assembly to address the Clean Power Plan. House Bill 2607 (Senate Bill 1485), called the Clean Jobs Bill, relied primarily on REC trading with a requirement of 35% renewable generation by 2030.245 It included a low-income solar jobs training program, a requirement on utilities to reduce demand 20% by 2025 through efficiency measures, and some carve-outs for coal.246 The bill’s sponsor, Representative Elaine Nekritz, said it would add 32,000 jobs per year.247

239. H.R. 1146 REPORT, supra note 44, at 40. 240. Id. at 161. 241. Id. 242. Id. at 162. 243. Id. at 166. 244. S.B. 1585 amend. 2, 99th Gen. Assemb. (Ill. 2016), http://ilga.gov/legislation/99/SB/09900SB1585 sam002.htm. 245. H.B. 2607, 99th Gen. Assemb., at 17 (Ill. 2015), http://www.ilga.gov/legislation/billstatus.asp?Doc Num=2607&GAID=13&GA=99&DocTypeID=HB&LegID=88134&SessionID=88. 246. Id. at 24, 94. 247. Associated Press, Illinois Lawmakers Push Renewable Energy Proposal, HERALD-NEWS (Feb. 19, 2015, 10:55 PM), http://www.theherald-news.com/2015/02/20/illinois-lawmakers-push-renewable-energy- proposal/akl4gvc/. No. 1] FUTURE ENERGY JOBS SHAFT 207

One week later, Representative Lawrence Walsh (D) from Joliet,248 a town twenty miles away from the Braidwood plant, introduced the Low Carbon Energy Portfolio Bill, H.B. 3293 (later 6561, and Amendment 1 to S.B. 1585 in the Senate), which would have implemented a LCEC trading system.249 The bill would have required utilities to procure an amount equivalent to 70% of their retail sales from low carbon energy resources, which would include wind and solar as well as nuclear and clean coal.250 While prioritizing resources from Illinois or neighboring states, the bill also provided for guaranteed recovery of costs associated with compliance through an automatic adjustment tariff.251 The 2015 legislative session ended without either bill passing, but in 2015–2016, the 99th General Assembly saw some of the same ideas in a different iteration—the Next Generation Energy Plan, filed by Senator Donne E. Trotter on May 5, 2016, as Amendment No. 2 to S.B. 1585 (a postponed attempt to update the H.R. 1146 Report).252 The Next Generation Energy Plan combined the Clean Jobs Bill and the Low Carbon Energy Portfolio Bill of the previous session.253 It included renewable and efficiency incentives, the existing renewable portfolio standard, and a more modest zero emission standard (ZES) for trading nuclear power credits on a zero emission compliance market.254 Each utility would immediately procure zero emission credits from nuclear sources equivalent to 16% of its sales,255 and renewable energy credits equivalent to 14.5% of the “applicable portion” of its sales (the portion began at half but could be increased by the agency),256 increasing REC procurement incrementally to

248. Representative Lawrence Walsh, Jr. (D), 99TH GEN. ASSEMB., http://www.ilga.gov/house/rep.asp? MemberID=2400 (last visited Mar. 8, 2017). At the time, Representative Walsh was on the appropriations committee. Id. 249. H.B. 3293, 99th Gen. Assemb. (Ill. 2015), http://www.ilga.gov/legislation/billstatus.asp?DocNum= 3293&GAID=13&GA=99&DocTypeID=HB&LegID=89473&SessionID=88. The bill was re-filed as H.B. 6561 in April of 2016, almost a year after its last action and two weeks before Senator Donne Trotter (D) filed the Next Generation Energy Plan as Amendment 2 to S.B. 1585. See Bill Status of HB6561: 99th General Assembly, ILL. GEN. ASSEMB., http://www.ilga.gov/legislation/billstatus.asp?DocNum=6561&GAID=13& GA=99&DocTypeID=HB&LegID=97471&SessionID=88 (last visited Mar. 8, 2017); Bill Status of SB1585: 99th General Assembly, ILL. GEN. ASSEMB., http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1585& GAID=13&DocTypeID=SB&LegID=88279&SessionID=88&SpecSess=&Session=)&GA=99 (last visited Mar. 8, 2017). This time a Republican sponsored it—Bill Mitchell, whose district includes Decatur, Illinois, a thirty-minute commute away from Clinton. Representative Bill Mitchell (R), ILL. GEN. ASSEMB., http://ilga. gov/house/rep.asp?MemberID=2303 (last visited Mar. 8, 2017). 250. H.B. 3293, at 50–51; FRONTLINE supra note 14, at 13 (stating that Illinois already recognizes carbon emission credits for sequestration of clean coal). 251. H.B. 3293, at 55, 59. 252. S.B. 1585 amend. 2, 99th Gen. Assemb. (Ill. 2016), http://ilga.gov/legislation/99/SB/09900SB1585 sam002.htm. Staff at Senator Trotter’s office have known about drafts of this Article since October 2016 and after four months of repeated requests have not provided the author with any substantive response to the issues raised. 253. EXELON & COMED, NEXT GENERATION ENERGY PLAN: FINANCIAL AND CUSTOMER IMPACT DETAIL 4 (May 2016), http://static1.squarespace.com/static/54527dc1e4b0a0a12cc43dd6/t/575830b107eaa03 affd786a8/1465397427517/NGEP+Financial+and+Customer+Impact+Detail+web+06.08.pdf. 254. Id. at 3–4. 255. S.B. 1585 amend. 2, 99th Gen. Assemb., at 47 (Ill. 2016), http://ilga.gov/legislation/99/SB/ 09900SB1585sam002.htm. 256. Id. at 79. 208 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

25% by 2025.257 Total procurement of any resource under the standard could be reduced to limit costs to 2.015% of 2009 prices.258

The Next Generation Energy Plan also had a lot of attractive features for renewable energy development: it prioritized wind and brownfields, created a fund to implement low-income community solar projects, and offered rebates for net metering equipment.259 Additionally, it leaned heavily on efficiency, with a mandate that utilities spend 10% of their portfolio budgets on efficiency, and allocated funds for low-income energy efficiency improvements.260 Many of the same ideas reemerge in the Future Energy Jobs Act.

C. Future Energy Jobs Act The Future Energy Jobs Bill was introduced as an amendment to a bill amending a paragraph in the Public Utilities Act relating to competition in the natural gas market.261 The second amendment to the bill, filed by Representative Robert Rita on November 15, 2016, was the first iteration of the Future Energy Jobs Bill.262 On December 1, 2016, it passed the House after a short debate on the first reading since its amendment.263 The Senate concurred the same day.264 The title was “Utilities—Retail Choice—Gas.”265 Governor Rauner signed the Act into law, after having opposed language guaranteeing prevailing wages, which was removed from the final version of the bill.266 The Future Energy Jobs Act (FEJA) has many great programs for increased renewable energy generation. Though this Section enumerates a few, it is by no means an exhaustive discussion. The FEJA will reduce air pollution from fossil fuel generation, which will have a beneficial impact on residents and the environment. However, there is no reason renewable energy cannot be used to meet these goals. This Article goes more in depth on the zero emission standard because it represents a novel approach to valuing nuclear emissions for environmental purposes that may increase long-term energy costs relative to increased renewable generation, and which other states

