On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.…

The Inflation Reduction Act of 2022 (IRA) builds upon recent incentives for investment in hydrogen by encouraging producers and end users of clean hydrogen to continue developing clean hydrogen infrastructure. This article provides an overview of the incentives and how they may be accessed.…

The Bureau of Land Management (“BLM”) recently circulated a Proposed Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation (“2022 Proposal”). This iteration, as BLM acknowledges, is a revamp of its fraught 2016 attempt to issue a similar rule ostensibly aimed at reducing natural gas waste on federal and Indian leases (“2016 Rule”). The 2016 Rule was ultimately struck down two years ago as unlawful. To the Wyoming federal court, the 2016 Rule sought to regulate air emissions—a role reserved for the Environmental Protection Agency (“EPA”) and the states—rather than prevent the waste of resources through flaring and other means. Undeterred, the Biden Administration believes it has learned from and theoretically fixed the flaws in the 2016 Rule through the 2022 Proposal. The 2022 Proposal claims to focus on reducing operator costs and generating taxpayer revenue. This is a shift from the 2016 Rule, which relied on the benefits from reduced carbon emissions to justify its issuance. Nevertheless, the question to many stakeholders remains: does the 2022 Proposal still exceed BLM’s authority, or has the agency done enough to win a future legal challenge?…

The Public Utility Commission of Texas (Commission) plays a vital role in regulating the Electric Reliability Council of Texas (ERCOT) wholesale market, and retail energy markets throughout all of Texas. This article identifies key projects and initiatives at the Commission that are ongoing in 2022 and have a major impact on the electric power grid and energy markets in Texas. The Commission continues to move rapidly as it implements the 2021 post-Uri legislative mandates, and we expect it to continue changing regulations affecting a wide swath of the market and the ERCOT system to bolster reliability.  Everyone engaged in the ERCOT market should continue to pay close attention to these reforms.  Husch Blackwell is following these key matters at the Commission and represents or advises clients on many of them. We are happy to answer any questions related to any item outlined below.  …

The Environmental Protection Agency (“EPA”) released its most recent proposal for controlling greenhouse gas emissions produced by the oil and gas industry earlier this month. The supplemental proposal builds upon the comments received by EPA in response to its proposed emission-control rules issued under Section 111 of the Clean Air Act (“CAA”) on November 15, 2021. In particular, the supplemental proposal revises and expands the stringent emissions control program introduced one year ago for new and existing sources. The supplemental proposal, however, raises questions regarding the implementation of existing greenhouse gas reporting and fee requirements under the Inflation Reduction Act (“IRA”). …

Regulated energy sector entities routinely submit confidential and proprietary business information to Texas state agencies, including the Railroad Commission (Texas’s incongruously named oil and gas regulator), the General Land Office, the Public Utility Commission, and the Electric Reliability Council of Texas  (“ERCOT”), often assuming it is “for regulators’ eyes only.” But Texas agencies have limited power to prevent the disclosure of information sought pursuant to the Public Information Act (“PIA”).…

Confirming landowners’ signatory authority is crucial when preparing renewable energy leases or conducting due diligence in a renewable energy financing transaction. It is not enough to rely on a landowner’s word that he or she owns a proposed project area and has the right to encumber it with a renewable energy lease. While some leases include language certifying that the landowner executing the agreement has signatory authority, failing to properly confirm that authority can result in title issues, potentially requiring lease amendments or resulting in the denial of title insurance.…

On November 9, 2022, the U.S. Alcohol and Tobacco Tax and Trade Bureau (“TTB” or “Agency”) announced that the Agency is considering updating the alcohol trade practice regulations for the first time in 20 years. The current trade practice regulations, codified at 27 C.F.R. parts 6 (tied house), 8 (exclusive outlets), 10 (commerical bribery) and 11 (consignment sales), prohibit certain practices that threaten the independence of retailers and/or give the industry members an unfair advantage over their competitors.…

On November 3, 2022, the Internal Revenue Service (IRS) issued three notices (“November 3 Notices”) requesting public input on the climate and clean energy incentives contained in the Inflation Reduction Act (“IRA”). The November 3 Notices request comments by December 2, 2022, on the amendments, extensions, and enhancements of the IRA’s energy tax benefits. The November 3 Notices follow an initial set of six notices that were issued by the IRS on October 5, 2022 to seek public input on other aspects of the energy tax incentives contained in the IRA.…

In 2020, New Mexico voters approved a Constitutional Amendment changing the PRC from five elected commissioners to three appointed commissioners. Historically, PRC commissioners were elected to serve four-year staggered terms; however, beginning January 1, 2023, PRC commissioners will be appointed to serve staggered six-year terms.…