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  1. CFTC Seeks Input on Dodd-Frank Implementation Issues Affecting Energy End-Users

    Tuesday, April 1, 2014 10:33 am by

    With most of its rules implementing the swap regulatory provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in place, the Commodity Futures Trading Commission (“CFTC”) is seeking new public input on several aspects of its Dodd-Frank rules that directly affect energy markets participants who use swaps to hedge risk or who transact physical agreements containing options that are subject to the swap regulations.  Entities that utilize swaps and options in this manner, but are not otherwise required to register with the CFTC as “swap dealers” or other regulated entities, are referred to as “end-users.”

    In the first such initiative, on April 3, 2014 the CFTC’s staff will host a public roundtable to discuss issues concerning end-users with respect to Dodd-Frank regulations that have raised questions and requests for clarification with the CFTC and its staff.  In particular, this roundtable will cover the scope of the CFTC’s definition of the term “swap,” which was defined in a lengthy interpretation issued in August 2012.  (more…)


  2. Proposed “Waters of the U.S.” Rule: Can Significant Nexus Be Clarified?

    8:46 am by

    On March 31, we discussed that, at best, EPA’s and the Corps’ proposed rule defining what waters fall under federal jurisdiction provides only partial clarity.  The agencies have done little to clarify the circumstances in which there is no federal jurisdiction.  They have done more to clarify when they do have jurisdiction.  But is the proposed rule clear enough?

    Recall that this question relates to the first of the two jurisdictional tests, which we discussed last Thursday – that a water is jurisdictional if is adjacent to tributaries of navigable waters.  Digging deeper into this test, the question is whether it provides any useful, additional clarity on top of that already provided by Justice Kennedy’s opinion in Rapanos. (more…)


  3. Texas One Step Closer to Obtaining Authority to Issue GHG Air Permits

    Monday, March 31, 2014 11:27 am by , and

    As anticipated, on March 26, 2014, the Texas Commission on Environmental Quality (TCEQ) adopted rules to implement House Bill 788, which required the Commission to establish greenhouse gas (GHG) emissions rules.  The new rules will become effective on April 17, 2014.

    This action is one more step in the process of transitioning GHG Prevention of Significant Deterioration (PSD) permitting authority from EPA to TCEQ.  These regulations come on the heels of EPA publishing a proposal to approve the Texas GHG PSD revisions to the Texas State Implementation Plan (SIP) in 79 Fed. Reg. 9,123 (Feb. 18, 2014).  Two more steps remain: (1) EPA needs to approve TCEQ’s rules and (2) EPA must rescind the Federal Implementation Plan (FIP), the federal rules that currently authorize EPA to issue GHG permits for projects located in Texas. (more…)


  4. Proposed “Waters of the U.S.” Rule Improves Regulatory Clarity – In Part

    9:49 am by

    On March 28, we looked at the question of whether the rule proposed by the U.S. EPA and Army Corps of Engineers redefining their Clean Water Act jurisdiction was just a restatement of the current law. Today we will look at another assertion the agencies make:  that the rule will increase regulatory clarity.  Setting aside the question of whether the definitions we looked at on Friday are clear (we’ll examine that tomorrow), the short answer is that the rule does increase clarity, in part – it provides additional clarity as to what waters are under federal jurisdiction; it provides very little clarity as to what waters are not.  So unfortunately, for many activities, the regulated community will still be left wondering whether it needs federal approvals. (more…)


  5. Recent Legal Developments in the Roaring Utica Shale

    Friday, March 28, 2014 3:14 pm by

    Ohio’s Utica Shale has been one of the hottest shale plays in the nation over the past six to nine months and in the midst of the impressive amount of activity (both from a transactional and operational standpoint) practitioners (and their clients) are dealing with several recent court decisions that have had and will continue to have impacts on the development of this play.  

    American Energy Partners LP, (“AEP”) the company led by Aubrey McClendon, the former Chesapeake Energy Corp. Chief Executive Officer, has led the way in acquiring acreage in the Utica over this period.  With purchases from Hess Corp. (“Hess”) (74,000 acres) and Exxon Mobil Corp. / Paloma Partners LLC (56,000 acres), it is estimated that AEP has close to 300,000 acres in the region.[1]  These acquisitions are just the latest in a series of purchases AEP has making in the area over the past two years.  (more…)


  6. Lesser Prairie-Chicken Listed as Threatened Under Endangered Species Act

    11:50 am by

    On March 27, 2014, the U.S. Fish and Wildlife Service (USFWS) announced the final listing of the lesser prairie-chicken, a grassland bird that roams across key areas for oil and gas development in Texas, New Mexico, Oklahoma, Kansas and Colorado, as “threatened” under the Endangered Species Act (ESA).  At the same time, the USFWS issued a final special rule under section 4(d) of the ESA that is intended to limit the regulatory impacts of the listing on energy developers (e.g., oil and gas, wind, transmission) and landowners participating in approved range-wide conservation plans. (more…)


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