257. Id. at 80. 258. Id. at 92. 259. Id. at 199. 260. Id. at 113, 115. 261. S.B. 2814, 99th Gen. Assemb. (Ill. 2016), http://www.ilga.gov/legislation/fulltext.asp?DocName= 09900SB2814&GA=99&SessionId=88&DocTypeId=SB&LegID=96125&DocNum=2814&GAID=13. 262. S.B. 2814 amend. 2, Gen. Assemb. (Ill. 2016), http://www.ilga.gov/legislation/99/SB/09900SB2814 ham002.htm. 263. Bill Status of SB2814: 99th General Assembly, ILL. GEN. ASSEMB., http://www.ilga.gov/legislation/ BillStatus.asp?GAID=13&GA=99&DocNum=2814&DocTypeID=SB&SessionID=88&LegID=96125&SpecS ess=&Session=#actions. 264. Steve Daniels, Exelon Wins Its Nuke Bailout in Biggest Energy Bill in 20 Years, CRAIN’S CHI. BUS. (Dec. 1, 2016), http://www.chicagobusiness.com/article/20161201/NEWS11/161209968/exelon-wins-its- nuke-bailout-in-biggest-energy-bill-in-20-years. 265. House Roll Call no. 7, S.B. 2814, Third Reading, 99th Ill. Gen. Assemb. (Dec. 1, 2016) (passed), http://www.ilga.gov/legislation/votehistory/99/house/09900SB2814_12012016_007000T.pdf (sixty-three yeas and thirty-eight nays). 266. Daniels, supra note 264. No. 1] FUTURE ENERGY JOBS SHAFT 209 may be looking to copy. In Illinois, nuclear energy is pricing out compared to cheap abundant wind.267 In this context, the zero emission standard manufactures value for its nuclear plants by creating a market for the carbon-avoidance attribute of the energy.268 In a situation that leaves environmentalists scratching their heads, implementing a ZES seems to be a bet that the Clean Power Plan will withstand its Supreme Court challenges—the FEJA looks like a mass-based plan as outlined in the CPP. However, that is not quite the case either, as the Illinois plan differs in important respects from the guidelines outlined in the EPA’s final rule.

1. FEJA Supports Increased Development of Renewable Energy, Energy Efficiency, and Demand Response Goals of the FEJA include maximizing the impact of existing RE and EE standards, encouraging “adoption and deployment of cost-effective distributed energy” (which refers to small-scale, customer-financed generation such as solar panels on one’s roof), providing incentives to utilities for energy efficiency, and ensuring that low-income customers can access such programs.269 New RE generation “will help to diversify Illinois electricity supply, avoid and reduce pollution, reduce peak demand, and enhance public health and well-being of Illinois residents.”270 ComEd’s new smart meter deployment underlies much of the new policy in these areas, as customers with smart meters can receive energy payments if they install solar photovoltaic (PV) cells on their roofs or join a community net metering system.271 In addition, they now have the option of time-of-use energy rates (a form of demand response).272 Under the FEJA, the Planning and Procurement Bureau has 160 days to revise its long-term renewable resource procurement plan for utilities to include RECs equivalent to 13% of their eligible retail load by 2017, increasing at least 1.5% each year to 25% by 2025.273 Of this RE, 75% must be wind and PV projects.274 By the end of 2020, the state’s utilities will procure two million RECs per year from new wind and the same amount from PV projects, with half the PV from distributed generation (DG) or community RE, 40% from utility scale, and at least 2% from brownfield solar.275

267. Id. at 138. 268. EXELON & COMED, supra note 253, at 3. 269. Future Energy Jobs Act, Ill. Pub. Act 99-0906, § 1 (S.B. 2814) (2016) (to be codified at 220 ILL. COMP. STAT. 5/16 and other scattered sections). The Act states the benefits of distributed generation: “encourage private investment in renewable energy resources, stimulate economic growth, enhance the continued diversification of Illinois’ energy resource mix, and protect the Illinois environment.” Id. § 1(a)(1). 270. 20 ILL. COMP. STAT. 3855/1-5(6), as amended by Future Energy Jobs Act § 5 (amending the Illinois Power Agency Act). 271. Future Energy Jobs Act § 1. 272. Id. 273. 20 ILL. COMP. STAT. 3855/1-75(c), as amended by Future Energy Jobs Act § 5. The plans are subject to commission approval. Id. 274. Id. § 1-75(c)(1)(C). The wind and PV projects specified are as opposed to biomass or hydropower. 275. Id. § 1-75(c)(1)(C)(i). 210 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Renewable energy credits must be cost effective, however, meaning they “do not exceed benchmarks based on market prices for like products in the region.”276 Total costs are capped to ensure that the price paid by retail customers “in connection with electric service” does not increase over 2.015% of 2007 levels.277 The FEJA creates a Renewable Energy Resources Fund to purchase RECs and create and manage the Solar Jobs for All Program, which aims to bring PV to low-income communities, and which the IPA is directed to design through interaction with stakeholders.278 Companies that implement the program must include job training, and priority is given to projects demonstrating meaningful involvement of low-income community members in proposal development.279 There are also incentives designed to increase low-income household participation in distributed renewable energy installation and community solar, with 25% allocated to projects in environmental justice communities.280 Additionally, the FEJA includes a Low-Income Community Solar Pilot Projects program.281 Community solar represents an opportunity for residential energy consumers to pool energy accounts and front-finance investment in grid-scale PV that can still be net metered and credited to their energy bill.282 The FEJA removes a prior cap of 5% after which utilities were not required to approve projects—making the market more competitive by eliminating this prior legislatively imposed restriction on DG growth.283 The pilot program has an independent evaluation every two years.284 Additionally, the on-bill financing program is expanded for DG and EE and the maximum outstanding amount financed increased by $5 million per year, unlocking an enormous potential for customers to pay for new investments through future energy savings.285 There is also a Solar Training Pipeline Program to establish a pool of qualified installers with an apprenticeship program, emphasizing employment for all segments of the population.286 The FEJA mandates that energy efficiency and demand response be used when cost effective to “reduce costs to consumers, improve reliability, and improve environmental quality and public health” alongside “zero emission energy.”287 Electric utilities are required to spend 7% of their annual portfolio funding to procure efficiency from local government, schools, and public housing—that is, paying for efficiency improvements at these institutions to

276. Id. § 1-75(c)(1)(D). 277. Id. § 1-75(c)(1)(E). 278. Id. § 1-56(b)(1)–(2); id. § 1-20(b)(27). 279. Id. § 1-20(b)(2). 280. Id. § 1-56(b)(2)(A). The term “environmental justice community” is not yet defined. Id. § 1-56(b). 281. Id. § 1-56(b)(2)(D). 282. See, e.g., CHRIS VERVERIS ET AL., AM. UNIV., SCALING UP SOLAR POWER IN DC: OPTIONS FOR COMMUNITY SOLAR (May 2015), https://www.american.edu/sis/gep/upload/Scaling-Up-Solar-Power-in-DC- Options-for-Community-Solar-Ververis-Schecht-Donahoe.pdf (providing an overview of a community solar finance model in Washington, D.C.). 283. 220 ILL. COMP. STAT. 5/16-107.5(j), as amended by Future Energy Jobs Act § 15. 284. 20 ILL. COMP. STAT. 3855/1-56(b)(2)(A)–(B), (b)(6), as amended by Future Energy Jobs Act § 5. 285. 220 ILL. COMP. STAT. 5/16-111.7(a)–(c), as amended by Future Energy Jobs Act § 15. 286. Id. § 16-108.11. 287. 20 ILL. COMP. STAT. 3855/1-5(9), as amended by Future Energy Jobs Act § 5. No. 1] FUTURE ENERGY JOBS SHAFT 211 lower their total energy usage. (Utilities like ComEd that serve over three million customers must spend 10%.288) It also establishes a low-income energy efficiency program through which utilities are encouraged to establish partnerships with community organizations.289 An energy efficiency formula rate is established with operational metrics to incentivize performance,290 and utilities can now amortize their energy efficiency investments over their expected lifetime like power plants.291 Customer cost for energy efficiency improvements is limited to $2.33/month for ComEd and $3.94/month for smaller suppliers.292 While the FEJA caps rate impacts for residential customers, the cap is lower for commercial customers.293 Utilities must also implement cost-effective DR to reduce peak demand by 0.1% over the year prior.294

