On June 29, 2020, the U.S. Environmental Protection Agency (EPA) amended its COVID‑19‑related temporary enforcement policy. As previously reported, EPA issued temporary COVID-19 Enforcement Guidance on March 26, 2020, providing guidelines on how EPA will, in certain cases, exercise discretion in enforcing environmental legal obligations during the COVID-19 pandemic. (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.
Earlier this summer, the Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) criminal office announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company’s truck fleet. DOJ and EPA charged five employees of Rockwater Northeast LLC, a company that services the hydraulic fracturing industry, for modifying emission control and OBD systems on approximately 30 of the company’s heavy-duty diesel trucks. (more…)
*This article originally appeared on the WLF Legal Pulse at wlflegalpulse.com on November 22, 2017.
Can an environmental organization file suit under the Resource Conservation and Recovery Act’s (“RCRA”) citizen-suit provision claiming harm from stormwater runoff which could be, but was not, subject to limits under a Clean Water Act (“CWA”) permit? In a November 2, 2017 decision, Ecological Rights Foundation v. Pacific Gas and Electric Company, the U.S. Court of Appeals for the Ninth Circuit held that it could. The ruling, which also rejected the defendant’s arguments opposing Article III standing, is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations.
This Environmental Year in Review summarizes many of the significant court rulings, regulatory changes and policy developments that occurred during 2016. As 2016 was the final year of the Obama administration, change is in the air. The commencement of the Trump administration promises to bring with it shifts in policy focus, rule changes and inevitably litigation. (more…)
This week’s enforcement update covers:
- Fifth Circuit schedules oral argument, and FERC and TOTAL file pleadings regarding Appointments Clause;
- Plaintiffs in class action against TOTAL file response related to oral argument;
- CME Group Exchanges expand reach of manipulation and fraud rules;
- FERC and Silkman file joint discovery plan in district court, and court sets scheduling conference; and
- Judge holds motion hearing in FERC district court case against Barclays.
The Texas-based oil and natural gas equipment company National Oilwell Varco, Inc., and its subsidiaries Dreco Energy Services, Ltd. (Dreco), and NOV Elmar (Elmar) (collectively NOV) recently settled potential civil penalties with the U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce Bureau of Industry and Security (BIS) and executed a nonprosecution agreement (NPA) with the U.S. Department of Justice (U.S. Attorney’s Office for the Southern District of Texas). NOV, which did not voluntarily disclose the alleged violations to the government, will pay a total of US$25 million to resolve the charges.
On Tuesday, October 11, 2016, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) revealed a pipeline civil penalty framework on its website. PHMSA will allow a respondent in an enforcement case to request a proposed civil penalty calculation related to its case.
PHMSA’s current caps for administrative civil penalties occurring on or after August 1, 2016, are $205,638 per day and $2,056,380 for a related series of violations. PHMSA states that its penalties may exceed the guideline amounts to “serve as a strong deterrence, driving down incident risk.”
PHMSA’s guidelines provide the following “assessment considerations” for determining penalty amounts: nature; circumstances; gravity; culpability; history of prior offenses; good faith; and other matters as justice may require.
On August 12, TOTAL filed a motion to alter judgment and motion to file a second amended complaint in federal district court. This case involves TOTAL’s declaratory judgment action in federal court in Texas claiming FERC lacked jurisdiction to adjudicate the manipulation claims against TOTAL. As we previously reported, U.S. District Judge Nancy F. Atlas issued an order on July 15 dismissing TOTAL’s declaratory judgment action against FERC. TOTAL argues that it is entitled to a declaratory judgment stating that FERC must litigate alleged market manipulation violations in federal district court because such a process is mandated by Section 24 of the Natural Gas Act, as well as the Constitution and the Administrative Procedure Act. FERC’s response to TOTAL’s motion is due by August 29.
On August 24, City Power filed its answer to FERC’s complaint in the U.S. District Court for the District of Columbia. As we previously reported, Judge Bates issued an order denying City Power’s motion to dismiss in FERC’s case on August 10. City Power’s answer denies many of the allegations in FERC’s complaint. City Power also asserts a number of defenses, including that FERC’s complaint fails to state a claim for which relief can be granted, due process violations, FERC’s lack of jurisdiction over the UTC trades at issue, and lack of fair notice.