On April 18, 2017, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt announced that the EPA will convene a proceeding for reconsideration of certain elements of the 2016 rule establishing methane emissions standards for the oil and gas industry, reports Bracewell’s Energy Legal Blog.

Authors Whit Swift and Brittany Pemberton write that the Methane Rule applies to oil and gas facilities for which construction, modification, or reconstruction started after September 18, 2015.

“In particular, EPA will reconsider elements of the fugitive emissions monitoring and repair requirements of 40 C.F.R. § 60.5397a, including the inclusion of low-production wells, and the NSPS Subpart OOOOa provisions relating to approvals for an alternative means of compliance,” they explain.

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A committee of attorneys involved in litigation arising from the 2010 Gulf of Mexico oil spill has made its recommendation for dividing $700 million in fees among 122 law firms involved in years of complex legal work, reports the Associated Press.

Two Louisiana law firms that steered the litigation will get the biggest payouts. Domengeaux Wright Roy & Edwards of Lafayette and Herman, Herman & Katz in New Orleans will get about $87.8 million if a federal judge approves the recommendation filed this week in U.S. District Court in New Orleans.

“Millions of barrels of oil spewed into the Gulf of Mexico for 87 days after an explosion on the Deepwater Horizon offshore rig at BP’s Macondo well in the Gulf of Mexico,” writes Kevin McGill. “Eleven workers were killed and the pollution affected Gulf fisheries, delicate wetlands and recreational beaches.”

Read the AP article.

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A provision of the “energy independence” executive order signed by President Trump is so broad in scope that legal experts say it could affect numerous government responsibilities far beyond those that deal directly with energy and climate change, according to a post by Climate Central.

Under the order, federal agencies must review all of their actions that have the potential to “burden” both the development and use of domestic fossil fuels and nuclear energy in the U.S., writes Bobby Magill.

“For example, it could affect the speed with which the government permits oil and gas drilling, how much information about energy development the government provides to the public, and other decisions federal employees make on a daily basis,” Magill explains. “It may also affect the willingness of the government to allow wind and solar development to go forward because more use of renewable energy could lead to less use of fossil fuels.”

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Employers who want to challenge their unfair labor practice complaints may want to delay their cases from being heard, if possible, until after November, recommends a labor lawyer, in light of a recent U.S. Supreme Court ruling that limits powers of acting presidential appointees.

Allen Smith, writing for the Society for Human Resource Management, explains implications of the ruling, which found that the acting National Labor Relations Board general counsel did not have the authority to continue in that role once the president nominated him to be confirmed by the Senate to be general counsel.

That means that companies that have objected to the authority of Acting GC Lafe Solomon after he was nominated can challenge any unfair labor practice charge issued against them following his nomination January 2011, according to Phil Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.

Read the SHRM article.

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The New York Times is reporting that German authorities searched the offices of the American law firm Volkswagen hired to conduct an internal investigation of its emissions fraud.

Jack Ewing and Bill Vlasic write that the carmaker confirmed the raid on the German offices of Jones Day, which since 2015 has been conducting a wide-ranging inquiry into who at Volkswagen was responsible for an emissions cheating scheme that has already led to more than $22 billion in fines and settlements.

“Evidence collected by the law firm and shared with the American authorities formed the basis for Volkswagen’s guilty plea in the United States last week over charges tied to emissions deception involving diesel engines,” according to the report.

But the search by prosecutors suggests that authorities believe the firm has not divulged all documents that may be relevant to the case, which could lead to a blow to Jones Day’s reputation, the reports say.

Read the NYT article.

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New York will seek to question top Exxon Mobil Corp. executives under oath as part of a probe into the accuracy of the company’s statements about climate change after discovering an email alias used by former Chief Executive Officer Rex Tillerson, according to a Bloomberg report.

“Tillerson, now U.S. Secretary of State, used the name Wayne Tracker for his secondary internal email account at Exxon, created for sending the most sensitive messages to and from company board members, including communications about the risks associated with climate change, New York Attorney General Eric Schneiderman said Monday,” writes reporter Erik Larson.

Carl Barnes, a former corporate general counsel who’s a lawyer at Morse, Barnes-Brown & Pendleton PC, told Larson that someone in Exxon’s general counsel’s office knew or should have known about the alias account.