2. Illinois’ Zero Emission Standard Is Not Reasonable in Light of the H.R. 1146 Report The FEJA authorizes the Illinois Power Agency to develop procurement plans to include ZECs that begin June 1, 2017.295 “Zero emission credit” is defined in the FEJA as “a tradable credit that represents the environmental attributes of one megawatt hour of energy produced from a zero emission facility,” which facility is defined as “fueled by nuclear power; and . . . interconnected with [PJM] or [MISO] or their successors.”296 Thus, it creates a much broader category than that outlined in the Clean Power Plan’s final rule.297 Existing nuclear facilities eligible for Illinois ZECs would not qualify as eligible sources for the CPP’s emission reduction targets, which specify that only new nuclear plants and increases in capacity are eligible for emission rate credits.298 Even if the EPA makes an exception for Illinois, the FEJA would not be compatible with other states’ CPP emission reduction programs or the default federally regulated program, despite the H.R. 1146 Report’s recommendation that Illinois could benefit from exporting clean energy as other states meet their CPP requirements.299 As the CPP’s plan would only apply to new sources and capacity upgrades, Exelon’s real shot at profits is building a new plant, adding capacity to an existing plant, or bringing a retired plant back online.300

288. 220 ILL. COMP. STAT. 5/8-103B(c) (new section created by Future Energy Jobs Act § 5). 289. Id. 290. Id. § 8-103B(d)(2)(D). 291. Id. § 8-103B(e). 292. Id. § 16-108.15(b)(3) (new section created by Future Energy Jobs Act § 5). 293. Id. § 16-108.16(a), (c)(1) (new section created by Future Energy Jobs Act § 5). 294. Id. § 8-103B(g)(4.5). 295. 20 ILL. COMP. STAT. 3855/1-20(a)(1), as amended by Future Energy Jobs Act § 5. 296. Id. § 1-10. 297. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661, 64,729 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60). 298. Id. 299. H.R. 1146 REPORT, supra note 44, at 166. 300. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64,950, 64,966. 212 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

The second amendment to S.B. 2814, the first version of the Future Energy Jobs Bill to carry that name, included a section on new zero emission generating facilities to stimulate job growth as well as for their environmental and public health benefit.301 It commissioned a report with a sixty-day comment period on how new generating facilities and increased transmission lines could support export of environmental attributes in both RTOs, looking at other states’ policies.302 This provision is absent from the final FEJA, although the ZES legislative findings include “promoting new zero emission energy generation” alongside “[p]reserving existing zero emission energy generation” as actions that are “vital to placing the State on a glide path to achieving” its environmental goals and better air quality.303 This legislative language could justify additional subsidies for new plants not directly discussed within the bill. The General Assembly’s legislative findings regarding the ZES also indicate a concern for electric grid reliability. The section references the H.R. 1146 Report: “The Report also included analysis from PJM Interconnection, LLC, which identified significant adverse consequences for electric reliability, including significant voltage and thermal violations in the interstate transmission network, in the event that Illinois’ existing nuclear facilities close prematurely.”304 This PJM analysis was inside the ICC’s report on rate increases—not the IPA’s report on reliability.305 And, as noted in the “Reliability Impacts” Subsection above, those may be impacts to the regional transmission network.306 PJM roughly estimated the cost of transmission upgrades to be in the hundreds of millions of dollars, but, as the ICC points out, PJM approved transmission upgrades of $7.1 billion in 2013 alone.307 Such corrections would “require substantial construction activity,” according to PJM, which could inconvenience Illinoisans.308 But they would also create jobs. Furthermore, the ICC cautions that PJM’s analysis “does not consider how the Illinois nuclear retirements would influence investment in new generating facilities,” concluding that “the removal of the nuclear units in PJM’s analysis, without replacement, leaves more significant voids than would be the case if new generating facilities were built in the same general area.”309 The PJM analysis, according to the H.R. 1146 Report, left out the important variable of increased replacement generation.

301. S.B. 2814 amend. 2, Gen. Assemb., at 234 (Ill. 2016), http://www.ilga.gov/legislation/99/SB/09900 SB2814ham002.htm. 302. Id. at 235–37. 303. Future Energy Jobs Act, Ill. Pub. Act 99-0906, § 1.5(4) (S.B. 2814) (2016) (to be codified at 220 ILL. COMP. STAT. 5/16 and other scattered sections) (emphasis added). 304. Id. § 1.5(6). “Prematurely” here means before their operating licenses expire. 305. H.R. 1146 REPORT, supra note 44, at 59. 306. See supra Subsection IV.A.3. 307. H.R. 1146 REPORT, supra note 44, at 60. 308. Id. (quoting PJM, PJM RESPONSE TO ILLINOIS COMMERCE COMMISSION REQUEST TO ANALYZE THE IMPACT OF VARIOUS ILLINOIS NUCLEAR POWER PLANT RETIREMENTS 6 (Oct. 21, 2014), https://www.pjm. com/~/media/committees-groups/committees/teac/20150107/20150107-pjm-response-to-icc-request-to- analyze-the-impact-of-nuclear-retirements.ashx). 309. Id. at 60. No. 1] FUTURE ENERGY JOBS SHAFT 213

It is important for the legislature to couch its pro-nuclear argument in the language of reliability, because reliability is the state’s responsibility.310 But, an argument that the voltage inadequacies identified in the H.R. 1146 Report justify increased retail rates completely ignores the self-correcting tendency of energy markets. If Illinoisans are going to be paying extra for reliability, that reliability should be useful to in-state consumers—in both an immediate and a long-term market context. Despite all the talk about reliability and cost effectiveness, the stated necessity of the ZEC is “to achieve the State’s environmental objectives and reduce the adverse impact of emitted air pollutants on the health and welfare of the State’s citizens.”311 This is in contrast to prior energy bills, which had emphasized that the report found “premature closure of existing nuclear power plants in Illinois will negatively affect the economic climate in the region.”312 The FEJA does appear to have some economic purpose: it states that ZECs will reduce long-term direct and indirect consumer costs by “decreasing environmental impacts and by avoiding or delaying the need for new generation, transmission, and distribution infrastructure.”313 On the other hand, the same section eliminates the requirement that ZECs and RECs be “cost-effective.”314 The FEJA also adds “zero emission energy” to a subsection about EE and DR, saying it is underutilized and should be used (when cost effective) “to reduce costs to consumers, improve reliability, and improve environmental quality and public health.”315 Exelon’s promotional material for the FEJA includes a fact sheet entitled Vote YES for SB2814, Amendment 4 that states, “By keeping the state’s at-risk, zero-carbon nuclear facilities operating, a ZES would,” among other things, “[p]revent large increases in electric rates.”316 As outlined in the “Rate Impacts” Subsection above, the only scenario in the H.R. 1146 Report in which Illinois’ electric rates increased significantly over the long term was with GHG regulation, the future of which remains uncertain.317 Another fact sheet, SB2814, Amendment 4: A Win for Illinois, says the bill would “[p]reserve competitive rates, given nuclear plant closures would add up to $1.85 each

310. Id. at 6–7. 311. Future Energy Jobs Act, Ill. Pub. Act 99-0906, § 1.5 (S.B. 2814) (2016) (to be codified at 220 ILL. COMP. STAT. 5/16 and other scattered sections). This environmental benefit is narrow: the carbon emission “avoidance.” It is curious, given the ZES’ environmental purpose, that H.R. 1146 did not ask agencies to include a cost-benefit analysis to examine potential negative environmental impacts of increased reliance on aging nuclear plants. 312. Low Carbon Energy Portfolio, H.B. 3293, 99th Gen. Assemb., at 3 (Ill. 2015), http://www.ilga.gov/ legislation/billstatus.asp?DocNum=3293&GAID=13&GA=99&DocTypeID=HB&LegID=89473&SessionID= 88. Exelon’s Next Generation Energy Plan: Financial and Customer Impact Detail also relied on the H.R. 1146 Report concerning plant closings in Illinois. EXELON & COMED, supra note 253, at 4. It pointed to “decreased reliability” of the electric grid as a cost of closing the power plants, and says the Illinois Power Agency (IPA) confirmed that “in stress conditions electric system resource adequacy would be negatively impacted.” Id. 313. 20 ILL. COMP. STAT. 3855/1-5(6), as amended by Future Energy Jobs Act § 5. 314. Id. 315. Id. § 1-5(9). 316. Maintaining Clean Air Through a Zero Emission Standard, FUTURE ENERGY JOBS BILL (HOSTED BY EXELON), http://futureenergyjobsbill.com/resources (last visited Mar. 12, 2017). 317. See supra Subsection IV.A.1. 214 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 month to the average ComEd residential bill.”318 What it does not mention is that the rate increases studied were for a one-year term (2019) and used the cost of decommissioning as a comparison even though eventually that will occur down the road anyways.319 Nor does it mention that state agencies found electric rates could decrease over the long term as nuclear retirement creates demand for cheaper sources.320 The A Win for Illinois fact sheet also says the plant would save “4,200 jobs . . . annually.”321 Recall that the H.R. 1146 Report showed a net increase of jobs in the event of a nuclear plant closure—and that a reasonable projection of the growth of Illinois’ wind industry showed it would create over 30,000 jobs over the five years it would take to replace the retired nuclear capacity.322

