Appendix C 

Discussion Draft 

American Clean Energy and Security Act of 2009 

Title I, Subtitle A 

Renewable Electricity Standard 

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March 30, 2009 (11:13 p.m.) 

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1 TITLE I—CLEAN ENERGY 

2 Subtitle A—Renewable Electricity 

3 Standard 

4 SEC. 101. FEDERAL RENEWABLE ELECTRICITY STANDARD. 

5 (a) IN GENERAL.—Title VI of the Public Utility Reg 

6 ulatory Policies Act of 1978 (16 U.S.C. 2601 and fol 

7 lowing) is amended by adding at the end the following: 

8 ‘‘SEC. 610. FEDERAL RENEWABLE ELECTRICITY STANDARD. 

9 ‘‘(a) DEFINITIONS.—For purposes of this section: 

10 ‘‘(1) AFFILIATE.—The term ‘affiliate’ when 

11 used in relation to a person, means another person 

12 that directly or indirectly owns or controls, is owned 

13 or controlled by, or is under common ownership or 

14 control with, such person, as determined under regu 

15 lations promulgated by the Secretary. 

16 ‘‘(2) BIOMASS.—The term ‘biomass’ means 

17 each of the following: 

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1 ‘‘(A) Crops, crop byproducts, or crop resi 

2 dues harvested from actively managed or fallow 

3 agricultural land that was cleared prior to the 

4 date of enactment of this section and is nonfor 

5 ested. 

6 ‘‘(B) Planted trees, brush, slash, and all 

7 residues from an actively managed tree planta 

8 tion located on land that was cleared prior to 

9 the date of enactment of this section and is not 

10 Federal land. 

11 ‘‘(C) Pre-commercial-sized thinnings, slash, 

12 brush, and residue from milled trees, from for 

13 ested land that is not— 

14 ‘‘(i) old-growth or mature forest; 

15 ‘‘(ii) identified under a State Natural 

16 Heritage Program as rare, imperiled, or 

17 critically imperiled; or 

18 ‘‘(iii) Federal land. 

19 ‘‘(D) Algae. 

20 ‘‘(E) Nonhazardous plant matter derived 

21 from waste such as separated yard waste, land 

22 scape right-of-way trimmings, or food waste 

23 (but not municipal solid waste, recyclable waste 

24 paper, painted, treated or pressurized wood, or 

25 wood contaminated with plastic or metals). 

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1 ‘‘(F) Animal waste or animal byproducts, 

2 including products of animal waste digesters. 

3 ‘‘(G) Vegetative matter removed from 

4 within 200 yards of any manmade structure or 

5 campground. 

6 ‘‘(3) DISTRIBUTED GENERATION FACILITY.— 

7 The term ‘distributed generation facility’ means a 

8 facility that— 

9 ‘‘(A) generates renewable electricity other 

10 than by means of combustion; 

11 ‘‘(B) primarily serves 1 or more electricity 

12 consumers at or near the facility site; and 

13 ‘‘(C) is no larger than 2 megawatts in ca 

14 pacity. 

15 ‘‘(4) FEDERAL ALTERNATIVE COMPLIANCE PAY 

16 MENT.—The term ‘Federal alternative compliance 

17 payment’ means a payment, to be submitted in lieu 

18 of 1 Federal renewable electricity credit, pursuant to 

19 subsection (c)(3). 

20 ‘‘(5) FEDERAL LAND.—The term ‘Federal land’ 

21 means land owned by the United States, other than 

22 land held in trust for an Indian or Indian tribe. 

23 ‘‘(6) FEDERAL RENEWABLE ELECTRICITY 

24 CREDIT.—The term ‘Federal renewable electricity 

25 credit’ means a credit, representing one megawatt 

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1 hour of renewable electricity, issued pursuant to sub 

2 section (d). 

3 ‘‘(7) FUEL CELL.—The term ‘fuel cell’ means a 

4 device that directly converts the chemical energy of 

5 a fuel and an oxidant into electricity by electro 

6 chemical processes occurring at separate electrodes 

7 in the device. 

8 ‘‘(8) FUND.—The term ‘Fund’ means the Re 

9 newable Electricity Deployment Fund established 

10 under subsection (f). 

