Speaking Energy

On June 28, 2024, in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which for 40 years required court deference to reasonable agency interpretations of federal statutes in certain circumstances, even when the reviewing court would read the statute differently. The Court ended “Chevron deference” and held that courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” In doing so, the Court upended a longstanding principle of administrative law that is likely to make agency decisions more susceptible to challenge in the courts.

The upcoming changes to the UK Arbitration Act are an important development for energy practitioners. That’s because arbitration is the default means to resolve cross-border energy and natural resources disputes, and London is frequently the seat of arbitration for those cases. The proposed changes are (amongst other things) another step toward improved time and cost efficiency in English arbitration.

In Fore River Residents Against the Compressor Station v. FERC,¹ decided on July 21, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ended long-running litigation over the Federal Energy Regulatory Commission’s (FERC or “Commission”) approval of the Weymouth Compressor Station in Norfolk, Massachusetts. The Weymouth Compressor Station is part of the Algonquin Gas Transmission, LLC and Maritimes & Northeast Pipeline, L.L.C. Atlantic Bridge Project, which received a certificate under section 7 of the Natural Gas Act (NGA) from FERC in 2017 (Docket No. CP16-9).² In Fore River, the court found that the petitioners, local residents, municipalities, and an environmental organization lacked Article III standing to challenge two orders issued by FERC after the certificate issued (1) a December 26, 2018, delegated order granting Algonquin a two-year extension of time to construct the facilities (the “Extension Order”)³ that was subsequently upheld by a full Commission order on February 21, 2020 (the “2020 Rehearing Order”);⁴ and (2) a January 20, 2022, denial of rehearing (the “2022 Rehearing Order”)⁵ of a September 24, 2020, order authorizing Algonquin to place the facilities in service (the “In-Service Extension Order”).⁶ It also dismissed the petitions as moot. 

On January 7, 2022, the Federal Energy Regulatory Commission (FERC) issued a Final Rule to amend its regulations governing the maximum civil monetary penalties assessable for violations of statutes, rules and orders within FERC’s jurisdiction. The Final Rule is a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires each federal agency to issue an annual inflation adjustment by January 15 for each civil monetary penalty provided by law within the agency’s jurisdiction. The adjustments in the Final Rule represent an increase of approximately 6.2 percent for each covered maximum penalty. FERC’s adjusted maximum penalty amounts, which will apply at the time of assessment of a civil penalty regardless of the date on which the violation occurred, are set forth here and will become effective upon publication in the Federal Register.

The board of managers of PJM Interconnection, L.L.C. (PJM) has directed PJM to prepare a proposal for filing with the Federal Energy Regulatory Commission (FERC) that will substantially reform the Minimum Offer Price Rule (MOPR) in PJM’s capacity market. After considering nine reform proposals in the PJM stakeholder process, the board has selected for filing the proposal put forth by PJM, which received the highest sector-weighted vote from PJM members. PJM has expressed a desire to have the reformed market rule in place for the next Base Residual Auction, which is scheduled for December 2021.

In a unanimous decision issued this week, the U.S. Court of Appeals for the 10th Circuit sided with rooftop solar owners in a dispute over the jurisdictional scheme established by the Public Utility Regulatory Act (PURPA). The decision revives the solar group’s federal suit, which challenges monthly fees imposed on customers with rooftop solar by a municipal utility in New Mexico.

(Houston) – Akin Gump is pleased to announce it has released its “2020 Energy Year in Review,” which examines the current state of the global energy market and highlights the energy matters with which the firm was involved last year across the following areas:

• Mergers, Acquisitions & Strategic Transactions
• Capital Markets
• Financing
• Project Development
• Financial Restructuring
• Energy Litigation.

We are pleased to share a recording of Akin Gump’s annual energy briefing that took place last week, along with the presentation materials and information on ESG legal developments and disclosure frameworks.