Kenneth W. Irvin and Christopher Polito1
Sidley Austin LLP – Washington, D.C.

What is “resilience,” and do we need it?

As anyone who has not been on Mars knows, last year, U.S. Secretary of Energy Rick Perry petitioned the Federal Energy Regulatory Commission (FERC) to craft policies to provide for “resilience” in our generation resource mix.  Putting it in critical, national security terms, Secretary Perry wrote:

America’s greatness depends on a reliable, resilient electric grid powered by an “all of the above” mix of generation resources [that] must include traditional baseload generation with on-site fuel storage that can withstand major fuel supply disruptions caused by natural and man-made disasters. … Our economy, government and national defense all depend on electricity. Therefore, ensuring a reliable and resilient electric supply and corresponding supply chain are vital to national security.2

Framing the issue as “national security” is exactly what’s happening now, with a “leaked” memo from the White House National Security Council arguing for the administration to use the Defense Production Act and authority under Federal Power Act section 202(c) to “temporarily delay retirements of fuel-secure electric generation resources.”3

A few months before Secretary Perry’s letter to FERC, U.S. Environmental Protection Agency (EPA) chief Scott Pruitt and President Trump appeared on national television to warn that if coal power continues to decline, the lights could go out.4 Administrator Pruitt went so far as to say that if the share of coal use falls below 30 percent nationally, it could expose the United States to terrorist attacks.  “When we’re at less than 30 percent or right at 30 percent today, that creates vulnerabilities to attacks on infrastructure,” Pruitt said.5

Pretty potent rhetoric. Nevertheless, as one of his first acts as FERC Chairman, Kevin McIntyre led the Commission in a 5-0 decision rejecting the Department of Energy’s Notice of Proposed Rulemaking (DOE NOPR).6 In so doing, FERC reiterated its faith in the organized wholesale markets.7

FERC did, however, simultaneously commence a proceeding to examine the overarching question: What exactly is “resilience,” and do we need it?8 That proceeding is now underway before the Commission in docket AD18-7-000.

In starting its inquiry into “resilience,” FERC said:

The Commission places a priority on resilience, and today issued an order initiating a new proceeding (Docket No. AD18-7-000) to holistically examine the resilience of the bulk power system. The Commission recognizes that it must remain vigilant with respect to resilience challenges, because affordable and reliable electricity is vital to the country’s economic and national security.9

FERC’s action directed the regional transmission organizations (RTOs) and independent system operators (ISOs) to provide information as to whether FERC and the markets need to take additional steps to affirm the resilience of the bulk power system.  FERC said its goals are to “develop a common understanding among the Commission, industry and others of what resilience of the bulk power system means and requires; to understand how each regional transmission organization and independent system operator assesses resilience in its geographic footprint; and to use this information to evaluate whether additional Commission action regarding resilience is appropriate.”10

Yet, “resilience” remains a rather elusive concept.  The comments from the RTOs and ISOs explain “resilience” as another, perhaps expanded, value of reliability.11 Their comments in response to FERC indicate that all is well with each of their respective systems; but, at the same time, market events show that we do not have a clear view of what resilience is, how to measure it, or how to ensure it.12

Responding to FERC’s directive, PJM Interconnection (PJM) took one of the bolder approaches — seeking to establish a set of principles that would (intentionally) act as a lightning rod or spark action.  PJM, for example, asked FERC to adopt a slightly different core definition of resilience and apply it (essentially) nationwide.

FERC’s order in January came with this definition: “The ability to withstand and reduce the magnitude and/or duration of disruptive events, which includes the capability to anticipate, absorb, adapt to, and/or rapidly recover from such an event.”13

PJM recommended an alternative formulation: “The ability to withstand or reduce the magnitude and/or duration of disruptive events, which includes the capability to identify and mitigate vulnerabilities and threats, and plan for, prepare for, absorb, adapt to, and/or recover from such an event.”14  Note the omission of the word “rapidly,” and the addition of the phrase “identify and mitigate vulnerabilities and threats.”

