FERC, CFTC, and State Energy Law Developments

Following the declaration of a global pandemic due to the widespread transmission of the coronavirus (COVID-19), the issuance of shutdown and/or stay-at-home directives cascaded from commercial enterprises and state and local governments across the United States. During this period of extreme disruption to daily routine, the continuity and integrity of energy operations were necessary to ensure that the massive shift to home-based life could exist with minimal business disruption. Front- and back-office personnel engaged in trading energy commodities quickly transitioned to a work-from-home (WFH) posture, ensuring that their firms could preserve market access for production or output while also consummating the transactions needed to procure an adequate fuel source, managing price exposure to highly volatile commodity prices, or executing preexisting trading strategies.

The US Department of the Treasury issued a letter on May 7 stating that it plans to modify the continuity safe harbor for both the production tax credit (PTC) and the energy investment tax credit (ITC). Under the current law, taxpayers seeking to claim a PTC for electricity produced from qualifying facilities or an ITC for qualifying energy property must generally begin construction on the qualifying facility or property by specified dates.

To be considered to have begun construction, the taxpayer must start physical work of a significant nature, or must satisfy the safe harbor requirements by incurring 5% or more of the total cost of the facility or property. The taxpayer must then demonstrate continuous efforts to complete construction, and must place the facility or property in service within four years to meet the requirements for a continuity safe harbor.

In response to President Donald Trump’s declaration of a national emergency due to the coronavirus (COVID-19) pandemic, the Pipeline Hazardous Materials Safety Administration (PHMSA) issued a notice that it does not intend to take enforcement action related to certain new gas pipeline safety regulations with which gas pipeline operators must comply by July 1, 2020.

PHMSA stated that it will resume its normal enforcement processes and sanctions after December 31, 2020, but retains the discretion to enforce the July 1, 2020 compliance deadlines in the event of a significant safety issue or if otherwise warranted. Similar to PHMSA’s prior notice of enforcement discretion (which we discussed in our March 27 posting), this notice recognizes that gas pipeline operators may be facing personnel resource constraints due to the COVID-19 pandemic.

The US Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.0 of its guidance on April 17 on identifying essential critical infrastructure workers amid the coronavirus (COVID-19) pandemic. The revised guidance adopts the latest safety recommendations from the Centers for Disease Control and Prevention (CDC) and builds on prior versions of the guidance by providing an expanded breakdown of job roles that CISA considers essential, particularly in the energy sector. The guidance also addresses the manner in which localities can ensure that essential workers can travel to and perform their jobs.

Recognizing that employers of essential workers have had difficulty ensuring that those workers can physically travel as needed for their jobs, the revised guidance urges that such workers be “exempted from curfews, shelter-in-place orders, and transportation restrictions or restrictions on movement.” The guidance also urges local governments to establish guidance that lets essential workers cross jurisdictional boundaries with neighboring jurisdictions.

In an order issued on April 17, the Federal Energy Regulatory Commission (FERC) agreed to defer implementation of certain cybersecurity and operational reliability standards administered by the North American Electric Reliability Corporation (NERC) that had important compliance milestones later this year, including the suite of supply chain risk management standards that have been under development for several years and were set to take effect on July 1. The move by FERC is intended to provide some measure of relief from impending compliance burdens and to allow electric utilities to focus their resources on responding to the coronavirus (COVID-19) pandemic.

Read our recent LawFlash discussing the Federal Energy Regulatory Commission’s (FERC) plan to assist regulated entities in managing enforcement- and compliance- related burdens during the ongoing coronavirus (COVID-19) pandemic, particularly FERC plan to exercise prosecutorial discretion regarding events arising during the pandemic.

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Although the Coronavirus Aid, Relief, and Economic Security Act signed into law on March 27  does not expressly provide relief for energy companies, many of its provisions impact energy sector companies. Read our recent LawFlash to learn more.

In response to the US president’s declaration of a national emergency due to the coronavirus (COVID-19) pandemic, on March 20 the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice to operators stating that, effective immediately and until further notice or modification, PHMSA does not intend to take any enforcement action with respect to operator qualification (OQ) and control room management (CRM) requirements, and will consider exercising enforcement discretion regarding certain drug testing requirements.

Our colleagues have prepared a LawFlash addressing the US Securities and Exchange Commission’s March 25 extension of certain filing periods and current views regarding disclosure considerations due to the coronavirus (COVID-19) crisis. 

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Read our recent LawFlash regarding current modifications to enable state and local agencies in California to continue making decisions during the pandemic, while preserving opportunities for public involvement by teleconference or electronic means.

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