Public Citizen, PennFuture, and Clean Air Council Oppose Constellation Energy Corporation's Acquisition of Calpine Corporation

Strategic Insights -

Public Citizen, PennFuture, and Clean Air Council have submitted a document to the Federal Energy Regulatory Commission, expressing their opposition to Constellation Energy Corporation's acquisition of Calpine Corporation. The organizations argue that the proposed transaction is likely to harm the public interest by exacerbating Constellation's ability to exercise market power, withhold supply, and insist on uncompetitively high prices as a pivotal supplier.

Key Takeaways:

  • Public Citizen, PennFuture, and Clean Air Council have maintained their opposition to the proposed transaction, citing the applicants' failure to substantively address the reasons that Constellation's acquisition of Calpine is likely to harm the public interest.
  • The applicants have failed to present a prima facie case, and their burden of proof has not been met, despite the introduction of another market concentration analysis.
  • The analysis assumes the Eddystone Units 3 and 4 remain in operation during the year examined, which further exacerbates Constellation's ability to exercise market power.
  • Applicants have offered little-to-no evidence or argument to rebut the substance of the competition, market power, and rates issues identified by Public Citizen, PennFuture, and Clean Air Council.
  • The applicants have sought to persuade the Commission to refrain from considering the intervenors' argument and evidence, but these efforts must fail, given the caselaw and Commission precedent.
  • Constellation's response does not address the substance of the issues identified by Public Citizen, PennFuture, and Clean Air Council, and instead argues against a complete review of the acquisition.
  • The applicants have also sought to prevent intervenors and the Commission from obtaining information necessary to evaluate the acquisition and required by Commission regulation.
  • The factual background to the applicants' second supplemental filing has raised concerns regarding Constellation's post-acquisition incentive and ability to exercise market power.

Sources:

  • Protest, and Motions to Intervene of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (Mar. 25, 2025) ("PPC Protest"), Accession No. 20250325-5151
  • Comments in Response to Applicants' April 28, 2025 Filing of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (May 19, 2025), Accession No. 20250519-5150
  • Motion for Deficiency Letter of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (May 19, 2025), Accession No. 20250519-5152
  • Second Motion for Deficiency Letter of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (June 2, 2025) ("Second Motion for Deficiency Letter"), Accession No. 20250602-5183
  • Motion for Leave to Reply and Reply of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (June 9, 2025) ("PPC Reply"), Accession No. 20250609-5123
  • Notice and Motion to Amend of Public Citizen, PennFuture, and Clean Air Council, Docket No. EC25-43-000, at passim (June 13, 2025), Accession No. 20250613-5144
  • Joint Application for Authorization Under Section 203 of the Federal Power Act of Constellation Energy Corp., et al., Docket No. EC25-43-000, at 1 (Jan. 24, 2025), Accession No. 20250124-5188
  • Supplemental Information Filing and Request for Confidential Treatment of Constellation Energy Corp. et al., Docket No. EC25-43, at passim (June 12, 2025) ("Second Supplemental Filing"), Accession No. 20250612-5215

Statistics:

  • The proposed transaction involves Constellation Energy Corporation and Constellation Energy Generation, LLC (collectively "Constellation") acquiring Calpine Corporation.
  • The analysis assumes the Eddystone Units 3 and 4 remain in operation during the year examined.
  • Constellation has expressed its intention to retire the Eddystone Units 3 and 4 when the Department of Energy's current order expires on August 28, 2025.
  • Constellation has not addressed what it intends to do with Eddystone if the order is extended or superseded by a new order.
  • The Commission has previously made clear that it will consider other evidence of anticompetitive effects beyond market concentration analyses.
  • The applicants have sought to prevent intervenors and the Commission from obtaining information necessary to evaluate the acquisition and required by Commission regulation.