V. HEALTH AND ENVIRONMENTAL RISKS OF NUCLEAR POWER The environmental benefit of a ZES is narrow: the carbon emission “avoidance.”323 Prior to the FEJA, the social cost of carbon was an externality—a cost generally shouldered by society and not taken into account in economic considerations. It is curious, given the environmental purpose of the ZES, that H.R. 1146 did not ask agencies to include a cost-benefit analysis examining potential negative environmental impacts of increased reliance on nuclear plants. Although it does not emit carbon dioxide, nuclear fission does have other byproducts with their own sets of environmental problems.324 Aside from the unlikely catastrophic operational accident, earthquake, or act of war, there are various issues of unknown risk levels that accompany nuclear energy generation. Three of Illinois’ nuclear plants made the “top twenty-five” in the Daily Beast’s list of the fifty most vulnerable, based on safety assessments, risk of natural disaster, and size of nearby population.325 Two-reactor Dresden in Morris was fourth on the list, with a bottom-third safety ranking, a risk of tornadoes, and almost eight million people living within fifty miles.326 The two-reactor Braidwood facility in Braceville was twelfth with the same issues

318. Master Fact Sheet, FUTURE ENERGY JOBS BILL (HOSTED BY EXELON), http://futureenergyjobsbill. com/resources (last visited Mar. 12, 2017). 319. See supra Subsection IV.A.1. 320. Id. 321. Master Fact Sheet, supra note 318. 322. See supra Subsection IV.A.2. 323. But see Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,661, 64,729 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60) (explaining that no emissions are avoided by continuing to run the same generators at the same rate). It is unclear whether Illinois’ ZES has a significant carbon-avoidance benefit because it includes all nuclear energy sources and because the nuclear plants it would save from retirement could be replaced by emission-free wind and solar, as modeled in the “Job Impacts” section of the HR 1146 Report. 324. EXELON, supra note 40. 325. Clark Merrefield et al., Most Vulnerable U.S. Nuclear Plants, DAILY BEAST (Mar. 15, 2011, 7:26 PM) http://www.thedailybeast.com/articles/2011/03/16/nuclear-power-plants-ranking-americas-most- vulnerable.html. 326. Id. No. 1] FUTURE ENERGY JOBS SHAFT 215 but slightly fewer tornadoes and fewer people at 6.8 million.327 The Lasalle County plant in Marsailles came in at number twenty-five, with a bottom-third safety rating and two million people living within fifty miles.328 The choice of increased nuclear dependence shifts an increased amount of risk onto those communities located near reactors. Meanwhile, states are limited in the measures they can take to regulate nuclear energy due to the doctrine of federal preemption.329 On the other hand, any environmental effects of increased reliance on nuclear energy should be compared to the effects of anthropomorphic climate change due to greenhouse gas emissions.

A. Groundwater Risks Tritium, a radioactive isotope of hydrogen, is naturally present in the atmosphere and widely dispersed from nuclear weapons testing during the cold war. Tritiated water can be found in spent fuel cooling ponds near nuclear reactors—and in underground pipes that carry water to the reactors.330 Tritium emits low-energy beta particle radiation, which cannot penetrate skin, but can still enter the body through drinking water. Since tritium emits all its energy near the end of its life, it has a higher density of ionization than other forms of radiation.331 Data on the health effects of radiation are lacking. However, the National Institute for Occupational Safety and Health considers tritium to have an enhanced biological effectiveness when compensating energy workers who may have been exposed to it—indicating the U.S. Government’s recognition that it has serious effects.332 Twenty thousand pCi/L (picocuries per Liter) is the EPA’s standard for drinking water contamination by radionuclides, but some scientists think tritium deserves a higher standard.333 Translating roughly to 20,000 pCi/L in water, four millirem (mrem) absorbed by the body per year is the general standard for beta particle and photon radionuclides,334 roughly equivalent to a chest X-ray.335 The Environmental Radiation Protection Standards for Nuclear

327. Id. 328. Id. 329. See supra Section II.C; see also Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 771 (1994). 330. Jeff Donn, Radioactive Tritium Leaks Found at 48 US Nuke Sites, TODAY.COM (June 21, 2011, 5:48 AM), http://www.today.com/id/43475479/ns/today-today_news/t/radioactive-tritium-leaks-found-us- nuke-sites/#.VXtEr-u7-60. 331. David Biello, Is Radioactive Hydrogen in Drinking Water a Cancer Threat? SCI. AM. (Feb. 7, 2014), http://www.scientificamerican.com/article/is-radioactive-hydrogen-in-drinking-water-a-cancer-threat/. For the same reason, it is also harder to monitor with current technology. 332. Id. 333. See Tritium, Radiation Protection Limits, and Drinking Water Standards, BACKGROUNDER (U.S. Nuclear Reg. Comm’n Office Pub. Affairs), Feb. 2016, https://www.nrc.gov/docs/ML0620/ ML062020079.pdf (“The EPA’s dose-based drinking water standard of 4 mrem per year is based on a maximum contaminant level of 20,000 picocuries per liter (pCi/L) for tritium. If other similar radioactive materials are also present in the drinking water, the annual dose from all the materials combined shall not exceed 4 mrem per year.”). 334. Id.; see also How Is Tritium Regulated?, EPA, https://safewater.zendesk.com/hc/en-us/articles/211 404908-How-is-tritium-regulated- (last visited Feb. 19, 2017) (describing tritium regulations in the United States). 335. Biello, supra note 331. 216 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

Power Operators, promulgated in 1977, limits the annual dose to any member of the public to 25 mrems to the whole body, 75 mrems to the thyroid, and 25 mrems to any other organ.336 It also specifies a yearly limit per power plant on a variety of radioactive isotopes entering the general environment per gigawatt-year.337 In 2005, the Illinois EPA uncovered eight different tritium releases at Exelon’s Braidwood plant dating back to 1996, including releases in excess of 20,000 pCi/L that contaminated groundwater.338 A 2011 Associated Press report, using NRC data going back to 2000, found tritium contamination thirty- six times the drinking water limit in 2010 due to an accidental storage tank release at the LaSalle site and 375 times the limit from an underground pipe leak at the Quad Cities plant in 2008.339 Over 650,000 Illinoisans get their drinking water from within fifty miles of an active nuclear power plant.340 This adds up to substantial health and environmental risks. Nonetheless, residents are encouraged to fish and swim in the Braidwood cooling pond.341 Since 2002, Exelon has sponsored a yearly fishing competition for charity at the pond—Fishing for a Cure.342 The Illinois Environmental Management Agency (IEMA), which measures radiation in water around plants, notes a margin of error of about 100 pCi/L,343 but radiation levels still might be underreported. The IEMA uses Sangchris Lake, a cooling lake for a coal power plant, to establish background radiation levels, even though coal ash is also radioactive.344 A 1978 paper from Oak Ridge Laboratories calculated that people living near coal plants were exposed to the same or more radiation than those near nuclear plants.345 Without an accurate control group, even the reported numbers could be significantly understated. In 2014, the EPA began revising its Environmental Radiation Protection Standards for Nuclear Power Operations regulations to include a section on water resources near nuclear facilities, but it has yet to introduce an update to the regulation.346 The rule’s final environmental statement in 1976 concluded

