FERC commissioners dispute natural gas project approvals

On May 21, 2020, the Federal Energy Regulatory Commission (FERC) denied requests to reconsider the approval of two natural gas projects despite a commissioner’s concerns about the COVID-19 pandemic and decreasing demand for natural gas. For more, read the full article

National, Oil & Gas Litigation

One-two punch of warm weather, COVID-19 may lead to shale bankruptcies

Natural gas prices “bobbing not far from 25-year lows hit on March 23” as warmer spring weather and COVID-19 pandemic lockdown measures “have slashed commercial demand for heating” has led to major budget changes for exploration and production companies — and bankruptcies may be next, investing.com reports. Gas production in the lower 48 U.S. states averaged 92.92. billion cubic feet per day for the week ending March 27, slightly lower than the previous week. Bankruptcies “are expected to gain momentum in the second quarter, accelerating as some drillers are forced to shut in production amid reduced oil demand and low available storage capacity.” For more, read the full article.

National, Oil & Gas Litigation

EPA announces plan to loosen restrictions on methane for energy industry

The U.S. Environmental Protection Agency (U.S. EPA) recently announced plans “to loosen federal rules on methane by allowing oil and gas operators to largely police themselves,” The Washington Post reports by eliminating federal requirements that oil and gas companies install technology to detect and fix methane leaks from wells, pipelines and storage facilities. U.S. EPA Administrator Andrew Wheeler said the proposal removes “unnecessary and duplicative” regulatory burdens, according to the article. Anne Idsal, assistant administrator of the U.S. EPA’s Office of Air and Radiation, said U.S. EPA will continue to require gas and oil companies to limit the release of “volatile organic compounds,” including methane, “but only during drilling and processing.” The proposal also challenges whether the federal government has the authority to regulate methane “without first making a detailed determination that it qualifies as a pollutant under the Clean Air Act.” The plan is particularly notable because major energy companies are split on the rollback. For more, read the full article.

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Power companies ask Supreme Court to strike down nuclear power subsidies; Supreme Court denies petitions for writs of certiorari (update)

Update:  On April 15, 2019, the U.S. Supreme Court denied, without decision, two petitions for writs of certiorari that were filed by one of the nation’s leading trade associations representing independent power producers. Those cases alleged, among other things, that ZEN legislation out of both New York and Illinois were preempted by federal law. The Court upheld the dismissal of the complaint in each case, and the Zero Emission Nuclear (ZEN) legislation in New York and Illinois was effectively upheld as not in violation of the Federal Power Act.

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.

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