Energy & Utilities Administrative Agency

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Recent Regulations Prompt Revamped FERC Pipeline Cost-Recovery Policy

FERC proposes to establish a framework that allows pipelines to use surcharge or tracker cost-recovery mechanisms to accelerate system improvements associated with new safety and environmental compliance regulations....more

Wotus: Scotus, Potus . . . Lotus?

It was inevitable I suppose. In a town where every policy discussion reaffirms the lampooning it receives in HBO’s “Veep,” it was only a matter of time until the EPA/Army Corps’ proposed rule on the scope of jurisdiction...more

Sixth Circuit Dismisses Whistleblower’s Claims Made By Job Applicant

This week, the U.S. Court of Appeals for the Sixth Circuit ruled that a job applicant lacks standing to bring whistle-blower claims under the Energy Reorganization Act and the False Claims Act (“FCA”) because those laws’...more

Illinois Supreme Court Debates Scope of Whistleblower Statute

During the September term, the Illinois Supreme Court debated an important question about the scope of the state Whistleblower Act: does a plaintiff state a claim under the statute by alleging that the defendant falsified...more

Illinois Supreme Court Debates Revenue Decoupling in Utility Ratemaking

During its September term, the Illinois Supreme Court debated an issue of considerable importance to the State’s utilities. People ex rel. Madigan v. Illinois Commerce Commission is a challenge brought by the Attorney General...more

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with...more

Summary of FERC Meeting Agenda - November 2014

In This Issue: - Administrative Items - Electric Items - Gas Items - Hydro Items - Excerpt from Hydro Items: H-1: Hydraco Power, Inc. and Warren David Long (Docket No. P-12588-010) - On...more

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review....more

Setting fees for use of federal dams

Federally owned dams and other structures can create opportunities for private development of hydropower facilities, in exchange for a fee. While fees charged to hydropower developers for using federally owned dams will...more

The Fate of FERC Demand Response Order No. 745: Efforts to Adapt While the Judicial and Complaint Processes Play Out

Since our last update regarding the D.C. Circuit’s vacatur of FERC Order No. 745 in Electric Power Supply Ass’n v. FERC ( “EPSA”), several developments have occurred in EPSA and related proceedings. The appeals process and...more

Ninth Circuit Rebuffs Shell’s Declaratory Judgment Act Suit

The Ninth Circuit recently rejected “a novel litigation strategy” under the Declaratory Judgment Act (DJA). Shell Gulf of Mex. v. Ctr. for Biological Div., 13-35835 (9th Cir. Nov. 12, 2014) (Slip Op.). According to the Ninth...more

Meet Your Deadlines: West Virginia AST Act Challenges

In This Presentation: - How We Got Here - Aboveground Storage Tank Act - Key Definitions - Key Elements - Upcoming Deadlines - AST Registration Stats - Interpretive Rule (47 CSR 62) -...more

Queensland Government calls for input into Climate Adaptation Strategy

The Queensland Department of Environment and Heritage Protection is in the process of developing a whole-of-government Climate Adaptation Strategy (CAS) to reduce risks to the Queensland economy, environment, infrastructure...more

Mine Fatalities: Causes, Prevention, and MSHA Enforcement

A number of fatal mine accidents occurred in the United States between January 1 and September 22, 2014. Coal Mines - - Four underground employees on foot were crushed by equipment in operation. - Two...more

EPA Reverses Course on Malfunctions

EPA proposes eliminating all startup, shutdown and malfunction affirmative defense provisions from SIPS. On September 17, 2014, the United States Environmental Protection Agency (EPA) issued a supplemental notice of...more

Courts Uphold Supplemental Assessment of Wells and Related Facilities/Improvements; and Validate Use of Cost Approach

The County of Kern Tax Assessor’s (“Assessor”) use of the cost approach to value to appraise new oil and gas wells for the purpose of levying supplemental assessments has been upheld by the Fifth District Court of Appeal. In...more

Numerous Parties Line Up in Support of Petition in Delta Smelt Case

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme...more

FERC Issues Declaratory Order Disclaiming Jurisdiction Over Proposed CNG Facility

On September 19, 2014, FERC issued a declaratory order holding that it would not have jurisdiction under the Natural Gas Act ("NGA") over the construction or operation of a compressed natural gas ("CNG") facility that Emera...more

Regulation of GHG Emissions Becomes Real: Hyundai and Kia Settle For $350 Million

If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of...more

SEC Settlement with Layne Christensen Raises New Questions on the Government’s Understanding of the Business Nexus Element of the...

Last week the SEC settled charges against Layne Christensen for various violations of the FCPA. While a relatively unremarkable case at first glance, the SEC’s charges against Layne Christensen reflect a troubling approach by...more

Maine Supreme Court Affirms Broad Review Powers for BEP in Clearing Way for Wind Project

The Maine Supreme Judicial Court (the Law Court) recently issued an important decision that confirms the broad authority of the Maine Board of Environmental Protection (BEP) to review decisions of the Commissioner of the...more

EPA’s Clean Power Plan: Potentially New and Improved?

On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June. My immediate reaction? My head hurts....more

BRAG® Petitions EPA for Biodiesel Products CDR Exemptions Already Granted to Petroleum Products

On October 21, 2014, the Biobased and Renewable Products Advocacy Group (BRAG®) submitted petitions to the U.S. Environmental Protection Agency (EPA) requesting that biodiesel fuel manufacturers be granted the same Chemical...more

Blue vs. Grey Over Green in Murray v. EPA; Cross-Border Rule Goes Ahead

As I posted earlier, in Murray, et al v. EPA , plaintiff Murray Energy Corporation seeks to enjoin EPA's Clean Power Plan rule even before it has been issued as a Final Rule. The Clean Power Plan proposes to regulate the...more

D.C. Circuit Grants Motion to Stay Issuance in Order No. 745 Cases

As we previously reported, on May 23, 2014, the D.C. Circuit vacated FERC’s Demand Response Order No. 745, holding that the order (1) exceeded FERC’s jurisdiction, and (2) was arbitrary and capricious, particularly in its...more

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