Power & Pipes

FERC, CFTC, and State Energy Law Developments

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.

Turning to safety protocols, the revised guidance strongly urges critical infrastructure employers to limit, to the extent possible, the reintegration of essential in-person workers who have experienced an exposure to COVID-19 but remain asymptomatic. To that end, the revised guidance references the latest CDC guidance on safety practices for critical infrastructure workers. However, the CISA guidance also notes that the specific use of face coverings should be reviewed by employers to determine whether cloth coverings as recommended by the CDC or alternatives (such as surgical masks) should be employed based on the nature and duration of the work being performed.

The revised guidance also provides a more detailed list of essential job roles across various critical sectors, and clarifies that contractors, and not just employees, performing those tasks should be deemed essential.

Additions and clarifications to the list of essential personnel in the energy sector include:

  • Workers essential to the “supply chains” that are needed for providing the parts and equipment “necessary to maintain production, maintenance, restoration, and service at energy sector facilities across all energy sector segments”
  • Workers necessary for the operation of steam utilities
  • Workers supporting energy facilities across all sectors through construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cybersecurity, monitoring, and logistics
  • Workers providing “services related to” energy sector fuels, such as petroleum (crude oil), natural gas, propane, liquefied natural gas (LNG), compressed natural gas (CNG), natural gas liquids (NGL), nuclear, and coal
  • Workers supporting the mining, processing, manufacturing, construction, logistics, transportation, permitting, operation, maintenance, security, waste disposal, storage, and monitoring of support for those energy sector fuels
  • Utility telecommunications and relaying workers
  • Workers at fossil fuel and microgrid infrastructure (whereas the prior guidance on this topic was focused on renewable generation)
  • Workers subject to mutual assistance agreements, such as utility personnel from other jurisdictions
  • Workers involved with new or ongoing construction projects (e.g., pipelines)
  • Workers involved with the physical security of assets and locations containing natural gas, propane, and other liquid fuels
  • Workers involved in the manufacturing and distribution of equipment, supplies, and parts necessary to maintain production, maintenance, restoration, and service at facilities across all energy sectors

Although voluntary, the CISA guidance is often referenced at the state and local level. Regardless, companies in the energy sector should continue to review their state and local designations of essential workers and the applicable access and movement control restrictions across jurisdictional boundaries.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.