Energy Enforcement Update

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.

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Tenth Circuit Dismissal of BLM Hydraulic Fracturing Rule Leads to Regulatory Uncertainty

A September 27, 2017 decision by the U.S. Court of Appeals for the Tenth Circuit has created significant confusion on whether federal regulations governing hydraulic fracturing on federal and Indian lands are now in effect. At first blush, the decision appeared to be a victory for the states and industry groups that sued to block the regulations, but the court’s remedy — vacating a lower court decision striking down the rule — has left the U.S. Bureau of Land Management (BLM), states, industry and environmental groups with very different views about the current legal obligations for oil and gas companies operating on federal and Indian lands. 

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Sidley Environmental Trends

Topics discussed this week include:

  • Environmental groups and attorneys general challenge delay of civil penalty increases for automakers.
  • Interior seeks to streamline environmental impact statements.
  • Landowner suit claims FERC eminent domain powers are unconstitutional.
  • EPA will reconsider coal ash disposal rule.
  • EPA postpones compliance with power plant effluent limitations.
  • Environmental groups threaten suit to compel oil and gas methane regulations.

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Energy Enforcement Update

This week’s enforcement update covers:

  • CFTC orders W Resources, LLC to pay a $150,000 civil penalty for registration violations;
  • Senate Energy & Natural Resources Committee considers FERC nominees; new GC withdraws from FERC v. Powhatan case.
  • Rostin Behnam sworn in as a Commissioner of the CFTC;
  • Appeals court denies petition for rehearing related to spoofing conviction against Michael Coscia;
  • FERC approves settlement agreement with American Transmission Company;
  • FERC Enforcement settles with Westar Energy; and
  • FERC approves settlement agreement with City Power and Tsingas.

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District Court Rules It Lacks Jurisdiction Over Claims for Future Climate Change Injuries

The U.S. District Court of the District of Massachusetts dismissed, in part, an environmental group’s challenge to a Boston Harbor terminal’s stormwater permit, claiming that the permit fails to protect the group’s members from future harm from climate change. The Conservation Law Foundation (CLF) filed a Clean Water Act and Resource Conservation and Recovery Act citizen suit in September 2016. Among other things, they argued the Everett Terminal’s Stormwater Pollution Prevention Plan, Spill Prevention, Control and Countermeasures Plan, and Facility Response Plan failed to account for petroleum product discharges that would occur in the future from sea level rise, storm surges, severe weather events and flooding caused by climate change.

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Sidley Environmental Trends

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.

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Sidley Environmental Trends

Topics discussed this week include:

  • Federal agencies reopen comment on Obama administration auto fuel efficiency standards.
  • Environmental groups file legal challenges to TSCA rules.
  • Tenth Circuit vacates EPA denial of small-refinery renewable fuels exemption.
  • EPA begins revisions to power plant wastewater rules.
  • DC Circuit rules EPA’s hydrofluorocarbon rule exceeds statutory authority.

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