Incumbent Electricity Providers Targeted by New DOJ Anticompetitive Regulations Task Force

The Antitrust Division of the U.S. Department of Justice (DOJ) has established an Anticompetitive Regulations Task Force (Task Force). The Task Force is seeking public comment by May 26, 2025 regarding laws and regulations that create barriers to competition in certain industries. One of the sectors called out specifically for the Task Force’s scrutiny is electric energy. The initial Task Force press release states that “[l]aws and regulations can undermine reliability and affordability by protecting incumbent electricity providers from competition or disruptive innovation” and notes the importance of affordable electricity to residential and commercial customers, including data centers.

Some electric laws and regulations that may be caught in the crosshairs include the right of first refusal granted to incumbent transmission owners at the state level in certain states. The inquiry may also be used to inform the Federal Energy Regulatory Commission’s (FERC) ongoing consideration of a federal right of first refusal and whether incumbent transmission providers “face perverse investment incentives that do not adequately encourage [them] to develop and advocate for transmission facilities that benefit more than just their own local retail distribution service territory or footprint.” Order No. 1920 at P 1564 (May 13, 2024).

In addition, given the specific reference to data centers in the Task Force’s press release, another focus may be pending dockets at the FERC to determine the basis upon which data centers can co-locate with generation resources and avoid incurring various costs associated with the transmission system. Certain incumbent transmission owners have favored full transmission charges without netting for generation taken from the co-located resources. On February 20, 2025, in Docket No. EL25-49, FERC issued an order directing PJM Interconnection, LLC and transmission owners in its region to show cause as to whether the lack of clarity regarding the charges that will apply to co-location agreements renders the PJM tariff unjust and unreasonable. In another order, when various incumbent transmission owners objected to changes needed to an interconnection agreement to increase the amount of service taken by a data center from a co-located generator, FERC rejected the agreement that would have facilitated the increase. While these are proceeding as adjudications rather than rulemakings, they may be captured in the Task Force’s scope.

For an overall understanding of the industries targeted by the Task Force, please see Arnold & Porter’s recent Blog.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.