Additionally, PJM’s description of resilience — a term that is still in flux — as an extension of reliability is notable. Reliability is a well-defined set of ISO/RTO functions overseen by FERC, from capacity markets to secure resources years in advance, to split-second frequency regulation and “black-start” capacity to respond to emergencies.15

In its filing, the Midcontinent Independent System Operator (MISO) also acknowledged that “resilience is an element of overall grid reliability.”16  MISO said that “resilience” and the threats to resilience within its footprint comprise a concept embedded within reliability.17

Other commenters worry that this is nothing more than an excuse for the federal regulator to trample traditional stakeholder processes and the role of the states and their public utility commissions. The Pennsylvania Public Utility Commission (PAPUC) asked FERC to “clearly articulate” its jurisdiction regarding resilience, saying it disagrees with PJM’s assertion that resilience is “‘within the Commission’s existing authority with respect to the establishment of just and reasonable rates under the Federal Power Act.’  Therefore, clear and precise justification of FERC’s authority on this matter will be beneficial prior to any initial steps in regulating resilience,” the PAPUC stated.19

Echoing the state’s rights theme, the Large Public Power Council (LPPC) agreed with the Commission’s proposed definition of resilience. However, the LPPC urged that: “To the extent further rules or standards are considered, FERC must be mindful of the statutory limits on its authority,” saying the Federal Power Act does not provide the agency a general grant of authority “to take action on reliability or resilience outside its specific statutory role in the approval and enforcement of standards.”20 The LPPC also contended that there is “no basis” for applying any rule governing resilience to non-RTO areas, as had been recommended by MISO and PJM.  “This is not an issue within FERC’s domain in non-RTO regions, where states and localities maintain authority over generation investment decisions and cost recovery,” the group said.21

And still other perspectives abound among those in the renewable energy sectors who worry (for obvious reasons) that resilience is merely a trumped up contrivance aimed at undermining the steady progress renewable energy is making toward supplying the lion’s share of our energy needs.22

The Electricity Consumers Resource Council and industrial energy users warned against using resilience as a pretext for a bailout of coal and nuclear plants, adding: “No action to advance resilience can be considered ‘just and reasonable’ if it has not considered the impact to consumers and how to minimize that impact.”23 Americans for a Clean Energy Grid, a coalition supporting a “fully electrified” society, noted that this winter’s “bomb cyclone” forced Northeast grid operators to rely on more expensive generation, such as coal, oil and dual-fuel units, even while wind output — stranded by transmission constraints — was higher than normal during the weather event.24 “Thus, while wind power can be more reliable than other resources during extreme winter weather, it is limited by interregional transmission constraints,” the group said.25 Indeed, PG&E warned: “Climate science and lived experience show that historical conditions are no longer a reliable predictor of future conditions. As issues arise in the future, PG&E encourages the Commission to consider the risks of climate change when making decisions that could affect stakeholders’ ability to make climate-smart investments, or to make other decisions to address climate resilience for the future.”26

The voices form a cacophony, not a chorus

FERC’s AD18-7-000 docket is teeming with very thoughtful, deeply concerned visions — albeit with literally hundreds of suggested forward paths.  It is an understatement to say FERC’s call to action has been fully engaged.

Where we go from here is not clear.  What is clear, however, is that action is needed.27 The Commission must act quickly and substantively, because the underlying concerns around resilience have surfaced in a multitude of proceedings.  For example, the Electric Power Supply Association (EPSA) says resilience “must be a priority in all regions of the country, not only those served by independent system operators or regional transmission organizations.”28 According to the EPSA: “It is important for [FERC] to extend its inquiry on the holistic examination of resilience to all jurisdictional entities, particularly transmission owners and systems outside of ISOs/RTOs.”29

The challenge for FERC is ever mounting — New Jersey’s recently enacted Zero Emissions Credit Market is one example.30 Indeed, President Trump has reportedly pressed Secretary Perry to figure out a way to save coal and nuclear plants, which have struggled to compete in power markets against the rise of natural gas-fired generation and renewables, but the DOE has yet to land on a viable strategy.31

Commentators of all stripes and interests are offering their views about the effectiveness of our organized wholesale energy markets.  One perspective says we are experiencing a severe problem in which baseload generation is threatened and verges on extinction.  This view holds that: “[t]he baseload exit problem in organized electricity markets” is evidenced by “the bankruptcy or closure, or threat of bankruptcy and closure, of power plants.  From there, a second, follow-on phase ensues involving emergency state action to preserve the baseload capacity, with significant associated costs, political and otherwise.”32 As these advocates see it: “[i]f gas-fired generation is indeed entering the bankruptcy or threat of bankruptcy phase of this problem, the next question is when does the second phase begin? Said another way, the waiting game is on [to] see if: (1) an ‘around market’ solution is developed to preserve gas-fired generation in organized electricity markets or (2) whether the threat of gas exits triggers a re-regulation push in any state.”33

