FERC Commissioners Approve the Venture Global Calcasieu Pass LNG Export Project but Signal Divisions in Approaches to Evaluating GHG Emissions

Mark R. Haskell, Brett A. Snyder, and Lamiya N. Rahman

On February 21, 2019, the Federal Energy Regulatory Commission (“FERC” or “the Commission”) issued an order authorizing Venture Global Calcasieu Pass, LLC (“Calcasieu Pass”) to site, construct, and operate a new liquefied natural gas (“LNG”) terminal and associated facilities (the “Export Terminal”) pursuant to section 3 of the Natural Gas Act (“NGA”).1 The Certificate Order also authorized TransCameron Pipeline, LLC (“TransCameron”) to construct and operate a new interstate pipeline under NGA section 7. Although the Certificate Order drew favorable conclusions in its environmental review of the projects, a concurrence by Commissioner LaFleur and a dissent by Commissioner Glick signaled growing dissatisfaction among half of the current Commission with respect to FERC’s practice of evaluating a project’s greenhouse gas (“GHG”) emissions.

The Certificate Order

The Export Terminal, to be located along the Calcasieu Ship Channel in Cameron Parish, Louisiana, will have a nameplate capacity of 10 million metric tons per annum (“MTPA”) and a peak capacity of 12 MTPA under optimal operating conditions. Natural gas will be delivered to the Export Terminal by TransCameron’s proposed 23.4-mile, 42-inch diameter interstate pipeline, which will extend from the Grand Chenier Station in Cameron Parish, Louisiana to the Export Terminal and will be able to provide up to 2,125,000 dekatherms per day (“Dth/d”) of natural gas transportation service. Continue reading “FERC Commissioners Approve the Venture Global Calcasieu Pass LNG Export Project but Signal Divisions in Approaches to Evaluating GHG Emissions”

FERC Clarifies and Revises Certain Aspects of Its Final Rule Reforming Large Generator Interconnection Procedures and Agreements

Mark R. Haskell, George D. Billinson, and Lamiya N. Rahman

On February 21, 2019, the Federal Energy Regulatory Commission issued an order (“Order No. 845-A”) granting in part and denying in part requests for rehearing and clarification of its final rule reforming the large generator interconnection procedures (“Order No. 845”).[1] Order No. 845 aimed to “improve certainty for interconnection customers, promote more informed interconnections decisions, and enhance the interconnection process”[2] by implementing various revisions to the Commission’s pro forma Large Generator Interconnection Procedures (“LGIP”) and pro forma Large Generator Interconnection Agreements (“LGIA”), including:

The Emergence of Creative Financial Tools for Renewable Energy and Energy Efficiency Projects

Frederick M. Lowther

The ingenuity of the renewable energy industry and the energy-oriented financial players is never to be doubted. Within the past few years, several creative financial tools have emerged to support the development of new wind and solar projects as well as further advances in large-building energy efficiency. The traditional regulatory and financial incentives for renewable energy and energy efficiency projects—investment tax credits, production tax credits, mandated renewable portfolio standards, mandated energy efficiency targets—remain in place (at least for now). However, there is a new incentive at play, one which until recently the industry has not tried to monetize. The new incentive is the desire, indeed the perceived need, of certain companies to “go green,” to demonstrate a commitment to improving the climate in the face of growing public concerns about climate change. Companies that produce consumer products—beer, bread, computers, pharmaceuticals, etc.—and companies that provide services—telecommunications, online shopping, search engines—have concluded that there is ascertainable value to putting words like “100% Renewable Energy” on bags, cans, and packaging; on social media advertising; and on bricks and mortar. Building owners perceive ascertainable value in labeling their buildings as “green” buildings. What the creative minds of the energy and financial industry players have done is develop vehicles to capture and quantify those values, and put them to use.

