Three independent, but not wholly unrelated, events occurred over the last few weeks, each arising out of the Natural Gas Act’s application and the growing importance of LNG exports to the United States and the international community.

(1) Following the crisis in Ukraine, there were continuing calls from a variety of politicians and pundits to increase LNG exports to Europe and decrease Europe’s reliance on Russian exports of natural gas. In particular, a congressional sub-committee considered and advanced  H.R. 6 (The Domestic Prosperity and Global Freedom Act). This measure would expedite the application process for contracts with supplies destined for any member nation of the WTO (currently, an expedited process only applies to contracts with supplies destined for countries with which the United States has a free-trade agreement).

(2) Cheniere Energy and Endesa, a Spanish utility company, signed two 20-year LNG sale and purchase agreements (“SPAs”) for 2.25 million tonnes per annum (“mtpa”) commencing upon completion of the Corpus Christi Liquefaction Project.  Cheniere Energy has also entered into agreements with counter-parties from the Asian markets, including South Korea and Indonesia. Notably, each of these agreements is at least partially indexed to Henry Hub.

(3) The Department of Energy (“DoE”) conditionally approved an LNG export application for the Jordan Cove Energy Project in Coos Bay, Oregon. This is the seventh permit conditionally granted by the DoE (over 20 remain in progress). The approval is conditioned on future approval by the  Federal Energy Regulatory Commission. DoE reviews applications to ensure that sales resulting to countries that do not have free-trade agreements are in the “public interest” (in accordance with the standard set out in section 3(a) of the Natural Gas Act). Significantly, the DoE continues to highlight the importance of  supply security to allies of the United States as one of the considerations in making its decision, stating at page 142:

We have also considered the international consequences of our decision. […] The United States’ commitment to free trade is one factor bearing on that review. An efficient, transparent international market for natural gas with diverse sources of supply provides both economic and strategic benefits to the United States and our allies. Indeed, increased production of domestic natural gas has significantly reduced the need for the United States to import LNG. In global trade, LNG shipments that would have been destined to U.S. markets have been redirected to Europe and Asia, improving energy security for many of our key trading partners. To the extent U.S. exports can diversify global LNG supplies, and increase the volumes of LNG available globally, it will improve energy security for many U.S. allies and trading partners. As such, authorizing U.S. exports may advance the public interest for reasons that are distinct from and additional to the economic benefits identified in the LNG Export Study.

Arguments concerning supply security to allies of the United States are not new considerations. Similar language has been used in previous DoE orders granting long-term multi-contract authorization to export LNG (see, for example, a conditional authorization from February 2014, before Russia’s military intervention in Ukraine, at page 131). The wording used in this latest authorization builds on these previous considerations. Notably, the following is the “added” language:

An efficient, transparent international market for natural gas with diverse sources of supply provides both economic and strategic benefits to the United States and our allies. Indeed, increased production of domestic natural gas has significantly reduced the need for the United States to import LNG. In global trade, LNG shipments that would have been destined to U.S. markets have been redirected to Europe and Asia, improving energy security for many of our key trading partners.

The Natural Gas Act does not specifically define the issues to be considered and the DoE has discretion to consider a variety of factors. The current political circumstances, potential action by Congress and the viability of sales to European companies (as demonstrated by the deal with Endesa) suggest that the DoE may emphasize international policy for future applications; specifically considering factors beyond the economic benefits identified by the LNG Export Study.

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Photo of William Lowery William Lowery

William Lowery is an international arbitration and cross-border disputes lawyer who represents clients in high-stakes commercial and investment disputes across the nuclear, energy, mining, commodities, life sciences, pharmaceutical, and construction sectors. His practice focuses on complex international arbitration, arbitration-related litigation, award enforcement, and…

William Lowery is an international arbitration and cross-border disputes lawyer who represents clients in high-stakes commercial and investment disputes across the nuclear, energy, mining, commodities, life sciences, pharmaceutical, and construction sectors. His practice focuses on complex international arbitration, arbitration-related litigation, award enforcement, and strategic dispute resolution involving technically sophisticated industries, long-term supply arrangements, infrastructure projects, and politically sensitive cross-border claims.

He has represented clients in arbitrations governed by the ICC, AAA/ICDR, JAMS, LCIA, LMAA, SCC, SIAC, and UNCITRAL rules, as well as in ad hoc proceedings, expert determinations, court litigation related to the recognition and enforcement of arbitral awards and foreign judgments, and 28 U.S.C. § 1782 actions. His experience spans both commercial arbitration and arbitration-related litigation, allowing him to advise clients from pre-dispute strategy through final award and enforcement.

William is recognized by Who’s Who Legal as a “Future Leader” in commercial litigation and international arbitration. Clients have told Global Arbitration Review that he is an “excellent practitioner[]” who is “practical and measured” in providing advice and “extremely responsive.”

William is particularly known for his work in the nuclear industry, including disputes involving nuclear fuel supply, U3O8, enriched uranium, conversion services, sanctions-related delivery issues, and long-term fuel-cycle contracts. He has represented and advised uranium mining companies, nuclear fuel suppliers, commodities companies, brokers, and utilities in disputes concerning pricing, delivery conditions, sanctions, export licenses, non-performance, and project abandonment under long-term supply and conversion agreements. His experience includes disputes involving U3O8 supply agreements, enriched uranium delivery obligations, and related issues arising under New York law and other governing laws.

William also has substantial experience in energy disputes more broadly, including upstream oil and gas disputes, investment treaty claims arising from expropriation of energy assets, gas and LNG price review disputes, midstream disputes, insurance arbitrations, and disputes involving crude oil, LPG, and other energy commodities. His matters have included representing Ukraine’s state-owned oil and gas company, Naftogaz, in its investment treaty arbitration against the Russian Federation arising from the expropriation of oil and gas assets in Crimea, resulting in an award exceeding $5 billion; representing clients in gas and LNG price review disputes valued in the hundreds of millions of dollars; and advising on disputes involving long-term crude oil and gas supply contracts.

William also regularly represents clients in life sciences and pharmaceutical disputes, including royalty disputes, milestone payment disputes, manufacturing and supply disputes, and other complex commercial disagreements involving innovative and highly regulated products. His recent matters include representing a multinational biopharmaceutical company in an ICC arbitration concerning royalty deductions with more than $300 million at stake, representing a life sciences company in a SIAC arbitration to recover an unpaid milestone payment, representing a global biotechnology company in a JAMS international proceeding involving a CDMO’s obligation to mitigate damages in good faith, and advising an international pharmaceutical company an expedited ICC arbitration.

In addition, William has significant experience in mining disputes, commodity trading disputes, and disputes arising from long-term supply relationships in the natural resources sector. He has handled matters involving uranium supply, mining project construction, cross-border commodity sales, sanctions-related non-delivery claims, and complex pricing disputes involving state-owned counterparties, utilities, traders, and producers.

William has further developed a strong practice in construction arbitration and infrastructure-related disputes. He has represented clients in disputes arising from EPC contracts, turnkey design and construction contracts, highway rehabilitation and construction projects, mining project construction, drilling and shipbuilding contracts, and other major industrial and infrastructure developments in Latin America and elsewhere.