Category Archives: Regulatory

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FERC Prevails Again in Order No. 1000 Appellate Proceedings

3D Electric power lines over sunriseOn April 19, 2017, the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the Federal Energy Regulatory Commission’s (FERC) implementation of Order No. 1000 with respect to ISO-New England (ISO-NE). The D.C. Circuit had previously upheld the legality of the order itself in 2014, and the Seventh Circuit upheld FERC’s implementation of Midcontinent … Continue Reading

Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

GettyImages-178767558In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months, … Continue Reading

Renewable Energy Development Can Still Look to PURPA as New Administration Moves In

solar panels and wind turbines energy from natural on sunset backgroundWith the inauguration of President Trump as the 45th President of the United States, stakeholders in various sectors of the energy industry have speculated about the future of energy policy in the new administration. While the early days of the administration have seen a clear commitment to the oil and gas sectors with action on … Continue Reading

TSCA and Asbestos—a New Approach or One That Reveals the Same Old Problems?

iStock-509047434On November 29, EPA announced that it will review the hazard and exposure risks caused by asbestos. Asbestos will be one of the first ten substances to be evaluated under the TSCA amendments commonly referred to as the Lautenberg Act. As we have discussed elsewhere, TSCA now requires EPA to produce a risk evaluation work … Continue Reading

Asbestos Among First Ten Chemicals to be Reviewed Under the Amended TSCA

iStock-498015026EPA announced on June 29, 2016, that asbestos and nine other chemicals will be reviewed for hazard and exposure risks under the new procedures of the Lautenberg Chemical Safety Act, the June 2016 amendment to the Toxic Substances Control Act. Now that the ten chemicals have been chosen, EPA must produce a risk evaluation work … Continue Reading

EPA Updates Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

iStock_102905941_LARGEOn September 7, 2016, the United States Environmental Protection Agency (EPA) issued a final rule updating the Cross-State Air Pollution Rule (CSAPR) ozone season trading program.  The rule promulgates more stringent ozone season NOx budgets in several states.  CSAPR was promulgated to implement the “good neighbor” provision of the Clean Air Act, which requires states … Continue Reading

EPA Must Regulate Airplane Greenhouse Gas Emissions

iStock_000011889869_Medium_BWAs we wrote about previously, in February 2016 the International Civil Aviation Organization (ICAO) proposed international standards to limit the emissions of greenhouse gas (GHG) emissions from airplane engines.  Last week, the EPA finalized the first step to create domestic emissions standards for airplanes when it officially found that GHG emissions from certain types of … Continue Reading

FERC Issues Orders Concerning NERC Critical Infrastructure Protection Reliability Standards

Row of columns in black and white (Karlovy Vary, Czech Republic)On June 21, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued three orders related to the North American Electric Reliability Corporation’s (NERC) critical infrastructure protection reliability standards (CIP reliability standards). The Commission issued a final rule directing NERC to develop a new or modified reliability standard, an Order Denying Rehearing and a Notice … Continue Reading

FERC Issues NOPR on Information Collection, Rescinds Previous Iterations of Rule

SPOT_iStock_000046712904_Large_BWOn July 21, 2016, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) in Docket No. RM16-17-000 to revise regulations regarding the collection of data for analytics and surveillance purposes from market-based rates (MBR) sellers and entities trading virtual products or holding financial transmission rights (Virtual/FTR Participants). FERC also withdrew two … Continue Reading

Toxic Substances Control Act Revised for the 21st Century

Toxic signOn June 22, 2016, President Obama signed the Lautenberg Chemical Safety Act into law.  The Act is the first significant change to the 1976 Toxic Substances Control Act in 40 years and amends the Environmental Protection Agency’s (EPA) methods for reviewing chemical substances before they are marketed and allowed to be used in consumer products. … Continue Reading

FAA Eases Opportunities for Utilities to Use Drones

Unmanned Aerial Vehicle (UAV), also known as Unmanned Aircraft System (UAS). Digitally Generated Image isolated on white backgroundIn a long awaited release, on June 21, 2016, the Federal Aviation Administration (FAA) issued a Final Rule to allow for increased commercial operation of small, unmanned aircraft systems (UAS or drones) in the National Airspace System (NAS).[1]  Existing regulation mandated that commercial users of UAS apply to the FAA for a case-by-case review for … Continue Reading

FERC Issues a Notice of Inquiry on Primary Frequency Response

iStock_000079556673_Full_BWLast week, the Federal Energy Regulatory Commission issued a Notice of Inquiry (NOI) seeking comment on the need for reforms regarding the provision of and compensation for primary frequency response. The NOI notes that fewer generation resources may currently be providing primary frequency response than in the past. The Commission expects this trend to continue … Continue Reading

