Regardless of whether Kisor changed principles of deference under Auer, lower courts appear less inclined to find ambiguity in agency regulations after the Kisor decision; and when they do, “unfair surprise” continues to be the most common factor weighing against deference to an agency’s interpretation.
Continue Reading Lower Courts Grappling with Deference Principles Following Kisor

On Sunday, April 12, Virginia Governor Ralph Northam signed into law the Virginia Clean Economy Act and the Clean Energy and Community Flood Preparedness Act. These two new laws will require Virginia to transition to 100 percent carbon-free energy by 2050 and join the Regional Greenhouse Gas Initiative (RGGI).
Continue Reading Virginia Enacts Aggressive Clean Energy Laws

Energy industry: is your insurance sufficient to handle a major cyber event? Larry Bracken, Mike Levine and I, Andrea DeField, address this question and more in our recent article for Electric Light & Power, found here.  In the article, we identify three major gaps in cyber insurance that we routinely see when analyzing coverage

The Eleventh Circuit appears to be poised to be one of the first, if not the first, appellate courts in the country to address the impact of the Supreme Court’s decision in Kisor v. Wilkie, which addresses how courts should evaluate an agency’s interpretation of its own regulations.
Continue Reading Eleventh Circuit Potentially Poised to Address Impact of Kisor

In the wake of the April 19 ruling by Judge Morris of the US District Court of the District of Montana that required the DOI to conduct an environment review on its decision to lift the coal leasing moratorium, the parties disagree on the necessary remedy and the next steps. Instead of immediately reinstating the moratorium, Judge Morris ordered additional briefing on the remedy, setting a July 22 deadline. The parties submitted dueling briefs; while DOI is requesting additional time to finalize its environmental review for its decision to lift the moratorium, environmental groups and states are requesting that the court vacate the Secretarial Order that lifted the moratorium altogether.
Continue Reading DOI & Opponents Disagree on Remedy in Coal Leasing Moratorium Case

In response to a court order, the Bureau of Land Management released a draft environmental assessment evaluating the potential environmental impacts of lifting the federal coal leasing moratorium. The publication opens a 15-day comment period that ends on June 6, 2019. The assessment focuses on the environmental impacts resulting from the three non-exempt leases issued as a result of the Zinke Order and the eight pending leases that would be produced about two years later if the moratorium remained in effect.
Continue Reading BLM Releases Draft Environmental Assessment for Lifting Coal Leasing Moratorium

On April 12, 2019, the US District Court for the Northern District of California entered an order vacating the Department of the Interior’s repeal of the 2016 Valuation Rule due to violations of the Administrative Procedures Act. The court’s ruling may impact the Trump administration’s repeal and replace rulemakings that are scheduled to be finalized in the near future.
Continue Reading Decision Vacating DOI Valuation Rule May Impact Future Rulemakings

The Department of Treasury and Internal Revenue Service have released Notice 2019-32 seeking comment on key issues to be interpreted in the Section 45Q carbon oxide sequestration tax credit. Congress significantly enhanced the Section 45Q tax credit in the Bipartisan Budget Act of 2018, increasing the credit from $10/ton for CO2 used as a tertiary injectant (i.e., to produce oil or gas) to $35/ton; and increasing the credit for CO2 geologically stored but not used as a tertiary injectant from $20/ton to $50/ton. See our previous blog post here for additional details on the applicable credit amounts for projects before and after enactment of the Bipartisan Budget Act and other credit amount details.
Continue Reading IRS to Seek Comment on Key Issues to be Interpreted in Section 45Q Tax Credit