The renewable energy industry, now designated as a technology and innovation-related area of special concern to the protection of the U.S. industrial and scientific base, is one of seven sectors that the U.S. Trade Representative recently identified as being of significant national security concern, writes Stephen Paul Mahinka in the Power & Pipes blog for Morgan Lewis.

“The USTR’s primary concern in its investigation was with acquisitions and investments related to technology transfer, intellectual property, and innovation in seven industry sectors that it specifically identified as being of significant national security concern. Renewable energy is one of the seven sectors highlighted for increased scrutiny, through expanded reviews of certain types of deals by the Committee on Foreign Investment in the United States,” according to the post.

Although the report focused on Chinese acquisitions and investments, the identification of renewable energy as one of the seven main industry sectors of concern means that acquisitions and investments by entities in other foreign nations may also be subject to heightened scrutiny by the committee, explains Mahinka.

Read the article.

Exxon Mobil Corp.’s attempt to derail a multistate fraud investigation into the company’s public comments about climate change flamed out in a New York court, according to wire services, via The Dallas Morning News.

The report says a U.S. district judge in New York on Thursday dismissed Exxon’s lawsuit claiming officials in New York and Massachusetts conspired with environmental groups in planning the securities-fraud probe and made up their minds about its outcome before it started.

Judge Valerie Caproni said in her ruling that Exxon’s tactic of suing in federal courts in New York and Texas to stop the state probes “running roughshod over the adage that the best defense is a good offense.”

Read the Dallas News article.

Former energy and chemical company lawyer Daniel J. Grucza has joined Hunton & Williams LLP as counsel in Atlanta.

“With his unique background and experience in safety, and particularly process safety, Dan is a great addition to the environmental practice,” said Eric Murdock, head of the firm’s administrative law team. “With increased focus at the federal and state level on process safety and chemical safety across industries, Dan will be a terrific resource for many of our clients.”

In a release, the firm said Grucza has 30 years of experience in the complex chemical manufacturing, foundry, mining and coking industries. He previously was senior counsel and vice president of a major energy company, and has provided legal support for mines, gas operations, foundries, manufacturing facilities and distribution centers in the United States, Canada, Europe and China.

The release continues:

While seconded to a leading oil company, Grucza was responsible for implementing new regulations and managing incident response. He has also served as a corporate compliance officer, responsible for developing compliance programs, conducting training, conducting due diligence and responding to hotline complaints.

Possessing a strong chemical technical background, Grucza also previously served as an environmental, health and safety manager for one of the world’s largest chemical companies, where he had responsibility for EHS compliance, process safety management, risk management, security, wastewater treatment operations, and related matters. He has advised clients in the OSHA Process Safety Management (PSM) and EPA’s Section 112(r) Risk Management Program (RMP) applicability determination, program development, implementation and compliance. He also has defended clients in OSHA enforcement actions throughout the inspection, closing conference, citation and abatement actions.

A U.S. District Court has rejected motions filed by the cities of Oakland and San Francisco to remand two global warming public nuisance lawsuits filed by the cities in state court against several large energy companies, reports Anthony B. Cavender in Pillsbury’s Gavel2Gavel blog.

The companies are BP P.L.C., Chevron Corporation, ConocoPhillips Company, Exxon Mobil Corporation and Royal Dutch Shell plc). The case is The People of the State of California v. BP P.L.C., et al.

“The complaints filed by the City of Oakland and the City of San Francisco are based on the premise that, despite knowing of the risks associated with climate change and global warming, these companies continued to produce and sell their products to the public that uses fossil fuels in their day to day operations,” Cavender writes. “The complaints seek an abatement fund to pay for seawalls and other infrastructure to address rising sea levels.”

Read the article.

As climate-change lawsuits against the oil industry mount, Exxon Mobil Corp. is taking a bare-knuckle approach rarely seen in legal disputes: It’s going after the lawyers who are suing it, according to a Bloomberg report.

Exxon’s targets include the attorneys general of New York and Massachusetts, hitting them with suits, threats of suits or demands for sworn depositions. The company claims the lawyers, public officials and environmental activists are “conspiring” against it in a coordinated legal and public relations campaign, writes Bob Van Voris.

He quotes Howard Erichson, an expert in complex litigation and a professor at Fordham University School of Law in New York: “It’s an aggressive move. Does Exxon really need these depositions or is Exxon seeking the depositions to harass mayors and city attorneys into dropping their lawsuits?”

