Gravel2Gavel Construction & Real Estate Law Blog
Due diligence and compliance challenges require flexible approaches and creative solutions. In “Practical Tips for Managing Environmental Issues During the Coronavirus Pandemic,” colleagues Sheila McCafferty Harvey and Reza Zarghamee discuss how proactive and creative compliance strategies, and effective strategies to document parties’ efforts to comply with existing obligations, can help hedge against transactional and compliance risks.
Articles Posted in Energy
Wyoming Governor Signs Law Allowing Retiring Fossil Plants to Be Replaced with Small Modular Nuclear Reactors
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On March 13, 2020, Wyoming Governor Mark Gordon signed House Bill 74 (HB 74) into law. After the Governor signed HB 74, it became House Enrolled Act 60. HEA 60 allows utilities and other power plant owners to replace retiring coal and natural gas electric generation plants with small modular nuclear reactors (SMRs).
No Sales or Use Tax Due on Materials and Equipment Used to Construct and Install Steam Facility at Tennessee Manufacturing Plant
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In a letter ruling published March 16, 2020, the Tennessee Department of Revenue concluded that a contractor’s purchase of materials and equipment for use in the construction and installation of a new steam production facility at a federally owned manufacturing plant was exempt from Tennessee sales and use tax. Tenn. Letter Rul. No. 20-02 (issued Feb. 10, 2020).
COVID-19’s Effects on California Executive Power and Industrial Facilities
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California Governor Gavin Newsom has declared a state of emergency and, pursuant to his broad authority under the California Emergency Services Act and other statutory provisions, has issued Executive Orders suspending or modifying the effect of certain state statutes and regulation in response to COVID-19, and authorizing the commandeering of property needed for the response. In “California Executive Power and Industrial Facilities in the Wake of COVID-19,” colleagues Michael S. McDonough and Christopher W. Smith provide an overview of the recent updates and rulings on California’s facilities and operations.
Wyoming House Bill 74: Replacing Retiring Energy Sources with Small Nuclear Reactors
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On March 10, 2020, the Wyoming legislature passed House Bill 74 (HB 74). If signed into law, HB 74 will allow utilities and other power plant owners to replace retiring coal and natural gas electric generation plants with small modular nuclear reactors (SMRs).
Deployment of SMRs: Key Market Trends for Consideration
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Any strategy for the successful deployment of small modular reactors (SMRs) must thoroughly consider the current trends affecting the burgeoning market for SMRs. In 2019, the three major trends shaping this market were the large number of SMR designs, interest in SMRs in both mature and emerging markets, and factors impacting SMR financing.
A Changing Climate for State Policy-Making Regarding Climate Change
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Issued by 13 federal agencies, the 2018 Fourth National Climate Assessment presented a stark warning on the consequences of climate change for the United States. The report predicts that if significant steps are not taken to rein in global warming, the damage will reduce the U.S. economy by as much as 10 percent by the end of the century. The report, which was mandated by Congress and made public by the White House, is notable not only for the precision of its calculations and bluntness of its conclusions—the 1,656-page assessment lays out the devastating effects of a changing climate on the economy—but also in how it conflicts with President Donald Trump’s environmental deregulation plan. U.S. policy efforts at the state and local levels are ramping up to address this complex topic. These include:
The State of the Energy Marketplace in the United States
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Colleague Robert A. James has authored the United State chapter of Global Legal Group’s Energy 2020 in which he provides an overview of the current U.S. energy marketplace.
In the chapter, Rob discusses the progress as well as the clashes on policies and projects in a wide variety of arenas, including:
- Incentives and challenges for renewables, including U.S. offshore wind and expanded power storage;
- Divergent views on natural gas and battles over new oil and gas pipelines;
- The vehicle efficiency duel between California and the federal government;
- Endangered Species Act, environmental regulatory and climate change litigation developments; and
- Wildfire liability, cybersecurity and blockchain issues for electric utilities and the national grid.
To access the full PDF, click here.
(Reproduced with permission from Global Legal Group, Ltd.)
Montana Federal Court Holds that an Interior Department’s Federal Advisory Committee Was Improperly Reestablished
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On August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests.
DC Circuit Approves, with Some Misgivings, FERC’s Approval of the Atlantic Sunrise Natural Gas Pipeline Extension
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The U.S. Court of Appeals for the DC Circuit decided the case of Allegheny Defense Project, et al. v. Federal Energy Regulatory Commission on August 2, 2019. In a Per Curiam opinion, the court denied petitions challenging the Commission’s orders permitting the Transcontinental Gas Pipe Line Company’s expansion of an existing natural gas pipeline which extends from northern Pennsylvania across the Carolinas into Alabama. The expansion is called the “Atlantic Sunrise Project.” In February 2017, FERC approved the expansion, and denied various petitions, filed by environmental organizations and affected landowners, who then challenged the decision in the DC Circuit. However, the court concluded, on the basis of the administrative record, that these challenges “cannot surmount the deferential standards of agency review and binding DC Circuit precedent.” Under the law, the Commission must consider whether the projected pipeline project meets a market need, and whether the public benefits outweigh the harms. If both criteria are satisfied, FERC will, as in this instance, issue a certificate authorizing the pipeline’s construction, and that certificate also empowers the certificate holder to exercise eminent domain authority under to the Natural Gas Act when necessary. It was the latter consequence of the FERC’s determinations that caused several Pennsylvania landowners to file their objections with the Commission and seek to stay construction.