Dive Brief:

• A final rule issued by the U.S. Department of Energy implements administrative procedures for the agency to designate Critical Electric Infrastructure Information (CEII) under the Federafsl Power Act, but also walks back provisions of the initial proposal that critics said would have violated federal records laws and the Freedom of Information Act (FOIA).
• The proposed rule, issued in October 2018, would have automatically approved confidentiality designation requests from power generators during open-ended reviews for CEII designation for any information submitted to DOE.
• The final rule, published Monday in the Federal Register, does not include automatic approval of the CEII designation request. The Union of Concerned Scientists (UCS), which opposed the proposal, says most of its concerns have been allayed. The final rule also has support from the Edison Electric Institute, which represents investor-owned utilities.

Dive Insight:

DOE issued the initial CEII notice of proposed rulemaking around the same time the federal government was considering ways of offering financial support to coal and nuclear plants, to keep them from closing.

According to UCS Senior Energy Analyst Sam Gomberg, a primary concern of clean energy advocates was that power plants could submit information as CEII that would be used to keep the plants operating, while also shielding the data from public review and limiting the ability of the public and advocates to engage in that decision-making process.

The idea of providing financial incentives to plants with on-site fuel storage has since faded. And while DOE says the final rule is "intended to ensure that stakeholders and the public understand how the Department would designate, protect, and share CEII," it also scales back the proposed rulemaking.

"The proposed rule, by our reading, was unlawfully sweeping," Gomberg told Utility Dive.

DOE did not respond to a request for comment on changes made in the final rule.

UCS jointly filed comments opposing the rule in 2018, along with Earthjustice and Public Citizen. The groups said the automatic CEII designation would have allowed DOE to withhold information from the public and other stakeholders, including exempting it from FOIA requests, perhaps indefinitely with a proposed "pre-designation" upon request of the submitter of the information.

"You could see a pathway for DOE using this information to prohibit coal or nuclear plants from closing and limiting the public’s ability to engage in that decision making process," Gomberg said. "The track record with the current administration makes us a little suspicious, and when they are looking to make more information confidential alarm bells tend to go off."

Based on his read of the final rule, Gomberg said DOE will commit to reviewing information and making a determination based on legal criteria of whether it qualifies as CEII, before sharing with other federal entities.

DOE claims authority to set its own CEII process under the Fixing America’s Surface Transportation (FAST) Act. Right now, FERC, an independent federal regulatory body, typically approves CEII designations for information.

While many of UCS' concerns have been addressed, there are still questions about whether DOE actually has authority to use the FAST Act to set its own CEII process, said Gomberg.

"Whether or not that rises to the level of continuing to pursue a legal challenge, I don't know," Gomberg said. UCS is still reviewing the final rule and Earthjustice, as the legal team leading the challenge, will make the final call.

Meanwhile, the electric industry is on board.

Disclosing CEII "can jeopardize national security and the reliability of the energy grid," EEI General Counsel Emily Sanford Fisher said in a statement to Utility Dive. "EEI applauds the Department of Energy’s recognition of this and its efforts to protect CEII from disclosure, consistent with the requirements of the FAST Act, by finalizing regulations that govern how the Department will collect and protect this information."