Morgan Lewis has been named Energy Group of the Year by Law360 for our work assisting energy clients in deploying innovative pricing models, navigating complicated regulatory requirements, and managing crises. Partners Kathryn Sutton and Richard Filosa discussed the firm’s significant victories for clients that earned the group a place among Law360’s Practice Groups of the Year in this profile.
FERC, CFTC, and State Energy Law Developments
The US Department of the Treasury’s Committee on Foreign Investment in the United States (CFIUS) on January 13 published the final rules implementing the Foreign Investment Risk Review Modernization Act (FIRRMA). FIRRMA ushered in noticeable changes and higher awareness of CFIUS and its impact on foreign investment in the United States. The new rules are effective February 13.
A notice of proposed rulemaking (NPRM) titled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” published today by the White House’s Council on Environmental Quality (CEQ), is likely to have far-reaching effects for the energy and public infrastructure sectors, and could facilitate more efficient implementation of energy production/generation projects for all major energy sources (i.e., renewable, fossil, nuclear, and hydroelectric sources) as well as transportation projects.
The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays.
It will be important for industry entities that depend on federal agency action when advancing projects and securing permits to actively participate in the proposed rulemaking, and to provide meaningful comments that will help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.
The Federal Energy Regulatory Commission (FERC) on December 19, 2019, directed PJM Interconnection to extend its minimum offer price rule (MOPR) from new natural gas–fired electric generators to also cover any generator that receives or is entitled to receive certain types of state subsidies. The rule aims at preserving competitive capacity auctions by preventing resources that receive subsidies from submitting bids that would otherwise be uneconomical—and therefore likely to “capture” a PJM capacity award based on a below-market capacity rate—if not for state support. The order means that existing or planned resources that expected to clear capacity markets with rates made economical by state subsidies will have to identify alternate strategies to generate revenue; so too will states seeking to promote the development or prevent the retirement of preferred but noncompetitive resources.
With the degree of scrutiny applied to H-1B petitions at an all-time high, it is important for employers, including those in the energy industry, to begin assessing their H-1B needs. Read the LawFlash prepared by our immigration lawyers for guidance on immigration status assessments.
Join Morgan Lewis lawyers for these upcoming programs:
EBA Primer Series: Cybersecurity in the Energy Industry
December 09, 2019
Participants: Arjun Prasad Ramadevanahalli
M&A Regulatory Developments at FERC
December 11, 2019
Participants: Mark C. Williams , J. Daniel Skees , Heather L. Feingold
Energy Storage: Regulatory, State, and Transactional Developments
December 12, 2019
Participants: Neeraj Arora , Kenneth M. Kulak , Levi McAllister
Nuclear Regulatory Roundup Q4 2019
December 17, 2019
Participants: Grant W. Eskelsen , Ryan K. Lighty
Electrifying the Transportation and Building Sectors in the PJM Footprint
December 18, 2019
Participants: Kenneth M. Kulak, Stephen M. Spina
At its open meeting on November 21, FERC announced organizational changes to enhance the agency’s focus on cybersecurity threats and challenges to electric infrastructure. Commission staff unveiled five “focus areas” related to grid cybersecurity and announced organizational changes within the Office of Energy Projects (OEP) and Office of Electric Reliability (OER) designed to better position Commission resources to address cybersecurity concerns.
New Strategic Focus Areas
Commission staff developed the following five focus areas based on their review of threat reports (public and nonpublic), global cybersecurity events, North American Electric Reliability Corporation (NERC) CIP standards, and OEP’s specialized security program for hydropower projects.
- Supply Chain/Insider Threat/Third-Party Authorized Access
This is not the first time the Commission has made supply chain and third-party (or vendor) management security a priority. In 2016, the Commission directed NERC to develop mandatory supply chain risk management controls, which have since been approved and are set to take effect next year.
In an effort to address anticipated electricity shortages and reliability challenges in California, the California Public Utilities Commission (CPUC) voted on November 7 to authorize the procurement of 3,300 MW of energy by 2023. The CPUC also intends to seek extensions of certain compliance deadlines from the State Water Resources Control Board for almost 4,800 MW of gas generation units due to retire soon because they use ocean water for so-called “once-through cooling,” which can have a detrimental impact on marine life.
For more details on the CPUC’s actions, read the full LawFlash.
FERC issued guidance on October 17, 2019, that may significantly aid hydroelectric developers in planning and siting potential projects. FERC issued a list, jointly developed with the secretary of the US Army, secretary of the US Department of the Interior, and secretary of the US Department of Agriculture (collectively, the Secretaries), of 230 existing nonpowered federal dams that FERC and the Secretaries agree have the greatest potential for nonfederal hydropower development. FERC also issued guidance to assist applicants for licenses or preliminary permits for closed-loop pumped storage projects at abandoned mine sites. These actions fulfill FERC’s requirements under the America’s Water Infrastructure Act of 2018 (AWAI) and are intended to encourage development of renewable energy resources by developing hydroelectric power at sites where the addition of hydroelectric capabilities would not add significant additional environmental impacts.
The Commodity Futures Trading Commission (CFTC) recently released its Annual Report on the Whistleblower Program and Customer Education Initiatives for fiscal year (FY) 2019. The report, which details the operation of the whistleblower program and the CFTC’s initiatives to educate consumers about fraud or other violations of the Commodity Exchange Act (CEA), showed that during FY 2019, the CFTC awarded more than $15 million in five whistleblower awards. These whistleblowers had provided information that prompted the CFTC to open an investigation and/or provided substantial assistance to the CFTC during the course of the investigation. The report results serve as a reminder to energy companies to review and assess their compliance programs and policies to ensure that employees are encouraged to bring compliance concerns to management’s attention, and that such concerns are addressed in a timely manner.
