Oil & Gas Policy

The Supreme Court will soon decide whether to hear two cases that could dictate the future of climate change tort suits.  Such suits have proliferated in recent years: several dozen active cases assert state tort law claims—like nuisance, trespass, and strict liability—against oil and gas companies for fueling and misleading the public about climate change.  The two pending cases go to the very foundations of these claims.Continue Reading Supreme Court Receives Filings with Key Implications for Climate Change Tort Suits

Congress, the media, and the public have given significant attention to remarks this week by a commissioner of the Consumer Product Safety Commission (“CPSC”) indicating that the agency would be considering a federal ban on gas stoves due to their health effects.  The suggestion of a ban on gas stoves has drawn comments from bipartisan policymakers in both chambers, and even the White House has weighed in against the prospect of a potential ban.

The CPSC is unlikely to ban gas stoves in the near future, although it has the authority to ban unreasonably dangerous products that cannot be made safe, and has done so with toxic substances in children’s products and other product categories in the past.   A CPSC rulemaking on mandatory safety standards for gas stoves, however, is a possibility, and that process may drive the establishment of voluntary industry standards by a standards-setting body.  Additionally, other federal and state regulators have recently sharpened their focus on indoor air quality and gas-powered appliances, for both health and environmental reasons.  The Environmental Protection Agency (“EPA”), for instance, is undertaking several activities related to indoor air quality.  And the California Air Resources Board (“CARB”) recently adopted a plan that would effectively prohibit the sale of gas-powered space and water heaters in California by 2030.

Particularly with regard to federal regulatory activity on gas stoves and other gas-powered appliances, potentially affected parties will have ample opportunities to help shape the outcome of any mandatory or voluntary product standards put in place or accepted by the CPSC, and to engage with other regulators.  This alert provides an overview of recent and emerging legislative and regulatory activity related to indoor air pollution, focusing particularly on activity by the CPSC and EPA.  Companies—both those with interests in gas stoves and those concerned with indoor air quality issues more broadly—should carefully follow indoor air quality developments, including in their interactions with regulators, given the increased focus on this area.Continue Reading A Growing Focus on Indoor Air Quality by Regulators and Policymakers

The Inflation Reduction Act (IRA) would make significant strides in limiting and cutting methane pollution. Methane has proven to be a significant part of the climate problem; the United Nations’ Environment Programme (UNEP) notes that over a 20-year period, methane is 80 times more potent at warming than carbon dioxide.  Studies by the National Oceanic and Atmospheric Administration (NOAA) further show that the rate of methane emissions is only worsening, with 2020 recording the largest annual increase since 1983.  By implementing a Methane Emissions Reduction Program, the IRA takes a significant step towards reducing methane-related warming.  This program implements a carrot-and-stick regulatory regime, whereby the Environmental Protection Agency (EPA) rewards methane reduction efforts with financial assistance, and penalizes excess methane waste with a set fee.Continue Reading Methane Emissions Reduction Program: The Next Step in the United States’ Efforts to Tackle a Potent Greenhouse Gas

On 30 May 2022, the European Union (“EU”) adopted the revised Regulation on guidelines for trans-European energy infrastructure (No. 2022/869) (the “TEN-E Regulation 2022”), which replaces the previous rules laid down in Regulation No. 347/2013 (the “TEN-E Regulation 2013”) that aimed to improve security of supply, market integration, competition and sustainability in the energy sector. The TEN-E Regulation 2022 seeks to better support the modernisation of Europe’s cross-border energy infrastructures and the EU Green Deal objectives.

The three most important things you need to know about the TEN-E Regulation 2022:

  • Projects may qualify as Projects of Common Interest (“PCI”) and be selected on an EU list if (i) they fall within the identified priority corridors and (ii) help achieve EU’s overall energy and climate policy objectives in terms of security of supply and decarbonisation. The TEN-E Regulation 2022 updates its priority corridors to address the EU Green Deal objectives, while extending their scope to include projects connecting the EU with third countries, namely Projects of Mutual Interest (“PMI”).
  • PCIs and PMIs on the EU list must be given priority status to ensure rapid administrative and judicial treatment.
  • PCIs and PMIs will be eligible for EU financial assistance. Member States will also be able to grant financial support subject to State aid rules.

