This Sidley Update addresses the following:
- District court judge finds that FERC may not pursue joint and several liability and disgorgement in Coaltrain case – FERC seeks interlocutory appeal.
- FERC Report on Enforcement highlights increased enforcement activity in 2021.
- FERC approves settlement between Enforcement staff and Golden Spread.
- FERC orders penalties against GreenHat Energy, LLC and individuals.
- DOJ and CFTC charge Puerto Rico resident and his firm for misappropriation of nonpublic information and fictitious trading.
On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.
On May 21, 2020, FERC issued a policy statement to clarify its position regarding requests for waiver of tariff provisions. If finalized, the Policy Statement would revise how FERC treats requests for waiver of tariff provisions.
The proposed policy relates to FERC’s statutory authority to review and approve public utility rates, as set forth in Federal Power Act (FPA) sections 205 and 206, and the parallel provisions in Natural Gas Act (NGA) sections 4 and 5. FERC is concerned that its usual practice of waiving tariff provisions after the fact amounts to retroactive ratemaking in violation of the filed rate doctrine. (more…)
With the market evolving rapidly, we are pleased to provide you with the following enforcement updates:
- FERC extends deadlines for filing EQRs and Form No. 552 to June 1, 2020.
- Trading company challenges PJM FTR forfeiture rule.
- PJM submits tariff revisions to enhance rules for evaluating and managing credit risk.
- FERC establishes paper hearing to evaluate proposed rejection in bankruptcy.
- Parties file summary judgment motions and reply briefs in FERC v. Coaltrain Energy.
- Kraft conditionally withdraws its motion for sanctions in CFTC v. Kraft Food Group, Inc.
- Settlement discussions continue in FERC v. Richard Silkman et al.
- Comments filed on the request for technical conference and petition for rulemaking to update credit and risk management in the ISO/RTO markets.
- FERC issues Order 860-A on Connected Entity Information.
- Fourth Circuit finds FERC’s action timely in FERC v. Powhatan Energy Fund, LLC.
- CFTC approves proposed rule on position limits for derivatives.
- FERC issues notice of intent to revoke MBR authority to thirteen entities for failure to file EQRs.
- FERC approves a Stipulation and Consent Agreement between the Office of Enforcement and Emera Energy Incorporated.
As the novel coronavirus (COVID-19) continues to spread, Sidley is helping clients navigate the potential consequences to energy markets and attendant legal risks. The following frequently asked questions address actions by the U.S. Federal Energy Regulatory Commission (FERC) on April 2, 2020 in response to the current market conditions. This document updates energy regulatory FAQs published by Sidley on March 20, 2020.
The Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) announced yesterday they are taking steps to ensure that operators of the bulk electric system can focus their resources on keeping people safe and the lights on during this unprecedented public health emergency.
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.
In our first enforcement update for 2019, we cover a range of issues (including some news from the end of 2018):
- FERC opens investigations into rates charged by three interstate natural gas companies;
- Powhatan and Chen file opening appellate brief;
- Judge suspends CFTC case against Kraft because of the partial government shutdown;
- FERC increases maximum civil penalties for violations;
- FERC approves settlement between FERC Enforcement and Algonquin;
- Judge rules that FERC action against Silkman/CES is not time-barred by statute of limitations; and
- Judge finds CFTC fails to meet burden on manipulation claims against DRW and Wilson.
On November 15, 2018, the Federal Energy Regulatory Commission (FERC) issued a rulemaking to revise its regulations relating to mergers or consolidations by a public utility. See Implementation of Amended Section 203(a)(1)(B) of the Federal Power Act, 165 FERC ¶ 61,091 (2018). These regulations would implement a law signed on September 28, 2018 establishing a $10 million threshold on transactions that will be subject to FERC’s review and authorization under section 203(a)(1)(B) of the Federal Power Act (FPA). Previously, there was no dollar value threshold for FERC review of public utility “merge or consolidate” transactions under FPA section 203(a)(1)(B). See 16 U.S.C. § 824b(a)(1)(B). (more…)
This week’s enforcement update covers:
- FERC issues 2018 Report on Enforcement showing continued focus on fraud and market manipulation;
- CFTC Enforcement Director discusses Enforcement trends and CFTC releases Annual Report on enforcement;
- CFTC orders Commerzbank AG to pay $12 million for swap dealing violations and misleading statements to the CFTC;
- Former commodities trading executive arrested for scheme to defraud employer by hiding trading losses; and
- CFTC and Kraft file oppositions to motions for summary judgment.