On February 21, 2019, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a final rule implementing statutory amendments to section 203(a)(1)(B) of the Federal Power Act (“FPA”) (“Order No. 855”).1 Order No. 855 revises Part 33 of FERC’s regulations to establish a $10 million threshold for mergers and consolidations requiring FERC review and approval. The Commission is also implementing a notification requirement for merger and consolidation transactions that do not require Commission approval under the newly-amended regulations but that involve the acquisition of facilities valued over one million dollars. The amended regulations take effect on March 28, 2019. Continue reading “FERC Adopts Regulations Implementing $10 Million Threshold for Review of Public Utility Mergers and Consolidations”
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”
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”). Order No. 845 aimed to “improve certainty for interconnection customers, promote more informed interconnections decisions, and enhance the interconnection process” by implementing various revisions to the Commission’s pro forma Large Generator Interconnection Procedures (“LGIP”) and pro forma Large Generator Interconnection Agreements (“LGIA”), including:
- Option to Build: Removing the limitation that previously allowed interconnection customers to exercise the option to build transmission provider’s interconnection facilities and standalone network upgrades only in instances where the transmission provider could not meet the interconnection customer’s preferred construction timeline;
- Dispute Resolution Procedures: Directing transmission providers to establish interconnection dispute resolution procedures permitting disputing parties to unilaterally pursue nonbinding dispute resolution; Continue reading “FERC Clarifies and Revises Certain Aspects of Its Final Rule Reforming Large Generator Interconnection Procedures and Agreements”
Why It Matters
In recent years, the question of whether groundwater that migrates into federally protected navigable waters falls under the purview of the Clean Water Act (“CWA”) has been fiercely debated and heavily litigated across the country. To date, the Fourth and Ninth Circuits have both interpreted the CWA broadly, ruling that the CWA extends to reach groundwater discharges. Just recently, however, the Sixth Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 18-5115 (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155 (6th Cir. Sept. 24, 2018) weighed in on the issue, and rejected the theory that pollutants reaching navigable waters as a result of passing through groundwater (or soil) are discharges that fall under the auspices of the CWA. The Sixth Circuit decisions are noteworthy, as they create a clear conflict among the federal circuit courts regarding the scope of the CWA and, more specifically, whether the Act reaches the issue of groundwater discharges, further increasing the likelihood that the United States Supreme Court will take up the matter to issue a decisive ruling on the proper scope of the CWA and provide a definitive resolution to this hotly contested issue of environmental law. Continue reading “Sixth Circuit Limits Reach of Clean Water Act to Groundwater Discharges, Creates Circuit Split on Proper Scope of CWA”
Is a purchaser of contaminated property on the hook for environmental cleanup costs that take place prior to the time the property was acquired? In Pennsylvania Dept. of Environmental Protection v. Trainer Custom Chemical, LLC, No. 1702607 (3d Cir. Oct. 5, 2018), the Third Circuit Court of Appeals recently considered this issue—and answered the question in the affirmative, holding that a current owner of real property is liable under both the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”) for all response costs in an environmental cleanup, including those costs incurred prior to the landowner’s purchase of the contaminated property. The Third Circuit’s decision is a noteworthy one—and one that undoubtedly has a significant impact on entities considering the purchase of property where hazardous substances have been released, as such purchasers run the significant risk of being on the hook for the entirety of the cost to remediate the contaminated property, including even those costs that were incurred prior to the time the buyer assumed ownership of the property. Continue reading “Third Circuit Holds New Property Owner on the Hook for Old Cleanup Costs”
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”
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”