PHMSA Implements New Emergency Safety Authority Effective Immediately

On October 3, 2016, the Pipeline and Hazardous Materials Safety Administration (PHMSA) announced an Interim Final Rule (IFR) establishing when and how it will issue Emergency Orders to address imminent safety hazards across the oil and gas pipeline industry. See Pipeline Safety: Enhanced Emergency Order Procedures (Docket No. PHMSA-2016-0091). The new procedure allows PHMSA to impose restrictions, prohibitions, and safety measures without prior notice or an opportunity for a hearing. These measures can apply through all or part of the industry, not just to individual facilities or operators...

Court Clarifies Standard For CFTC Price-Based Manipulation Charge

On September 30, 2016, the United States District Court for the Southern District of New York issued an order in CFTC vs Wilson, et. al , 13 Civ. 7884 (NYSD), denying motions for summary judgment in an action by the Commodity Futures Trading Commission (“CFTC”) concerning alleged violations of the prohibition on market manipulation contained in Sections 6(c) and 9(a)(2) of the Commodity Exchange Act (“CEA”). In its order, the Court clarified the burden of proof that the CFTC faces when making a price-based manipulation claim under these sections, including that acting with the intent to...

D.C. Circuit Hears Oral Argument on EPA’s Clean Power Plan

On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit held the much-anticipated oral argument regarding the U.S. Environmental Protection Agency’s Clean Power Plan. The controversial cornerstone of President Obama’s Climate Action Plan, the Clean Power Plan would require existing power plants to reduce carbon emissions by 32 percent by 2030 as compared to 2005 emission levels. The D.C. Circuit took the unusual step of holding the oral argument en banc before a panel of ten judges, including six Democratic appointees and four Republican appointees. While the decision by the D.C...

FERC Reconsidering Horizontal Market Power Analyses For Purposes of Section 203 Filings and Market-Based Rate Applications

Executive Summary On September 22, 2016, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Inquiry (“NOI”) seeking comment on whether FERC should make changes to the manner in which it evaluates horizontal market power for purposes of evaluating transactions under Section 203 of the Federal Power Act (“FPA”) and its market-based rate program. Among other things, if FERC ultimately adopts this proposal, certain transactions that currently require no detailed market power analysis to be submitted in order to obtain approval would now be subject to more scrutiny. For instance...

FERC Proposes Clarifications to EQR Requirements

In its September 22 Open Meeting, the Federal Energy Regulatory Commission (Commission) issued a Notice Seeking Comments on Proposed Revisions to Electric Quarterly Report Reporting Requirements (in Docket No. RM01-8-000, et al. ) as part of an ongoing effort to “provide for more accurate and consistent data in the EQR.” [1] Two proposed changes in the September 22 Notice are likely to be of significant interest: clarifications on reporting of booked out power and the increased ancillary services reporting obligations for transmission providers. The Notice also seeks comment on other proposed...

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