Read the Bloomberg article.

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Employees of Monsanto ghostwrote scientific reports that U.S. regulators relied on to determine that a chemical in its Roundup weed killer does not cause cancer, farmers and others suing the company claimed in court filings, according to a Reuters report.

Monsanto is involved in a mass litigation in federal court in San Francisco claiming the company failed to warn that exposure to Roundup could cause non-Hodgkin’s lymphoma, a type of cancer, writes Reuters’ Brendan Pierson.

“Plaintiffs claim that Monsanto’s toxicology manager ghostwrote parts of a scientific report in 2013 that was published under the names of several academic scientists, and his boss ghostwrote parts of another in 2000,” Pierson reports.

Read the Reuters article.

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Only months after the Environmental Protection Agency first contacted thousands of oil and gas companies demanding detailed information regarding methane releases from gas production facilities and related equipment, it has announced that the companies are “no longer required to respond,” reports Akin Gump in its AG Deal Diary.

in 2016 the EPA announced that it planned to send requests for information to approximately 15,000 oil and gas companies involved in onshore production, gathering and boosting, gas processing, transmission, storage and liquefied natural gas import/export. The agency wanted the information to “help the agency determine how best to address methane emissions from the oil and gas industry, including through rulemaking to reduce emissions.”

Now the EPA has announced: ““EPA has withdrawn the 2016 information request for the oil and gas industry, effective immediately. If you received a letter requiring you to fill out a survey, you are no longer required to respond.”

Akin Gump’s David H. Quigley, Christine B. LaFollette and Charles L. Franklin wrote the article.

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Weil, Gotshal & Manges LLP reports on a study from the Energy Policy Institute at the University of Chicago (EPIC), titled “The Local Economic and Welfare Consequences of Hydraulic Fracturing.”

On its website, the firm says the study looked at “the costs and benefits of hydraulic fracturing on local communities in nine shale basins throughout the United States, making it the most comprehensive assessment of its kind to date.”

The study explored revenue generated in communities where drilling takes place, local income and employment, benefits to local governments, decreases in the quality of life, and increases in housing prices.

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Textron Systems will present a webinar demonstrating how remote sensing and geospatial mapping products can be employed to quickly respond to an evolving oil spill.

The event will be on Thursday, March 16. 2017, beginning at 1 p.m. EST.

“Remote sensing and geospatial data play a pivotal role in disaster management allowing responders to analyze the overall situation on a large scale and continually monitor events using satellite imagery and real-time ground truth,” Textron says on its website. “In the case of the Gulf Oil Spill, remote sensing played a critical role in tracking the movement of the oil slick on the ocean surface and its eventual penetration into sensitive coastal areas. This presentation will demonstrate how remote sensing and geospatial mapping products can be employed to quickly respond to an evolving crisis situation.”

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Thomson Reuters Practical Law will present a complimentary webinar titled “Addressing Environmental Claims and Obligations in Chapter 11.”

The event will be Wednesday, Feb. 8, 2017, beginning at 1 p.m. Eastern time.

In a release, the company said many companies with significant environmental compliance and clean-up obligations have filed for Chapter 11 bankruptcy protection in recent years due to decreased demand for oil & gas, coal, steel, and other mined assets. The tension between environmental regulation and bankruptcy law makes environmental liability an issue that must be considered as part of any bankruptcy strategy. A Chapter 11 debtor-in-possession must comply with environmental laws and regulations during bankruptcy. Many environmental claims and obligations cannot be discharged in bankruptcy and contaminated property can be difficult to dispose of; however, a carefully constructed bankruptcy strategy can minimize the negative impact of environmental liabilities on the ongoing business and the restructuring process itself.

Practical Law and IWIRC NY will present the complimentary 75 minute webinar in which leading bankruptcy attorneys and advisors from Debevoise & Plimpton, Morrison & Foerster, Paul, Weiss, Rifkind, Wharton & Garrison, and AlixPartners will discuss strategies for addressing environmental claims and obligations in Chapter 11. During this webinar, attendees will hear insights on ways in which companies are addressing environmentally contaminated property, claims and obligations through Chapter 11 in recent and pending oil & gas, mining, and manufacturing cases, including:

-How environmental claims and obligations are treated in bankruptcy.
-The diligence that a company should perform to assess potential environmental liability and business options.
-How environmental regulators exert influence in Chapter 11 and how companies address their claims.
-Chapter 11 exit strategies for dealing with contaminated property.

