Tag: energy

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FERC Sets Technical Conference to Assess COVID-19 Impacts on Energy Industry
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UPDATED May 12, 2020: The Nation Goes the Way Montana Goes? Nationwide Permit 12 Vacatur and Injunction
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FERC to Convene Technical Conference on Generation Resources Paired with Energy Storage
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Overview of Policy and Technical Progress in Fusion Energy Development Around the World
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K&L Gates recognized in Doyle’s Guide rankings in Australia for Energy
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Split FERC Floats Overhaul of Utility Power Purchase Regs
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Bill Holmes Named Top 5 Twitter Influencers in Energy Law
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DEMOCRATS INTRODUCE TECHNOLOGY-NEUTRAL ENERGY BILL: Clean Energy for America Act
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JOIN K&L GATES AT #ESACON19 AND PICK UP THE ENERGY STORAGE HANDBOOK
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K&L Gates Blockchain Energizer – Volume 38

FERC Sets Technical Conference to Assess COVID-19 Impacts on Energy Industry

By William Keyser, Sandra Safro, Patrick Metz and Abraham Johns

On May 20, 2020, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) announced that it will hold a technical conference to discuss the impact on the energy industry of emergency conditions arising from the COVID-19 pandemic.  The conference will take place July 8-9, 2020 from 9 a.m. to 5 p.m. 

Preregistration for the conference is available at: http://www.ferc.gov/whats-new/registration/07-07-20-form.asp.  FERC will issue a supplemental notice that includes the conference agenda in a proceeding opened in Docket No. AD20-17-000.

The Commission plans to use the conference to assess the ongoing impacts that the COVID-19 pandemic is having on parts of the U.S. energy industry.  While the Commission already enacted short-term regulatory relief actions for regulated entities, the conference will explore long-term options for safeguarding the nation’s energy markets, electric transmission system, natural gas and oil transportation, and future operation of energy infrastructure. 

In addition, FERC intends for the event to serve as a public forum for the Commission and stakeholders to address the recovery of the industry from the COVID-19 pandemic.  The event will afford the public an opportunity to receive high-level information about how COVID-19 may change the energy industry moving forward. 

Among the topics the Commission plans to cover in panels and discussions are: (1) ongoing and future operational and planning challenges due to COVID-19; (2) operations, planning, and infrastructure development impacts anticipated due to the effect of COVID-19 on electric demand; (3) operations, planning, and infrastructure development impacts anticipated due to the effect of COVID-19 on natural gas and oil demand; and (4) anticipated issues related to access to capital, such as credit, liquidity, and return on equity.

Further information about the event will be posted on the Calendar of Events webpage for the event.  K&L Gates will continue to monitor for updates from the Commission about the conference.

UPDATED May 12, 2020: The Nation Goes the Way Montana Goes? Nationwide Permit 12 Vacatur and Injunction

By: Ankur K. Tohan, Buck B. Endemann, and Tad J. Macfarlan

On April 15, 2020, the Montana federal district court issued an Order in Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044-BMM (D. Mont.) (NPRC v. Corps) that may have far reaching implications for energy development projects across the United States.

In a case involving the Keystone XL Pipeline Project, the Montana court vacated the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12. The Court concluded that because the Corps failed to consult under the Endangered Species Act (ESA) Section 7 when it reissued NWP 12 in 2017, the permit is not valid and the Corps may not authorize work under the terms and conditions of NWP 12.

Background, Key findings, and Order

The Corp’s 2017 Reissuance of NWP 12. When the Corps reissued NWP 12 (along with all other NWPs) in 2017, it determined that ESA consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the “Services”) was not required because the reissuance of NWPs has “no effect” on ESA-listed species or critical habitat.

Court’s Key Findings. The court held that the Corps’ “no effect determination and resulting decision to forego programmatic consultation proves arbitrary and capricious in violation of the Corps’ obligations under the ESA.” The court concluded that the Corps cannot circumvent ESA Section 7(a)(2) consultation requirements by relying on project-level review (e.g., by non-federal entities) under NWP General Condition 18’s preconstruction notification (PCN) requirement. The court reasoned that (1) General Condition 18’s PCN requirement fails to ensure that the Corps fulfills its obligations under ESA Section 7(a)(2) because it delegates the Corps’ initial effect determination to non-federal permittees.

Court’s Order. Based on the court’s findings, the Order (1) vacated NWP 12; (2) remanded NWP 12 to the Corps to initiate consultation now; and (3) enjoined the Corps from authorizing work under NWP 12 until consultation is completed.

