New Default 40-Year Hydro License Term

With more than 300 projects anticipated to undergo relicensing over the next 8 years, the Federal Energy Regulatory Commission (“FERC”) issued a new policy statement on October 19, 2017 establishing a 40-year default license term for Federal Power Act (“FPA”) hydroelectric licenses for projects located at non-federal dams. [1] Since the license term determines the period over which an investor is able to recover investment in project facilities, its length is a major factor in any investment decision with respect to a new or existing project. FERC’s exercise of discretion with respect to...

The Mineral Revolution: How The Recent Influx of Capital is Changing Deal Structures and Opportunities for Investment

Over the past twelve months, we have witnessed a rapid evolution in the way that E&P industry participants acquire and own minerals. While the perpetual nature and non-cost bearing aspects of mineral ownership have long aided in maintaining a floor value in the asset class, an influx of money, technical and financial expertise has increased industry participants’ understanding of the value of minerals and has resulted in minerals commanding renewed focus from investors. This has resulted in a complete reorganization of the minerals market and created opportunities for public and private...

EPA Issues Proposal to Repeal the Clean Power Plan

On October 10, 2017, EPA Administrator Scott Pruitt formally announced that he had signed a proposed rule to repeal the Obama EPA’s controversial Clean Power Plan (CPP). This proposal is the first formal step toward repealing the CPP and the beginning of a public process that the Trump Administration will use to determine whether to issue a rule to replace the CPP and, if so, what a replacement rule will look like. Although the CPP was never implemented – the U.S. Supreme Court stayed the rule in February 2016 to ensure that it would not come into effect until the courts could determine...

New Tactics, Same Result: Local Efforts to Regulate Hydraulic Fracturing Continue to Falter Despite New Approaches to Regulation

Despite numerous attempts in recent years by local governments to regulate oil and gas activities at the municipal level, recent developments in Pennsylvania, Ohio and Colorado signal a continued trend favoring states’ authority to regulate these issues as matters of statewide concern. Pennsylvania On September 29, 2017, the U.S. District Court for the Western District of Pennsylvania invalidated a township charter that sought to prohibit corporations from depositing wastewater from oil and gas activities within the municipality’s borders. The municipality in question, Highland Township,...

U.S. Futures Exchanges Disciplinary Actions Report - September 2017

The Bracewell U.S. Futures Exchanges Disciplinary Actions Report is a monthly report that provides summaries of certain disciplinary notices by U.S. exchanges during the prior month. The report has a particular focus on notices potentially relevant to energy commodities and is not intended to be a comprehensive review of each and every notice issued. Instead, the report is intended to provide market participants, and compliance personnel in particular, with illustrative examples of rule violations and to bring to light enforcement trends across the exchanges. COMEX COMEX 15-0261-BC-1 Misc...

FERC Improves Treatment of Passive Tax Equity for Transaction Approvals

On October 4, 2017, the Federal Energy Regulatory Commission (“FERC”) issued an order clarifying that it will not treat certain tax equity interests in public utilities or public utility holding companies as voting securities for purposes of transaction approval requirements pursuant to Section 203 of the Federal Power Act (“FPA”) (“Passive Interest Order”). [1] The Passive Interest Order provides guidance regarding FERC’s consideration of certain “tax equity” passive interests for purposes of determining whether transactions involving such interests constitute a transfer of control over the...

Federal District Court Vacates BLM’s Postponement of the Waste Prevention Rule

On October 4, 2017, the U.S. District Court for the Northern District of California issued a decision vacating the Bureau of Land Management’s (“BLM’s”) June 15, 2017 notice that indefinitely postponed compliance dates for sections of BLM’s Methane and Waste Prevention Rule . State of California v. BLM , Nos. 17-cv-03804-EDL and 17-cv-3885-EDL (N.D. Cal., Oct. 4, 2017). The Methane and Waste Prevention Rule, which was adopted as a final rule in November 2016, is intended to limit venting, flaring, and leaks of natural gas from oil and natural gas production activities on public and tribal...

Will Supreme Court Find Constitutional Problems With ALJs?

Recent federal circuit court of appeals decisions have cast doubt on the constitutionality of the use of administrative law judges (ALJs) in adjudicative proceedings. ALJs are widely used to adjudicate disputes and enforcement actions in regulated industries, including in administrative proceedings overseen by the Federal Energy Regulatory Commission (FERC) and the Securities and Exchange Commission (SEC). [1] At FERC, ALJs also preside over adversarial trial-type rate and technical proceedings. As of March 2017, the Office of Personnel Management (OPM) reported that nearly 2,000 ALJs were...

Energy Legal Blog® Nominated for 2017 Best Legal Blog

We are pleased to announce that Energy Legal Blog® has again been selected to compete in The Expert Institute’s annual Best Legal Blog Contest . After receiving thousands of nominations, The Expert Institute has narrowed contestants down to those blogs regarded as the "most exciting, entertaining, and informative legal blogs online today." Voters may cast a single vote for each blog, but are permittted to vote for as many blogs as they like across nine different categories. Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category...

Statute of Limitations Bars FERC Penalty in Preeminent Market Manipulation Case

On Friday, the U.S. District Court for the Eastern District of California handed the Federal Energy Regulatory Commission (“FERC” or “Commission”) a significant defeat by concluding that FERC’s action against a former trader of Barclays Bank PLC accused of participating in a scheme to manipulate western energy markets [1] was barred by the statute of limitations. For now, the related allegations against Barclays, which is facing a $435 million civil penalty plus $34.9 million in disgorgement, and against three other traders remain intact. However, this dismissal, which comes on the heels of...

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