This blog post discusses three such vehicles: the Virtual Power Purchase Agreement (“VPPA”), the Virtual Net Metering Program (“VNMP”), and Metered Energy Efficiency Credits (“MEECs”). All three are relatively new, relatively complex, and in two cases—VPPA and VNMP—substantially regulated. However, the basic concepts are easy to explain and that is the goal of this post. Continue reading “The Emergence of Creative Financial Tools for Renewable Energy and Energy Efficiency Projects”

Charting Climate Change Cases: A Survey of Recent Litigation

Margaret Anne Hill and Stephen C. Zumbrun

Introduction

Right now, cases involving climate change are being heavily litigated in courts across the United States. Hundreds of climate change-related cases have been filed in both federal and state courts, where parties are challenging governments’ and industry’s knowledge of and contribution to climate change. In the abstract, one would think that litigation involving emissions of greenhouse gases (“GHG”) linked to climate change would largely focus on the federal Clean Air Act. Yet, climate change-related cases now involve ever-expanding causes of action, including not only claims under the federal Clean Air Act and other federal statutes, but claims under the U.S. Constitution, state law claims, and common law claims.

There are several active cases that may have major implications on the government’s role in determining the direction of climate change policy, and on private companies’ past and future liability for alleged contributions to climate change, as well as knowledge of climate change impacts on business decision-making. This article discusses notable current cases involving climate change. Continue reading “Charting Climate Change Cases: A Survey of Recent Litigation”

Pipeline Update: Here Today, Gone Tomorrow? FERC’s Natural Gas Pipeline Greenhouse Gas Analysis Policy

Stephen C. Zumbrun

The Republican majority of the Federal Energy Regulatory Commission (“FERC” or “Commission”) has drawn a clear distinction with how and when the Commission will analyze upstream and downstream greenhouse gas (“GHG”) emissions when reviewing natural gas pipeline projects. But with the recent announced resignation by Republican Commissioner Robert Powelson, a pending Notice of Inquiry issued by the Commission, a separate advanced Notice of Proposed Rulemaking issued by the Council on Environmental Quality (“CEQ”), and a recent petition to the D.C. Circuit Court, this current established protocol may not last and by this time next year we may see a whole new approach to pipeline GHG analysis coming out of FERC. Continue reading “Pipeline Update: Here Today, Gone Tomorrow? FERC’s Natural Gas Pipeline Greenhouse Gas Analysis Policy”

Pipeline Update: Pennsylvania Commonwealth Court Allows Environmental Rights Amendment Challenge to Sunoco Pipeline’s Mariner East Project to Proceed

Frank L. Tamulonis III and Stephen C. Zumbrun

The Pennsylvania Commonwealth Court recently ruled that a challenge to Sunoco Pipeline L.P.’s (“Sunoco”) Mariner East Project under Article 1, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment” or “ERA”) may proceed. In Clean Air Council, et al. v. Sunoco Pipeline L.P., Docket No. 112 C.D. 2017 (Opinion issued April 30, 2018), the Court reversed, in part, the trial court’s denial of Sunoco’s motion for summary judgment, ordering an entry of summary judgment for Sunoco on all counts except for Plaintiffs’ claims brought under the ERA.

The case involves a challenge by Clean Air Council (“CAC”) and other individuals to Sunoco’s Mariner East Project, a pipeline construction project designed to transport natural gas liquids across Pennsylvania from the Marcellus and Utica basins to Marcus Hook in eastern Pennsylvania. Plaintiffs brought a variety of claims challenging Sunoco’s right and power to condemn property including a challenge to Sunoco’s public utility status as well as various constitutional claims, including an ERA claim, takings claims, and procedural due process claims. Plaintiffs are seeking declaratory and injunctive relief that would halt pipeline construction. Continue reading “Pipeline Update: Pennsylvania Commonwealth Court Allows Environmental Rights Amendment Challenge to Sunoco Pipeline’s Mariner East Project to Proceed”

Pennsylvania Superior Court Fractures Long-Standing Rule of Capture

Christopher A. Lewis and Stephen C. Zumbrun

Citing distinctions between hydraulic fracturing and conventional gas drilling, the Pennsylvania Superior Court held on April 2, 2018, in Briggs v. Southwestern Energy Production Company[1] that the rule of capture does not preclude liability for trespass due to hydraulic fracturing, reversing a summary judgment that had been granted by the trial court in favor of Southwestern Energy Production Company. The Briggs ruling exposes operators to potential tort liability where subsurface fractures, fracturing fluid, and proppant cross boundary lines and extend into the subsurface estate of an adjoining property, resulting in the extraction of natural gas from the adjoining property. Continue reading “Pennsylvania Superior Court Fractures Long-Standing Rule of Capture”