336. 40 C.F.R. § 190.10(a) (2016). 337. Id. 338. Press Release, Illinois Att’y Gen. Lisa Madigan, Madigan, Glasgow File Suit for Radioactive Leaks at Braidwood Nuclear Plant: Leaks of Tritium-Laced Wastewater Date to 1996 (Mar. 16, 2006), http://www.illinoisattorneygeneral.gov/pressroom/2006_03/20060316.html. 339. Donn, supra note 330. 340. Press Release, Ill. Pub. Interest Research Grp., Nuclear Plants Pose Risks to Drinking Water for Illinois (Jan. 24, 2012), http://www.illinoispirg.org/news/ilp/nuclear-power-plants-pose-risks-drinking-water- illinois. 341. Exelon’s Fishing for a Cure, EXELON, http://www.exeloncorp.com/newsroom/events/exelons- fishing-for-a-cure (last visited Feb. 19, 2017). 342. Id. 343. ILL. EMERGENCY MGMT. AGENCY, ENVIRONMENTAL MONITORING PROGRAM FOR NUCLEAR POWER STATIONS REPORT FOR CALENDAR YEAR 2014, at 6 (Aug. 2015), https://www.illinois.gov/iema/NRS/ Documents/NPSReport2014.pdf. 344. Id. at 31. 345. Mara Hvistendahl, Coal Ash Is More Radioactive than Nuclear Waste, SCI. AM. (Dec. 13, 2007), http://www.scientificamerican.com/article/coal-ash-is-more-radioactive-than-nuclear-waste/. 346. Environmental Radiation Protection Standards for Nuclear Power Operations, 79 Fed. Reg. 6509, 6509 (Feb. 4, 2014) (to be codified at 40 C.F.R. pt. 190). No. 1] FUTURE ENERGY JOBS SHAFT 217 that groundwater contamination was “not likely to be a pervasive problem” because “liquid pathway releases from these facilities result in much smaller potential doses than do noble gas releases [air releases].”347 It remarked that “[d]etailed studies of several specific facilities have revealed no actual dose to any individual from this pathway as great as 1 mrem per year.”348 The proposed updates would address issues of spent nuclear fuel, extension of reactor licenses, and new groundwater standards, to correct the erroneous assumptions in the original regulation.349 Furthermore, they contemplate location-specific standards for groundwater near nuclear plants that may be used in the future as drinking water.350 Nor has the Nuclear Regulatory Commission released groundwater standards for tritium contamination. A few voluntary industry initiatives have emerged, and the NRC has been assessing the effectiveness of buried pipes. A task force in 2010 suggested promulgating regulations for groundwater protection, but a senior management review group declined to do so, saying that the industry was doing a great job policing itself.351

B. Spent Fuel Risks Irradiated fuel is another concern.352 All Illinois’ operating nuclear plants, the retired Zion plant, and the Morris Operation in Grundy County store spent nuclear fuel on site in concrete pools or cylinders—totaling 9,630 metric tons.353 Permanent irradiated fuel disposal has been the responsibility of the federal government since Congress passed the Waste Policy Act of 1982 (WPA).354 The Act implemented schedules and procedures for siting, constructing, and operating a nuclear waste repository; and tasked industry with the costs through a nuclear waste fund.355 In 1984, the NRC concluded in a “Waste Confidence” proceeding that the Commission did not need to consider the environmental impacts of on-site storage of spent fuel when issuing or amending operating licenses.356 At the time, it was reasonably certain that a geologic repository for high-level waste would be available by 2025, and that a reactor could store used material on site for thirty years without any significant environmental impacts.357 It has been over thirty years since that determination. Although industry is responsible for interim fuel storage under the WPA, plant operators have

347. Id. at 6519–20. 348. Id. at 6520. 349. Id. at 6513. 350. Id. 351. Memorandum from R.W. Borchardt, Exec. Director for Operations, to the Commissioners of the NRC, on the Senior Management Review of Overall Regulatory Approach to Groundwater Protection (Feb. 9, 2011), https://www.nrc.gov/reading-rm/doc-collections/commission/secys/2011/2011-0019scy.pdf. 352. “Spent fuel” is a misnomer—less than 5% of fuel is consumed during irradiation for energy generation. 353. BACKGROUNDER, supra note 333. 354. GUTIERREZ & POLONSKY, supra note 73, at 216. 355. Id. at 216–17. 356. Id. at 84, 216–17. 357. Id. 218 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 filed over sixty lawsuits in the U.S. Court of Federal Claims over the Department of Energy’s failure to accept spent nuclear fuel, in violation of its standard reactor contract that stated it would begin accepting fuel in 1998.358 Exelon settled with the Department of Energy, receiving $80 million in damages and ongoing additional compensation for approved spent fuel storage costs each year.359 In 2015, the NRC published a final safety evaluation report for a waste repository at Yucca Mountain (after being ordered by the D.C. Circuit Court of Appeals in 2013 to resume a 2008 review it had dropped in 2010) and in 2016 released its final environmental impact statement supplement.360 According to the Nuclear Energy Institute, the two reports found the proposed repository would be “safe and environmentally sound” for one million years.361 Though spent fuel can be reprocessed, as it is in Japan and France,362 there is no known method of decontamination.363

C. Generalized Health Risks In 2010, the NRC asked the National Academy of Sciences (NAS) to study the cancer risks of living near a nuclear power plant or fuel processing facility.364 In the first phase of the study, the NAS recommended studying cancers, mortality, and childhood cancers within thirty miles of nuclear facilities.365 It also recommended computer modeling to estimate radiation doses from airborne and liquid releases.366 In 2014, the NAS reported that completion of the pilot study would take three years and $8 million and “will have limited use for estimating cancer risks . . . because of the imprecision inherent in estimates from small samples.”367 The NRC ended the study by concluding that “the time and money would not be well spent for the possible lack of useful results.”368

358. Id. at 216, 220. 359. Id. at 220. 360. Disposal: Yucca Mountain Repository, NUCLEAR ENERGY INST., https://www.nei.org/Issues- Policy/Used-Nuclear-Fuel-Management/Disposal-Yucca-Mountain-Repository (last visited Mar. 12, 2017). 361. Id. Rick Perry, nominee for Energy Secretary, has suggested that a Texas site may also accept the country’s spent nuclear fuel—but there are serious questions as to whether it is fourteen feet above an aquifer. Christopher Helman, Texas Billionaire Builds Giant Nuclear Waste Dump, FORBES (Apr. 1, 2011, 6:39 PM), http://www.forbes.com/sites/christopherhelman/2011/04/01/texas-billionaire-builds-giant-nuclear-waste- dump/#4356a9847f14. 362. GUTIERREZ & POLONSKY, supra note 73, at 216. 363. Spent Fuel Storage in Pools and Dry Casks: Key Points and Questions & Answers, U.S. NUCLEAR REG. COMM’N, https://www.nrc.gov/waste/spent-fuel-storage/faqs.html (last updated Apr. 13, 2015). 364. Analysis of Cancer Risks in Populations Near Nuclear Facilities, BACKGROUNDER (U.S. Nuclear Reg. Comm’n Office Pub. Affairs), Jan. 2016, at 2, http://www.nrc.gov/docs/ML1326/ML13269A432.pdf. Illinois is home to the country’s only active uranium processing facility, in Metropolis, near the southern tip of the state. Honeywell Metropolis Works, HONEYWELL, http://www.honeywell-metropolisworks.com/ (last visited Feb. 19, 2017). 365. BACKGROUNDER, supra note 364, at 2. 366. Id. 367. Id. at 3. 368. Id. (emphasis added). No. 1] FUTURE ENERGY JOBS SHAFT 219

