After a disappointing showing in Mexico’s recent mid-term elections, President Andrés Manuel López Obrador (commonly referred to as AMLO) and his party (i.e., Movimiento Regeneratión National or MORENA, commonly referred to as Morena) will face greater hurdles to unwinding “la Reforma Energética” (2013 Energy Reforms), the energy policy reforms adopted by the then-ruling party, the Partido Revolucionario Institucional (PRI). Notwithstanding the unfavorable outcome for Morena, shortly after the election AMLO vowed to continue his efforts aimed at shifting Mexico back towards energy nationalism and prioritization of fossil fuels; goals at the heart of AMLO’s campaigning for Morena leading up to the mid-term elections. Although retaining a majority in the Chamber of Deputies and gaining some new state governors, Morena lost its supermajority and, as a result, very likely also lost the opportunity to implement constitutional changes to reverse the 2013 Energy Reforms and achieve its goal of a nationalized energy sector in Mexico.
On June 29, in PennEast Pipeline Co., LLC v. New Jersey et al., No. 19-1039, the Supreme Court rejected New Jersey’s sovereign immunity arguments and held that Section 717f(h) of the Natural Gas Act (NGA) authorizes Federal Energy Regulatory Commission (FERC) certificate-holders to condemn all necessary rights-of-way to construct pipelines, whether owned by private parties or by states. “Because the [NGA] delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property.”
Chief Justice Roberts authored the 5-4 opinion, joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. The Court reversed and remanded the Third Circuit’s judgment. In a prior post, we discussed that judgment and other factual and legal background of the case.
On April 28, the Supreme Court will hear oral argument in PennEast Pipeline Co., LLC v. New Jersey et al., No. 19-1039, a case with significant implications for pipeline projects. The main issue is whether the Natural Gas Act (NGA) delegates the federal government’s eminent domain power to Federal Energy Regulatory Commission (FERC) certificate holders and allows them to sue a state to condemn land in which the state claims an interest, or whether the Eleventh Amendment immunizes states from such lawsuits.
On November 19, 2020, the Federal Energy Regulatory Commission (FERC) Office of Enforcement (Enforcement) issued the 2020 Annual Report on Enforcement (Report). The Report informs the public and the regulated community of Enforcement’s fiscal year activities occurring October 1, 2019, through September 30, 2020 (FY 2020). Notably, the Report does not include any enforcement actions resulting in civil penalties involving pipeline companies. As stated in the Report, the unprecedented pandemic allowed Enforcement to make several compliance-related accommodations, including extending deadlines, suspending new audits, and postponing the contacts it makes in connection with surveillance inquiries. It is expected that, in a post-COVID-19-era and with a new administration, FERC’s enforcement approach may be more active in the coming years.
As we reported in an earlier posting, on June 4, 2020, the Massachusetts Attorney General’s Office (“AGO”) filed a petition, which requested the Massachusetts Department of Public Utilities (“DPU”) to open an investigation into potential changes to local natural gas distribution company (“LDCs”) operations to support the Commonwealth’s legislatively mandated greenhouse gas (“GHG”) emission limit reductions (the “Petition”). Specifically, the AGO’s Petition seeks to evaluate the industry, regulatory and policy adjustments that are requisite to meet the state GHG limits, and to “determine what near and long-term adjustments are necessary to maintain a safe and reliable gas distribution system and protect consumer interests as the Commonwealth transitions” to carbon neutrality by 2050.
On July 16, 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations. The update, which largely mirrors the proposed rule, is the first comprehensive amendment to the regulations since their original publication in 1978. The final rule is designed to streamline the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law.
On July 6, the US District Court for the District of Columbia found that the Dakota Access Pipeline (DAPL) must shut down while the US Army Corps of Engineers (Corps) prepares an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA).
On June 4, 2020, the Massachusetts Attorney General (AG) filed a Petition which requested the Massachusetts Department of Public Utilities (DPU) to open an investigation into the potential changes to support the Commonwealth’s legislatively mandated greenhouse gas (GHG) emission limit reductions (the Petition). Specifically, the AG’s Petition seeks to evaluate the industry, regulatory and policy adjustments necessary to meet the state GHG limits, and to “determine what near and long-term adjustments are necessary to maintain a safe and reliable gas distribution system and protect consumer interests as the Commonwealth transitions” to carbon neutrality by 2050.
On June 22, 2020, the Federal Energy Regulatory Commission (“Commission”) issued an Order on Petition for Declaratory Order finding that it has concurrent jurisdiction with bankruptcy courts to review and address the disposition of Commission-jurisdictional natural gas transportation agreements sought to be rejected through bankruptcy. Specifically, the Commission found that, “Where a party to a Commission-jurisdictional agreement under the [Natural Gas Act] seeks to reject the agreement in bankruptcy, that party must obtain approval from both the Commission and the bankruptcy court to modify the filed rate and reject the contract, respectively.” This is the first time the Commission has made such a finding with regard to jurisdictional agreements pursuant to the Natural Gas Act (“NGA”) and it did so in a well-supported, clear and convincing way.
On May 30, 2020, for the first time in nine years, a manned spacecraft launched from American soil and ultimately docked at the International Space Station, just under a day later. This launch, which marks a significant step in the development of reusable rocket technology, will undoubtedly inspire a new generation of astronauts, astrophysicists, engineers, and others who are interested in sustainable space exploration. It has been reported that spacecraft launches of this nature burn approximately 400 metric tons of kerosene and leave behind a trail of carbon dioxide (“CO2”) exceeding two centuries worth of CO2 emissions from those of an average car.