On June 30, 2020, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ruled en banc 10-1 in Allegheny Defense Project v. FERC to invalidate the Federal Energy Regulatory Commission’s (FERC) common practice of issuing tolling orders to extend the time for deciding rehearing requests under the Natural Gas Act (NGA) beyond the 30-day deadline set forth in the statute. The court found that a tolling order, in which FERC “grants rehearing” for the limited purpose of affording it additional time to act on a rehearing request, does not constitute “action” upon the rehearing request as required by the NGA. The decision reversed the approximately 50-year old D.C. Circuit precedent upholding the tolling order practice as permissible. The court derided the practice as an unauthorized way for FERC to stall for time while precluding parties aggrieved by FERC orders from seeking judicial review.
Earlier this week President Trump issued an executive order aimed at bolstering economic recovery as businesses reopen. This has potential for marked effects on environmental enforcement in light of how the Environmental Protection Agency and the Department of Justice have already been adapting environmental priorities in the face of the pandemic. (more…)
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.
Three new rules issued by the Trump Administration may allow project developers to better plan future projects, and may encourage preservation and conservation efforts for both private and federal landowners. These rules, issued by the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the National Oceanic and Atmospheric Administration, revise how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act.
The U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA) (the Agencies), have issued three rules revising how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act (ESA). The Agencies’ decisions have not yet been published in the Federal Register, but prepublication versions can be found here. The regulations will become effective 30 days after publication.
Topics discussed this week include:
- EPA proposes to decline to set CERCLA financial assurance rule for electric power industry.
- D.C. Circuit upholds RCRA transfer-based exclusion.
- EPA proposes renewable volume obligations for 2020.
- EPA issues final enforcement policy on coordination with and delegation to states.
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.
Thursday, June 13, 2019
Hilton Post Oak | 2001 Post Oak Blvd | Houston, TX
8:00 a.m. – 8:30 a.m. Registration and Networking
8:30 a.m. – 11:30 a.m. Program / Breakfast will be served
Join representatives from three countries for a discussion of issues currently impacting energy trade among the U.S., Canada and Mexico. Led by representatives of BLG (Canada), Creel (Mexico) and Sidley (U.S.), this half-day program will explore:
- The prospects for eliminating transportation bottlenecks from Canada to the U.S., including Keystone XL and Enbridge Line 3
- The future of gas transportation to Mexico in light of delays in cross-border pipelines and the change in government in Mexico
- Key issues in cross-border oil and gas sales, including re-export of US-origin gas as LNG
- The current and likely future impact of trade actions by each of the three governments, including the uncertain future of the United States-Mexico-Canada Agreement (USMCA) and impacts of steel tariffs
With the value of energy trade between the U.S. and its North American neighbors exceeding US$125 billion in 2017 and continued optimism for growth opportunities through 2019, our panelists will discuss the critical issues and offer perspectives for all participants in the North American market.
CLE credit is pending for this program.
To register, or for more information, please contact email@example.com.
Democrats’ regaining the majority in the U.S. House of Representatives assures an interesting upcoming two years of policy debates for the energy industry. Expect House Democrats to push initiatives on clean energy and address the effects of climate change through hearings or possible legislation, along with further scrutiny on the White House, Cabinet secretaries and federal agencies. (more…)
The English court of first instance has provided important guidance on the close-out provisions under the 2002 ISDA Master Agreement. Particular findings of note which will be of interest to all users of the 2002 form where English law is selected are:
- The determining party must use objectively reasonable processes and must also reach an objectively reasonable result when making close-out calculations under the 2002 ISDA Master. This contrasts with the 1992 ISDA Master, where the English courts have found the more subjective standard of “rationality” applies.
- Although the 2002 ISDA Master permits the use of indicative quotations, it is not commercially reasonable for a determining party to rely on them when it proposes to enter into a replacement transaction shortly afterward.
- Once a party has submitted a calculation following termination, it is not open to that party to withdraw and replace it. However, the court may take into account revised calculations when determining what range of results a calculation in line with the ISDA Master would have arrived at.
- The judge was unwilling to accept mark-to-market valuations or modeled evaluations as evidence for the price at which a replacement transaction would have been available in the market where they differed from actual quotations obtained from leading dealers in the market at the relevant time.
On Jan. 12, the Federal Energy Regulatory Commission (FERC) issued data requests to four interstate pipelines that are proposing incremental recourse rates in pending Natural Gas Act (NGA) Section 7 certificate applications.1 This action was significant because it appears to be FERC’s first step toward responding to tax law changes in the Law to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, also known as the Tax Cuts and Jobs Act of 2017 (2017 Tax Act).
FERC permits pipelines and public utilities to recover their actual or potential tax expenses in their regulated rates. The 2017 Tax Act reduces the corporate tax rate to 21 percent and allows certain investments to receive bonus depreciation treatment. FERC asked each pipeline to 1) explain how the 2017 Tax Act impacts its proposed project cost of service and the resulting initial recourse rate proposal; 2) provide an adjusted cost of service and recalculated initial incremental recourse rates; and 3) provide all supporting work papers and formulas.2 (more…)