Read the Bloomberg report.

Jennifer Nijman and Susan Franzetti announce the addition of E. Lynn Grayson, to Nijman · Franzetti LLP of Chicago.

“Susan and I are thrilled to have Lynn practicing with us. Lynn is among the most experienced and respected lawyers in environmental law and is a perfect addition to our growing environmental law boutique,” said Jennifer Nijman.

“Lynn’s nationwide connections and experience are second to none and will only further assist our client’s nationwide interests,” said Susan Franzetti. “We could not have asked for a better addition to the firm.”

Grayson joins Nijman · Franzetti from the Chicago office of Jenner & Block where she practiced for 24 years and was Jenner’s Environmental Department Chairwoman. She has also served as the Chief Legal Counsel for the Illinois Emergency Services and Disaster Agency and the State Emergency Response Commission. Prior to this, she prosecuted federal and state environmental cases as an Assistant Attorney General for the State of Illinois.

Grayson also serves on the Board of Directors of the DC-based Environmental Law Institute. In 2017, she was elected Secretary of the Chicago Bar Association. She is a frequent author and speaker on environmental law and policy matters. She received the City of Chicago Recognition Award for Service to the Environmental Community and was recognized as Best Lawyers’ Chicago Environmental Lawyer of the Year.

“Jenner & Block is an exceptional firm, and I have many professional and personal friends there,” she said. “But it is a matter of timing and my growing envy for what Susan and Jennifer created. They each left great firms and in 10 years established what is really without equal in the country. The more I considered how beneficial their law firm model could be to my clients, the easier the decision became.”

Lawyers for Chevron Corp., hoping to keep climate-change lawsuits by California cities out of state courts, have sued Oslo-based Statoil, calling it “one of many” oil producers that should help foot the bill if the industry is found liable, reports The Los Angeles Times.

Kartikay Mehrotra writes that adding foreign companies to the litigation is a tactical maneuver to keep the dispute out of state court, where the cities have more favorable prospects, and force it into federal court.

She quotes Julia Olson, executive director and chief legal counsel for the environmental law group Our Children’s Trust: “The industry is grasping at straws while looking for any way out of these cases and using creative lawyering to do so. By cherry-picking Statoil, a sovereign Norwegian entity, Chevron hopes to reinforce federal jurisdiction.”

Read the LA Times article.

Image by U.S. Coast Guard

A Steptoe & Johnson article takes a look at the way additional insured coverage under an insurance policy is analyzed when there is an underlying drilling contract limiting the additional insured coverage to the scope of the liability assumed in the service contract.

The article in The National Law Review discusses In re Deepwater Horizon, a Texas Supreme Court case that governs allocation of risk, assumed liabilities, and the granting of additional insured status in underlying service contracts, and the precedent the case established.

The article also considers some other cases that were litigated after the Deepwater Horizon case.

Read the article.

Heather Palmer has joined Sidley Austin LLP in its Houston office as a partner in its Environmental practice. She joins Sidley from Bracewell LLP.

In a release, the firm said Palmer advises clients in the energy, petrochemical, power and utility sectors. She handles a variety of regulatory counseling and enforcement matters, including onshore and offshore oil and gas regulation, solid and hazardous waste, oil and gas waste, wastewater and stormwater permitting, wetlands, water rights, Superfund litigation and compliance with the National Environmental Policy Act.

She also advises clients on environmental issues relating to shale play development, hydraulic fracturing and the permitting, construction and operation of liquefied natural gas import and export facilities in the U.S. On the transactional side, Palmer has experience identifying and managing sources of environmental risks, the firm said. This includes coordinating due diligence and advising clients on energy-related deals, M&A transactions, public offerings, financings, real estate transactions, bankruptcy and other matters where environmental issues become an important component.

“In the current regulatory environment, we are seeing an uptick in the number of challenges presented to our clients in energy-related transactions, particularly disputes over areas such as hydraulic fracturing and offshore oil and gas drilling,” said David Buente, co-leader of Sidley’s Environmental practice. “Heather’s substantial knowledge of the energy regulatory landscape, in addition to her experience working with federal and state energy and environmental agencies, will be beneficial in addressing various environmental concerns that may arise from transactions in the energy space.”