11 ‘‘(9) QUALIFIED HYDROPOWER.—The term 

12 ‘qualified hydropower’ means— 

13 ‘‘(A) electricity generated solely from in 

14 creased efficiency achieved, or additions of ca 

15 pacity made, on or after January 1, 2001 at a 

16 hydroelectric facility that was placed in service 

17 before that date; or 

18 ‘‘(B) electricity generated from generating 

19 capacity added on or after January 1, 2001 to 

20 a dam that did not previously have the capacity 

21 to generate electricity, provided that the Com 

22 mission certifies that— 

23 ‘‘(i) the dam was placed in service be 

24 fore the date of the enactment of this sec 

25 tion and was operated for flood control, 

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1 navigation, or water supply purposes and 

2 did not produce hydroelectric power before 

3 January 1, 2001; 

4 ‘‘(ii) the hydroelectric project installed 

5 on the dam is licensed by the Commission 

6 and meets all other applicable environ 

7 mental, licensing, and regulatory require 

8 ments, including applicable fish passage re 

9 quirements; and 

10 ‘‘(iii) the hydroelectric project in 

11 stalled on the dam is operated so that the 

12 water surface elevation at any given loca 

13 tion and time that would have occurred in 

14 the absence of the hydroelectric project is 

15 maintained, subject to any license require 

16 ments that require changes in water sur 

17 face elevation for the purpose of improving 

18 the environmental quality of the affected 

19 waterway. 

20 ‘‘(10) RENEWABLE ELECTRICITY.—The term 

21 ‘renewable electricity’ means electricity generated 

22 (including by means of a fuel cell) from a renewable 

23 energy resource. 

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1 ‘‘(11) RENEWABLE ENERGY RESOURCE.—The 

2 term ‘renewable energy resource’ means each of the 

3 following: 

4 ‘‘(A) Wind energy. 

5 ‘‘(B) Solar energy. 

6 ‘‘(C) Geothermal energy. 

7 ‘‘(D) Biomass or landfill gas. 

8 ‘‘(E) Qualified hydropower. 

9 ‘‘(F) Marine and hydrokinetic renewable 

10 energy, as that term is defined in section 632 

11 of the Energy Independence and Security Act 

12 of 2007 (42 U.S.C. 17211). 

13 ‘‘(12) RETAIL ELECTRIC SUPPLIER.— 

14 ‘‘(A) IN GENERAL.—The term ‘retail elec 

15 tric supplier’ means, for any given year, an 

16 electric utility that sold not less than 1,000,000 

17 megawatt hours of electric energy to electric 

18 consumers for purposes other than resale dur 

19 ing the preceding calendar year. 

20 ‘‘(B) INCLUSIONS AND LIMITATIONS.—For 

21 purposes of determining whether an electric 

22 utility qualifies as a retail electric supplier 

23 under subparagraph (A)— 

24 ‘‘(i) the sales of any affiliate of an 

25 electric utility to electric consumers for 

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1 purposes other than resale shall be consid 

2 ered to be sales of such electric utility; and 

3 ‘‘(ii) sales by any electric utility to an 

4 affiliate, lessee, or tenant of such electric 

5 utility shall not be treated as sales to elec 

6 tric consumers. 

7 ‘‘(13) RETAIL ELECTRIC SUPPLIER’S BASE 

8 AMOUNT.—The term ‘retail electric supplier’s base 

9 amount’ means the total amount of electric energy 

10 sold by the retail electric supplier, expressed in 

11 terms of megawatt hours, to electric customers for 

12 purposes other than resale during the relevant cal 

13 endar year, excluding electricity generated by— 

14 ‘‘(A) a hydroelectric facility that is not 

15 qualified hydropower; or 

16 ‘‘(B) combustion of municipal solid waste. 

17 ‘‘(14) RETIRE AND RETIREMENT.—The terms 

18 ‘retire’ and ‘retirement’ with respect to a Federal re 

19 newable electricity credit, means to disqualify such 

20 credit for any subsequent use under this section, re 

21 gardless of whether the use is a sale, transfer, ex 

22 change, or submission in satisfaction of a compliance 

23 obligation. 

