DOJ ENRD Memo Blog Series– Enforcement Principle 1: “Adhering to the Impartial Rule of Law”

On March 12, 2018, a U.S. Department of Justice (“DOJ”) memorandum was issued by Jeffrey H. Wood, DOJ’s Acting Assistant Attorney General (“AAG”) for the DOJ’s Environment and Natural Resource Division (“ENRD”) titled “Enforcement Principles and Priorities” (the “Wood Memorandum”), as noted in our April 19, 2018 post . The Wood Memorandum mentioned seven enforcement principles for the ENRD. The first principle, which will be the subject of this post, is “Adhering to the Impartial Rule of Law.” This principle appears to signal a tightening in the government’s approach to environmental...

White House Encourages Coordination of Infrastructure Permitting Through One Federal Decision Memorandum

On April 9, 2018, the White House announced that twelve federal agencies had signed the One Federal Decision Memorandum (“MOU”), establishing a coordinated and timely process for environmental reviews of major infrastructure projects. The MOU addresses one of President Trump’s signature policy promises from the 2018 state of the union – to reduce the infrastructure permitting process to at most two years. The MOU comes in response to Executive Order 13807 , signed by the President on August 15, 2017. The Executive Order directed federal agencies to, among other things, develop a two year...

DOJ’s Environmental Enforcement Priorities and Expectations – Refocusing on the Rule of Law

In recent months, the U.S. Department of Justice (“DOJ” or the “Department”) has issued a series of memoranda from the Department’s highest levels to its various component divisions, which includes the Environment and Natural Resources Division (“ENRD”). The ENRD is charged with prosecuting cases against persons who violate the nation’s civil and criminal pollution-control laws. The ENRD has both a civil and criminal division, each of which routinely collaborates with various states in the ENRD’s pursuit of enforcement initiatives. In the years leading up to the 2016 election, in both civil...

The CFTC and Virtual Currencies: Amidst All the Hype, Don’t Forget “Commodity” is still a Defined Term

The Internet recently erupted with news reports and law firm legal alerts broadcasting the endorsement by a federal court of the Commodity Futures Trading Commission’s (CFTC) position that virtual currencies (a/k/a cryptocurrencies) are commodities subject to CFTC oversight pursuant to the Commodities Exchange Act (CEA). However, while it is clear that Bitcoin is a commodity for purposes of CFTC jurisdiction, the same may not be true of other virtual currencies. The CFTC generally has exclusive jurisdiction over commodity derivatives, including futures, options and swaps, but it only has...

FERC Approves Settlement of Alleged Market Manipulation Suit

On April 10, 2018, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) approved a stipulation and consent agreement (the “Settlement Agreement”) between FERC’s Office of Enforcement (“Enforcement”) and ETRACOM LLC and Michael Rosenberg [1] (“Respondents”). The Settlement Agreement brings to an end three years of litigation before FERC and a U.S. federal district court concerning FERC’s allegations that the Respondents manipulated the California Independent System Operator Corp. (“CAISO”) market by placing uneconomic virtual transactions for the purpose of benefitting...

Court Provides Further Clarity Regarding Scope of FERC’s Enforcement Authority

On March 30, 2018, the U.S. District Court for the Southern District of Ohio issued an opinion granting in part and denying in part motions to dismiss the Federal Energy Regulatory Commission’s (“FERC”) action seeking to enforce its assessment of civil penalties against Coaltrain Energy, L.P. (“Coaltrain”), the two co-owners of Coaltrain, and three other individuals (collectively, the “Defendants”). FERC alleges that the Defendants: manipulated the PJM Interconnection, L.L.C. market by placing virtual transactions for the purpose of increasing Coaltrain’s eligibility for Marginal Loss Surplus...

U.S. Futures Exchanges Disciplinary Actions Alert: March 2018

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. The disciplinary notices cited in...