Tag: Utilities

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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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Split FERC Floats Overhaul of Utility Power Purchase Regs
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The State of Blockchain In Energy? Buck Endemann Shares His Insights
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Event: Blockchain Technology for the Energy Sector
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California SB 1399 Proposes to Expand Renewable Energy Opportunities for Non-Residential Customers
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Oregon PUC to Hold Energy Storage Workshop on May 9, 2016

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.

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

The State of Blockchain In Energy? Buck Endemann Shares His Insights

By Sam Mire of the Disruptor Daily

It’s been more than 150 years since the first modern solar power plant was established in Algiers, but we still haven’t effectively harnessed the sun’s energy. Fundamental changes in the energy sector take time.

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Event: Blockchain Technology for the Energy Sector

We invite you to join us for EUCI’s ‘Blockchain Technology for the Energy Sector’ workshop on May 8-9, 2018 live in Houston, Texas. Co-authors of the Blockchain Energizer, Buck Endemann and Ben Tejblum will discuss blockchain’s growing role in the energy sector and the current opportunities and regulatory barriers. Additional topics to be covered will include:

  • the fundamentals of blockchain technology and its core components
  • the opportunities and applications for blockchain technology within the energy industry
  • how blockchain could improve and/or replace existing systems and processes relevant to electric utilities
  • how blockchain could enable peer-to-peer “transactive” energy markets, and help lead the way in enabling a resilient, distributed energy grid of the future
  • evaluate sustainability aspects of blockchain — such as how blockchain could improve traceability for natural gas trading
  • the associated phenomenon of ‘bitcoin mining’

Use the discount code BLOCK18SPK when registering to receive 10% off!

Click here to learn more about the program and to register.

California SB 1399 Proposes to Expand Renewable Energy Opportunities for Non-Residential Customers

By Buck Endemann and Nicholas Nahum

Introduced in February by State Senator Scott Wiener (D-San Francisco), California Senate Bill (“SB”) 1399 would create a new program in which non-residential customers could facilitate the development of off-site renewable energy projects of up to 20 megawatts (“MW”) to satisfy their energy needs.

Traditionally, California’s “over the fence” rule limits distributed solar producers to selling power directly to two or fewer properties and only if such properties are located immediately adjacent to the property where the power is produced. [1] These restrictions, along with California’s net metering tariffs, have historically deterred property owners from installing distributed energy generation beyond what is necessary to service their on-site electricity needs. Properties with little electricity demand but large generating potential (like warehouses or parking lots) are therefore provided little incentive to invest in on-site solar projects without a willing (and often large) buyer.

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Oregon PUC to Hold Energy Storage Workshop on May 9, 2016

The Public Utility Commission of Oregon (the “Commission” or “OPUC”) has scheduled a workshop on May 9, 2016 to assist the Commission with its task of adopting guidelines that utilities are to use when drafting and submitting energy storage proposals under House Bill (HB) 2193.  The workshop was scheduled in response to a Commission-request at the March 30, 2016 prehearing conference in Docket No. UM 1751, which was opened in compliance with HB 2193.  At the prehearing conference, Administrative Law Judge Ruth Harper informed the parties that the Commission wanted the proceeding to start with a Commission workshop to address the purpose and content of the guidelines, as well as the range of viable projects.    Read More

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