24 ‘‘(b) ESTABLISHMENT OF PROGRAM.—Not later than 

25 1 year after the date of enactment of this section, the SecEnergy Information Administration / Impacts of the 25-Percent RES in the ACESA Discussion Draft

 

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1 retary shall, by regulation, establish a program to imple 

2 ment and enforce the requirements of this section. In es 

3 tablishing such program, the Secretary shall, to the extent 

4 practicable— 

5 ‘‘(1) preserve the integrity, and incorporate best 

6 practices, of existing State renewable electricity pro 

7 grams; 

8 ‘‘(2) rely upon existing and emerging State or 

9 regional tracking systems that issue and track non10 Federal renewable electricity credits; and 

11 ‘‘(3) cooperate with the States to facilitate co 

12 ordination between State and Federal renewable 

13 electricity programs and to minimize administrative 

14 burdens and costs to retail electric suppliers. 

15 ‘‘(c) ANNUAL COMPLIANCE REQUIREMENT.— 

16 ‘‘(1) IN GENERAL.—Except as provided in para 

17 graph (3), for each of calendar years 2012 through 

18 2039, each retail electric supplier shall, not later 

19 than April 1 of the following calendar year, submit 

20 to the Secretary a quantity of Federal renewable 

21 electricity credits equal to the retail electric sup 

22 plier’s base amount for the calendar year multiplied 

23 by the required annual percentage set forth in para 

24 graph (2). The Secretary shall retire each Federal 

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1 renewable energy credit immediately upon submis 

2 sion under this section. 

3 ‘‘(2) REQUIRED ANNUAL PERCENTAGE.—For 

4 each of calendar years 2012 through 2039, the re 

5 quired annual percentage shall be as follows: 

‘‘Calendar year Required annual percentage 

2012 ............................................................................... 6.0 

2013 ............................................................................... 6.0 

2014 ............................................................................... 8.5 

2015 ............................................................................... 8.5 

2016 ............................................................................... 11.0 

2017 ............................................................................... 11.0 

2018 ............................................................................... 14.0 

2019 ............................................................................... 14.0 

2020 ............................................................................... 17.5 

2021 ............................................................................... 17.5 

2022 ............................................................................... 21.0 

2023 ............................................................................... 21.0 

2024 ............................................................................... 23.0 

2025 through 2039 ........................................................ 25.0 

6 ‘‘(3) EFFICIENCY COMPLIANCE OPTION.—The 

7 Governor of a State (including, for purposes of this 

8 section, the Mayor of the District of Columbia), may 

9 petition the Secretary to reduce, by up to one fifth, 

10 the required annual percentage under paragraph (2) 

11 in any given year that shall be applied to the portion 

12 of any retail electric supplier’s base amount that is 

13 sold to electric customers located within such State 

14 for purposes other than resale. The Secretary shall 

15 grant such petition if the Secretary determines that 

16 the entities within the State that are subject to the 

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1 lished under section 611 of this Act are in compli 

2 ance with such standard for such year. 

3 ‘‘(4) ALTERNATIVE COMPLIANCE PAYMENTS.— 

4 A retail electric supplier may satisfy the require 

5 ments of paragraph (1) (as modified, where applica 

6 ble, under paragraph (3)) in whole or in part by 

7 submitting in lieu of each Federal renewable elec 

8 tricity credit that would otherwise be due, a payment 

9 equal to the lesser of— 

10 ‘‘(A) 200 percent of the average market 

11 value of a Federal renewable electricity credit 

12 for the previous compliance year, as determined 

13 by the Secretary; or 

14 ‘‘(B) $50, adjusted on January 1 of each 

15 year following calendar year 2009 based on the 

16 Gross Domestic Product Implicit Price 

17 Deflator. 

18 ‘‘(5) USE OF PAYMENTS.—Alternative compli 

19 ance payments submitted pursuant to paragraph (4) 

20 shall be deposited in the Fund established under 

21 subsection (f). 