It’s certainly true that we are seeing baseload resources exit the market.34 And, for nuclear and coal, new developments continue to challenge their forward path.  As renewable energy, demand response and energy efficiency push higher and higher in respect of the total market share, the threat to baseload generation is acute and perhaps dire.  Some say California remains at the forefront of the gas problem in organized electricity markets, with Texas following close behind.35

The Rocky Mountain Institute (RMI) offered a more positive assessment.  In a recent report, RMI observed that U.S. utilities and independent power plant developers have announced plans to spend $110 billion to build new natural gas-fired plants, but then cautioned that many of those could become stranded assets not long after completion.36

RMI’s report compares the costs of new natural gas plants in four U.S. regions with those of “clean energy portfolios” that include distributed renewable resources, energy efficiency and demand response programs.  RMI found that in three of those cases, the capital costs of clean energy were between 8 percent and 60 percent below those of the gas plants.37 The same applies to operating costs: at $5.00/MMBtu, the costs of clean energy portfolios will fall below the per-MWh cost of gas-fired plants in 2026 or shortly thereafter, the study found.38 At $3.00/MMBtu, clean energy will become cheaper around 2040.39

RMI’s analysis determines that low-cost clean energy portfolios threaten to strand investments in natural gas-fired power plants. In addition to competing with proposed gas-fired power plants on a levelized cost basis, clean energy portfolios will also increasingly threaten the profitability of existing power plants. Comparing the future operating costs of the two proposed combined cycle gas turbines (CCGTs) in this study against new-build clean energy portfolios, RMI finds that, depending on gas price forecasts, the clean energy portfolio’s levelized, all-in costs will fall below marginal operating costs of the CCGTs well within the planned operating lifetime of the proposed plants.40 In other words, the same technological innovations and price declines in renewable energy that have already contributed to early coal-plant retirement are now threatening to stall investments in natural gas.41

In unison with those who advocate that the organized wholesale markets are failing us, RMI urges that, in order to mitigate stranded asset risk and minimize ratepayer costs, investors and regulators should carefully re-examine planned natural gas infrastructure investment. RMI’s analysis reveals that across a range of case studies, regionally specific clean energy portfolios already outcompete proposed gas-fired generators and/or threaten to erode their revenue within the next 10 years.42

Thus, RMI concludes, the $112 billion of gas-fired power plants currently proposed or under construction, along with $32 billion of proposed gas pipelines to serve these power plants, are already at risk of becoming stranded assets.43 This has significant implications for investors in gas projects (both utilities and independent power producers) as well as regulators responsible for approving investments in vertically integrated territories.

Are we well-supplied, or do we need resilience?

As FERC staff recently reported, the U.S. power grid appears well prepared to handle the summer demand, especially in the Mid-Atlantic region that has drawn the DOE’s scrutiny.44

“Staff’s analysis of energy reliability and market conditions and trends going into this summer indicate that most regions appear prepared for the expected summer demand,” FERC’s 2018 summer assessment says.45

Power generation capacity reportedly stands well above minimum reserves considered necessary to keep the lights on through a predicted hot summer.  That includes the 13 Mid-Atlantic and Midwestern states managed by PJM, which has a reserve margin this summer of over 25 percent, more than 10 percentage points above its benchmark reserve. The Eastern U.S. will add 25 GW of new capacity this summer.46

Some reporters wryly note that this ample reserve on the PJM system stands in stark contrast to contention from Secretary Perry, who has argued that the pending shutdown of some power plants threatens to undermine the resilience of the power grid and amounts to a national security threat, a critical justification for declaring a power emergency.47

Yet, FERC Chairman Kevin McIntyre (among others) has repeatedly said he sees no grid emergency.48 That’s a view many share.

