Energy & Utilities Conflict of Laws

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Implications for the Power Sector of Recent Rulings by U.S. Supreme Court and FERC

One of the most important issues currently facing the power industry is the potential conflict between federal and state roles in power supply planning. Two recent developments at the federal level bear directly on this...more

Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed...more

Fracking Scores with Two Colorado Supreme Court Opinions

Hydraulic fracturing, or “fracking,” is a hotly debated topic in many states. In New York and Pennsylvania, anti-fracking groups have obtained a statewide ban on fracking and the allowance of local authority to regulate...more

Colorado Court Strikes Down Local Fracking Bans that Conflict with State Law

On May 2, 2016, the Colorado Supreme Court issued opinions in two separate cases challenging local bans on hydraulic fracturing (“fracking”). A win for the oil and gas industry in the state, the Supreme Court held that the...more

Supreme Court Invalidates Maryland Power Plant Subsidy Program and Reaffirms FERC’s Exclusive Authority Over Wholesale Capacity...

On April 19, 2016, for the second time in three months, the Supreme Court of the United States reaffirmed the exclusive jurisdiction of the Federal Energy Regulatory Commission (FERC) over the formation of wholesale rates in...more

Supreme Court Rejects Maryland Power Plant Subsidies, But Signals Permissible Ways for States to Incentivize New Plants

In recent years, Maryland attempted to subsidize new power plants by guaranteeing prices for generating capacity at wholesale auctions administered by PJM Interconnection L.L.C. (PJM). Tuesday, the Supreme Court unanimously...more

The Supreme Court - April 2016 #3

The Supreme Court of the United States issued decisions in two cases on April 19, 2016: Hughes v. Talen Energy Marketing, LLC, No. 14-614: Congress, though the Federal Power Act (“FPA”), 16 U.S.C. §791a et seq., vested...more

Supreme Court Hands FERC Win on Authority Over Capacity Markets

With its decision on Tuesday, April 20 in Hughes v. Talen Energy Marketing, the Supreme Court issued its second significant holding of the year on the reach of federal authority over interstate wholesale sales markets. The...more

Supreme Court Confirms State Limits on Wholesale Power Generation - Federalism vs. States' Rights Again at Issue in Court's Third...

The U.S. Supreme Court on April 19, 2016, issued its decision in the third and final energy case this term. In Hughes v. Talen Energy Marketing, et al., the Court clarified the Federal Energy Regulatory Commission's (FERC)...more

Supreme Court Decides Hughes v. Talen Energy Marketing, LLC

On April 19, 2016, the United States Supreme Court decided Hughes v. Talen Energy Marketing, LLC, No. 14-614, holding that Maryland’s program that provided subsidies to a new electricity generator through state-mandated...more

Supreme Court rules on state energy incentives

The U.S. Supreme Court has released its ruling on a case affecting how states may provide incentives for electric power generation. In Hughes v. Talen Energy Marketing, LLC, the Court upheld a lower court's ruling...more

Energy Sector Alert Series: Appellate Courts Hearing More Energy Cases

In this eight-week alert series, we are providing a broad look at current and emerging issues facing the energy sector. Attorneys from across the firm will discuss issues ranging from environmental disclosures and risk...more

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a...more

Toxic Tort & Product Liability Quarterly Vol. 9, No. 1, February 2016

Sixth Circuit Rules that Clean Air Act Does Not Preempt State Tort Claims - In a decision that may leave facilities open to private tort liability despite compliance with federal Clean Air Act (CAA) requirements, the...more

State Government Control of Local Water Systems

It is impossible to know the internal considerations of the North Carolina Supreme Court when it accepted for review the case of City of Asheville v. State of North Carolina and the Metropolitan Sewerage District of Buncombe...more

Challenge to FCC Preemption of State Prohibition on Municipal Broadband to be Heard in March

The Sixth Circuit Court of Appeals has set oral argument for 9:00 a.m., Thursday, March 17, 2016 on the appeals brought by the States of Tennessee and North Carolina challenging the FCC’s order striking down provisions of...more

Energy Sector Alert Series: A Legislative Outlook

Over the next eight weeks, we will provide a broad look at current and emerging issues facing the energy sector in a series of alerts. In this series, attorneys from across the firm will discuss issues ranging from...more

US Supreme Court Holds FERC Has Jurisdiction Over Demand Response

Decision brings more clarity to jurisdictional boundaries between state public utility regulatory commissions and FERC set forth by the Federal Power Act. On January 25, the US Supreme Court, in a 6-2 decision, ruled in...more

Sixth Circuit Rejects Clean Air Act Preemption of State Common Law Claims: Four Things to Know

In two decisions released on November 2, 2015, Merrick, et al. v. Diageo Americas Supply, Inc. and Little et al. v. Louisville Gas & Electric Company; PPL Corporation, the U. S. Court of Appeals for the Sixth Circuit...more

Six Things the Private Sector Should Know About EPA's Final Vapor Intrusion Guidance

The cumulative impact of the EPA guidance is to require the generation of more data, which means more sampling and analysis, more frequent and stringent remediation, and potentially higher remediation costs. At long...more

Denton, Texas at Center of Another Land Use Dispute

Less than three months after Texas House Bill 40, which limits municipalities' abilities to regulate oil and gas operations, was signed into law, and little more than a month after the City Council repealed its highly...more

Tenth Circuit Finds Price-Anderson Act Does Not Preempt Nuisance Claims

This decision departs from all other federal circuits that have addressed the issue and, if adopted by other courts, represents a significant expansion of potential liability for operators in the nuclear energy industry....more

Distressed Download - July 2015

First Circuit Rules Bankruptcy Code Preempts Puerto Rico's Recovery Act - On Monday, July 6, the Court of Appeals for the First Circuit affirmed the February 6, 2015 order and injunction of the Puerto Rico District...more

Miners & Marijuana

As in other industries, mining companies must contend with employees and contractors using or being under the influence of illegal drugs in the workplace. Marijuana is one of the most prominent substances detected in drug...more

Preliminary Injunction Arguments Pour Into Litigation Against BLM’s Final Fracking Rule

Since our last update on federal litigation in Wyoming challenging the Bureau of Land Management’s (BLM) final rule to regulate hydraulic fracturing on public lands, the flurry of activity continues in advance of the June 23...more

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