There is little doubt that the outcome of the 3 November federal election will be consequential for much of America, and that the consequences are likely to be very different depending on who sits in the Oval Office and the Senate after the inauguration. Of all the industries that employ Americans, the power and related industries such as oil and gas, carbon capture, and electric vehicles may experience the starkest consequences.
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On October 4, 2017, the Federal Energy Regulatory Commission (the “Commission”) issued an order allowing entities with certain passive investments to transfer those interests without receiving prior authorization from the Commission under Section 203 of the Federal Power Act (“FPA”). Specifically, the Commission found that passive tax equity interests in public utilities or public utility holding companies do not constitute voting securities for the purposes of Section 203. Thus, the transfer of these interests does not require Section 203 approval because such transfer does not constitute a transfer of control with respect to the public utility. In addition, the Commission found that the transfer of these passive investments by a holding company qualifies for blanket authorization under FPA Section 203 (a)(2).