“They’re scrounging around for a way to keep some of these nuclear plants and coal plants viable and they’re using that particular argument. . . . To me, it’s not persuasive, but I understand what they’re trying to do,” said Congressman Joe Barton (R-TX).  On the other side of the political aisle, Sen. Martin Heinrich (D-N.M.) said “It’s about abuse of power. You can’t just start claiming a national security justification that clearly has nothing to do with national security, and that’s a very dangerous road to go down.”49

FERC staff’s state of market summer report does highlight some risks in Texas, which has reserve margins below its benchmark, and Southern California, which has restricted gas storage at the Aliso Canyon facility, and which faces limited hydropower capacity due to drought.50

Broad concerns about the loss of baseload generation persist.  Cynics will see a political, not a practical, motivation at play, but “leaked” memos and reports tell us that the National Security Council (NSC) is studying the security risk from coal and nuclear power plant shutdowns. The NSC is set to take the lead on determining whether the federal government should bail out struggling coal and nuclear power plants.51

As evidenced by the “leaked” memo, the NSC will spend time studying whether the retirement of coal and nuclear power plants poses a national security risk that merits the aggressive use of federal authorities under the Federal Power Act or the Defense Production Act — moves that Secretary Perry has been examining.52

The initiative has faced a storm of opposition from the natural gas, wind and solar industries, as well as conservatives who have decried the need for federal interference in the markets.53

Indeed, there is a substantive pushback against arguments in the NSC memo that tries to contend natural gas pipelines that supply the power plants present a vulnerable target that could be disrupted by hackers and cause widespread blackouts.54

So far, Secretary Perry has had no success in implementing President Trump’s orders. His previous request to FERC to consider a rule that would reward plants that kept 90 days of fuel on-site was rejected by the independent agency unanimously in January.55 Moreover, the DOE has demurred from using emergency authority under the Federal Power Act, as bankrupt merchant generator FirstEnergy Solutions had requested, although the Act still requires operators to get cost-of-service contracts approved by FERC.56

In his latest attempt to protect coal-fired and nuclear power plants, Secretary Perry invoked the 1950 Defense Production Act to keep money-losing power plants running by designating them as crucial for national security. 52 While the Act would allow the DOE to nationalize coal and nuclear plants, it would stretch the definition of the law, and would likely require a significant appropriation from Congress to bail out all 85 plants in the Mid-Atlantic and Rust Belt regions, experts say.58 The DOE is also examining a recent highway bill, called the FAST Act, for options such as designating the power plants as critical infrastructure provisions — or, it may ask the Department of Defense to contract for electricity from those power plants.59

Where do we go from here?

Against all this background noise, investors continue to press for renewable energy and decarbonization.  At least 66 climate change-related resolutions were filed for the 2018 proxy season, according to The WallStreet Journal,after support for those measures climbed last year.60

Environmentalists and green-minded investors have increasingly sought to compel fossil fuel companies to recognize and plan for climate change when making decisions about future work. Such resolutions passed last year at utility group PPL Corp., and shareholders earlier this month voted to have pipeline company Kinder Morgan issue an annual sustainability report, disregarding the board’s complaints that such a report would not provide any new meaningful information.61

In the AD18-7 docket, FERC has amassed a robust record that should lead to action.  What type of action that will be, however, is not clear.  FERC’s options include using this record to justify that everything is fine and join with Nero playing the proverbial fiddle while Rome (i.e., our wholesale energy markets) burns.  That choice seems unlikely given Chairman McIntyre’s seriousness of purpose and the record developed in the docket.  It seems more probable that FERC will affirm the various individual RTO/ISO plans to advance resilience in their respective regions. If FERC sets forth a universal definition of “resilience,” the RTOs/ISOs can pursue meaningful steps to achieving said resilience in their markets.

Another possible forward action for FERC (albeit highly unlikely) is to declare the organized markets a complete failure and to disband them in favor of reinstituting the vertically integrated market.  According to the advocates of this view: “This would take extraordinary courage from FERC, but the only functioning regulatory constructs for electricity are vertically integrated markets or markets like SPP and MISO with planned utilities underneath and residual energy markets, both of which allow for rate-based, joint dispatch approaches.”62 Not everyone agrees with that view — indeed, the dysfunction in MISO, for example, has been cited as an existential threat to the continued participation of merchant generation.63   And, of course, FERC Commission Powelson has been clear he’s not presiding over the deconstruction of our organized markets.

So, between the bookends lies an array of choices for FERC.  What FERC will choose to do is hard to discern, but the general sentiment of commenters is that FERC must take action—and soon—to ensure the resilience of the bulk power system.

Kenneth W. Irvin is a partner in the firm of Sidley Austin LLP’s Washington, D.C. office. He specializes in energy, mergers and acquisitions, and securities and derivatives enforcement and regulatory actions. Christopher Polito is an associate with Sidley Austin LLP in the Washington, D.C. office. He specializes in energy.   