Potential Implications if a Motion for Reconsideration or Stay is not Granted

Immediate Impact on Projects with NWP 12 Authorization. The Order creates immediate uncertainty for project proponents needing NWP 12 authorization. If the Order is not stayed or appealed, the Corps could reopen programmatic consultation with the Services, which could take several months or longer to complete and, once completed, may be subject to further litigation. In addition, the Order could be leveraged by other plaintiffs targeting the Corps’ other NWPs that rely on General Condition 18. Given the uncertainty, developers will need to consider their current permitting options, which may include other NWPs, individual 404 permits (which trigger NEPA, NHPA, and ESA), or project redesign to avoid impacts to regulated waters.

Current Status

On April 27, 2020, the Corps filed motions for expedited briefing and consideration for a partial stay of the Order pending an appeal. The Corps’ motion asks the Court to stay “those portions of its April 15, 2020, Order that vacate NWP 12 and broadly enjoin the Corps from authorizing any dredge or fill activities under the permit”; or at “the very least, the Court should stay its vacatur and injunction as they relate to anything other than the Keystone XL pipeline.”

**UPDATE**:    On April 28, 2020, U.S. District Court Judge Brian Morris denied the Corps’ motion for a temporary administrative stay of the court’s vacatur, injunction, and remand orders.  Judge Morris ordered Plaintiffs and the Corps to complete briefing on an expedited basis by May 8, however, on the Corps’ broader request for a stay pending appeal, which should give permit-seekers and holders additional insight into the immediate future of NWP 12.

**UPDATE May 7, 2020**: On May 7, 2020, Plaintiffs filed their opposition to the Corps’ Motion for Partial Stay Pending Appeal. Significantly, Plaintiffs agree with the Corps to ask the Court to revise the remedy that the was ordered on April 15, 2020.  Specifically, Plaintiffs propose that the Court modify these remedies as follows.

(1) narrowing the vacatur of NWP 12 to a partial vacatur that applies to the construction of new oil and gas pipelines, thereby keeping NWP 12 in place during remand insofar as it authorizes non-pipeline construction activities as well as routine maintenance, inspection, and repair activities on existing NWP 12 projects; and

(2) narrowing the injunction to enjoin the Corps from authorizing any dredge or fill activities for Keystone XL under NWP 12. This relief would afford appropriate protection for endangered and threatened species and their critical habitats while minimizing any potential disruption claimed by Defendants.

**UPDATE May 12, 2020**: On May 11, 2020, the Montana District Court issued its ruling on the Corps’ motion to stay the court’s original Order issued on April 15, 2020. 

The Court denied the motion to stay Order pending an appeal to the 9th Circuit.  However, the Court adopted Plaintiffs’ proposal that the Court revise the scope of remedy in the original Order to apply only to new and gas construction projects. The Court narrowed the scope vacatur and injunction as follows:

  1. NWP 12 is vacated as it relates to the construction of new oil and gas pipelines pending completion of the consultation process and compliance with all environmental statutes and regulations. NWP 12 remains in place during remand insofar as it authorizes non-pipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.
  2. The Corps is enjoined from authoring any dredge or fill activities for the construction of new oil and gas pipelines under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations. The Corps remains able to authorize dredge or fill activities for nonpipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.

FERC to Convene Technical Conference on Generation Resources Paired with Energy Storage

By William H. Holmes, William M. Keyser, Michael L. O’Neill

On April 7, 2020, the Federal Energy Regulatory Commission (“FERC”) announced that its staff will host a technical conference in July 2020 to discuss so-called “hybrid resources.”  In its notice, FERC explained that it is using the term “hybrid resources” to refer to projects that are comprised of more than one resource type at the same plant location.  For this summer’s technical conversation, FERC states that it will focus on scenarios where a “generation resource and an electric storage resource [are] paired together as a hybrid resource.”

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Overview of Policy and Technical Progress in Fusion Energy Development Around the World

Authors: Tim L. Peckinpaugh, R. Paul Stimers, James Green, Michael L. O’Neill, Francis E. Iyayi, Abraham F. Johns

Fusion energy is moving towards technological and commercial reality.  Fusion involves the release and harnessing of energy by fusing two atomic nuclei to form a heavier nucleus.  Fusion reactions differ from nuclear fission, which is the splitting of relatively heavy atoms to release energy.  Fusion avoids potential downsides to nuclear fission by leaving behind no long-lived and highly dangerous radioactive waste and creating no risks of a runway chain reaction or meltdown.  Fusion also releases substantially more energy, such that it is capable of replacing fission to become baseload power that operates 24/7 and releases no CO2 emissions.