D. Meltdown Risks It is hard to say how likely it is for another nuclear catastrophe to happen with only fifty years of experience with this source of fuel. However, there are some numbers available from which to generate a rough probability. Humanity has a collective 16,000 reactor-years of experience with nuclear energy (a cumulative calculation that adds the amount of years each reactor has been in operation), during which three major accidents have occurred at commercial nuclear reactors: Chernobyl, Three Mile Island, and Fukushima; according to the World Nuclear Association (a pro-industry nonprofit organization).369 One event every 5,333 reactor-years comes out roughly to a 0.2% annual risk of incident for an eleven-reactor state like Illinois. The Three Mile Island meltdown was confined completely to the plant, meaning only two accidents at commercial reactors caused serious radiological releases. According to the World Nuclear Association, “even the worst possible accident in a conventional western nuclear power plant or its fuel would not be likely to cause dramatic public harm.”370 A 2013 report by the United Nations’ Scientific Committee on the Effects of Atomic Radiation studying radiation exposure effects after the Fukushima meltdown found that, to the general public, “[t]he most important health effect is on mental and social well-being, related to the enormous impact of the earthquake, tsunami and nuclear accident, and the fear and stigma related to the perceived risk of exposure to ionizing radiation.”371 Although it reported an expected increase in cancer rates for nuclear plant workers receiving large doses, it also noted “any increased incidence of cancer in this group is expected to be indiscernible because of the difficulty of confirming such a small incidence against the normal statistical fluctuations in cancer incidence.”372 It was significant that due to the season of the accident there was limited locally grown food, and people took measures to avoid eating fresh produce.373 A meltdown would be expensive, however; the cost of the Fukushima meltdown is already $105 billion, including $48 billion to decontaminate the plant, and that does not include final disposal, compensation, or plant decommissioning.374

369. Safety of Nuclear Power Reactors, WORLD NUCLEAR ASS’N (May 2016), http://www.world- nuclear.org/information-library/safety-and-security/safety-of-plants/safety-of-nuclear-power-reactors.aspx. 370. Id. 371. Sci. Comm. on the Effects of Atomic Radiation, Rep. on the Sources, Effects and Risks of Ionizing Radiation, vol. 1, U.N. Doc. A/68/46, ¶ 39, at 10 (2013), http://www.unscear.org/docs/reports/2013/14-06336_ Report_2013_Annex_A_Ebook_website.pdf. 372. Id. at 11. 373. Id. at 57. Some uncertainty exists as to the harms of low-level radiation exposure—hormesis is the term for its possible beneficial effect. Sci. Comm. on the Effects of Atomic Radiation, Rep. on the Sources and Effects of Ionizing Radiation, vol. 2, U.N. Doc. A/63/46, ¶ D252, at 183 (2008). 374. Fukushima Disaster Bill More than $105bn, Double Earlier Estimate—Study, RT (Aug. 27, 2014, 12:45 AM), https://www.rt.com/news/183052-japan-fukushima-costs-study/. A Japanese court ordered TEPCO, the company operating the plant, to pay forty-nine million yen (almost half a million dollars) to a widower whose wife set herself on fire in a depression induced by the meltdown. Id. 220 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

E. Security Risks Terrorism is an additional concern. Acquiring material from uranium mines, attacking a nuclear reactor, assaulting spent fuel storage, intercepting materials in transit, manipulating a nuclear worker, and making dirty bombs with radioactive tailings from processing plants are all ways that bad actors can acquire nuclear materials. According to the International Policy Institute for Counter Terrorism, between 1970 and 1999 there were 167 acts of terrorism involving a nuclear target.375 From January 2003 to December 2012, the International Atomic Energy Agency’s Incident and Trafficking Database recorded 419 incidents of criminal unauthorized possession of nuclear materials from any source.376 Although nuclear fuel is not nearly as dangerous as weapons, the concentrated power of dangerous materials tends to draw bad actors.377 Since 9/11, the NRC has instituted emergency preparedness standards that specifically address terrorism and cybercrime, and it is evaluating employees’ safety culture at specific plants.378 However, there is no way to definitively guarantee security against all possible threats.

VI. RECOMMENDATIONS

A. Future of the Clean Power Plan In a convoluted saga that casts antinuclear environmentalists on the same side as climate deniers, the fight over the CPP has one angle that pits two well- established industries against each other: coal versus nuclear. West Virginia’s Attorney General filed his complaint against the CPP on October 23, 2015, the day the EPA released its final rule.379 The D.C. Circuit Court of Appeals, where it was filed, has congressional authority under the Administrative Procedure Act to review agency decisions like the Clean Power Plan.380 Some of the major arguments raised are as follows: (1) The EPA does not have the authority to regulate utilities, but rather can only regulate power plants themselves.381 This is particularly relevant when it comes to coal, where carbon capture and sequestration technology is uneconomical, and which the

375. SOVACOOL ET AL., supra note 95, at 186. 376. Id. at 167. 377. See id. at 165–67, 185–88 (describing lists of civilians found in possession of nuclear materials and terrorist attacks involving them); see also N.Y. Klansman Gets 30 Years in Prison for Plot vs Muslims, Obama, REUTERS (Dec. 19, 2016, 2:42 PM), http://www.reuters.com/article/us-new-york-deathray-idUSKBN14812B (describing the first conviction under a 2004 federal law prohibiting dirty bombs). 378. GUTIERREZ & POLONSKY, supra note 73, at 83. 379. TSANG & WYATT, supra note 3. 380. See 5 U.S.C. § 570 (2012) (“Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking and is subject to judicial review shall not be accorded any greater deference by a court than a rule which is the product of other rulemaking procedures.”). 381. Application by 29 States and State Agencies for Immediate Stay of Final Agency Action During Pendency of Petitions for Review at 20–21, West Virginia v. EPA, 136 S. Ct. 1000 (2016) [hereinafter Application for Immediate Stay], http://www.ago.wv.gov/publicresources/epa/Documents/Final%20States%20 SCOTUS%20Stay%20App%20-%20ACTUAL%20(M0116774xCECC6).pdf. No. 1] FUTURE ENERGY JOBS SHAFT 221

EPA excluded from the BSER guidelines, forcing a shift to other sources of electricity generation.382 Essentially, the argument is that Congress never expected the EPA to exclude an entire energy industry through regulation, but merely to regulate each type of power plant as best as possible. (2) Part of this interpretation turns on what has been called a legislative glitch—different branches of the legislature passing slightly different amendments.383 Section 111(d) on its face prohibits coal power plant regulation for carbon dioxide because coal power plants are regulated under Section 112 (hazard pollutants), and the alternative Senate amendment, used to create an ambiguity within which the EPA could regulate, was rendered moot due to a contemporaneous House amendment.384 (3) The EPA may have changed the rule too much between its proposed rule and its final rule, not giving enough notice to the parties affected, or providing them an opportunity to contest the new provisions.385 (4) The Act forces states to carry out federal policy, violating the Tenth Amendment.386 (The CPP’s default federal regulations seem to address this problem). Under the Chevron standard of review, a court reviewing an agency decision defers to the agency’s decision making because, basically, the agency is composed of experts and the court is not.387 Under Chevron, it is up to each agency how it passes regulations so long as its interpretations are reasonable.388 This deference is limited, though. If the agency’s interpretation is not reasonable, a court can overturn it.389 In 2014, the Court maintained that an enormous and transformative expansion in EPA’s regulatory authority should have explicit congressional authorization.390 In this vein, much of the oral argument in the CPP litigation centered on whether the Clean Power Plan was transformative.391 Ten justices of the D.C. Circuit Court of Appeals heard seven hours of arguments in the case on September 27, 2016.392 Chief Justice Merrick Garland had recused himself, as he had from all cases while his Supreme Court nomination was pending.393 The panel comprised one George H.W. Bush