This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.

*  *  *

  1. The authors wish to express our gratitude for invaluable assistance of our colleague Radhika Kannan, a summer associate with Sidley DC this year.
  2. Letter from Rick Perry, U.S. Secretary of Energy, to Chairman & Commissioners of FERC, at 1 (Sept. 28, 2017) (“Secretary NOPR Letter”).
  3. Darius Dixon, POLITICO Pro Q&A: Deputy Energy Secretary Dan Brouillette,Politico(June 22, 2018),
  4. Emily Holden, Pruitt says coal losses make the grid vulnerable. Not really.,E&E News(June 7, 2017),
  1. Id.
  2. Grid Reliability and Resilience Pricing, 162 FERC ¶ 61,012 (2018).
  3. Id.
  4. Press Release, Federal Energy Regulatory Commission, FERC Initiates New Proceeding on Grid Resilience, Terminates DOE NOPR Proceeding (Jan. 8, 2018).
  5. Id.
  6. Id.
  7. See, e.g., Comments and Responses of PJM Interconnection, L.L.C. at 4, Grid Resilience in Regional Transmission Organizations and Independent System Operators, FERC Docket No. AD18-7-000 (Mar. 9, 2018) (“To be clear, the PJM [Bulk Electric System (“BES”)] is safe and reliable today — it has been designed and is operated to meet all applicable reliability standards. However, improvements can and should be made to make the BES more resilient against known and potential vulnerabilities and threats. In many cases, resilience actions are anchored in, but go beyond what is strictly required for compliance with, the existing reliability standards.”) (“PJM Comments”); Initial Comments of PJM Interconnection, L.L.C. on the United States Department of Energy Proposed Rule at 25, Grid Reliability and Resilience Pricing, FERC Docket No. RM18-1-000 (Oct. 23, 2017) (“[T]he performance of the PJM system in response to incredibly taxing events like the 2014 Polar Vortex demonstrate the reliability and resilience of the system created by effective transmission planning and development and the energy and capacity markets.”) (“Initial Comments PJM”). See also Response of the New York Independent System Operator, Inc. at 1, Grid Resilience in Regional Transmission Organizations and Independent System Operators, FERC Docket No. AD18-7-000 (Mar. 9, 2018) (referring to “efforts already underway (or being considered) to ensure continued reliable operation and bolster resiliency in response to the evolving nature of the bulk power system in New York”).
  8. Petition Re: Request for Emergency Order Pursuant to Federal Power Act Section 202(c) from Rick C. Giannantonio, General Counsel, First Energy Solutions Corp., to Secretary Rick Perry, U.S. Secretary of Energy at 2 (Mar. 29, 2018).
  9. See supranote 6.
  10. Comments and Responses of PJM Interconnection, supranote 11, at 10.
  11. Jeff St. John, Grid Operators Report to FERC on Grid Resilience, Green Tech. Media(Mar. 9, 2018),
  12. Comments of the Midcontinent Independent System Operator, Inc. at 1 n.2, Grid Reliability and Resilience Pricing, FERC Docket No. RM18-1-000 (Oct. 23, 2017) (“MISO Comments”).
  13. Id.
  14. See, e.g., Comments of the Pennsylvania Public Utility Commission at 1, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018) (“The PAPUC generally supports the efforts taken thus far by PJM to improve the resilience of the PJM grid and further recommends adoption of some, but not all, of PJM’s recommendations to FERC for moving forward on this important endeavor. However, the PAPUC is concerned that some of PJM’s proposed design, operational and market modifications, offered in the name of resilience, may shortchange or even bypass normal PJM stakeholder deliberative processes.”).
  15. Id. at 7.
  16. Comments of the Large Public Power Council, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018).
  17. Id.
  18. See, e.g., Reply Comments of the American Wind Industry and the American Council on Renewable Energy at 2, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018)(“The Commission should not impose a generic (e., one-size-fits-all) solution to address reliability and resilience, especially without a record to support such an action, and should resist any calls for undertaking remedies to address perceived reliability and resilience concerns, without an evidence-based determination of the need for such measures and the benefits to consumers. If not, the Commission will merely succeed in hurting jurisdictional markets and raising costs for consumers.”).
