Why It Matters

The Trump administration's use of Section 202(c) of the Federal Power Act, whose emergency language dates to 1935, to delay power plant retirements has drawn a federal appeals court ruling that vacated one such order and limited the authority of the Department of Energy (DOE), according to a Congressional Research Service (CRS) report updated October 1.

In September, the U.S. Court of Appeals for the D.C. Circuit vacated a DOE order that had delayed the retirement of a Michigan coal plant, holding that Section 202(c) of the Federal Power Act limits DOE to addressing "a grid-reliability risk that calls for an immediate response by DOE in particular" and that planned retirements do not qualify.

DOE has issued similar retirement-delay orders for plants in Pennsylvania, Washington, Indiana, Colorado, and Florida, and in most of those cases the relevant grid operators do not appear to have requested DOE action.

Pending legislation would address the authority in different ways: a Senate bill (S. 4337) would limit delays of plant retirements to emergencies that cannot be met any other way and only when the grid operator requests it, while a House bill (H.R. 7977) would limit the authority to emergencies that exist now or will occur within six months.

The Big Picture

Section 202(c) of the Federal Power Act gives the Secretary of Energy broad discretion to require temporary changes to electricity generation, transmission, or delivery during an emergency; the authority transferred to DOE when the department was created under the Department of Energy Organization Act in 1977.

Congress amended the provision in 2015 to allow emergency orders to temporarily override federal, state, and local environmental requirements, subject to limits: orders conflicting with environmental rules run in 90-day increments, apply only during hours necessary to meet the emergency, and must minimize adverse environmental impacts to the maximum extent practicable.

Executive Order 14262, signed April 8, 2025, directed DOE to streamline emergency-order procedures and use all available legal mechanisms, including Section 202(c), to retain generation resources identified as critical to regional reliability. The CRS report notes the order is nonspecific about duration and "could be interpreted to mean DOE should take long-term action… or indefinite action."

DOE's July 2025 resource adequacy report projected total electricity demand growing by 101 gigawatts by 2030, including 50 gigawatts from data centers, with estimated annual loss-of-load hours rising from 8.1 under the current system to either 269.9 or 817 hours in 2030 depending on supply assumptions. DOE cautioned that those figures are not predictions that grid operators would permit such outages, but rather indicators of where additional generation and transmission capacity may be needed.

The Bottom Line

The CRS report says Congress could consider the duration of emergency orders, what level of discretion is appropriate in defining an "emergency" (given that recent court decisions appear to somewhat limit that discretion), and the scope of interventions the authority allows. In its 1981 rulemaking, the Department of Energy (DOE) explained that its emergency regulations were not intended to replace "prudent utility planning" and that a utility "must solve long-term problems itself."

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