22 ‘‘(d) FEDERAL RENEWABLE ELECTRICITY CRED 

23 ITS.— 

24 ‘‘(1) IN GENERAL.—The regulations promul 

25 gated under subsection (b) shall include provisions 

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1 governing the issuance, tracking, and verification of 

2 Federal renewable electricity credits. Except as pro 

3 vided in paragraphs (2), (3), and (4) of this sub 

4 section, the Secretary shall issue to each generator 

5 of renewable electricity, 1 Federal renewable elec 

6 tricity credit for each megawatt hour of renewable 

7 electricity generated by such generator. The Sec 

8 retary shall assign a unique serial number to each 

9 Federal renewable electricity credit. 

10 ‘‘(2) GENERATION FROM STATE RENEWABLE 

11 ELECTRICITY PROGRAMS USING CENTRAL PROCURE 

12 MENT AND FROM STATE ALTERNATIVE COMPLIANCE 

13 PAYMENTS.—Where renewable electricity is gen 

14 erated with the support of payments from a retail 

15 electric supplier pursuant to a State renewable elec 

16 tricity program (whether through State alternative 

17 compliance payments or through payments to a 

18 State renewable electricity procurement fund or enti 

19 ty), the Secretary shall issue Federal renewable elec 

20 tricity credits to such retail electric supplier for the 

21 proportion of the relevant renewable electricity gen 

22 eration that is attributable to the retail electric sup 

23 plier’s payments, as determined pursuant to regula 

24 tions issued by the Secretary. For any remaining 

25 portion of the relevant renewable electricity generaEnergy Information Administration / Impacts of the 25-Percent RES in the ACESA Discussion Draft

 

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1 tion, the Secretary shall issue Federal renewable 

2 electricity credits to the generator, as provided in 

3 paragraph (1), provided that in no event shall more 

4 than 1 Federal renewable electricity credit be issued 

5 for the same megawatt hour of electricity. In deter 

6 mining how Federal renewable electricity credits will 

7 be apportioned among retail electric suppliers and 

8 generators in such circumstances, the Secretary 

9 shall consider information and guidance furnished by 

10 the relevant State or States. 

11 ‘‘(3) CERTAIN POWER SALES CONTRACTS.— 

12 When a generator has sold renewable electricity to 

13 a retail electric supplier under a contract for power 

14 from a facility placed in service before the date of 

15 enactment of this section, and the contract does not 

16 provide for the determination of ownership of the 

17 Federal renewable electricity credits associated with 

18 such generation, the Secretary shall issue such Fed 

19 eral renewable electricity credits to the retail electric 

20 supplier for the duration of the contract. 

21 ‘‘(4) CREDIT MULTIPLIER FOR DISTRIBUTED 

22 GENERATION.— 

23 ‘‘(A) IN GENERAL.—Except as provided in 

24 subparagraph (B), the Secretary shall issue 3 

25 Federal renewable electricity credits for each 

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1 megawatt hour of renewable electricity gen 

2 erated by a distributed generation facility. 

3 ‘‘(B) ADJUSTMENT.—Except as provided 

4 in subparagraph (C), not later than January 1, 

5 2014, and not less frequently than every 4 

6 years thereafter, the Secretary shall review the 

7 effect of this paragraph and shall, as necessary, 

8 reduce the number of Federal renewable elec 

9 tricity credits per megawatt hour issued under 

10 this paragraph, but not below 1, to ensure that 

11 such number is no higher than the Secretary 

12 determines is necessary to make distributed 

13 generation facilities cost competitive with other 

14 sources of renewable electricity generation. 

15 ‘‘(C) FACILITIES PLACED IN SERVICE 

16 AFTER ENACTMENT.—For any distributed gen 

17 eration facility placed in service after the date 

18 of enactment of this section, subparagraph (B) 

19 shall not apply for the first 10 years after date 

20 of enactment. For each year during such 10- 

21 year period, the Secretary shall issue the facil 

22 ity the same number of Federal renewable elec 

23 tricity credits per megawatt hour as are issued 

24 to that facility in the year in which such facility 

25 is placed in service. After such 10-year period, 

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1 the Secretary shall issue Federal renewable en 

2 ergy credits to the facility in accordance with 

3 the current multiplier as determined pursuant 

4 to subparagraph (B). 

