On May 4, 2018, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) dismissed a private suit filed by a group of investors (“Plaintiffs”) seeking damages for Total Gas & Power North America, Inc., Total S.A., and Total Gas & Power Limited (collectively, “Total”) for allegedly manipulating natural gas markets at four western trading hubs.  In doing so, the Second Circuit held that Plaintiffs – who did not trade at the four western trading hubs at which Total traded, but argued that Total’s trading impacted Plaintiffs’ trading at the Henry Hub – established constitutional standing but failed to plead sufficient facts to establish a plausible substantive cause of action. Continue Reading Second Circuit Dismisses Private Suit Against Total for Alleged Gas Market Manipulation

On April 24, 2018, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that FERC lacks jurisdiction over certain of the City of Clarksville, Tennessee’s (“Clarksville”) interstate sales of natural gas for resale, because the plain language of the Natural Gas Act (“NGA”) excludes sales by municipalities from FERC’s jurisdiction, which extends to interstate sales of natural gas for resale under NGA section 7. Continue Reading D.C. Circuit Holds that FERC Lacks Jurisdiction over Certain Interstate Gas Sales by Municipalities

On April 20, 2018, the New York State Department of Environmental Conservation (“NYSDEC”) denied the Transcontinental Gas Pipe Line Company, LLC’s (“Transco”) application (“Application”) for a Water Quality Certification (“WQC”) for the Northeast Supply Enhancement Project (“Project”).  The NYSDEC denied the Application without prejudice, asserting that the Application provided incomplete information upon which to make a determination.   Continue Reading New York Denies Water Permit for Transco’s Northeast Supply Enhancement Project

On April 19, 2018, FERC issued a Notice of Inquiry (“NOI”) seeking information regarding whether—and if so, how—to revise its policy for determining if a proposed natural gas pipeline is in the public convenience and necessity.  Specifically, the NOI requests information in four areas related to FERC’s policy for reviewing such certificate applications: (1) determining need for a pipeline project; (2) eminent domain issues; (3) evaluating environmental impacts, including greenhouse gas (“GHG”) emissions and climate change; and (4) changes that would improve the efficiency and effectiveness of FERC’s review. Continue Reading FERC Issues Notice of Inquiry into Pipeline Certificate Policy

On March 14, 2018 and March 15, 2018, FERC issued separate orders (1) reinstating the certificate for the Southeast Market Pipelines Project (“SMP Project”) and (2) authorizing DTE Midstream Appalachia, LLC’s (“DTE”) Birdsboro Pipeline Project.  In approving the projects, FERC held that determining the significance of the indirect effect of a pipeline on downstream greenhouse gas (“GHG”) emissions is not possible for purposes of FERC’s National Environmental Policy Act (“NEPA”) analysis, and that the Social Cost of Carbon tool is not appropriate for estimating a project’s downstream impacts in FERC’s NEPA analysis.  In partial dissents, Commissioners Cheryl LaFleur and Richard Glick asserted that GHG emissions estimates and the Social Cost of Carbon tool can inform FERC’s Natural Gas Act (“NGA”) section 7 evaluation. Continue Reading FERC Certificate Orders Address Estimates of Pipeline Impacts on Downstream GHG Emissions

On March 12, 2018, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) held that the New York Department of Environmental Conversation (“NY DEC”) waived its authority to act on Millennium Pipeline Company, L.L.C.’s (“Millennium”) application for a Clean Water Act (“CWA”) section 401 water quality certification by not acting on the application within one year of receipt.  In doing so, the Second Circuit rejected the NY DEC’s argument that the one-year statutory deadline begins when a state agency deems the application complete, rather than when the application is received. Continue Reading Second Circuit Affirms FERC Ruling that NY DEC Waived Authority on CWA Permit for Pipeline Project

On March 13 and March 15, 2018, FERC took actions to address tax law changes resulting from the Tax Cuts and Jobs Act of 2017 for electricity, natural gas, and oil companies.  In addition, on March 15, 2018, in response to a federal court remand, FERC stated that master limited partnership (“MLP”) interstate natural gas and oil pipelines will no longer be allowed to receive an income tax allowance in cost of service rates. Continue Reading FERC Addresses Impact of Tax Cuts on Rates for Energy Companies and Eliminates Income Tax Allowance for Master Limited Partnerships

On March 8, 2018, President Donald Trump signed an order that enacts tariffs on steel and aluminum imports from all overseas countries, while exempting Canada and Mexico from such tariffs for now.  The proclamations signed by the President will institute a tariff of 25% on steel and 10% on aluminum imports.  The tariffs are expected to become effective March 23, 2018. Continue Reading Trump Orders Steel and Aluminum Tariffs

On March 7, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) granted FERC’s request to stay the issuance of a mandate that would have vacated FERC’s certificate order approving the Southeast Market Pipelines Project (“SMP Project”), a natural gas pipeline currently in service in the southeastern United States.  The D.C. Circuit’s order effectively avoids shutdown of the SMP Project while FERC finalizes its supplemental review of the project incorporating its revised environmental analysis.  As a result of the D.C. Circuit’s order, FERC now has until March 26, 2018 to issue a new order authorizing the project. Continue Reading D.C. Circuit Grants FERC Extra Time to Reissue Approval of SE Market Pipelines Project

On March 1, 2018, President Donald Trump said that his administration would begin imposing a 25% tariff on imported steel and a 10% tariff on imported aluminum as early as the next week.  The President’s unexpected announcement came after the Department of Commerce concluded on February 16, 2018 that the importation of steel and aluminum threatens national security.  The Commerce Department reached its conclusion after finalizing investigations under Section 232 of the Trade Expansion Act of 1962, which were initiated in April 2017 and designed to determine whether such imports “threaten to impair the national security.” Continue Reading President Trump Announces Upcoming Tariffs on Steel and Aluminum