CARB Adopts Advanced Clean Trucks Rule to Speed Zero Emission Vehicle Deployment

The California Air Resources Board unanimously adopted the Advanced Clean Trucks rule, which is designed to accelerate the adoption of zero-emission medium and heavy duty vehicles (“ZEV”).  By 2045, 100% of new trucks sold in the state will be ZEVs, consistent with the state’s broader goal of becoming carbon neutral by that year. Continue Reading

FERC Requests Comments on Grid Cybersecurity Initiatives

The Federal Energy Regulatory Commission (FERC) recently signaled that it is exploring ways to improve the cybersecurity of the U.S. electricity grid.  On June 18, 2020, FERC issued a Notice of Inquiry (NOI) regarding whether some of its reliability standards regarding cybersecurity must be enhanced and whether the focus of its standards must change due to the threat of a coordinated cyberattack targeting geographically distributed generation resources.  On June 18, 2020, FERC also issued a staff paper that suggests a framework for providing incentives in transmission rates for cybersecurity investments.

These FERC actions may presage regulatory actions that could have material operational and cost implications for all grid participants.  Accordingly, FERC is seeking comments on both documents with deadlines of August 24, 2020 for the NOI and August 17, 2020 for the staff paper.  Major grid participants would be well advised to evaluate the NOI and staff paper and consider responding to FERC’s request for comments. Continue Reading

D.C. Circuit Decision Underscores Need for Careful Drafting of Choice of Law Clauses in Host Country Agreements

Project development agreements with states and state-owned enterprises (SOEs) are often governed by the law of the host country (sometimes with freezing, stabilization, or other limiting clauses), while also being subject to arbitration seated in a neutral venue.  The assumption is that the courts of the neutral venue will have exclusive jurisdiction to supervise the arbitration and confirm, or set aside, any arbitral award.

A decision issued last week by the U.S. Court of Appeals for the D.C. Circuit in P&ID v. Nigeria puts that assumption in doubt by suggesting that an award can also be set aside by the courts of the state whose substantive law applies to the merits of the dispute.  Together with recent judgments in other jurisdictions, the decision underscores the importance for investors of:  (i) resisting selection of the host state’s substantive law where possible; and (ii) particularly where that is not possible, including express language confirming the parties’ agreement that, notwithstanding the choice of the host state’s law to govern interpretation of the contract, the arbitration process will be governed by the law of the arbitral seat. Continue Reading

FERC Carbon Pricing Conference Set

The Federal Energy Regulatory Commission (FERC) has scheduled a conference on September 30, 2020 regarding carbon pricing in organized wholesale electricity markets.  According to the conference notice, the purpose is to discuss “considerations related to state adoption of mechanisms to price carbon dioxide emissions…in regions with FERC-jurisdictional organized wholesale electricity markets.”  This conference should be of significant interest to a wide range of market participants and their investors, plus consumers of electricity, state policymakers and other diverse interests. Continue Reading

FERC Plans Conference on COVID-19 Impacts

The Federal Energy Regulatory Commission (“FERC”) has announced plans to hold a two-day technical conference on July 8-9, 2020 regarding the ongoing impacts that the emergency conditions caused by COVID-19 are having on the United States’ energy industry.  FERC’s stated objective is to ensure the continued functioning of energy markets, electricity transmission, transportation of natural gas and oil and energy infrastructure reliability. Continue Reading

Targeting DoD’s Reliance on Russian Energy

At the end of last month, the Department of Defense (“DoD”) issued a class deviation to implement Section 2821 of the National Defense Authorization Act for Fiscal Year 2020 (“FY20 NDAA”), which seeks to reduce dependence on Russian energy by prohibiting the acquisition of energy sourced from inside Russia for DoD’s main operating bases in Europe.  The Section 2821 restriction is an expansion of earlier limits enacted by Congress on the use of Russian energy in DoD’s European operations.  Section 2821 is broader in scope than the earlier limits, and while it does contemplate that DoD may waive the prohibition in certain circumstances, the waiver process is demanding.  Contractors with a focus on supplying energy to DoD or supporting its missions in Europe should be familiar with the Section 2821 restriction and the new class deviation. Continue Reading

EPA Provides Limited Guidance Relating to Pesticidal Devices and the Coronavirus

EPA recently released a compliance advisory addressing pesticidal products that make claims to mitigate the novel coronavirus.  While the advisory largely reiterates past guidance relating to pesticides, EPA has increased its emphasis on pesticidal devices, such as UV lights and ozone generators, which are subject to their own distinct set of regulations. Continue Reading

The European Commission Announces a Sustainable Food Strategy for Europe

The COVID-19 pandemic has focused attention on the need for resilient supply chains, including perhaps most importantly, the critical need for sustainable supplies of healthy food.  In line with this, the European Commission (the “Commission”) has published a Communication on a Farm to Fork Strategy (the “Strategy”) where it announces a series of legislative and policy initiatives intended to place sustainability at the center of EU food law and policy by ensuring fair, healthy and environmentally-friendly food systems.  The Strategy is one of the main pillars of the European Green Deal that, in December 2019, the European Commission announced as its policy flagship for the next five years. Continue Reading

Sustainability and Competition: Covington Assists Unilever on Submission to European Competition Authorities on the Competition Implications of Sustainability Cooperation

With the assistance of Covington, Unilever submitted the attached paper to the European Commission and a number of National Competition Authorities. It suggests a possible framework for the application of EU competition law to sustainability collaborations between competitors.  The paper is available here. Continue Reading

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