5 ‘‘(5) CREDITS BASED ON INCREMENTAL HY 

6 DROPOWER.—For purposes of this subsection, the 

7 number of Federal renewable electricity credits 

8 issued for qualifying hydropower described in sub 

9 section (a)(9)(A) shall be calculated— 

10 ‘‘(A) based solely on the increase in aver 

11 age annual generation directly resulting from 

12 the efficiency improvements or capacity addi 

13 tions described in subsection (a)(9)(A); and 

14 ‘‘(B) using the same water flow informa 

15 tion used to determine a historic average an 

16 nual generation baseline for the hydroelectric 

17 facility, as certified by the Secretary or by the 

18 Commission. 

19 ‘‘(6) GENERATION FROM MIXED RENEWABLE 

20 AND NON-RENEWABLE RESOURCES.—If electricity is 

21 generated using both a renewable energy resource 

22 and an energy source that is not a renewable energy 

23 resource (as, for example, in the case of co-firing of 

24 biomass and fossil fuel), the Secretary shall issue 

25 Federal renewable electricity credits based on the 

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1 proportion of the electricity that is attributable to 

2 the renewable energy resource. 

3 ‘‘(7) PROHIBITION AGAINST DOUBLE-COUNT 

4 ING.—Except as provided in paragraph (4) of this 

5 subsection, the Secretary shall ensure that no more 

6 than 1 Federal renewable electricity credit will be 

7 issued for any megawatt hour of renewable elec 

8 tricity and that no Federal renewable electricity 

9 credit will be used more than once for compliance 

10 with this section. 

11 ‘‘(e) TRADING, BANKING, AND MARKET OVER 

12 SIGHT.— 

13 ‘‘(1) TRADING.—The lawful holder of a Federal 

14 renewable electricity credit may sell, exchange, 

15 transfer, submit for compliance in accordance with 

16 subsection (c), or submit such credit for retirement 

17 by the Secretary. 

18 ‘‘(2) BANKING.—A Federal renewable elec 

19 tricity credit may be submitted in satisfaction of the 

20 compliance obligation set forth in subsection (c) for 

21 the compliance year in which the credit was issued 

22 or for any of the 3 immediately subsequent compli 

23 ance years. The Secretary shall retire any Federal 

24 renewable electricity credit that has not been sub 

25 mitted under subsection (c) by the deadline for the 

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1 compliance year that is 3 years after the compliance 

2 year in which the credit was issued. 

3 ‘‘(3) OVERSIGHT.—The Commission, in con 

4 sultation with the Secretary and relevant Federal 

5 agencies, may prescribe such rules as the Commis 

6 sioner determines necessary to ensure the trans 

7 parency, fairness, and stability of the market in 

8 Federal renewable electricity credits and any deriva 

9 tive instruments based on such credits. 

10 ‘‘(f) RENEWABLE ELECTRICITY DEPLOYMENT 

11 FUND.— 

12 ‘‘(1) IN GENERAL.—There is established in the 

13 Treasury of the United States a Renewable Elec 

14 tricity Deployment Fund. 

15 ‘‘(2) DEPOSITS.—All Federal alternative com 

16 pliance payments submitted to the Secretary pursu 

17 ant to subsection (c)(3) and civil penalties assessed 

18 under this section shall be deposited into the Fund. 

19 ‘‘(3) USE.— 

20 ‘‘(A) IN GENERAL.—Amounts deposited in 

21 the Fund shall be available exclusively for use 

22 by the Secretary, subject to appropriations, to 

23 make payments to retail electric suppliers in ac 

24 cordance with subparagraph (B). 

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1 ‘‘(B) ALLOCATION.—Not later than May 1 

2 of each year from 2013 through 2040, the Sec 

3 retary shall distribute amounts deposited in the 

4 Fund during the preceding 12-month period 

5 among the retail electric suppliers which have 

6 submitted Federal renewable electricity credits 

7 to the Secretary in total or partial compliance 

8 with their obligations under subsection (c) for 

9 the preceding calendar year. Each retail electric 

10 supplier shall receive a payment equal to the 

11 product of— 

12 ‘‘(i) the total payments made to all re 

13 tail electric suppliers under this subsection; 

14 and 

15 ‘‘(ii) the quotient obtained by dividing 

16 the quantity specified in subclause (I) by 

17 the quantity specified in subclause (II): 

18 ‘‘(I) The quantity of Federal re 

19 newable electricity credits submitted 

20 by the retail electric supplier for the 

21 preceding calendar year pursuant to 

22 subsection (c). 