U.S. Supreme Court to Decide Split on Whether a U.S. Army Corps Wetland Jurisdictional Determination is a Final Agency Action

ENVIRO_iStock_000030775888_Large_BWOn December 11, 2015, the U.S. Supreme Court granted certiorari to determine whether a jurisdictional determination approved by the U.S. Army Corps of Engineers (Corps) is a final agency action ripe for judicial review.  The decision will resolve a circuit split between the Eighth and Fifth Circuits. In U.S. Army Corps of Eng’rs v. Hawkes … Continue Reading

EPA Releases Additional Elements of President Obama’s Climate Action Plan

56677128On August 18, 2015, EPA released additional components of President Obama’s Climate Action Plan.  The four separate actions are intended to reduce greenhouse gases and other emissions from the oil and natural gas sector.  The newly-released components include: 1) Additional New Source Performance Standards; 2) New Control Techniques Guidelines; 3) Proposed revisions to the regulatory … Continue Reading

Clean Power Plan: EPA Issues Final Carbon Reduction Rule for Existing Stationary Sources

iStock_000020403882_MediumOn August 3, 2015, the United States Environmental Protection Agency (EPA) released the final version of the Existing Source Performance Standards (ESPS) component of the Obama Administration’s Clean Power Plan (CPP), setting the first-ever carbon dioxide emission reduction goals for States. Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources, 40 CFR Part … Continue Reading

CFTC Proposes to Reduce Reporting and Recordkeeping Obligations for Commercial End Users of Trade Options

iStock_000023227773_LargeOn April 30, 2015, the U.S. Commodity Futures Trading Commission (CFTC) issued a Notice of Proposed Rulemaking that would have the effect of reducing reporting and recordkeeping requirements for trade option counterparties that are neither swap dealers nor major swap participants (Non-SD/MSPs), including energy companies, agricultural producers, and other commercial end users. The proposals are … Continue Reading

Natural Gas Act Does Not Pre-empt State Antitrust Laws

gas pipe lineLast week, the U. S. Supreme Court handed down an important decision on the jurisdictional reach of the Natural Gas Act (NGA).  The Court concluded that the NGA does not pre-empt a long-running group of state-law antitrust suits aimed at alleged misconduct by natural gas pipelines. In Oneok, Inc. et al. v. Learjet, Inc. et … Continue Reading

FERC Issues Final Order on Gas Day NOPR

iStock_000013902890_FullThe Federal Energy Regulatory Commission (FERC or Commission) last week released its final rule, Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities, 151 FERC ¶ 61,049 (2015) designated as Order No. 809, in docket RM14-2.  In Order No. 809, the Commission took action on the Notice of Proposed Rulemaking (NOPR) … Continue Reading

The Wait is Over – EPA publishes the Disposal of Coal Combustion Residuals from Electric Utilities Rule

iStock_000005392026_LargeEPA today published in the Federal Register its Final Rule for Disposal of Coal Combustion Residuals from Electric Utilities (commonly known as the CCR Rule). The rule is now official and the clock starts for compliance deadlines and the filing of challenges. The rule becomes effective on October 14, 2015, six months after publication. Parties … Continue Reading

Monitoring and Testing (and Taxing): New York Appellate Court Imposes Sales Tax on Environmental Remediation Work

iStock_000019977044_LargeKeeping with a growing trend, a New York appellate court in Exxon Mobil Corp. v. State of New York Tax Appeals recently upheld a ruling applying a sales and use tax assessment to environmental remediation work. New York law has a provision imposing a sales tax on services related to “[m]aintaining, servicing or repairing real … Continue Reading

EPA Avoids Spoliation Sanctions, But D.C. District Court Not Pleased

iStock_000000953180_LargeOn March 2, 2015, a D.C. district court denied a plaintiff’s motion for spoliation sanctions against the Environmental Protection Agency (EPA) for its conduct in connection with a Freedom of Information Act (FOIA) request. Despite the result, the court expressed its displeasure with the agency. From the very start of its opinion, the court expressed … Continue Reading

FERC Upholds New ROE Method in Opinion No. 531-B

steel pipes in crude oil factoryINTRODUCTION FERC’s Opinion No. 531-B, issued March 3, 2015 (150 FERC ¶ 61,165) upheld FERC’s earlier rulings, Opinion Nos. 531 and 531-A, regarding the return on equity (ROE) the New England Transmission Owners (NETOs) should be allowed to charge through their transmission formula rates. Among other things, FERC affirmed its reliance on discounted cash flow … Continue Reading