States could have limited abilities to block pipeline projects

States could soon have limited abilities to block natural gas pipelines and other energy projects from going forward, according to Crain’s Cleveland Business. Insiders with the Trump Administration have reportedly said that this legislation, targeted at states in the Northwest U.S., could come in the form of an executive order. Recently the state of New York used a provision of the Clean Water Act to block a pipeline project that was previously approved by the Federal Energy Regulatory Commission (FERC). For more, read the full story.

National

Supreme Court review denial favors pipeline company

On January 22, 2019, the U.S. Supreme Court denied review of a Fourth Circuit decision affirming the dismissal of an action brought by landowners in the Western District of Virginia. The action sought to prohibit the Federal Energy Commission (FERC) from issuing a Certificate of Public Convenience and Necessity to Mountain Valley Pipeline LLC, which would provide eminent domain authority to the pipeline company. For more, read the full story.  

National, Oil & Gas Litigation

Power companies ask Supreme Court to strike down nuclear power subsidies

On January 7, 2019, the Electric Power Supply Association, one of the nation’s leading trade associations representing independent power producers, filed two petitions for writs of certiorari with the U.S. Supreme Court. The writs for cert arise from appeals of a Second Circuit Court of Appeals decision, which is summarized here, and a Seventh Circuit Court of Appeals decision, which is summarized here, that both upheld state subsidies for nuclear power generation facilities in New York and Illinois, respectively. The question presented by both appeals is “[w]hether the [Federal Power Act (FPA), 16 U.S.C. § 791a et seq.] preempts only state subsidies that explicitly require a wholesale generator to sell its output in FERC-approved auctions, or whether the FPA also preempts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.”

Both petitions urged the Court to recognize the great importance of the decisions from the Second Circuit and Seventh Circuit if upheld. “The economic and policy stakes are enormous,” and the subsidies will grossly distort market outcomes. “Unless this Court intervenes, these subsidy schemes will impose huge costs and threaten serious distortions of the FERC-authorized mechanisms for setting wholesale rates at economically efficient levels and sending appropriate price signals to wholesale market participants.” To the petitioners, the decisions ratify “a fundamental transfer of regulatory authority to the States and away from the federal government and its policy of relying on market forces to set just and reasonable wholesale rates and send economically efficient signals regarding market entry and exit.”

This case will have major ramifications across the country but particularly here in Ohio, as the outcome could work to either essentially permit or effectively preempt future attempts at providing nuclear subsidies to failing generation facilities. The response date for both petitions has been set for February 7, 2019.

National, Oil & Gas Litigation

TransCanada transforming to TC Energy

Canadian pipeline company TransCanada Corp. will soon be changing their name to TC Energy, according to the Washington Post. If approved, the company says their new name will reflect their growth into the U.S. and Mexico markets. For more, read the full story

Global, National

Ohio among top states for oil and natural gas proved reserves

In newly released data by the U.S. Energy Information Administration, Ohio is now among the top five states for oil and natural gas proved reserves, according to the Dayton Business Journal. Other top states include Pennsylvania, Texas, West Virginia and Louisiana.  For more, read the full story.

National, Ohio

Sixth Circuit upholds immediate access for NEXUS pipeline construction

The Sixth Circuit recently confirmed an interstate natural gas pipeline company’s ability to seek and obtain immediate access to property, prior to a just compensation hearing. In Nexus Gas Transmission, LLC v. City of Green, No. 18-3325 (Dec. 7, 2018), the Sixth Circuit joined several other circuit courts that have followed the Sage approach, which recognizes the ability of a pipeline company, having established the substantive right to condemn under the Natural Gas Act (NGA), to obtain an injunction granting it access to property in order to construct the pipeline, prior to final condemnation. The Sixth Circuit rejected the argument raised in an amicus curiae brief that the Sage approach goes against Congressional intent (arguing that Congress had not provided for statutory “quick take” in the NGA). The Sixth Circuit also found that the District Court had not erred in finding NEXUS had established the preliminary injunction factors, including that the public interest will be served by allowing immediate access.   

National, Oil & Gas Litigation

Rick Perry expects Appalachia to take global petrochemical market share

In a speech at the annual National Petroleum Council Meeting on Tuesday, Energy Secretary Rick Perry said that the Appalachian region will advance the U.S.’s global petrochemical market share, according to the Washington Examiner. However, he also said the region needs an ethane storage hub to realize this potential. For more, read the full story.

 

National

Top U.S. shale firms pledge $100 million to negatively affected areas

The new Permian Strategic Partnership, comprised of 17 top energy companies, formed to contribute $100 million to ease substantial negative effects felt in the Permian Basin from the regional shale oil and gas boom, according to Reuters. The money will aim to improve labor and housing shortages, overtaxed health care, traffic congestion, and more social and economic woes.  For more, read the full story.

National

Appalachian Basin sees $25B in new investment through power plants

Energy in Depth recently reported that the growth of natural-gas powered energy plants in the Appalachian Basin has created more than $25 billion in new investment, according to The Business Journal. The report additionally assessed the number of new power plants in various stage of development or operation at 29, possibly amounting to a total of 17,800 new, locally sourced construction jobs. For more, read the full story

National

Second Circuit follows lead of Seventh: Nuke subsidies upheld

On September 27, 2018, the Second Circuit Court of Appeals issued its decision in Coalition for Competitive Electricity v. Zibelman, 2nd Cir. No. 17-2654, 2018 U.S. App. LEXIS 27605 (Sep. 27, 2018). This decision, which follows the Seventh Circuit’s decision in Elec. Power Supply Assn. v. Anthony M. Star, summarized here, is the second decision in the span of two weeks to affirm a state’s subsidization of nuclear generation facilities. As in Star, the principal issue in Zibelman was whether the Federal Power Act, specifically 16 U.S.C. § 824(b)(1), which provides that the Federal Energy Regulation Commission (FERC) is to regulate the sale of electricity in interstate commerce, and the states are to regulate local distribution and the facilities used to generate power, preempts a state law that seeks to subsidize some of the state’s nuclear generation facilities in the form of zero emission credits (ZEC) credits. Following the Seventh Circuit’s lead, the Second Circuit held that the state program was not preempted by the Federal Power Act; however, the decision differed in two main respects. For more, read the full publication.

National
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