  19. Reply Comments of the Electricity Consumers Resource Council at 4, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018).
  20. Comments of Americans for a Clean Energy Grid at 4, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018).
  21. Id.
  22. Reply Comments of Pacific Gas & Elec. Co. at 6, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018).
  23. See, e.g., Reply Comments of Eversource Energy Serv. Co. at 3, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018) (ISO-NE’s fuel security study “may understate the magnitude and scope of the challenges. This could lead one to falsely conclude that only minor changes are required, and that Commission action may be unneeded at this time. To the contrary, time is not on New England’s side.”).
  24. Comments of the Electric Power Supply Assoc. at 18, Grid Reliability and Resilience Pricing, FERC Docket No. AD18-7-000 (May 9, 2018).
  25. Id.
  26. Peter Maloney, New Jersey Gov. Murphy signs bills creating zero emission credits for nuclear, Utility Dive(May 24, 2018),
  27. Eric Wolff, Pressed by Trump, Perry says he aims to help coal plants, Politico(Apr. 12, 2018),
  28. Raymond L. Gifford & Matthew S. Larson,‘Around Market,’ ‘In Market,’ and FERC at a Crossroads10 (Wilkinson Barker Knauer, 2018).
  29. Id.
  30. Raymond L. Gifford & Matthew S. Larson,State Actions in Organized Markets 1 (Wilkinson Barker Knauer, 2016).
  31. Gifford & Larson, supranote 32.
  32. Mark Dyson, Jamil Farbes & Alexander Engel,The Economics of Clean Energy Portfolios: How Renewable and Distributed Energy Resources Are Outcompeting and Can Strand Investment in Natural Gas-Fired Generation 6-10 (Rocky Mountain Institute, 2018).
  33. Id. at 33.
  34. Id. at 49.
  35. Id.
  36. Id.
  37. Id. at 9.
  38. Id. at 51.
  39. Id. at 10.
  40. Federal Energy Regulatory Commission, Item A-3 Summer 2018 Energy Market and Reliability Assessment (2018),
  41. Id.
  42. Josh Siegel, Power grid operator bashes utility’s plea for Rick Perry to save coal, nuclear plants, Examiner(Mar. 29, 2018),;See alsoInitial Comments PJM, supranote 11.
  43. Transcript: The Energy 202 Live, Post Live(May 10, 2018),
  44. Darius Dixon, Perry’s ‘national security’ push for grid draws skepticism on the Hill,Politico(June 19, 2018),
  45. Summer Report, supra note 44
  46. Eric Wolff, Sources: NSC to study security risk from coal, nuclear power plant shutdowns, Politico(May 25, 2018),
  47. Id.
  48. Eric Wolff, Trump calls for coal, nuclear power plant bailout, Politico(June 1, 2018),
  49. See supranote 51.
  50. See supranote 6.
  51. 16 U.S.C. §824a(c).
  52. Eric Wolff, Perry’s latest bid to help coal faces uphill battle, Politico(Apr. 25, 2018),
  53. Id.
  54. Seesupranote 53.
  55. Mara Lemos Stein, More Shareholder Proposals Spotlight Climate Change, Wall St. J(Feb. 8, 2018),; Meaghan Kilroy, Shareholder support for climate-change proposals grows in the second half of 2017, Pension & Investments Online(Mar. 14, 2018),
  56. Robert Walton, PPL shareholders pass resolution for climate strategy assessment, Utility Dive(May 23, 2017),; Meaghan Kilroy, Shareholders support proposals for Kinder Morgan to create climate change, sustainability reports,Pensions & Investments Online(May 10, 2018),
  57. Gifford & Larson, supranote 32
  58. Audio Recording: Vistra Energy Corp. Q1 2018 Energy Earnings Conference Call, held by Vistra Energy Corp. (May 4, 2018), at time index 58:10 through time index 61:50) (Vistra made clear that if the company continues to lose money on its MISO assets, it will not continue to operate those assets. Vistra’s CEO reports to analysts: “[I]f the reality is that we have the same capacity clears that we just saw in MISO, we have got to do some things with our business … once we get through all that … if we’re losing money on assets, we’re not going to run them… I do think though at the end, when we get all that done, the retail business and what’s left of the assets … I think you’ll see probably a smaller, more focused business in MISO at the end of the day”); See also, Request for Rehearing of the MISO Independent Market Monitor at 7, Midcontinent Indep. Sys. Operator, Inc., FERC Docket No. ER18-462-001 (Mar. 30, 2018) (warning of plant closures and loss of reserve margin if resource adequacy construct is not changed).