“Bring Out Your Dead!” - In CFTC v. Wilson, Court Reminds CFTC that Market Manipulation Requires an Artificial Price

Posted on: January 7, 2019 By: Michael Brooks
On November 30, 2018, a federal court rejected the Commodity Futures Trading Commission’s (“CFTC”) allegations of market manipulation in CFTC v. Wilson (“ DRW ”) and found in favor of the defendants, Donald R. Wilson (“Wilson”) and his company, DRW Investments, LLC (together “DRW”). According to Judge Richard Sullivan (appointed to the 2nd Circuit Court of Appeals during the pendency of the matter and writing the decision while sitting by designation in the United States District Court for the Southern District of New York), “the CFTC … failed to prove that Defendants intended to cause...
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Enforcement
Energy

FERC Proceeding Questions the Treatment of Battery Storage Under PURPA

Posted on: December 12, 2018 By: Seth Lucia
A pending petition before the Federal Energy Regulatory Commission (“FERC”) tees-up whether battery storage facilities co-located with renewable generation projects should be included in the output measurement for purposes of determining Qualifying Facility (“QF”) status under the Public Utility Regulatory Policies Act of 1978 (“PURPA”). Depending on FERC’s response, the addition of battery storage facilities to certain renewable projects could affect the QF status of the entire project. FERC is under no deadline to resolve this dispute, but FERC may choose to act in the coming months both to...
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FERC

U.S. Court of Appeals for the Fourth Circuit’s Decision to Vacate Mountain Valley Pipeline Nationwide Permit

Posted on: November 28, 2018 By: Ann Navaro, Christine Wyman
On November 27, 2018, the U.S. Court of Appeals for the Fourth Circuit issued the most recent in a series of decisions from various courts affecting the federal permitting and construction of interstate pipelines. Sierra Club v. U.S. Army Corps of Engineers , No. 18-1173 (4th Cir. Nov. 27, 2018). In this instance, the Circuit held that the U.S. Army Corps of Engineers violated the Clean Water Act when it verified that construction of the Mountain Valley Pipeline project could proceed pursuant to Nationwide Permit 12 in the State of West Virginia. [1] This decision will have an impact on the...
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Water
Natural Gas

Takeaways from the FERC and CFTC Annual Enforcement Reports for Energy Companies

Posted on: November 26, 2018 By: Michael Brooks, Bob Pease, Ryan Eletto
The Federal Energy Regulatory Commission (FERC) and the Commodity Futures Trading Commission (CFTC) each issued their annual enforcement reports last week. As always, these reports highlight priorities and attempt to quantify enforcement efforts by the agencies during the prior fiscal year. 1 In both cases, it might be tempting for energy companies to walk away thinking their potential exposure at either agency is substantially reduced under the current leadership: FERC’s report is dominated by old allegations wallowing in court and new inquiries closed without action while energy companies...
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CFTC
FERC

The Rule of Law, Agency Enforcement and the Environment

Posted on: November 6, 2018 By: Brittany Pemberton, Daniel Pope
Over the past two years, officials within President Trump’s administration have invoked the rule of law regarding the administration’s enforcement goals on issues ranging from marijuana production to immigration . Late last month, we saw a glimpse into how the Department of Justice’s Environment and Natural Resources Division (ENRD), at the time led by Acting Assistant Attorney General (AAG) Jeffrey H. Wood, [1] views application of the rule of law to environmental and natural resource litigation and enforcement. The Acting AAG presented the keynote speech at the American Bar Association’s...
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Environmental

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