382. Id. at 10 n.5 (explaining that in the CPP, sequestration at existing coal power plants was “not a ‘demonstrated’ system of emission reduction”); id. at 22 n.9, 23 (noting that the EPA causes “generation shifting” by not promulgating a best system for coal sources, exceeding its CAA authority). 383. See Coral Davenport, Obama Climate Plan, Now in Court, May Hinge on Error in 1990 Law (Sept. 25, 2016), https://www.nytimes.com/2016/09/26/us/politics/obama-court-clean-power-plan.html (explaining legislative glitch). 384. EPA’s Proposed 111(d) Rule for Existing Power Plants: Legal and Cost Issues: Hearing Before the Subcomm. on Energy and Power of the H. Comm. on Energy and Commerce, 114th Cong. 13 (Mar. 17, 2015) (statement of Laurence H. Tribe, Professor, Harv. Univ. & Harv. Law Sch.), http://docs.house.gov/meetings/ IF/IF03/20150317/103073/HHRG-114-IF03-Wstate-TribeL-20150317-U1.pdf. 385. TSANG & WYATT, supra note 3, at 29. 386. Application for Immediate Stay, supra note 381, at 23–27. The CPP’s default federal regulations seem to address this problem. RAMSEUR & MCCARTHY, supra note 123, at 3. 387. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). 388. Id. 389. Id. 390. Util. Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014). 391. TSANG & WYATT, supra note 3, at 18. 392. Biesecker, supra note 3. 393. Id. 222 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 appointee, two Clinton appointees, three George W. Bush appointees, and four Obama appointees, meaning it leans democratic.394 The losing party will likely appeal to the Supreme Court, which, without Justice Scalia, appears split 4-4 on the issue. If the D.C. Circuit issues an opinion and the Supreme Court grants or denies certiorari before a new Justice is confirmed, the Clean Power Plan (or large portions of it) would be likely to withstand the challenge. But, energy issues often do not lie neatly along party lines—the ultimate destiny of cap-and-trade emission regulation in the courts is still anybody’s guess. President Trump’s recent executive order directs the EPA to review the CPP’s final rule and to suspend, revise, or rescind any rules “if appropriate.”395 However, President Trump could hypothetically go further and issue an executive order completely halting the CPP or defunding the EPA. Executive orders, though, only have force of law if rooted in powers given to the President by the Constitution or delegated to him by Congress.396 Justice Jackson’s concurrence in Youngstown provides a tripartite framework for the court to analyze executive orders397: If it is within the zone in which Congress gave the President express or implied authorization, the President has the widest latitude of interpretation.398 If the President takes measures “incompatible with the expressed or implied will of Congress,” his or her power is at its “lowest ebb.”399 Finally, the President may sometimes act independently, but “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”400 Congress passed the Clean Air Act over forty years ago, but the Act expressly authorized the EPA to regulate air quality. This specific delegation indicates that Congress intended the EPA to regulate airborne emissions, so the President’s power would be at its lowest ebb in this zone. Whether any executive order that directly immobilizes the CPP itself would survive a challenge would depend on the opinion of federal judges and ultimately the Supreme Court. There remains, of course, the possibility that President Trump might drop his opposition to the CPP if he finds out it supports nuclear energy. Bloomberg reported that on December 8, 2016 (a day after Governor Rauner signed the FEJA into law), President Trump asked the Department of Energy for ways to prevent the shutdown of nuclear plants.401 Exelon CEO Chris Crane reportedly said the company has begun talks with the Trump

394. Id.; United States Court of Appeals for the District of Columbia Circuit, BALLOTPEDIA, https://ballotpedia.org/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit (last visited Feb. 19, 2017). 395. Trump Executive Order, supra note 5. 396. VIVIAN S. CHU & TODD GARVEY, CONG. RESEARCH SERV., RS20846, EXECUTIVE ORDERS: ISSUANCE, MODIFICATION, AND REVOCATION (2014), https://fas.org/sgp/crs/misc/RS20846.pdf. 397. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring). 398. Id. at 635. 399. Id. at 637. 400. Id. 401. Mark Chediak & Catherine Traywick, Trump Team’s Asking for Ways to Keep Nuclear Power Alive, BLOOMBERG (Dec. 8, 2016, 10:38 PM), https://www.bloomberg.com/news/articles/2016-12-09/trump-s- team-is-asking-for-ways-u-s-can-keep-nuclear-alive. No. 1] FUTURE ENERGY JOBS SHAFT 223

Administration.402 In that case, environmentalists may be relieved (in this instance) about Scott Pruitt’s appointment as head of the EPA, as he could decline to enforce the CPP.403 This would be an agency decision subject to its absolute discretion, a standard set forth in Heckler v. Chaney, because agencies have the required expertise to balance their own priorities and budgets.404 The presumption against judicial review of agency decision making can be overcome in situations where the “substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”405 The CAA does provide a thorough framework for enforcement, as well as for promulgating new rules, as the CPP’s history shows. Any decision reviewing the EPA’s action based on the CAA may, again, turn on whether the CPP is transformative or an extension of the EPA’s existing congressionally delegated powers. Congress could also weigh in by directing the EPA to act, or not act, as the case may be.406 If cap and trade fails, it may be time to talk about eliminating energy subsidies across the board instead of imposing new regulatory schemes. Energy regulation is supposed to mimic the competitive marketplace, and it does a pretty decent job overall. Although it would shift our energy portfolio away from coal, the Clean Power Plan seems to pick winners and losers by valuing the externalities of fossil fuel emissions but not those of nuclear energy. The FEJA, on a smaller scale, shows how a trading compliance program for carbon emissions can function as a subsidy for nuclear energy by allowing plants that were otherwise unprofitable to remain open. Without this transformative new regulation, the energy grid would gradually shift toward renewables anyways because they are faster and cheaper to build—as has been happening in Illinois with wind power.

B. Recommendations for Future Agency Action Under FEJA Section 1-20(a)(1) of the Illinois Power Agency Act, as amended, authorizes but does not mandate that the IPA develop a ZEC procurement plan.407 The Agency could decide not to develop such a plan based on a reasoned consideration of the legislative history and economic goals of the Act. When developing the ZES, the Illinois Power Agency must consider any reports issued by a state agency, board, or commission under House Resolution

402. Tomich, supra note 8. 403. DANIEL T. SHEDD & TODD GARVEY, CONG. RESEARCH SERV., R43710, A PRIMER ON THE REVIEWABILITY OF AGENCY DELAY AND ENFORCEMENT DISCRETION (2014), https://fas.org/sgp/crs/misc/ R43710.pdf. 404. Heckler v. Chaney, 470 U.S. 821, 832 (1985) (holding that death row inmates could not challenge the FDA’s refusal to block the use of specific drugs in lethal injections); see also SHEDD & GARVEY, supra note 403, at 7 (discussing agency enforcement discretion and Heckler). 405. Heckler, 470 U.S. at 833. 406. SHEDD & GARVEY, supra note 403, at 5–6. 407. 20 ILL. COMP. STAT. 3855/1-20(a)(1), as amended by Future Energy Jobs Act § 5. 224 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017

1146 of the 98th General Assembly (as well as publicly available analyses).408 Interested parties have ten days to comment, after which the commission reviews for cost effectiveness, including the costs of replacement with wind and solar PV generation.409 If the IPA looks at the H.R. 1146 Report, it would be hard pressed to conclude the ZES is cost effective compared to wind and solar, from a rate or jobs perspective. From a reliability perspective, demand response or efficiency may still prove to be more cost effective than subsidizing uneconomic nuclear plants. According to the ICC Report, “in the long run, the closure of a particular power plant could reduce rather than increase prices, as newer more efficient faculties are introduced to the power grid.”410 The IPA should take into account that the H.R. 1146 Report was written with the Clean Power Plan in mind—“The USEPA’s rule will reduce national reliance on coal, creating a new regime of opportunity”411—and at the very least delay creating a ZES until the specifics of the federal plan are confirmed. Otherwise, Illinois risks approving a plan that does not comply with the EPA regulations, and thus, some of the benefits of meeting these regulations, and of exporting energy, on which the H.R. 1146 Report was based, will be lost. If it does create a zero emission standard, the IPA should amend the FEJA to include a cost-effectiveness provision for ZECs similar to that for RECs that uses regional market prices to create benchmarks, or, if benchmarks are unavailable, uses “publicly available data on regional technology costs and expected current and future regional energy prices.”412 With cost effectiveness determined based on regional markets, if the CPP is not implemented, purchases of ZECs would not be required. The zero emission standard, if implemented, will utilize the social cost of carbon to value the environmental benefits of nuclear facilities, with a price adjustment to ensure procurement remains affordable for retail customers.413 The EPA estimates that cost to be $42 per metric ton of carbon dioxide in 2020.414 There are also published estimates of the social cost of nuclear. The World Nuclear Association refers to a valuation of €18–€22/MWh, from a 2014 estimate that includes “€5/MWh for health impacts, €4/MWh for accidents and €12/MWh for so-called ‘resource depletion’” (but not waste management or decommissioning as those are recovered by rates).415 At the