To read the full alert, please click here.

K&L Gates recognized in Doyle’s Guide rankings in Australia for Energy

K&L Gates was recommended as a Leading Energy & Resources Law Firm in both New South Wales and Victoria in Doyle’s Guide for 2019.

Additionally, Partners Matt Baumgurtel and Luke Westmore were recommended as Leading Energy & Resources Lawyers in New South Wales (Baumgurtel) and Victoria (Westmore) for 2019.

For more information, visit Doyle’s Guide.

Split FERC Floats Overhaul of Utility Power Purchase Regs

A divided Federal Energy Regulatory Commission proposed major changes Thursday in how it implements the Public Utility Regulatory Policies Act, with one commissioner saying the change would “administratively gut the statute” that requires utilities to buy power from small-scale renewable energy producers.

The notice of proposed rulemaking fulfills a priority of FERC Chairman Neil Chatterjee to update the agency’s long-standing policies under PURPA, which is four decades old and has been criticized by many — especially in the utility industry — as being outdated.

Partner Will Keyser commented that PURPA reform has been long in the making. Read his quote and the full article here.

Originally reported by law360.com

DEMOCRATS INTRODUCE TECHNOLOGY-NEUTRAL ENERGY BILL: Clean Energy for America Act

By Mary Burke Baker

SFC ranking member Wyden and 25 other Democrats (including minority leader Schumer) introduced tech-neutral energy legislation this week.  The bill includes energy storage provisions.  Following is a summary followed by summaries pertaining to energy storage. The legislation would consolidate 44 energy incentives into three tech-neutral provisions to promote energy independence and a low-carbon economy.  All of the original co-sponsors are Democrats.  The roll out of the legislation was accompanied by supporting statements from about a dozen supporting organizations.

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JOIN K&L GATES AT #ESACON19 AND PICK UP THE ENERGY STORAGE HANDBOOK

K&L Gates is proud to sponsor the Energy Storage Association’s 29th Annual Conference and Expo

K&L Gates welcomes you to join us at #ESACon19. We are excited to be the News Desk Sponsor at this year’s conference. The conference will be held on April 16-18, 2019 at the Phoenix Convention Center in Phoenix, AZ.

K&L GATES HIGHLIGHTS

  • Stop by Booth 526 to meet the team and pick up a copy of the newly released Fourth Edition of our very popular K&L Gates Energy Storage Handbook.
  • Join us at the ESA News Desk where we will be conducting interviews with executives from several companies.
  • Portland Partner Bill Holmes will be a panelist during, “Advanced Contracting in Energy Storage (ACES) Workshop,” where he will present on energy storage project development. The workshop will be held Tuesday, April 16 from 9:00 a.m. – 11:00 a.m. in North 124.
  • Bill will also give a Master Level with Kris Zadlo, Senior Vice President of Invenergy, entitled “Ins and Outs of Energy Storage Agreements,” which will discuss features and pitfalls of long-term energy storage agreements. It will be held on Wednesday, April 17 from 11:30 a.m. – 12:30 p.m. in North 122.

We look forward to seeing you in Phoenix!

K&L Gates Blockchain Energizer – Volume 38

By Buck B. Endemann, Benjamin L. Tejblum, and Daniel S. Cohen

There is a lot of buzz around blockchain technology and its potential to revolutionize a wide range of industries from finance and health care to real estate and supply chain management. Many institutions and companies are forming partnerships to explore how blockchain ledgers and smart contracts can be deployed to manage and share data, create transactional efficiencies, and reduce costs.

While virtual currencies and blockchain technology in the financial services industry have been the subject of significant debate and discussion, blockchain applications that could transform the energy industry have received comparatively less attention. Every other week, the K&L Gates’ Blockchain Energizer will highlight emerging issues or stories relating to the use of blockchain technology in the energy space. To subscribe to the Blockchain Energizer newsletter, please click here.

IN THIS ISSUE

  • KEPCO Announces Exploration of Blockchain-Based Solar Trading Platform.
  • SP Group Using Blockchain to Power REC Trading Platform in Singapore.
  • Energy Web Foundation Unveils an Electric Vehicle Charging Toolkit for EW Origin.

To view more information on theses topics in Volume 38 of the Blockchain Energizer, click here.

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