A short question-and-answer session will follow.

Presenters:
Jennifer L. Marines, Partner, Morrison & Foerster LLP
Claudia R. Tobler, Counsel, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Pilar Tarry, Director, AlixPartners, LLP
M. Natasha Labovitz, Partner, Debevoise & Plimpton LLP

Moderator:
Lara R. Sheikh, Senior Legal Editor, Practical Law Bankruptcy

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Reuters is reporting that opponents of two controversial oil pipelines face an uphill battle if they fight construction of the lines.

The report by Joseph Ax relied on experts who commented after the Trump administration issued orders to advance the Keystone XL and Dakota Access projects.

The orders signed by President Trump could revive Keystone XL, which would bring oil from Canada, and Dakota Access, a nearly completed pipeline that was planned to under a lake near a Native American reservation in North Dakota

“Nevertheless, several groups immediately said they would challenge in court any attempt to resume the projects, which have become hot-button political issues at the intersection of environmentalism, Native American tribal rights and energy needs,” writes Ax.

Read the Reuters article.

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The Texas Supreme Court ruled that a pipeline company could take private property by eminent domain, answering the question of whether or not the pipeline qualified as a “common carrier” under the Texas Natural Resource Code, reports Snell & Wilmer L.L.P. in its S&W Environmental & Natural Resources law blog.

In the article, Rachel M. Lynn explains that, typically, the power of eminent domain is granted to governmental entities rather than private institutions. Under Texas law, however, a common carrier has the right and power of eminent domain.

“The test utilized by the court to determine [the pipeline company’s] common carrier status was whether or not the pipeline would serve the needs of the public, not only those of the builder,” Lynn writes. “To pass this test, the court noted, the pipeline would need to provide reasonable proof of a future customer.”

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As with any energy project,utility-scale battery storage projects present land use, permitting and environmental and health and safety issues, and developers need to anticipate and address these issues to successfully meet project development timelines and goals, according to an article published by Farella Braun + Martell LLP.

“Development-related concerns for utility-scale BESS projects include site consistency with land use and zoning laws, worker safety, security and community safety measures, hazardous waste management and disposal, potential impacts on species and habitat, visual impacts, storm water management, and coordination with generation and transmission facilities,” write David J. Lazerwitz, Chris Locke and Brennan Quinn Bentley. “As with any new project-based technology, the myriad of issues relating to BESS projects are still evolving.”

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Nuclear plants, which today provide 20 percent of U.S. electric power and 62 percent of U.S. carbon-free electric power, are disappearing – through closures and early retirement – at a faster rate than the EPA forecasted due to a variety of economic, regulatory and political factors, according to an article published by FTI Consulting Inc.

Compliance with the federal Clean Power Plan would require increased reliance on new natural gas, wind and solar capacity will need to be installed to replace the dwindling nuclear power capacity, resulting in higher electricity prices.

A study by FTI Consulting found that current nuclear capacity would need to be preserved for the CPP’s goals to be achieved without a significant rise in wholesale electric prices, especially in the Eastern Interconnection.

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A federal judge in Dallas has ordered the attorneys general of two Northeastern states to come to Texas next month to be deposed in a lawsuit brought by Exxon Mobil, according to a report posted by Androvett Legal Media & Marketing.

The company has accused Massachusetts AG Maura Healey and New York AG Eric Schneiderman of unlawfully using their powers to investigate whether the oil giant misled investors and the public by downplaying the impact of global warming. The company is seeking an injunction barring the attorneys general from demanding internal documents relating to climate change research and investor communications stretching back decades, according to the Androvett report.

“These investigations could have a potentially catastrophic effect on Exxon, based on the documents and information that have been made public so far,” says attorney Chris Hamilton of Dallas’ Standly Hamilton. “However, allowing a company that is the subject of investigations to take depositions of elected state officials regarding their motivations is highly unusual and problematic. What would happen if a criminal defendant sought the deposition of a district attorney regarding the motivation for prosecuting a case? The precedent for a court to allow this type of tactic is concerning.”

