Energy & Environmental Law Adviser

EPA Startup, Shutdown and Malfunction Event Rules Are Changing

Posted in Air

EPA continues to change startup, shutdown and malfunction (SSM) conditions throughout the Clean Air Act regulatory scheme.  The changes are a direct response to a number of petitions and court cases brought by environmental groups over the last several years. Continue Reading

D.C. Circuit Issues Opinion on Jurisdiction Under Section 210 of PURPA

Posted in Electric, Regulatory

On December 2, 2014, the D.C. Circuit issued its decision in Midland Power Cooperative and National Rural Electric Cooperative Association v. Federal Energy Regulatory Commission, No. 13-1184, finding that it does not have jurisdiction to review Federal Energy Regulatory Commission (FERC) decisions under Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA)Continue Reading

FERC Approves Fourth Settlement for 2011 Southwest Blackout Against Western Area Power Administration

Posted in Electric, Regulatory

On November 24, 2014, FERC approved a settlement with Western Area Power Administration – Desert Southwest Region  (Western-DSW) related to its involvement in the blackout in the southwestern U.S. on September  8, 2011.  This blackout left more than 5 million people in Southern California, Arizona, and Baja California, Mexico without power for up to 12 hours.  According to FERC’s press release on the Western-DSW settlement, this is the fourth settlement arising out of this blackout. Continue Reading

FERC Orders RTOs and ISOs to Report on Fuel Assurance

Posted in Electric, Regulatory

On November 20, 2014, FERC issued an order requiring regional transmission operators (RTOs) and independent system operators (ISOs) to file reports describing their efforts with respect to fuel assurance. The order defines “fuel assurance” as involving generator access to fuel supplies and the firmness of generators’ fuel arrangements and notes that lack of fuel assurance has been identified as a contributing factor in poor generator performance and inefficient market outcomes. Continue Reading

USEPA Finalizes Amendments to GHG Reporting Regulations for the Oil and Gas Sector And Proposes Additional Subpart W Revisions for Comment

Posted in Air, Natural Gas

Final Rules

On November 13, 2014, the United States Environmental Protection Agency (USEPA) finalized revisions to the Greenhouse Gas Reporting Program (GHGRP) for the petroleum and natural gas systems source category. 40 C.F.R. part 98, subpart W (subpart W).  The final revisions also revise the general provisions (subpart A).  Continue Reading

FERC Issues Proposed Policy Statement Regarding Cost Recovery For Pipeline Modernization

Posted in Natural Gas

FERC is seeking comments on a proposed Policy Statement regarding Cost Recovery Mechanisms for Modernization of Natural Gas Facilities.  The proposed Policy Statement, issued on November 20, 2014 in Docket No. PL15-1, notes that interstate pipelines are likely to incur costs associated with modernizing their facilities pursuant to obligations imposed by the Pipeline and Hazardous Materials Safety Administration (PHMSA) and with complying with greenhouse gas emission requirements imposed by the Environmental Protection Agency (EPA).  FERC is proposing a means to permit pipelines to recover these costs in a manner that will continue to ensure that pipeline rates remain just and reasonable and that natural gas consumers are protected from excessive costs. Continue Reading

CFTC Proposes Clarification of the Interpretation on Forward Contracts with Embedded Volumetric Optionality

Posted in Compliance, Natural Gas, Regulatory, Renewable Energy

On November 3, 2014, the Commodity Futures Trading Commission (CFTC), along with the Securities and Exchange Commission (SEC), proposed a clarification of its previously issued interpretation concerning the exclusion of forward contracts with embedded volumetric optionality from the “swap” and “future delivery” definitions.  The CFTC seeks to clarify the seven elements previously provided as guidance to market participants analyzing whether a contract with embedded volumetric optionality is a swap or a forward.  Specifically, the proposed clarification would address concerns raised by utilities and commercial market participants regarding the application of the fourth, fifth, and seventh elements of the interpretive test. Continue Reading

FERC Approves Integration of Western Area Power Administration, Basin Electric Power Cooperative and Heartland Consumers Power District into SPP

Posted in Electric

In a groundbreaking order that will have implications for the Federal Government’s participation in organized energy markets, the Federal Energy Regulatory Commission (FERC) issued an order in Docket No. ER14-2850-000 on November 10, 2014 approving numerous proposed revisions to Southwest Power Pool’s (SPP) Open Access Transmission Tariff, Bylaws and Membership Agreement that provide for Western-Upper Great Plains Region (Western-UGP, a Federal Power Marketing Agency), Basin Electric Power Cooperative (Basin Electric), and Heartland Consumers Power District (Heartland) to join SPP as Transmission-Owning Members.  The three new members will place their transmission facilities under the functional control of SPP and begin taking transmission service under the SPP Tariff as of October 1, 2015.  The order approves a major expansion in the size and scope of SPP, adding about three million customers, 540,000 square miles of service territory and 9,500 miles of transmission lines to the SPP system.  The new members of SPP will form a new SPP transmission zone, termed the Upper Missouri Zone (UMZ).  Continue Reading

Supreme Court Denies Petition Challenging Staged Review of Completed CERCLA Remediation

Posted in CERCLA

The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed the contours of the general statement that U.S. EPA’s decisions in an “on-going” remediation may not be challenged under CERCLA.  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Prior to Frey, courts applying this provision had found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA. Continue Reading