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.
On Monday, May 13, China proposed to increase the current tariff of 10% to 25% on liquefied natural gas (LNG) exported from the United States. The proposed increase would go into effect on June 1 in response to the proposed increase on certain Chinese goods imported into the U.S. While this may have limited immediate impact on LNG exports from the United States for LNG plants that have already been constructed (there have been only two cargos of LNG sold to China from the United States this year), it has the potential to slow the growth of LNG exports, including reduced LNG off-take and equity investments in the United States from Chinese entities. China is currently the largest importer of LNG in the world, having surpassed Japan in 2018. The U.S. is projected to be the third-largest LNG exporter, with much of those exports forecasted to go to China.
On February 12, 2019, U.S. Deputy Secretary of Energy Dan Brouillette and U.S. Ambassador to Germany, Richard Grenell, participated in a German LNG Conference hosted in Berlin by German Federal Minister of Economic Affairs and Energy Peter Altmaier. The group was joined by high-level government and industry leaders, including Executive Director of the International Energy Agency, Dr. Fatih Birol. (more…)
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.
This week’s enforcement update covers:
- FERC Enforcement Staff presents the 2018 Summer Energy Market and Reliability Assessment;
- CFTC Staff issues report assessing market impacts of LNG;
- CFTC Commissioner Behnam discusses CFTC enforcement program and trends;
- FERC files opposition to TOTAL petition for writ of certiorari in the Supreme Court;
- Second Circuit affirms dismissal of class action against TOTAL for alleged natural gas manipulation; and
- FERC Enforcement settles investigation with PSEG.
Topics discussed this week include:
- Environmental group brings Clean Water Act citizen suit against Shell and Motiva that alleges climate change-related harms.
- District court stays CERCLA unilateral administrative order.
- District court overturns Department of the Interior stay of rule governing royalties for oil, natural gas and coal production on federal and Indian lands.
- Second Circuit upholds New York State’s decision to deny Clean Water Act certification to proposed pipeline.
- C. Circuit holds that FERC should consider power plant emissions in pipeline environmental impact statement.
- Hurricane Harvey affects Gulf Coast energy and chemical resources.
In a 2-1 decision that issued today, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Sierra Club et. al v. Federal Energy Regulatory Commission (Sierra Club) vacated and remanded a Natural Gas Act (NGA) Section 7 certificate of public convenience and necessity granted by the Federal Energy Regulatory Commission (FERC) to the Southeast Market Pipelines Project (Project) in 2016. The Project comprises three natural gas pipelines currently under construction in Alabama, Georgia, and Florida that, once built, will transport over 1 billion cubic feet of natural gas per day over 500 miles to feed new and existing natural gas-fired electric plants in Florida and to serve the growing natural gas demand of Florida utility customers. (more…)