The judge’s order advised the officials to reserve Dec.13 for giving testimony in Dallas.

S&P Global Platts has posted a free on-demand webinar taking a look at the potential impact the recent presidential election could have on petroleum, natural gas, power and metals.

The webinar covers:

• Impact on oil and gas markets
  • Arctic and Atlantic Coast production
  • The future of fracking
  • Pipeline projects – will they get built?
  • Supply/demand implications
• Impact on metals markets
  • US infrastructure impact on steel
  • What to do about “steel dumping”?
  • Economic uncertainty and gold
• Impact on renewables and environmental regulations
  • Is the War on coal over?
  • Buildout of renewable power generation
  • The future of biofuels

View the on-demand webinar.

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A federal judge has ordered that attorneys representing private individuals and companies who entered into economic and medical claims settlements with BP stemming from the Deepwater Horizon disaster are entitled to be paid $555.2 million to cover their legal fees and remaining court costs, reports The Times-Picayune of New Orleans.

U.S. District Judge Carl Barbier pointed out that award represents about 4.3 percent of the estimated $13 billion that BP is expected to pay under the ongoing settlements. That compares to the average 9.92 percent of awards paid as fees and court costs in 21 similar “super-mega-fund” settlements totaling more than $1 billion, he said in an order.

“In weighing the award against local billing rates, Barbier said it would be the equivalent to an average $450 per hour legal fee, after being weighted for the intensity of effort involved in the case,” writes reporter Mark Schleifstein. “That compares to average nationwide rates of $604 for partners and $370 for associates in 2014, and to the $600 per hour paid by the state of Louisiana to its attorney in the BP case, Barbier said.”

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Frank Holleman never thought he’d become a nationally recognized authority on coal ash, a toxin-riddled waste that has power companies under scrutiny across the country, but five years after taking a job with a regional conservation group, Holleman is perhaps the one person utilities hate to see coming, writes Sammy Fretwell for The State of Columbia, S.C.

He has taken on such big foes as Duke Energy, Santee Cooper and SCE&G, successfully brokering agreements to clean out coal ash waste ponds along South Carolina rivers. And he has obtained legislative help for people who had to fight for the right to sue companies that pollute rivers with coal ash waste.

He is an attorney with the Southern Environmental Law Center.

Holleman says working full-time as an environmental lawyer resulted from his long-time interest in conservation and public service.

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Freeborn & Peters LLP announced the formation of its Environmental Law & Toxic Torts Practice Group.

Headed by Philip Comella, the group focuses on emerging – and long-standing – issues in environmental law and toxic torts, with concentrations in the areas of waste disposal and treatment, recycling, PCBs, enforcement and defense, and environmental clean-ups, the firm said in a release. Comella, who began his career working in-house for a major waste-management company and then spent 22 years at a large law firm, recently joined the firm in May as a partner.

The firm’s release continues:

“As more awareness is brought to the impact that industry has on the environment, we are seeing increased litigation and regulatory scrutiny in this area,” said Michael A. Moynihan, Co-Managing Partner. “We believe our clients will benefit greatly from the depth of experience of this new group, including the vast knowledge that Phil Comella brings to the firm.”

Freeborn’s Environmental Law & Toxic Torts Practice Group consists of a diverse group of environmental law practitioners whose skills range from the traditional areas – such as Superfund, hazardous and solid waste, PCBs, and Brownfields – to emerging areas – such as naturally occurring radioactive materials, landfill gas, vapor intrusion and electronic waste. The attorneys also possess hard-to-find experience in the zoning and permitting of waste disposal and treatment facilities, the nuances of landfill gas projects, PCB clean-ups, and the intricacies of the Resource Conservation and Recovery Act.

“I am pleased to call the talented attorneys at Freeborn my colleagues,” Mr. Comella said. “Our team strives to approach environmental matters as business issues to be resolved as opposed to ends in themselves. We believe that taking a real-world, practical approach to solving environmental problems is the best way to serve the interests of our clients.”

Other attorneys who serve as members of the new Environmental Law & Toxic Torts Practice Group include, Robert M. Baratta Jr., Gerald P. Callaghan, Ryan G. Rudich, Randall G. Vickery and Ann M. Zwick.