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:

  • Investigation on Rates Charged by Three Interstate Pipeline Companies: Chairman Chatterjee highlighted the Commission’s initiation on January 16 of investigations pursuant to Section 5 of the Natural Gas Act of three interstate natural gas companies to determine if they are substantially over-recovering their costs of service, resulting in unjust and unreasonable rates. The investigations result from the Commission’s review of information submitted by these companies via FERC Form 501-G in response to the Commission’s Order No. 849 concerning the companies’ return on equity before and after the passage of the Tax Cuts & Jobs Act of 2017 and changes to the Commission’s tax allowance policies in response to the DC Circuit’s United Airlines decision. The Commission simultaneously terminated nine natural gas rate proceedings finding that the pipelines complied with the Commission’s filing requirements. Chairman Chatterjee emphasized his commitment to ensure that the benefits of reduced taxes flow to consumers and to resolve the matters as soon as possible.

 

 

According to the dictionary, a phrase is “ambiguous” if it has more than one meaning.
Chevron[1] is frequently cited for the proposition that the presence of “ambiguity” gives an agency the authority to interpret the statute to eliminate the ambiguity. A better view of Chevron is that only the Courts may resolve statutory ambiguity through interpretation. When faced with statutory terms that may be given more than one meaning, courts must determine, applying canons of statutory construction, what Congress has resolved, what Congress has given the Agency discretion to resolve, and what ascertainable standards have been established by Congress to govern the exercise of discretion by the Agency. In other words, Chevron contemplates that the Court declare what the law requires, including the scope of discretion afforded an agency to make policy choices that give content to broad statutory terms. Continue Reading The Time Has Come to Overrule Auer

2018 was a big year for insurance coverage cases, especially those involving social engineering phishing, spoofing and other schemes of trickery and deception.

The insurance recovery lawyers at Hunton Andrews Kurth have compiled their list of the top insurance cases of 2018.  A copy of the Review can be found here.

In September 2018, the US Interior Department issued a final rule rescinding the 2016 Venting and Flaring Rule, which took effect November 2018. The old rule, which never went into effect, would have required oil and gas companies to capture leaked methane gas, repair and prevent leaks, and devise new plans to reduce the flaring and venting of natural gas. Following the effectiveness of the new rule, the applicable policies setting limits on releases of methane gas will mostly be left to individual states. Continue Reading Finding the Win-Win-Win through Commercialization of Flare Gas

2018 was a banner year for M&A activity in the energy space, with numerous high dollar value transactions in the upstream, midstream, downstream and oil field services (OFS) segments. As investors in the public securities markets have shown a significantly decreased appetite for new issuances of equity by energy companies, the preferred exit or growth strategy for 2018 has been through strategic mergers, acquisitions or divestitures. These transactions have manifested themselves in various forms: asset acquisitions and divestitures, private equity investment into “drillcos” with strategic oil and gas companies, public-public mergers between OFS companies and upstream shale drillers, and simplification transactions by master limited partnerships (MLPs) in the midstream space. In addition to all this M&A activity, one element has become significantly more prevalent in the oil and gas industry throughout 2018 and shows no signs of letting down for 2019: water. Continue Reading Oil & Gas… & Water!

With the Texas Legislature having now convened for the 2019 session, various key environmental issues are anticipated to be the subject of debate and legislative action. Based on bills filed to date, interim charges and recommendations made by the Texas Commission on Environmental Quality (TCEQ), environmental initiatives to be considered are expected to address, among others, the following subjects: Continue Reading Texas Legislative Session Now Underway: Key Environmental Issues of Interest

The US National Ambient Air Quality Standards (NAAQS) are the centerpiece of the US Clean Air Act (CAA) and establish allowable concentration levels for six “criteria air pollutants”: ozone, particulate matter, lead, carbon monoxide, nitrogen dioxide, and sulfur dioxide. The CAA requires the US Environmental Protection Agency (EPA) to review and, as appropriate, revise the NAAQS at least every five years, and EPA has, since 1970, regularly adopted increasingly stringent standards. Whether those revisions have gone far enough or too far has become a predictably contentious issue, with each review involving debates over science, the role of EPA’s Clean Air Science Advisory Committee (CASAC), the discretion of the EPA Administrator, and the format of the review process itself, among many other issues. Continue Reading The New NAAQS Review Process Begins to Take Shape

On December 20, 2018, the Federal Energy Regulatory Commission (Commission) held its December 2018 open meeting. This was the first meeting for Commissioner Bernard McNamee, who was confirmed by the Senate on December 6, 2018. Given his recent confirmation, Commissioner McNamee voted present on the consent agenda. Commissioner McIntyre was absent due to continuing health issues and did not vote on the consent agenda. Continue Reading FERC December 2018 Open Meeting Highlights

Industrial hemp has officially returned as a legal agricultural commodity in the United States.  On December 20, President Trump signed into law the Agriculture Improvement Act of 2018, otherwise known as the 2018 Farm Bill. See PL 115-334, December 20, 2018, 132 Stat 4490. The 2018 Farm Bill re-legalizes the production of hemp after the crop was banned for more than eighty years under federal law.  Hemp is a “cousin” of marijuana; both are varieties of the Cannabis sativa L. plant, but hemp does not have the psychoactive properties of marijuana.  Hemp is one of the oldest cultivated industrial crops in the nation.  It was grown as early as the 1600s until the mid-1930s when state and federal laws effectively ended the legal production, sales and use of the cannabis plant.  The Controlled Substances Act of 1970 (CSA) officially categorized “marihuana” as a Schedule I controlled substance, which was defined to include “all parts of the plant Cannabis sativa L.,” such as hemp. Continue Reading 2018 Farm Bill Ushers In New Era of Industrial Hemp Cultivation and Regulation

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly referred to as the Superfund law, directed the United States Environmental Protection Agency (EPA) to create a list of the country’s most hazardous waste sites. Sites are proposed to be placed on this “National Priorities List” (or NPL as it is known to environmental law professionals) if they exceed a certain risk score, or Hazard Ranking, and added to the List if the ranking is confirmed after a formal notice-and-comment process. A detailed set of regulations called the National Contingency Plan (NCP) governs how sites placed on the NPL will be investigated, alternative remedies evaluated, and a final remedy selected and then implemented. The NPL, the NCP, and various EPA guidance memoranda have established what practitioners acknowledge is an imperfect but generally workable process in which EPA and states work with potentially liable parties to manage cleanups at NPL sites. Continue Reading EPA’s Superfund “Emphasis List” : Some New Questions