Articles Posted in Energy

On December 22, 2017, the Office of the Solicitor of the Department of the Interior issued a Memorandum re: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, which substantially modifies the Department’s policy regarding the criminal enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental taking or killing of migratory birds. In addition, this Memorandum withdraws a contrary opinion of the Solicitor’s Office that was issued on January 10, 2017 – Memorandum re: Temporary Suspension of Certain Solicitor M-Opinions Pending Review. This could be a very important change for the energy industry.

The opinion concludes by stating that:

“The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.” Continue Reading ›

EPA Declines To Issue CERCLA Financial Responsibility Rules For Hardrock Mining Industry But Leaves Open What It Might Do For Other Industries

Posted December 7, 2017

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as Superfund, was enacted in December 1980, and Section 108(b) provides that the Environmental Protection Agency (EPA) shall promulgate, no later than December 11, 1985, financial responsibility requirements for classes of facilities—designated by EPA—consistent with “the degree and duration of risk associated with their production, transportation, treatment, storage or disposal of hazardous substances.” Despite this directive, EPA has not issued any financial responsibility rules under Section 108(b). This record of inaction prompted a lawsuit demanding compliance with the law.

Fourth Circuit Issues Ruling Protecting Actions of Nuclear Plant Operator

Posted November 30, 2017

On November 20, the U.S. Court of Appeals for the Fourth Circuit decided the case of Cox, et al., v. Duke Energy, Inc. et al., affirming the ruling of the U.S. District Court for the District of South Carolina’s grant of the defendants’ motion for summary judgment in a 42 U.S.C. § 1983 civil rights lawsuit, holding

“(1) that Fleming had validly waived his right to sue the Darlington County Sheriff’s Office, the Sheriff, and the deputies; (2) that Duke Energy and its vice president were private actors not operating “under color of” state law as required for liability under § 1983; and (3) that Fleming’s remaining state law claims were preempted by federal law’s exclusive regulation of nuclear safety.”

EPA Issues Final Report re: Development of Domestic Energy Resources

Posted October 30, 2017

In compliance with the March 28, 2017 Presidential Executive Order on Promoting Energy Independence and Economic Growth (EO 13783), the Environmental Protection Agency (EPA) has released its Final Report on Review of Agency Actions that Potentially Burden the Safe, Efficient Development of Domestic Energy Resources Under Executive Order 13783. EPA describes its efforts to reform the New Source Review (NSR) review process, the National Ambient Air Quality Standards (NAAQS)process and how it plans to assess the economic consequences of actions taken under the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund).and the Toxic Substances Control Act (TSCA).

Time Will Tell Whether Trump Executive Order Succeeds in Reducing Time for Federal Environmental Review and Permits for Major Infrastructure Projects

Posted September 1, 2017

On August 15, 2017, President Trump issued Executive Order 13807 (EO 13807), which seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The EO aims to hold federal agencies accountable to a two-year deadline for all federal authorizations for infrastructure projects, including highways and transit, airports and ports, fossil, nuclear and renewable energy, pipeline and water projects.

EO 13807 defines “major infrastructure projects” as those which require both a full Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and multiple permits, approvals and/or other forms of authorization from federal agencies, and for which sufficient and reasonably available funding has been identified. The EO requires the Office of Management and Budget (OMB) to establish a federal goal of completing NEPA review and permitting in “not more than an average of approximately two years” from the notice of intent to prepare an EIS. The goal must be incorporated in each federal agency’s strategic and annual performance plans and progress must be reviewed by agency leadership.

Office of Planning and Research Releases Updated General Plan Guidelines

Posted August 17, 2017

On August 2, 2017, the California Governor’s Office of Planning and Research (“OPR”) released its first update to the General Plan Guidelines (the “Guidelines”) since 2003. The Guidelines provide guidance to cities and counties throughout California on the preparation and content of their General Plans, which govern land uses and zoning within their jurisdictions. The updated Guidelines contain new recommended policies, information resources, and reflect recent legislation regarding General Plans.

Third Circuit Rejects Oil Producers’ Security Interest Arguments In Midstream Provider’s Bankruptcy Proceeding

Posted July 24, 2017

On July 19, the U.S. Court of Appeals for the Third Circuit decided an important case involving oil and gas producers, intermediaries, and the ultimate purchasers of the oil and gas. The case, a bankruptcy matter, is In re: SemCrude, LP, et al.

The appellants, many oil and gas producers located in Texas, Oklahoma and Kansas, sold their product to SemCrude, L.P. (SemCrude), a “midstream” oil and gas service provider, who then sold oil to and traded oil futures with downstream oil purchasers. SemCrude’s unsuccessful futures trading activities cause the company to become insolvent and enter into bankruptcy. However, the producers had taken no steps to protect themselves in case SemCrude went bankrupt in contrast to the downstream purchasers. As a result, when SemCrude filed for bankruptcy, the downstream purchasers were paid in full, and more than a thousand producers were unpaid.

Offshore Wind Development Potentially Finds Smoother Sailing in Deeper Water

Posted July 17, 2017

In a breakthrough for offshore wind energy in the United States, construction of the Block Island Wind Farm, the first U.S. offshore wind farm, was completed in August 2016 about 30 miles off the coast of Rhode Island. The project began delivering power to the New England grid on May 5 of this year. While Block Island is a big step forward for the industry, broad public support for offshore wind farms in the U.S. has been lacking due in large part to concerns about aesthetics when the turbines are visible from land. As demonstrated by the collapse of the Cape Wind project in 2014 off the coast of Martha’s Vineyard, failure to get public buy-in can be fatal to a project.

California SB 71 Could Give New Meaning—and New Construction Costs—to the Word “Sunroof”

Posted April 10, 2017