23 ‘‘(II) The total quantity of Fed 

24 eral renewable electricity credits sub 

25 mitted by all retail electric suppliers 

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1 for the preceding calendar year pursu 

2 ant to subsection (c). 

3 ‘‘(g) INFORMATION COLLECTION.—In accordance 

4 with section 13 of the Federal Energy Administration Act 

5 of 1974 (15 U.S.C. 772), the Secretary may require any 

6 retail electric supplier, renewable electricity generator, or 

7 such other entities as the Secretary deems appropriate, to 

8 provide any information the Secretary determines appro 

9 priate to carry out this section. 

10 ‘‘(h) ENFORCEMENT AND JUDICIAL REVIEW.— 

11 ‘‘(1) CIVIL PENALTY.—If any person fails to 

12 comply with the requirements of subsection (c), such 

13 person shall be liable to pay to the Secretary a civil 

14 penalty equal to the product of— 

15 ‘‘(A) double the Federal alternative compli 

16 ance payment calculated under subsection 

17 (c)(3), and 

18 ‘‘(B) the aggregate quantity of Federal re 

19 newable electricity credits (or equivalent Fed 

20 eral alternative compliance payments) that the 

21 person failed to submit to the Secretary in vio 

22 lation of the requirements of subsection (c). 

23 ‘‘(2) ENFORCEMENT.—The Secretary shall as 

24 sess a civil penalty under paragraph (1) in accord 

25 ance with the procedures described in section 333(d) 

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1 of the Energy Policy and Conservation Act of 1954 

2 (42 U.S.C. 6303). 

3 ‘‘(3) JUDICIAL REVIEW.—Any person who will 

4 be adversely affected by a final action taken by the 

5 Secretary under this section, other than the assess 

6 ment of a civil penalty under this subsection, may 

7 use the procedures for review described in section 

8 336(b) of the Energy Policy and Conservation Act 

9 (42 U.S.C. 6306). For purposes of this paragraph, 

10 references to a rule in section 336(b) of the Energy 

11 Policy and Conservation Act shall be deemed to refer 

12 also to all other final actions of the Secretary under 

13 this section other than the assessment of a civil pen 

14 alty under this subsection. 

15 ‘‘(i) SAVINGS PROVISIONS.—Nothing in this section 

16 shall— 

17 ‘‘(1) diminish or qualify any authority of a 

18 State or political subdivision of a State to— 

19 ‘‘(A) adopt or enforce any law or regula 

20 tion respecting renewable electricity, including 

21 programs that exceed the required amount of 

22 renewable electricity under this section, pro 

23 vided that no such law or regulation may relieve 

24 any person of any requirement otherwise appli 

25 cable under this section; or 

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1 ‘‘(B) regulate the acquisition and dispose 

2 tion of Federal renewable electricity credits by 

3 retail electric suppliers located within the terri 

4 tory of such State or political subdivision, in 

5 cluding the authority to require such retail elec 

6 tric supplier to acquire and retire Federal re 

7 newable electricity credits associated with elec 

8 tric energy it sells to end-use customers; or 

9 ‘‘(2) affect the application of, or the response 

10 bility for compliance with, any other provision of law 

11 or regulation, including environmental and licensing 

12 requirements. 

13 ‘‘(j) SUNSET.—This section expires on December 31, 

14 2040.’’. 

15 (b) TABLE OF CONTENTS AMENDMENT.—The table 

16 of contents of the Public Utility Regulatory Policies Act 

17 of 1978 (16 U.S.C. 2601 and following) is amended by 

18 adding at the end of the items relating to title VI the fol 

19 lowing: 

‘‘Sec. 610. Federal renewable electricity standard’’.