FOIA's Deliberative-Process Privilege and the ESA

The Supreme Court delivered its opinion in U.S. Fish & Wildlife Service v. Sierra Club on March 4, 2020 and held that agency documents that lack a legally operative effect are likely to qualify for the deliberative process exemption under the Freedom of Information Act. The deliberative process exemption allows agencies to withhold inter- and intra-agency memorandums, letters, and other communications created during an agency’s decisionmaking process. 1 Draft documents exchanged within or between agencies that never become final or legally operative may not be obtained through FOIA, even...

Expectations for Offshore Wind Under the Biden Administration

President Joe Biden’s arrival at the White House in January was, as customary for any new executive branch leader, met by outsized expectations on the part of supporters and detractors alike. Among the countless areas of public policy set to be affected by the new administration, perhaps no one issue is more anticipated to be in play than energy and environmental policy. The heightened set of expectations around energy policy began with the campaign, when Team Biden consistently placed climate change issues among its leading priorities — a trend that noticeably continued with Cabinet picks,...

Regulators to Review Market Design and Reliability Following 2021 Polar Vortex

Background Over Presidents’ Day weekend 2021, an unprecedented cold weather event hit the Midwest and South central United States. The storm led to major disruptions to infrastructure throughout the region, including icy road conditions, frozen pipes, and an estimated 3 million Texans still without power. [1] This is the result of a confluence of circumstances, including but not limited to frigid temperatures freezing generation and transmission equipment, shortages in natural gas supply and energy demand greatly exceeding supply, and Texas’ practice of operating separately from the rest of...

Notice of EPA Approved Texas NPDES Oil and Gas Program Authorization Published in Federal Register on February 12, 2021

On Friday, February 12, 2021, Region 6 of the U.S. Environmental Protection Agency (“EPA”) published notice in the Federal Register at 85 FedReg 9332 (February 12, 2021) of its January 15, 2021, approval the State of Texas’ October 12, 2020 submittal to the EPA requesting partial National Pollutant Discharge Elimination System (“NPDES”) program authorization for oil and gas discharges (“Notice”). Here is the link to the Notice . A summary of actions leading up to the approval and general information related to the authority of the Texas Commission on Environmental Quality (“TCEQ”) to...

FERC Directs RTOs and ISOs to File Reports on Hybrid Resources

On January 19, 2021, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued an order directing each Regional Transmission Organization (“RTO”) and Independent System Operator (“ISO”) to submit information regarding hybrid resources, or resources comprised of multiple types of generation and/or storage technologies utilizing a single interconnection point. [1] Specifically, FERC directed RTOs and ISOs to submit reports addressing four issues related to hybrid resources: (1) market participation; (2) capacity valuation; (3) interconnection; and (4) terminology. [2] The...
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