The Federal Energy Regulatory Commission (FERC) announced on March 24, 2022, that it will delay enacting any changes to its existing policies on the authorization or certification of interstate natural gas pipeline infrastructure under Sections 3 and 7 of the Natural Gas Act. Two policy statements FERC issued on February 18, 2022, in Docket No. PL18-1 and Docket No. PL21-3 (collectively, the 2022 Certificate Policy Statements) have now been deemed “drafts” that are subject to further comment. Initial comments will be due on April 25, 2022, with reply comments due on May 25, 2022. One of the two policy statements, which had been deemed “interim” but given immediate legal effect on February 18 prior to being relabeled a “draft” on March 24, had an initial comment date of April 4, 2022, which has now been extended to the aforementioned dates. Sidley provided a detailed summary of the changes implemented in the 2022 Certificate Policy Statements in a prior client alert and Energy Brief. (more…)
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.
This week, the U.S. Senate advanced a much-anticipated bipartisan infrastructure bill. After months of negotiations and a failed procedural vote last week, the White House and a bipartisan group of Senators unveiled a bipartisan infrastructure deal to provide $550 billion in new spending on July 28. That same day, in a 67-32 vote, 17 Republicans joined all 50 Democrats to invoke cloture on the motion to proceed to the bill. Today, the Senate passed another bipartisan procedural vote to officially consider the bill on the Senate floor. While the Senate continues to work on finalizing the legislative text, the following topline funding provisions were released:
The U.S. Department of Homeland Security’s Transportation Security Administration (“TSA”) issued a Security Directive, “Enhancing Pipeline Cybersecurity” on May 28, laying out new cybersecurity requirements for operators of liquids and natural gas pipelines and LNG facilities designated as critical infrastructure. (more…)
President Joe Biden unveiled the first of his two-part infrastructure proposal on Wednesday, March 31. Referred to as the American Jobs Plan, the package would provide $2.3 trillion in spending to support traditional infrastructure upgrades and activities within a new, more expansive definition of infrastructure. The plan provides $621 billion for transportation infrastructure and resiliency activities, $115 billion of which would fund repairs to roads and bridges. This also includes $174 billion in electric vehicle (EV) investments to create a national network of 500,000 EV chargers by 2030, electrify at least 20% of school buses, and electrify the federal fleet, including the U.S. Postal Service. In addition, the proposal provides $111 billion in water infrastructure funding, which includes $45 billion to replace 100% of the nation’s lead service lines and $10 billion to monitor and remediate per- and polyfluoroalkyl substances (PFAS) in drinking water.
On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.
On March 11, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed a decision approving of Grant County, Washington’s, special power rate for cryptocurrency miners. In Cytline, LLC, et al. v. Public Utility District No. 2 of Grant County Washington, a group of cryptocurrency companies sued after a Grant County utility district created a special energy rate applicable only to cryptocurrency miners. The companies had moved to Grant County because the county had some of the lowest rates for electricity in the country. (more…)
Historically, the emissions standards for mobile sources promulgated by the U.S. Environmental Protection Agency (EPA) have been viewed as more ambitious than European Union (EU) standards. The United States’ stringent enforcement of mobile source emission standards may result in significant financial penalties; extensive injunctive relief, such as recalls and high-cost mitigation projects; corporate compliance requirements; and in some cases, criminal indictment.
On the other side of the Atlantic, in the EU, mobile emissions compliance regulations are becoming more robust. In particular, the EU appears to be adopting a stricter approach on emissions through a growing body of case law on the interpretation and application of existing emissions compliance regulations. In a judgment on 17 December 2020, in CLCV and Others, the Court of Justice of the European Union (Court) adopted a potentially broad interpretation on the definition of defeat devices and appeared to limit the scope of exceptions for their use in vehicles sold, registered, or put into service in the EU.1 This judgment is likely to set the benchmark for other proceedings on the admissibility of defeat devices in the EU.
Notably, there are at least six cases pending before the Court on mobile source emissions and the concept of defeat devices for light-duty passenger and commercial vehicles under Regulation (EC) No 715/2007 (Regulation).2
On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.
On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.