Foley & Lardner LLP announced that Dorothy Watson has rejoined the firm’s Environmental Regulation practice as of counsel in the Orlando office.

Watson has 10 years of experience as an environmental lawyer from both an outside and in-house counsel perspective. For the last four years, Watson has been environmental counsel for multiple business lines within Schlumberger, the world’s leading provider of technology for the oil and gas industry. While there, she advised management teams on environmental risks and provided legal compliance counsel for matters arising under various state, federal and international environmental laws and regulations, including the Resource Conservation and Recovery Act, Toxic Substances Control Act and REACH, as well as regulations under the authority of OSHA, MSHA and the FAA.

Watson began her environmental law practice at Foley & Lardner in 2007 as an associate where she advised clients on state and federal waste, air, water and OSHA compliance issues, including site remediation and permitting strategies.

“We are excited to have Dottie return to our team,” said Gary Rovner, chair of Foley’s Environmental Regulation practice. “The business-oriented practicality she gained working as in-house counsel for an industry leader will complement the firm’s expertise to position us to successfully address the most pressing environmental issues facing businesses today. We look forward to helping her grow her practice with us.”

Mike Okaty, managing partner of Foley’s Orlando office said, “Dottie brings with her an ideal skill set for our clients. Her knowledge of the U.S. EPA and the Florida Department of Environmental Protection will help serve the needs of our clients in our burgeoning Florida market and throughout the country.”

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Two major Californian cities — San Francisco and Oakland — have filed lawsuits against five oil and energy super majors September, according to Zacks Equity Research.

The cities have taken legal action against Chevron Corp., ConocoPhillips, Royal Dutch Shell plc, ExxonMobil Corp. and BP p.l.c.

“The companies have been accused of causing an adverse impact on the climate, resulting in global warming. The plaintiffs hold these fossil fuel companies accountable for rising sea levels, changing landscapes, higher global temperatures and increased risk of storms and droughts,” Zacks reports.

The plaintiffs allege that the defendants continue to produce and market products that contribute to climate change and rising sea levels.

Read the article.

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The Institute for Energy Law will present a webinar discussing the various climate change-based lawsuits and current trends in climate change litigation.

The event will be Wednesday, Oct. 18, 2017, at 1 p.m. EDT / 10 a.m. PDT. Information about MCLE credit and fees can be found on the registration site.

The institute is a part of the Center for American and International Law.

“Over the past few years, government entities and non-governmental organizations have moved the debate over climate change from the court of public opinion and into the courtroom,” according to the institute. “Oil and gas companies have been one of the bigger targets for such suits, where plaintiffs have alleged that the companies are responsible for rising sea levels and that they have failed to warn about the potential impacts of greenhouse gas emissions.”

Register for the event.

The Associated Press is reporting that two attorneys with a prominent Alabama law firm and a coal company executive have been indicted on charges of bribing a state legislator to oppose an environmental cleanup plan, federal court documents showed Thursday.

Two partners in prominent Alabama law firm Balch & Bingham have been placed on indefinite leave after named on charges including conspiracy and bribery. They are Joel Gilbert and Steven McKinney, both of whom handled environmental litigation for the firm.

AP reporter Jay Reeves writes that Drummond Co. vice president David Roberson, 66, was charged with the same crimes.

“The three are accused of bribing former state Rep. Oliver Robinson, who pleaded guilty earlier this month to accepting $360,000 in payments,” according to the AP report.

Read the AP article.

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The Trump administration is quietly moving to allow energy exploration in the Arctic National Wildlife Refuge for the first time in more than 30 years, according to documents obtained by The Washington Post, with a draft rule that would lay the groundwork for drilling.

“Congress has sole authority to determine whether oil and gas drilling can take place within the refuge’s 19.6 million acres,” reports Juliet Eilperin for The Post. “But seismic studies represent a necessary first step, and Interior Department officials are modifying a 1980s regulation to permit them.”

Environmentalists and some of Alaska’s native tribes have fought against exploration in the ANWR for years, but state politicians and many Republicans in Washington have pressed to extract the billions of barrels of oil lying beneath the refuge’s coastal plain, Eilperin writes.

Read the Post article.

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The Bureau of Land Management has announced its recommendation that the hydraulic fracturing rule from 2015 entitled, “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” be rescinded, reports Fox Rothschild in its Energy Law Today blog.

