Birckhead v. FERC – A FERC Pipeline Win That Could Lead to Future Pipeline Losses

On June 4, 2019, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) offered non-binding advice to the Federal Energy Regulatory Commission (“FERC”) on how it should perform environmental reviews of greenhouse gas (“GHG”) emissions when it considers new natural gas pipeline projects.  While the opinion in Birckhead v. FERC ultimately upheld FERC’s order permitting a new natural gas compressor station near Nashville, Tennessee, the court devoted several pages of dicta on what upstream and downstream GHG emissions data FERC should be gathering to comply with the National Environmental Policy Act (“NEPA”).

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Sidley Environmental Trends

Topics discussed this week include:

  • U.S. House and Senate hold hearings on per- and poly-fluoroalkyl substances (PFAS)
  • D.C. Circuit issued two decisions related to small refinery exemptions to the Renewable Fuel Standard (RFS)
  • California Department of Pesticide Regulation moves to ban chlorpyrifos in California
  • Carbon capture and storage technology receives greater political support with new bill in the U.S. Senate

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Energy Enforcement Update

This update covers:

  • FERC rescinds policy on Notices of Alleged Violations.
  • Judge denies motion for new trial for first trader convicted of spoofing.
  • CFTC charges former natural gas trader with fraudulently mismarking trades.
  • CFTC’s Division of Enforcement issues first Public Enforcement Manual.
  • FERC approves settlement with Dominion Energy.
  • DOJ publishes new guidance on evaluating corporate compliance programs.
  • CFTC staff issues research report on impact of automated orders in futures markets.
  • CFTC settles case against Kraft Heinz and Mondelez International.
  • Powhatan and FERC file appellate briefs on statute of limitations.

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Heather Palmer Shortlisted for Euromoney LMG Americas Women in Business Law Awards

Sidley Environmental Partner Heather Palmer was named a finalist in the Euromoney LMG’s 2019 Americas Women in Business Law Awards for “Best in Environment.” The awards commend the achievements of women trailblazers in the legal profession. The Americas Women in Business Law Awards will be presented on June 6, 2019 in New York.

Heather’s practice focuses on onshore and offshore oil and gas regulation, solid and hazardous waste, oil and gas waste, coal combustion residual (coal ash), environmental remediation, water quality, water rights, wetlands, endangered species, Superfund litigation and compliance with the National Environmental Policy Act.

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Exploring the Impact of Increased Chinese Tariffs on LNG Growth

On Monday, May 13, China proposed to increase the current tariff of 10% to 25% on liquefied natural gas (LNG) exported from the United States. The proposed increase would go into effect on June 1 in response to the proposed increase on certain Chinese goods imported into the U.S. While this may have limited immediate impact on LNG exports from the United States for LNG plants that have already been constructed (there have been only two cargos of LNG sold to China from the United States this year), it has the potential to slow the growth of LNG exports, including reduced LNG off-take and equity investments in the United States from Chinese entities. China is currently the largest importer of LNG in the world, having surpassed Japan in 2018. The U.S. is projected to be the third-largest LNG exporter, with much of those exports forecasted to go to China.

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A New Roadmap: CFTC Releases Its First-Ever Public Enforcement Manual

On May 8, 2019, the Commodity Futures Trading Commission (CFTC) Division of Enforcement (DOE or Division) released its first publicly available Enforcement Manual. The Manual provides an overview of the Division and sets out the general policies and procedures that guide its Staff in detecting, investigating and prosecuting violations of the Commodity Exchange Act (CEA) and Commission regulations. According to its simultaneous press release, in publishing the Manual the CFTC intends to “increase transparency, certainty, and consistency, and, more generally, to advance the rule-of-law principles that underpin all DOE and CFTC enforcement actions.”

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