Over the past several decades, significant tension has developed between the federal role in overseeing and authorizing certain types of energy infrastructure projects and states’ roles in regulating water quality under the cooperative federalism structure of the Clean Water Act (CWA or the Act). This tension has played itself out in various contexts, but the

On March 21, 2019, the Federal Energy Regulatory Commission (Commission or FERC) held its monthly open meeting. Highlights of the meeting included the following:

  • Electric Transmission Incentives Policy (Docket No. PL19-4-000)
    • The Commission issued a Notice of Inquiry (NOI) seeking comments on the scope and implementation of its electric transmission incentives regulation and policy.
    • Section 219 of the Federal Power Act directs the Commission to use transmission incentives to help ensure reliability and reduce the cost of delivered power by reducing transmission congestion. The Commission issued Order No. 679 in 2006 to establish its approach to transmission incentives and set forth a series of potential incentives that it would consider. The Commission subsequently refined its approach in a 2012 policy statement.
    • The NOI seeks comments in response to questions addressing many matters, including several that have not previously been addressed by the Commission’s transmission incentive policy, including:


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The costs of overly nationalistic policies likely outweigh the benefits for Mexico with respect to the international energy community. If the AMLO administration chooses to attempt nationalization of the considerable foreign investment which followed the 2013 Energy Reforms in an effort to stay true to its campaign rhetoric, it would not be surprising to witness Mexico’s rapid descent into international pariah status.
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There are many issues revolving around beneficial use of produced water associated with hydraulically fractured oil and gas wells, from drought relief, to the abundance of produced water, to earthquakes. Will the numerous stakeholders align sufficiently to allow the creation of programs to properly regulate the beneficial use of produced water?
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“According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage.”

These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25, 2019), to describe the state of play on § 401 certifications affecting hydroelectric facility licensing or re-licensing applications. CWA § 401(a)(1) requires, as a prerequisite for federal permits for activities that may result in a discharge into the navigable waters, that affected states certify that any such discharge will comply with applicable, enumerated provisions of the Clean Water Act. But, if a state fails or refuses to act on a request for certification within “a reasonable period of time (which shall not exceed one year) after receipt of such request,” the statute deems the certification requirements waived.
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Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured.  Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019).
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On January 17, 2019, the Federal Energy Regulatory Commission (Commission) held its monthly open meeting. The first half of the meeting was dedicated to remembrances of Commissioner McIntyre, who passed away earlier this month. The Commission elected to name the Commission meeting room in his honor.

Highlights of the second half of the meeting included: