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Powered by the attorneys of Bracewell & Giuliani, Energy Legal Blog® is your resource for updates and analysis on national and global energy issues.
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  1. Scope of Trial De Novo Debated in Barclays Electricity Manipulation Case

    Wednesday, June 24, 2015 4:34 pm by , and

    After almost eight years since the Federal Energy Regulatory Commission (FERC) commenced its investigation against Barclays Bank PLC (Barclays) and four of its traders, Scott Connelly, Daniel Brin, Karen Levine and Ryan Smith, for allegedly manipulating the California electricity markets, Barclays filed its answer in federal district court. As expected, Barclays denied all of FERC’s substantive allegations and asserted that the District Court should give no merit to FERC’s findings of fact or legal conclusions. FERC, according to Barclays and the individual traders, must prove its case before an independent arbiter and cannot rely on anything that happened at the agency level. FERC is seeking a $435 million civil penalty against Barclays; $15 million against Connelly; and $1 million each from Brin and Levine. (more…)


  2. FERC Finds Manipulation Violations by Company and Trader that Complied with Tariff but did not Act to Further Market Design Goals

    Friday, May 29, 2015 2:50 pm by and

    On May 29, 2015, the Federal Energy Regulatory Commission (FERC) issued an Order Assessing Civil Penalties against Powhatan Energy Fund and its affiliates as well as against Houlian Chen, Powhatan’s chief trader, for violating FERC’s anti-manipulation rule. FERC ordered Powhatan to pay $28.8 million in penalties and over $4.7 million in disgorgement and it ordered Chen to pay an additional $1 million penalty. In this assessment order, FERC rejected all of Powhatan’s arguments and instead adopted the Division of Enforcement’s recommendations on the facts, the law and the penalty amounts. The Order directs Powhatan and Chen to pay the penalties and the disgorgement amounts within 60 days of the date of the order. Similar to the Barclays case currently pending in federal district court in California, because Powhatan previously elected to have the matter heard de novo in federal district court, if Powhatan and Chen fail to pay, FERC must go to federal district court to enforce its penalty assessment.

    (more…)


  3. A permit system may finally arrive for the Migratory Bird Treaty Act – New Opportunities and Responsibilities

    Wednesday, May 27, 2015 5:06 pm by

    TexasBarToday_TopTen_Badge_SmallFor years, Federal Courts have held that individuals can be held criminally liable under the Migratory Bird Treaty Act (MBTA) for the death of birds regardless of whether they intended to harm them. While several courts have recently called into question this precedent, yesterday, the Fish and Wildlife Service (FWS) started a process that could help clarify liability under the Act. However, with this clarity will come additional regulatory obligations and the creation of a bright line between compliance and noncompliance.

    Like the Endangered Species Act (ESA), the MBTA imposes criminal liability for harming specifically-identified birds. Unlike the ESA, however, the MBTA does not currently have an extensive permitting system. As a result, most companies are unable to proactively ensure compliance with the MBTA unless they can avoid harming any migratory birds during their operations – and complete avoidance is extremely difficult when engaging in many industrial activities of any scale. Thus, entities operating wind energy, communication towers, oil and gas production, and electrical transmission facilities, for example, have generally adopted best management practices and hoped that their proactive efforts would result in lenient treatment by FWS if and when their operations accidentally harm migratory birds. (more…)


  4. Federal District Court Denies Barclays Motion to Dismiss FERC Petition Which Alleges Manipulation and Assesses Significant Penalties

    Thursday, May 21, 2015 2:02 pm by , , and

    For the past two years we have been tracking and reporting on an enforcement proceeding brought by the Federal Energy Regulatory Commission (“FERC”) against Barclays Bank PLC (“Barclays”), Daniel Brin, Scott Connelly, Karen Levine, and Ryan Smith (collectively, the “Traders” and together with Barclays, “Defendants”) for alleged manipulative trading in the western electricity markets from November 2006 to December 2008. Yesterday, the United States District Court for the Eastern District of California denied a motion by the Defendants to dismiss the manipulation action. Although the court’s order did not address the merits of the manipulation charge, the court’s order is significant because it is the first judicial ruling on the scope of FERC’s enforcement authority over the physical electricity markets and the court found that FERC can pursue civil penalty actions against individuals as well as companies. (more…)


  5. Ohio Supreme Court Limits Municipal Regulation of Oil and Gas But Leaves the Door Open for Future Zoning Moratoriums

    Tuesday, February 24, 2015 1:35 pm by

    Last week, the Supreme Court of Ohio ruled that certain oil and gas-related ordinances of the city of Munroe Falls are preempted by the state’s oil and gas law. State ex rel. Morrison v. Beck Energy Corp., Slip Opinion No. 2015-Ohio-485. The decision is the latest in an ongoing battle being waged over the authority of local governments to zone or regulate the operations of oil and gas companies. Often, the success or failure of a local government’s ordinance depends on whether it aims to “regulate” oil and gas operations or simply control their location according to traditional zoning principles.

    While a win for industry in this case, the Supreme Court’s holding in State ex rel. Morrison v. Beck Energy Corp. was limited to the ordinances at issue in the case and does not go as far as recent rulings in Pennsylvania and New York that were focused on zoning authority. Previously, in July 2012, the Pennsylvania Supreme Court struck down as unconstitutional certain sections of the recently passed “Act 13” that would have removed a municipality’s ability to zone out oil and gas drilling in Pennsylvania. Huntley & Huntley, Inc. v. Oakmont Borough Council, 600 Pa. 207, 964 A.2d 855 (2009). Then, in August 2014, the New York State Court of Appeals held that municipalities can effectively “zone out” oil and gas operations by passing zoning ordinances that ban oil and gas production activities. Wallach v. Dryden, 23 N.Y.3d 728, 992 N.Y.S.2d 710 (2014). (more…)


  6. Prove It Up: Texas Railroad Commission Revises Rule for Pipeline Common Carrier Permits

    Wednesday, December 10, 2014 9:15 am by and

    The Texas Railroad Commission has recently promulgated certain rule amendments designed to clarify how much information a pipeline operator must file to be classified, for TRRC regulation purposes, as a common carrier or a private pipeline.

    The revisions require pipeline operators to substantiate their claim to be a common carrier or private pipeline when applying for a permit.  Currently, the permit application, known as a T-4, requires the pipeline applicant only to “mark [the] appropriate block” to establish its classification as a common carrier or private pipeline.  The revised rule, however, will add new informational requirements and certifications that a pipeline operator must submit.  Specifically, for a new application the applicant must provide a sworn statement providing the operator’s factual basis supporting the classification and purpose being sought for the pipeline, including an attestation to the applicant’s knowledge of the eminent domain provisions in the Texas code.  In addition, the applicant must provide documentation supporting the classification and purpose being sought.  (more…)


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