Melissa J. Lyon explains that in 2015 the BLM had issued regulations that attempted to regulate oil and gas development on federal and tribal lands by focusing on wellbore construction, chemical disclosures and water management.

But litigation kept the final rule from going into effect. Then U.S. District Court Judge Skavdahl ruled that the BLM does not have the authority to enforce the 2015 hydraulic fracturing rule.

Read the article.

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Gray Reed & McGraw’s Energy & the Law Blog discusses Perdenal Energy LLC v. Bruington Engineering, Ltd., which asked whether a court must dismiss an engineering defect lawsuit filed without a certificate of merit with prejudice or may dismiss without prejudice.

“Texas law requires a plaintiff to file a ‘certificate of merit’ with its original petition for claims arising out of work by licensed or registered engineers,” explain authors Charles Sartain and Chance Decker. “The certificate must be from a qualified engineer and must detail the manner in which the professional services were faulty.”

They outline approaches for handling this situation, both from the standpoint of the defendant and the plaintiff.

Read the article.

Courtesy of BP Public Affairs Staff, via BOEM.gov

A recent podcast from Columbia Energy Exchange features host Bill Loveless speaking with Tommy Beaudreau, a non-resident Fellow at the Center on Global Energy Policy and partner in the Environment, Land & Resources Department of Latham & Watkins in Washington, D.C.

The podcast series is presented by Columbia University’s Center on Global Energy Policy.

In the podcast, the two discuss details of the latest executive order on offshore oil and gas drilling; what political and legal challenges the order will face; how the U.S. government have improved drilling and safety standards since the Deepwater Horizon oil spill; and next steps in the offshore review process.

Listen to the podcast.

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Sidley Austin LLP announced that Richard Alonso has joined the firm as a partner in its Washington, D.C. office. He will be a member of the firm’s Environmental practice.

Alonso has dealt with the United States Environmental Protection Agency’s (EPA) regulatory process and has experience with environmental compliance and enforcement issues, including federal and state enforcement defense strategies, the firm said in a news release.

The release continues:

Prior to building a private practice, Alonso served as chief of the Stationary Source Enforcement Branch at the EPA’s Office of Enforcement and Compliance Assurance. He had earlier served at the EPA in the Water Enforcement Division. During his tenure with the EPA, he had responsibility for enforcing the Clean Air Act (CAA), Clean Water Act and Safe Drinking Water Act. He managed and negotiated CAA enforcement cases, including New Source Review (NSR) cases, with power plants and manufacturing facilities and was instrumental in developing CAA policies and regulations. Alonso also held key roles in cases relating to defeat devices and engine certification requirements under the CAA’s Title II mobile source program. He is known as a national authority on EPA automotive and fuel regulatory programs, including the Renewable Fuels Standard program.

“Rich’s firsthand experience in both private practice and the public sector will make him a valuable asset for our clients looking for advice in addressing their complex environmental challenges at both the federal and state levels,” said David Buente, co-leader of Sidley’s Environmental practice. “We are delighted to welcome Rich to our outstanding team of lawyers dedicated to assisting clients with every aspect of environmental law.”

Alonso represents clients including large trade associations, manufacturers and energy companies in environmental compliance and enforcement matters before both state and federal agencies. He focuses his practice on CAA issues, including NSR applicability and permitting, EPA rulemaking efforts, legal challenges to EPA actions, and CAA enforcement defense and compliance counseling. Mr. Alonso’s CAA experience includes the development of State and Federal Implementation Plans, permitting programs, and policies applicable to stationary sources, fuel regulations, automotive engine certifications and regulation of ozone depleting substances. He has tackled cutting-edge environmental issues for a variety of industrial sectors, including the implementation of climate change regulations, permitting of greenhouse gas emissions, and regulation of methane emissions from oil and gas operations.

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In an episode of Kane Russell Coleman Logan’s energy law podcast, director Tom Ciarlone discusses the nation’s first legislative fracking ban.

That action came in Maryland when the legislature passed a bill that prohibits petroleum fracking across the state, Ciarlone says. The Maryland governor signed the bill that supplants a two-year moratorium that was set to expire later this year.

The podcast also discusses a lower bar for class certification in royalty underpayment actions, as well as multiple decisions out of the Texas Supreme Court that could spawn a wave of widespread mineral title disputes.

Listen to the podcast.

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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.

Read the article.

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