On December 19, 2018, the U.S. Department of Energy issued a policy statement eliminating from any future export authorization orders the requirement that exporters report where LNG was “received for end use.’’ The relief is a nod to market participants who expressed concerns that exporters often have limited visibility into where their natural gas is ultimately consumed. The policy now will only require that exporters report where the natural gas was “actually delivered.” DOE issued an accompanying blanket order, DOE/FE Order No. 4322, to remove the end use provision from existing authorizations.
Our first enforcement update for 2018 covers:
- FERC terminates DOE NOPR proceeding on grid resilience and initiates new proceeding;
- FERC increases maximum civil penalties for violations;
- TOTAL files petition for writ of certiorari in Supreme Court;
- FERC loses again – Judge rules Powhatan and Chen are entitled to a de novo trial in district court;
- Judge denies Silkman and CES objection to magistrate’s discovery rulings in district court; and
- ERCOT proposes rule revisions to protect its jurisdictional independence from FERC.
This week’s enforcement update covers:
- BP files motion seeking dismissal of FERC case based on statute of limitations;
- Eversource sends cease & desist letter regarding alleged gas pipeline capacity withholding report;
- Secretary Perry grants extension for FERC action on DOE grid resiliency proposal;
- Kevin McIntyre sworn in as Chairman and Richard Glick sworn in as Commissioner at FERC;
- House Energy and Commerce Subcommittee holds hearing on financial trading in electricity markets; and
- CFTC releases annual enforcement results for Fiscal Year 2017.
On October 4, FERC issued an order granting a petition for declaratory order by a group of tax equity investors in renewable energy projects, which requested FERC confirmation that the tax equity interests identified in FERC’s order in AES Creative Resources do not constitute voting securities for purposes of section 203 of the Federal Power Act (“FPA”). (more…)
This week’s enforcement update covers:
- Judge grants Smith motion for judgment on pleadings and dismisses Smith in Barclays case;
- DOE urges FERC to take action to address electric grid resiliency;
- CFTC Director of Enforcement emphasizes self-reporting and cooperation in speech;
- CFTC Division of Enforcement issues Updated Advisory on Self Reporting and Cooperation;
- CFTC orders Logista Advisors LLC to pay $250,000 for supervision failures related to spoofing;
- CFTC orders Morgan Stanley & Co. LLC to pay $500,000 for supervision failures;
- CFTC issues no-action relief regarding CPO and CTA registration;
- CFTC orders Citibank, N.A. and Citigroup Global Markets Limited to pay a $550,000 penalty for swap data reporting violations;
- CFTC orders Merrill Lynch to pay $2.5 million to settle charges of supervision failures and recordkeeping violations;
- Silkman and CES file partial objection to magistrate’s discovery rulings in district court; and
- FERC Staff presents on enforcement activities during the no-quorum period.
On July 19, 2017, the U.S. House of Representatives passed a pair of bills aimed at reforming natural gas and oil pipeline permitting, and granting additional authority to the Federal Energy Regulatory Commission (“FERC”). Both bills passed on largely party-line votes. The two bills are H.R. 2883, Promoting Cross-Border Energy Infrastructure Act, and H.R. 2910, Promoting Interagency Coordination for Review of Natural Gas Pipelines Act. H.R. 2883, removes the current requirement that gas and oil pipelines, as well as electric transmission projects, obtain a Presidential Permit to cross an international border. Instead, pipelines would obtain a certificate of crossing from FERC and transmission projects would obtain such a certificate from the Department of Energy. If enacted into law, this change would mark a significant change for oil pipeline projects. FERC currently has no authority over any aspect of interstate oil pipeline siting. Currently, all siting decisions not on federal lands are handled at the state level, with international border crossings overseen by the State Department through the presidential permit process. FERC does, however, oversee the siting of interstate natural gas pipelines, including Presidential Permits for international border crossings, under current law.
In anticipation of the Department of Energy’s review of the nation’s power grid, stakeholder groups have recently published reports on the state of the U.S. power grid. The reports add to the debate over what mix of energy resources are needed to sustain a stable, secure and reliable supply of electricity in the United States.
An April 14, 2017 memo from Energy Secretary Rick Perry directing the Energy Department to “explore critical issues central to protecting the long-term reliability of the electric grid” has focused the debate. According to Secretary Perry, the 60-day review would assess whether federal policies have caused “the erosion of critical baseload resources.” This includes an assessment of whether reduced coal-fired power generation due “in part from regulatory burdens introduced by previous administrations” has hurt the supply of baseload power and will “undercut the performance of the grid well into the future.” (more…)
This enforcement update covers:
- FERC and Department of Energy nominees clear Senate committee;
- District court dismisses oil price manipulation complaints against multiple energy companies;
- Barclays and FERC file Second Amended Joint Status Report and Court schedules settlement conference;
- Fifth Circuit affirms dismissal of TOTAL’s declaratory judgment action against FERC;
- Supreme Court limits SEC disgorgement to 5-year statute of limitations;
- Kraft Foods moves to compel documents from CFTC; and
- Fifth Circuit vacates judgment involving overly broad privilege standard and related protective order.
Politico Morning Energy reported this morning FERC WAIT MAY BE COMING TO AN END—“an informed tipster tells ME that those names — Neil Chatterjee, Robert Powelson and Kevin McIntyre — are expected to become official within in the next week.” FERC has been without a quorum for nearly two months, hamstringing its ability to act on contested gas and electric rate filings, and infrastructure projects. Senate Energy and Natural Resources Chairwoman Lisa Murkowski has vowed to prioritize FERC nominees before her panel once the White House releases them, but getting them confirmed will likely still take several weeks, notwithstanding the two-week recess next month.
This week’s enforcement update covers:
- Department of Energy scrutinizing natural gas import and export reporting;
- Judge in Powhatan/Chen proceeding grants leave to file amicus brief on de novo review;
- Judge in ETRACOM case rules that “de novo review” means an ordinary civil action;
- TOTAL responds to plaintiffs in class action proceeding;
- Wyoming Pipeline Authority files then withdraws request for rehearing of FERC delegation order; and
- Sidley to host roundtable on FERC energy and capacity market technical conference.
On Wednesday, January 11, 2017, outbound Secretary of Energy Ernest Moniz spoke at the National Press Club in Washington, D.C., in what he said was his final major speaking appearance in the capital city. Secretary Moniz emphasized the importance of the U.S. Department of Energy National Laboratories and Technology Centers, and the many research and development accomplishes of the Obama administration, of which he was a part for nearly the last four years.