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The following notices were published yesterday:

1.  The Federal Energy Regulatory Commission (FERC) will be taking another look at its implementation of FAST Act Section 61003 regarding the security and resilience of energy infrastructure in the face of emergencies. EEI asked that FERC reconsider the rules it promulgated in November 2016 or at least clarify certain provisions with respect to Critical Energy/Electric Infrastructure Information (CEII). A clarification has been issued, effective July 30, 2018. (83 F.R. 24656)

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On May 22, the U.S. Court of Appeals for the Fifth Circuit, in an unpublished ruling, affirmed the District Court’s dismissal of a complaint that the actions and inactions of a City of Houston tax reinvestment zone, as well as the City of Houston, resulted in multiple serious flooding incidents that damaged their properties. The case is Residents Against Flooding, et al., v. Reinvestment Zone Number Seventeen, et al.

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At the Deutsche Bank/Pillsbury Energy Storage Forum, held in New York on March 14, our colleague Rob James discussed battery technologies and the forces driving an increase in energy storage investment and innovation. Click here to download the presentation or watch the video.

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Recently, our colleagues Matt Morrison and Brendan Hennessey published their Client Alert titled A New Path to Managing Risks from Upstream Oil and Gas Transactions, EPA incentivizes new owners to conduct compliance audits by offering penalty forgiveness for violations found. Takeaways include:

  • The Environmental Protection Agency’s (EPA) newest enforcement proposal offers companies in the oil and gas production sector a valuable opportunity to reduce compliance risks inherent in the purchase of facilities
  • EPA remains focused on ensuring storage tanks and associated equipment are properly sized and designed to prevent emission leaks
  • EPA’s draft agreement recognizes that the timing of audits and corrective action should depend on the number of acquired facilities and the scope of the audit

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On May 15, the U.S. District Court for the Northern District of California held that the City of Oakland’s attempt to apply a new “coal ban” ordinance to a coal handling terminal was invalid. The District Court concluded that the record evidence placed before the City Council did not satisfy the ”substantial evidence” criteria contained in the development agreement entered into by the City and Oakland Bulk & Oversized Terminal (“OBOT”) governing a bulk cargo shipping terminal to be built and operated by OBOT. The case is Oakland Bulk & Oversized Terminal, LLC v. City of Oakland.

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On May 9, the California Energy Commission announced that it has “adopted building standards that require solar photovoltaic systems starting in 2020.” The 2019 Building Energy Efficiency Standards are expected to “reduce greenhouse gas emissions by an amount equivalent to taking 115,000 fossil fuel cars off the road.”  California will be the first in the nation to require solar. The new standards take effect on January 1, 2020.

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Recently, our colleague Glenn Sweatt published their Client Alert titled DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan, Recently published regulation implements the FY17 NDAA to prohibit use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel. Takeaways include:

  • New rule prevents Government contracting officers from funding projects that are not able to be safely accessed by Government civilian or military personnel, as these may pose an increased risk of fraud, corruption or waste, or lack efficient oversight.
  • The Government has awarded projects in Afghanistan at locations that Government personnel have not been able to safely travel to and access, leading to inefficient oversight and a profusion of disputes and claims.
  • Waivers will be available at increasing thresholds, but any project over $40M will require waiver by the Secretary of Defense and Congressional notification.

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Today, our colleagues Dick Oliver and Glenn Sweat published their Client Alert titled New Proposed DoD Cyber Guidance May Fuel Bid Protest Docket,  Newly published draft DoD Guidance for Reviewing System Security Plans (SSP) and the “NIST SP 800-171 Security Requirements Not Yet Implemented” answer some questions but may also result in an increased protest docket due to ambiguous evaluation criteria. Key takeaways include:

  • Industry has been seeking clarity on the Department of Defense’s cybersecurity clause, since its December 31, 2017 implementation date, particularly as it relates to how the Government will review a Contractor’s System Security Plan (SSP); the new guidance indicates the Government’s evaluation of Contractors’ SSPs will also be used as evaluation criteria in new contract awards.
  • A growing list of Frequently Asked Questions has answered some questions, but more guidance was needed, and is being provided in the form of an SSP priority ranking matrix.
  • Public comments on the proposed draft guidance are due May 31, 2018, and early contractor feedback is that the guidance is helpful but hardly dispositive of the myriad questions surrounding the new rule.

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On May 9, the U.S. District Court for the District of Alaska dismissed a challenge the constitutionality of the Congressional Review Act (CRA); the case is Center for Biological Diversity v. Zinke. While the District Court ruled that, while CBD had sufficient standing to make some of its arguments regarding the CRA, on the whole, it found that the constitutional and statutory arguments were inadequate to withstand the Government’s motion to dismiss.

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On April 30, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished order in Hemp Industries Assoc. v. U.S. Drug Enforcement Administration, et al., denying the Hemp Industry Association’s (HIA) cannabis-real-estatepetition seeking review of the DEA’s Final Rule establishing a new drug code for  marijuana extract that went into effect on January 13, 2017.

Denying the petition, the Ninth Circuit noted that

“A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails ‘to make an argument before the administrative agency in comments on a proposed rule,’ they are barred ‘from raising that argument on judicial review.'”

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