Energy > AG Speaking Energy
06 Dec '18

On December 3, 2018, the Supreme Court of the United States issued an order requesting the Solicitor General to weigh in on a case related to the legal status of some types of groundwater.1 The catch? The Court’s order comes with an unusually expedited one-month deadline, a move that the Court rarely takes. This surprising action foreshadows the potential for an earlier-than-expected decision on an issue with deep ramifications for those in the energy industry.

Specifically, the Court aims to address a circuit split among the 4th, 5th and 9th Circuits in determining whether only direct discharges to “navigable waters” (rivers, lakes and other surface waters, for example) are covered or whether groundwater that is “hydrologically connected to surface water” is subject to Clean Water Act (CWA) pollution discharge requirements.2 Groundwater—that is, water held beneath the soil or in between rock structures—does not fall under CWA jurisdiction. Nevertheless, the U.S. Environmental Protection Agency (EPA), for many years, maintained that pollutants that flow with a direct and immediate hydrologic connection through groundwater into surface waters are properly regulated under the CWA.3 Environmentalists agree with EPA’s long-standing position, while many in industry say that the agency is reaching beyond its scope.

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23 Oct '18

On September 27, 2018, the U.S. Court of Appeals for the Second Circuit (Second Circuit)  affirmed a district court’s finding that New York’s Zero Emissions Credit (ZEC) program is not preempted by federal law.1  The Second Circuit’s opinion follows a similar affirmation by the Seventh Circuit regarding Illinois’ ZEC program, and likewise interprets the Supreme Court’s decision in Hughes v. Talen Energy2 to prohibit state generation subsidies only if they are explicitly “tethered” to federal wholesale electricity markets.

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28 Sep '18

On September 21, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued an expedited mandate to the U.S. Environmental Protection Agency (EPA), forcing the agency to reinstate several provisions of its 2017 amendments to the Risk Management Plan (RMP) Rule. The D.C. Circuit issued its mandate following an August 2018 decision to vacate EPA’s attempt to delay the RMP amendments’ effective date until 2019.1 Thus, stationary sources covered by the Clean Air Act are subject to a number of requirements related to emergency coordination, emergency response, accident prevention and information availability.2

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27 Sep '18

On September 24, 2018, the U.S. District Court for the Eastern District of Virginia denied defendants’ motion to dismiss the Federal Energy Regulatory Commission’s (FERC or “the Commission”) complaint in FERC v. Powhatan Energy Fund, LLC, an electricity market manipulation case.1  Defendants  had argued that nearly all of FERC’s enforcement action was time-barred since FERC filed its federal district court complaint more than five years after most of the conduct occurred.  In rejecting that argument, the court gave FERC an important procedural victory—but also highlighted the difficulty in applying the generic five-year statute of limitations for government claims to enforcement actions brought under the Federal Power Act’s (FPA) unique “de novo review” procedures.  Based on this difficulty—and the court’s recognition that defendants’ argument seems more consistent with the FPA statutory scheme and the purpose of the statute of limitations—the court stayed further proceedings so that defendants could consider pursuing an interlocutory appeal in the U.S. Court of Appeals for the Fourth Circuit.

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21 Sep '18

In a surprisingly terse opinion, the U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) recently affirmed a district court’s finding that Illinois’ Zero Emissions Credit (ZEC) program is not preempted by federal law.[1]  The holding serves as a green light for states currently considering or moving forward with similar generation subsidy programs, and foreshadows the likely outcome for an identical challenge to New York’s ZEC program pending before the U.S. Court of Appeals for the Second Circuit (Second Circuit). 

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20 Sep '18

The U.S. Senate and House of Representatives recently passed legislation regarding the Federal Energy Regulatory Commission’s (FERC or Commission) review of certain transactions as well as judicial review of rate changes that become effective as a result of a FERC deadlock.  First, H.R. 1109, introduced by Reps. Tim Walberg (R-MI) and Debbie Dingell (D-MI) and passed by the House on September 13, 2018, adds a $10 million value threshold for prior FERC authorization for transactions involving the merger or consolidation of FERC-jurisdictional facilities under Section 203(a)(1)(B) of the Federal Power Act (FPA).  H.R. 1109 also requires FERC to establish a 30-day post-closing notification requirement for such transactions involving facilities worth more than $1 million.  Second, the “Fair Ratepayer Accountability, Transparency, and Efficiency Standards Act” or “Fair RATES Act” (S. 186), introduced by Sen. Edward Markey (D-MA) and passed by the Senate on September 4, 2018, amends Section 205 of the FPA to treat any inaction by FERC that allows a rate change to take effect as an order for the purposes of rehearing and judicial review.

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17 Sep '18

On August 31, 2018, NorthWestern Corporation (NorthWestern) petitioned the Federal Energy Regulatory Commission (FERC or Commission) to revoke the qualifying small power production facility (QF) status of four wind projects planning to integrate batteries at their respective sites, raising new questions for the treatment of energy storage under the Public Utility Regulatory Policies Act of 1978 (PURPA). At issue is whether wind or solar generation facilities and co-located storage should be treated as a single QF—and if so, how to calculate the facility’s aggregate “power production capacity”—or whether co-located storage facilities should be treated as separate QFs.

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