New York Nuclear Plant Subsidy Program Subject to Legal Attack

         On Monday, the New York Public Service Commission unveiled a new clean energy standard.  The standard requires the state to have half of its electricity come from renewable sources by 2030.  Critics of the policy are crafting a likely legal attack based on the policy’s requirement that New York investor-owned utilities and other electricity suppliers must buy zero-emission credits which will be used to prop up nuclear power plants around the state.  These nuclear power plants, mired in financial struggles, are vital to New York’s goal of reducing carbon emissions by 40% from 1990 to 2030. Industry groups have come forward to argue that the policy is in conflict with the United States Supreme Court’s recent ruling in Hughes v. Talen Energy Marketing LLC, 136 S.Ct.1288 (2016).  In that case, the Supreme Court held that states could encourage clean power through public policy, so long as the policy was “untethered to a generator’s wholesale market participation.”  Further analysis of Hughes and the potential litigation can be found here.