408. Id. § 1-75(d-5)(1)(C). 409. Id. § 1-75(d-5)(1)(C-5)(iii)(bb). 410. H.R. 1146 REPORT, supra note 44, at 64–65; see also supra Subsection IV.A.1 (describing rate impacts of nuclear power plant closures). 411. H.R. 1146 REPORT, supra note 44, at 124. 412. 20 ILL. COMP. STAT. 3855/1-75(c)(1)(D), as amended by Future Energy Jobs Act, Ill. Pub. Act 99- 0906, § 5 (S.B. 2814) (2016) (to be codified at 220 ILL. COMP. STAT. 5/16 and other scattered sections). 413. Future Energy Jobs Act § 1.5. 414. INTERAGENCY WORKING GRP. ON SOC. COST OF GREENHOUSE GASES, U.S. GOV’T, TECHNICAL SUPPORT DOCUMENT: TECHNICAL UPDATE OF THE SOCIAL COST OF CARBON FOR REGULATORY IMPACT ANALYSIS UNDER EXECUTIVE ORDER 12866, at 4 (Aug. 2016), https://www.epa.gov/sites/production/files/ 2016-12/documents/sc_co2_tsd_august_2016.pdf. 415. The Economics of Nuclear Power, WORLD NUCLEAR ASS’N, http://www.world-nuclear.org/ information-library/economic-aspects/economics-of-nuclear-power.aspx (last updated Jan. 2017). No. 1] FUTURE ENERGY JOBS SHAFT 225 current exchange rate of 1:1.07, that is a rough estimate of $23.54/MWh that nuclear energy costs society.416 Although this is lower than the cost of carbon, it is not zero. Exelon’s ZES fact sheet says the FEJA will “avoid $10 billion over 10 years in economic damages associated with a dramatic increase in carbon emissions.”417 The General Assembly has chosen to value the externalities of fossil fuel generation—so why not value the externalities of nuclear as well? At the very least, the ICC and IPA should factor the social cost of nuclear into their valuations of the social benefits of nuclear—perhaps by subtracting it from the beneficial value. The FEJA could also treat demand response resources equally to generation resources to reflect its goals to encourage cost-effective demand response. The IPA should amend Section 1-5(4) of the Illinois Power Agency Act—which finds it necessary to “maintain and support . . . generation resources that operate at all hours of the day and under all weather conditions”418—by changing “generation resources” to “load serving entities.” The FERC Order 745 (which the Supreme Court revived after the H.R. 1146 Report had been published) required that demand response be compensated equally to generation resources on the wholesale power market.419 As new DR companies and programs emerge for the wholesale market, that same expertise could be applied to the retail market. The IPA would level the retail market if it valued DR and EE resources in the same manner as generation to reflect the value of their contribution to replace carbon emissions. Perhaps it could create a DR/EE standard more akin to the RES and ZES for generation resources. Additionally, the FEJA’s “total resource cost test” does not take into account demand-reduction-induced price effects.420 This test is used to measure the cost-benefit ratio of EE and DR measures, and is intended to include avoided costs associated with reduced natural gas reliance.421 Since DR competes directly with natural gas as a peak load serving entity, it is a reasonable alternative to the fuel and should be considered as such in any competitive economic analysis.422

VII. CONCLUSION One of the reasons consumers have cheap, reliable energy is that investors understand it as a stable growth industry. On the bright side, this encourages large investments in expensive high-capacity plants like nuclear. On the down side, when investors are guaranteed recovery of costs, it is hard for market signals to make their way back to the utility. Illinois’ energy customers who

416. EURUSD Spot Exchange Rate, BLOOMBERG MARKETS (Mar. 13, 2017, 12:57 AM), https://www. bloomberg.com/quote/EURUSD:CUR. 417. Maintaining Clean Air Through a Zero Emission Standard, supra note 316. 418. 20 ILL. COMP. STAT. 3855/1-5(4), as amended by Future Energy Jobs Act § 5. 419. Demand Response Comp. in Organized Wholesale Energy Mkts., Order No. 745, 134 FERC ¶ 61,187, at para. 54 (2011). 420. 20 ILL. COMP. STAT. 3855/1-10, as amended by Future Energy Jobs Act § 5. 421. Id. 422. H.R. 1146 REPORT, supra note 44, at 54. 226 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2017 vote are gung-ho about renewable energy. Based on a survey, 86.5% said it is very or somewhat important “to maintain policies to bring renewable energy to Illinois.”423 Additionally, 57% preferred in-state generation to purchasing credits from other states (which 4.9% preferred).424 Both nuclear and coal are widely recognized as job creators. If energy is a jobs program, affirmative policy decisions could create or incentivize jobs in the renewable energy sector. The amount of energy required by a territory is generally dependent on population: as long as it has residents, the state will never be in danger of not having future energy jobs. Illinois is at a crossroads where the policies it creates today will dictate energy investments for decades to come. Implementation of a ZEC standard would signal to energy investors that nuclear is a safe bet when economics has shown just the opposite. A psychological phenomenon known as path dependence may help to explain the legislature’s energy choices.425 In path dependence, actors consider their investments in the context of past investments, rather than current conditions.426 Like a gambler who keeps playing to get his money back, the FEJA locks Illinoisans into nuclear energy precisely because it is losing profitability. Creating a market to sell a product because it is losing its economic competitiveness is antithetical to capitalism.427 This shortsighted plan is shortchanging the state’s energy consumers and possibly shortening our future. There are some actions energy users can take to lower their CO2 emission impacts or increase renewable generation. Recent smart grid improvements along with the FEJA have opened the door to new options for residential consumers. Those who purchase solar panels for their house or on a community solar installation can receive credit from the utility for energy generated, and even sell the RECs to help finance the panels. Demand-side management is available to residential and commercial consumers who want to reduce their own usage to help reduce demand at times of peak capacity. But, if Illinois residents want to diminish Exelon’s monopoly power, they can visit the Illinois Commerce Commission’s website at https://pluginillinois.org and choose a different electricity supplier.

423. Poll Finds 86.5% of Illinois Voters Believe State Should Bring More Renewable Energy to Illinois, BUS. WIRE (May 15, 2013, 12:22 PM), http://www.businesswire.com/news/home/20130515006408/en/Poll- Finds-86.5-Illinois-Voters-State-Bring#.VX5UVeu7-60. 424. Id. 425. SOVACOOL ET AL., supra note 95, at 188. 426. Id. 427. A more convincing explanation is Exelon’s $4 million annual lobbying budget. See Exelon Corp.: Summary, OPENSECRETS.ORG, http://www.opensecrets.org/lobby/clientsum.php?id=D000000368 (last updated Jan. 25, 2017). No. 1] FUTURE ENERGY JOBS SHAFT 227

VIII. APPENDIX Table A-1. Ten Largest Plants in Illinois by Generation Capacity, 2014

Table A-2. Estimated LCOE (Weighted Average of Regional Values Based on Projected Capacity Additions) for New Generation Resources, Plants Entering Service in 2022

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Table A-3. Difference Between Capacity-Weighted Levelized Avoided Costs of Electricity (LACE) and Capacity-Weighted Levelized Costs of Electricity (LCOE) for Plants Entering Service in 2022