FERC, CFTC, and State Energy Law Developments
Not Just Boilerplate
When the term “prevailing party” is not carefully defined, it can lead to a result where your company or client is left without the possibility of recovering attorney’s fees or having to pay the other side’s attorney’s fees. The term “prevailing party” is typically defined in the context of the overall contract with the goal of permitting the recovery attorney’s fees in the event of a dispute.
Not Just Boilerplate
If you’ve ever been involved in negotiating a contract, whether for the provision of services or a $200 million energy transaction, you’ve likely seen a merger clause. They are typically universal in their use and, while the language may differ, they generally state the same thing: the written contract represents the entire agreement between the parties. However, using boilerplate merger clauses versus customized merger clauses can create costly problems down the road if not drafted with enough specificity, particularly in energy transactions.
The Commodity Futures Trading Commission (CFTC) issued orders on September 27, 2022, filing and settling charges against various affiliates of financial institutions for failing to maintain, preserve, or produce records that were required to be kept under the CFTC’s recordkeeping requirements and failing to diligently supervise matters related to their businesses. As FERC also has record retention requirements, we discuss key takeaways on compliance and communication methods in light of the CFTC’s orders.
On September 22, the US Department of Energy’s (DOE) Office of Clean Energy Demonstrations issued a Funding Opportunity Announcement (FOA) to solicit applications for funding to establish regional clean hydrogen hubs (H2Hub) across the United States to improve clean hydrogen production, processing, delivery, storage, and end use.
The Federal Energy Regulatory Commission (Commission) issued an order on September 22, 2022, informing sellers with market-based rate (MBR) authorization that have not complied with Order No. 860’s requirements to submit data describing their ownership and affiliates that their MBR authorizations will be revoked unless they come into compliance within 15 days.
Following weeks of anticipation, US Senator Joe Manchin (D-WV) released the text of the Energy Independence and Security Act of 2022, his permitting reform legislation, on September 21, 2022. As part of an agreement to win Senator Manchin’s support of the Inflation Reduction Act, Democratic leadership committed to bringing energy infrastructure permitting reform to a vote this year, namely by including it in a continuing resolution (CR) to extend government funding before the end of the fiscal year on September 30.
The Cybersecurity and Infrastructure Security Agency (CISA) issued a request for information (RFI) on the new cyber incident reporting requirements for critical infrastructure owners as required by the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA).
The California Air Resources Board (CARB) voted on August 25, 2022, to approve the Advanced Clean Cars II rule that prohibits the sale of new gasoline-fueled cars by 2035. The rule sets forth a plan whereby automakers must deliver an increasing amount of zero-emission light-duty vehicles each year, essentially phasing out the manufacturing of gasoline-fueled cars. The requirements begin in 2026, when 35% of cars manufactured for sale must be zero-emission or plug-in hybrid vehicles. The required amount rises to 68% of cars manufactured for sale by 2030, then to 100% by 2035.
FERC recently issued a notice of proposed rulemaking (NOPR) to expand the existing duty of candor rule by adding a requirement in 18 CFR Part 1 that any entity communicating with FERC or other specified organizations related to a matter that is subject to FERC’s jurisdiction must submit accurate and factual information and must not submit false or misleading information or omit material information. However, exercising due diligence to prevent the submission of false or inaccurate information would be an affirmative defense to violations of the requirement.
US Senators Maria Cantwell (D-WA) and Catherine Cortez Masto (D-NV) introduced legislation on July 28, 2022, to provide FERC with the authority to temporarily or permanently ban any person from trading or transacting in certain energy markets if that person is found to have manipulated the natural gas or electricity market or willfully or knowingly provided false information regarding those markets. Known as the Energy Consumer Protection Act of 2022, the legislation will be introduced in the House of Representatives by Representative Jan Schakowsky (D-IL).