On October 16, 2018, the Federal Energy Regulatory Commission (FERC or Commission) issued a landmark order (Order) setting forth a new methodology for: (i) determining whether an existing return on equity (ROE) has become unjust and unreasonable under section 206 of the Federal Power Act (FPA); and (ii) establishing a just and reasonable ROE for a public utility.  While the Order addressed on remand the U.S. Court of Appeals for the District of Columbia Circuit’s (D.C. Circuit) decision in Emera Maine v. FERC regarding the appropriate ROE for electric transmission owners in New England, it may have far-reaching implications for the natural gas pipeline industry as well. Overview and Key Holdings Since 2014, FERC has utilized a two-step... READ MORE
On October 16, 2018, the Federal Energy Regulatory Commission (FERC) issued an  order setting forth a new methodology for (i) determining whether an existing return on equity (ROE) has become unjust and unreasonable under section 206 of the Federal Power Act (FPA), and (ii) establishing a new just and reasonable ROE for a public utility.  Specifically, FERC: Proposed to rely upon four financial models –i.e., the Discounted Cash Flow (DCF), Capital Asset Pricing Model (CAPM), Expected Earnings, and Risk Premium models—instead of relying on the DCF model alone. Outlined a new test to determine whether a public utility’s existing ROE remains just and reasonable under FPA section 206.  Namely, FERC established a rebuttable presumption that... READ MORE
On September 10, 2018, the United States Army Corps of Engineers (“Corps”) issued Engineering Circular (“EC”) 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. § 408 (the “Final EC”). The Final EC replaces existing guidance on the permission process required by Section 14 of the Rivers and Harbors Act of 1899, as amended and codified in 33 U.S.C. § 408 (“Section 408”).  The Final EC finalizes numerous changes to the Section 408 permission process initially proposed in a draft EC issued in January 2018 (“Draft EC”) and creates new options and efficiencies in the process that may serve to streamline 408 permission review for certain projects.   The Final... READ MORE
Dan Press will be a featured speaker at the annual National TERO Convention in Cherokee, North Carolina. READ MORE
Van Ness Feldman, Beveridge & Diamond, and NAWL's Environmental & Energy Practice Area Affinity Group cordially invite you to a breakfast program: Environmental Review and Permitting Reform for Infrastructure Projects.   The program is being coordinated by a group including Andrea Hudson Campbell, partner in our environment practice, and panelists will include  Gwen Keyes Fleming, partner in our environmental practice. READ MORE
Van Ness Feldman is proud to announce the addition of eight lateral attorneys from Hunsucker Goodstein who recently joined our environmental, litigation, and Native affairs practices. As part of this strategic expansion, the firm has added a San Francisco Bay area office, further enhancing our ability to service clients in the Western United States. In addition to deepening the firm’s environmental and litigation practices, the group brings new capabilities in the areas of insurance recovery and strategic advice on the environmental aspects of transactions. READ MORE
On September 4, 2018 oral arguments were heard before the Arizona Supreme Court in the Hopi Tribe's lawsuit against the Arizona Snowbowl ski resort on whether the resort's use of reclaimed wastewater for making artificial snow causes "special injury" to Hopi religious and cultural practices.  Van Ness Feldman partner Michael Goodstein represented the Hopi Tribe, arguing that the treated wastewater causes environmental concerns for Hopi religious ceremonies as well as others visiting the San Francisco Peaks where the resort is located.   Justices are now deliberating, the case and a final ruling is pending. Click here to view the case summary and oral arguments. READ MORE
We are pleased to announce that this year over half of the firm’s partners have been selected for inclusion in the 2018-2019 Best Lawyers in America. In addition,  Brian O'Neill has been recognized as Energy Regulatory Lawyer of the year for 2019.  READ MORE
PHMSA and FERC Tout New MOU to Improve Agency Coordination on the Review of LNG Facilities On September 20, at the open meeting of the Federal Energy Regulatory Commission (FERC), FERC’s General Counsel, James Danly, and Howard “Skip” Elliott, Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA), presented the recent Memorandum of Understanding (MOU) between the two agencies to establish a framework for improving coordination and the exchange of information when performing the siting and safety review of FERC-jurisdictional proposed liquefied natural gas (LNG) facilities.  According to Mr. Danly, the new MOU will enable the Commission to act on LNG applications more quickly, reduce the burden on applicants, and... READ MORE
FERC Issues Jurisdictional Determination on Hydro Generation Related to Water Supply Project On September 20, 2018, the Federal Energy Regulatory Commission (FERC) issued an order denying a petition filed by the Utah Board of Water Resources and Washington County Water Conservancy District (together, UBWR) for a declaratory order holding that FERC’s licensing jurisdiction extends both to the electric generating equipment at in-line generating facilities within a major water supply pipeline and to those portions of the pipeline that supply the head for the in-line generation facilities. The 140-mile Lake Powell Pipeline Project (LPPP) will go uphill for approximately 50 miles from its intake at Lake Powell in Arizona to a high point in Utah from... READ MORE
Court Reinforces Finality of Water Rights Determinations and Avoids Ownership Dispute Adam Gravley and Tadas Kisielius On September 5, 2018, Division II of the Washington State Court of Appeals published a water law decision that rejected an appeal by a party claiming an ownership interest in the water right because the appeal was late and failed to challenge the proper agency action. The decision underscores the importance of statutes of limitation for appeals of Department of Ecology (“Ecology”) determinations and the related principle of finality in water law determinations. The court also interprets a “catch-all” avenue for appeal of administrative decisions under the Administrative Procedure Act, which may have broader relevance to... READ MORE