Continue Reading The European Union Adopted New Rules for the Trans-European Networks for Energy

As the world struggles to adjust to the harsh new reality of Russia’s invasion of Ukraine, the most recent instalment of the Sixth IPCC Report slipped out almost unnoticed.  And that is worrying, since the assessment in this section of the Report is even starker than previous assessments – noting in particular that in order to avoid global temperatures increasing by greater than 1.5 degrees C above preindustrial levels, the world needs to halve its emissions this decade: a reduction that the world does not currently appear to be remotely on course to do.

However, whilst the IPCC Report and the Russian invasion of Ukraine are not linked, Russian aggression in Ukraine may serve as a catalyst to speed up the European energy transition and accelerate its retreat from dependency on Russian gas and exposure to volatile international oil markets, which could in turn deliver a more rapid reduction in European emissions.  In the process, perhaps setting the world on a path to achieving an outcome that currently seems unattainable.Continue Reading The IPCC and The Ukraine Crisis

On February 2, 2022, the European Commission adopted a Complementary Climate Delegated Act (the “CCDA”) listing specific gas and nuclear activities as “environmentally sustainable” for purposes of the EU Taxonomy Regulation, subject to strict criteria. Only certain activities that comply with strict emissions limits and other criteria detailed below may be so designated. Even so, the Commission’s decision to list nuclear and gas activities as “environmentally sustainable” is controversial and may still be blocked by EU Member States and the European Parliament through an upcoming scrutiny period, and may also be legally challenged before the EU Courts. Nevertheless there is a significant chance that the Commission’s criteria to consider the listed gas and nuclear activities as “environmentally sustainable” will enter into force by the beginning of 2023. This would allow such listed gas and nuclear activities to have access to green investors and ear-marked public funds under the EU’s Next Generation EU investment program.
Continue Reading Gas and Nuclear Activities in the EU Taxonomy Regulation: Under What Conditions Does the Commission Deem Them Environmentally Sustainable?

On June 22, the U.S. Court of Appeals for the D.C. Circuit issued a decision in Environmental Defense Fund v. FERC vacating and remanding FERC’s order issuing a certificate of public convenience and necessity to Spire STL Pipeline LLC (“Spire STL”) under Section 7 of the Natural Gas Act.  The decision is a rare instance of the D.C. Circuit vacating a FERC certificate order upon finding that FERC’s determination regarding the market need for the proposed pipeline was arbitrary and capricious, and was not supported by the Commission’s Certificate Policy Statement. Thus, there is no clear precedent for how FERC may approach Spire STL’s application moving forward.  The D.C. Circuit’s decision also comes as FERC considers revising its Certificate Policy Statement, including the framework for determining need for a proposed project, after receiving over 100 comment filings from interested stakeholders in response to FERC’s February 18 Notice of Inquiry on certificate policy.
Continue Reading D.C. Circuit Vacates FERC’s Spire STL Pipeline Certificate Order

The Federal Energy Regulatory Commission (FERC) has for the first time ruled on whether the greenhouse gases (GHG) emitted during the construction and operation of a proposed natural gas pipeline has a significant impact on climate change in determining whether to authorize a project as consistent with public convenience and necessity under Section 7 of the Natural Gas Act.  In earlier orders, FERC concluded that it was unable to assess the significance of a project’s GHG emissions or those emissions’ contribution to climate change.  In a recent order approving Northern Natural Gas Company’s proposal to replace a pipeline segment, FERC stated that is no longer the case and then assesses the significance of the project’s GHG emissions and their contribution to climate change.
Continue Reading FERC Assesses Impact of Pipeline Project’s GHG Emissions On Climate Change

In a recently adopted final rule, the Department of Energy (DOE) revised its National Environmental Policy Act (NEPA) implementation procedures to include LNG exports by marine vessel within a categorical exclusion from NEPA review.  DOE finds that the only source of potential environmental impacts within its authority to review are those associated with transporting natural gas by ship, which DOE determined does not pose the potential for significant environmental impacts. Accordingly, LNG exports qualify for a categorical exclusion from NEPA review.  The new rule applies to new export authorizations as well as amendments to existing authorizations.
Continue Reading DOE Rule Sharply Limits Evaluation of Environmental Impacts of LNG Exports

The Department of Energy (DOE) adopted a new policy which extends the standard term for authorizations to export natural gas and liquefied natural gas (LNG) from the U.S. lower-48 states to countries without a free trade agreement with the U.S. to December 31, 2050.  The standard term had been 20 years.  The new standard term will be allowed for current and future export authorizations.
Continue Reading DOE Extends LNG Export Terms