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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. 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…)


  2. Monthly Futures Exchange Issuance Report – January 2015

    Tuesday, February 3, 2015 8:00 am by , , and

    January’s Highlight

    The exchanges are starting off 2015 with a continued focus on investigating and penalizing violations of disruptive trading practices, as well as pre-arranged trading and block trading.  These three categories represented a large majority of the exchanges’  enforcement efforts in 2014, and from what we saw in January, they will continue to remain a focus going forward.

    On this note, this month the ICE Futures Exchange will implement an amendment to Rule 4.02, adding section (l) to consolidate rules that prohibit disruptive trading practices.

    The new text of Rule 4.02(l) reads as follows:

    In connection with the placement of any order or execution of any Transaction, it shall be a violation of the Rules for any Person to:

    (l) Engage in any other manipulative or disruptive trading practices prohibited by the Act or by the Commission pursuant to Commission regulation, including, but not limited to:

    (1) Entering an order or market message, or cause an order or market message to be entered, with:

    (A) The intent to cancel the order before execution, or modify the order to avoid execution;

    (B) The intent to overload, delay, or disrupt the systems of the Exchange or other market participants;

    (C) The intent to disrupt the orderly conduct of trading, the fair execution of transactions or mislead other market participants, or

    (D) Reckless disregard for the adverse impact of the order or market message.

    (2) Knowingly entering any bid or offer for the purpose of making a market price which does not reflect the true state of the market, or knowingly entering, or causing to be entered, bids or offers other than in good faith for the purpose of executing bona fide Transactions.

    The new rule is effective as of January 14, 2015.  The FAQ on the new Rule 4.02(l) can be found here: https://www.theice.com/publicdocs/futures_us/Futures_US_Disruptive_Practice_FAQ.pdf.

    (more…)


  3. Recent Developments in Regulation of Oil and Gas NORM

    Wednesday, January 28, 2015 1:12 pm by and

    Federal and state regulators are considering new rules applicable to naturally occurring radioactive material (NORM) and technologically-enhanced NORM (TENORM) in oil and gas waste.  We discuss some of the most recent and expected developments below.

    Pennsylvania

    PADEP TENORM Study

    On January 15, 2015, PADEP released the results of its TENORM study, which focused on quantifying TENORM associated with oil and gas drilling in Pennsylvania.  PADEP’s study examined the full spectrum of potential exposure pathways, from well sites, to wastewater treatment plants and landfills, to gas distribution and end use.  While PADEP’s overall observation from the study was that there is “little potential” for radiation exposure from oil and gas development, the agency recommends additional study that could lead to additional regulations or a change in practices.  Some of PADEP’s recommendations moving forward are set forth below: (more…)


  4. FERC Enforcement – What to Expect in 2015

    Tuesday, January 6, 2015 4:27 pm by and

    The Federal Energy Regulatory Commission’s (FERC’s) Office of Enforcement (Enforcement) recently released its annual report on enforcement activities for 2014.  As is typical, Enforcement identified its primary concerns as detecting and deterring fraud and manipulation in its markets and ensuring the safety and reliability of the grid.  Enforcement also released statistics on its 2014 settlements ($25 million in civil penalties, $4 million in disgorgement) but those statistics concern cases that began years earlier and shed little light on what market participants should expect in 2015.[1]  In order to predict what we are likely to see in 2015, and the potential risks that companies may face from Enforcement actions, it is helpful to examine the currently pending cases and to understand the most recent internal changes within Enforcement.  Also relevant to predicting what market participants can expect in 2015 are the following:  the reach of FERC’s manipulation authority is being challenged in the courts, the Department of Energy’s Inspector General (IG) is examining FERC’s enforcement process and FERC will have a new Chairman and head of Enforcement in 2015.  The current pending cases and these developments shed more light on what to expect in 2015 than the statistics FERC released concerning 2014.

    In 2014, market participants, for the first time, showed a willingness to challenge Enforcement actions instead of settling.  Five companies have refused to pay assessed civil penalties and settle thereby causing Enforcement to go to Federal court or to an administrative law judge to enforce the penalty and manipulation claims.[2]  These cases present the first court challenges to the reach of FERC’s anti-manipulation authority.  We should expect more challenges in 2015 because another company has publicly vowed to challenge FERC should FERC proceed with a charge of manipulation.[3]  However, unless and until the courts narrow Enforcement’s reach, we should expect that Enforcement will continue to be aggressive in its prosecutions. (more…)


  5. Pleasing No One, Fish and Wildlife Service Lists the Gunnison Sage-Grouse as Threatened

    Wednesday, November 12, 2014 3:49 pm by and

    In the latest listing driven by a huge July 2011 settlement with environmental NGOs, the U.S. Fish and Wildlife Service earlier today announced it would list the Gunnison sage-grouse as threatened under the Endangered Species Act (ESA).  The listing comes in the face of objections from both sides.  Colorado’s Governor and both its senators – all Democrats – had worked hard to prevent the listing, while environmentalists warned in advance that they would sue over a threatened listing, demanding that the bird be listed as endangered, not just threatened. (more…)


  6. Sackett Two Years Later: Wetland Jurisdictional Determinations Still Not Appealable

    Thursday, September 25, 2014 10:35 am by

    When the U.S. Supreme Court decided in Sackett v. EPA that Environmental Protection Agency (EPA) wetland compliance orders were appealable, one question was how far would other courts extend the Supreme Court’s reasoning? Two years later, the answer is becoming clear on at least one front: courts continue to hold that wetland jurisdictional determinations are not appealable.  In Belle Company v. U.S. Army Corps of Engineers, the Fifth Circuit was the latest court to say so. (more…)


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