United States: Energy, Environment And Resources Update - October 2015

DOE Reports on Evolving Vulnerabilities of U.S. Energy Infrastructure

On October 9, 2015, the U.S. Department of Energy (DOE) released a report regarding the vulnerabilities of the nation's energy infrastructure, with a focus on specific energy sectors and geographic regions. In addition to risks faced nationwide—such as extreme weather events and increased demand—the report highlights vulnerabilities that are more acute for certain energy producers and users. For example, the report concludes that thermoelectric power generation in the Midwest, Great Plains and Southern regions is especially at risk due to an anticipated reduction in water availability. Hydropower in areas of the West is expected to be impacted by decreasing snow pack levels. Bioenergy crops are identified as being at heightened risk in the Midwest and Northern Great Plains. Regulators are not the only ones expressing concern. The private sector is also speaking, and taking action. In the lead-up to the recent, possible landfall of Hurricane Joaquin in the New York metropolitan area, energy sector firms discussed their efforts to address the increasing risk. Con Edison described its ongoing, four-year, $2 billion plan to harden its physical assets; and some chemical and petroleum storage facility operators sought to provide comfort that they were deploying additional release prevention (i.e., SPCC, etc.) measures in anticipation of possible storm impacts.

Whatever timeline the international political community may be creating or following in the assessment of, and planning around, climate change effects in the United States, one thing appears clear: Being unprepared for climate change—with regard to both acute weather events/conditions and long-term business viability—is not a tenable legal (not to mention business) strategy for companies in the energy industry. The "fix it now" or "fix [much more] [and pay claims] later" motto is fully in play.

EPA's "Waters of the United States" Rule Stayed by Appellate Court

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on the implementation of the U.S. Environmental Protection Agency's (EPA) "Waters of the United States" rule that became final earlier this year—at least in all parts of the country other than 13 western states where its implementation had been stayed by the U.S. District Court for the District of North Dakota (see our earlier Alert.)

The Sixth Circuit's stay order is unusual because it was issued before the court had decided the threshold issue of its own jurisdiction. It is also notable that the court, apparently so wanting to "preserve the status quo," granted injunctive relief based on finding only a "possibility" of success on the merits, and despite explicitly acknowledging that the petitioners had not shown that they would suffer irreparable harm absent a stay.

As for the merits, the Sixth Circuit noted that "it is far from clear that the new Rule's distance limitations (e.g., its definition of "neighboring waters" to mean waters located within 100 feet of the ordinary high water mark) are harmonious with Justice Kennedy's instructions in Rapanos, and it added that EPA had failed to explain how the public had been given reasonably specific notice that the distance-based limitations adopted in the rule were among the range of alternatives being considered. Stay tuned for new developments.

Constructing the Future of Energy Program: October 8, 2015

Professionals from all sides of the energy sector gathered in Duane Morris' New York office to discuss the future trajectory of energy deployment in New York state, as well as strategies for integrating renewables and distributed energy assets to create a more resilient and carbon neutral system, taking into consideration occupant safety and comfort and energy cost-savings. A panel moderated by Phyllis Kessler of the firm's New York office included Diana Allegretti of Cornell Tech, Daniel Maldonado of Skanska, Steve Wemple from Con Edison and H.G. Chissell of GridMarket. Panelists discussed projects underway, including Cornell's Roosevelt Island Campus project that plans on incorporating LEED, Passive House and Net Zero principles across the site, as well as incorporating substantial renewable generation and energy storage. While a number of developers are constructing new, efficient buildings integrated with renewable generation and battery storage like the new Cornell Campus, Maldonado pointed out that acknowledging the importance of deep retrofits is essential to reducing the carbon footprint of 85 percent of New York City's current building stock that is anticipated to still be in use by 2030. To unlock this immense opportunity to reduce emissions with energy efficiency, aligning the interests of tenants and property managers is essential. Panelists also addressed potential incentives for moving energy usage in this direction.

Prominent New York state initiatives, such as the New York Public Service Commission's Reforming the Energy Vision proceeding (REV) and Con Edison's Brooklyn/Queens Demand Management program (BQDM), were also central topics, focusing on how these programs can help unlock the potential of distributed energy assets. Programs supporting distributed generation proliferate a fundamental shift on how we consume power—increasing resilience and consumer choice, while reducing the overall carbon footprint of the power sector. Harnessing fleets of distributed, callable assets to reduce peaks at the local distribution level reduces inefficiencies in the electric grid as a whole; however, to unlock crucial behind-the-meter customer segments, advanced metering infrastructure will need to be installed for a much greater customer segment than the current 500kW demand threshold requires.

FERC Proposes Changes to Wholesale Energy Market Settlements

New rules may be on the horizon as the Federal Energy Regulatory Commission (FERC) takes up wholesale energy market price formation. The notice of the proposed rulemaking, issued September 17, 2015, in Docket No. RM15-24-000, proposes to require wholesale market operators to settle energy transactions (i.e., calculate and assign financial charges and credits) in the real-time energy markets using a five-minute interval, the same time interval used to dispatch energy resources. Also, the proposed rule would subject operating reserves transactions to the same requirement. Lastly, the proposed rule would require wholesale market operators to trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs, regardless of the duration of the shortage event.

Wholesale markets conduct their real-time energy market dispatch using five-minute dispatch intervals. That five-minute interval, however, is not uniformly applied by the wholesale market operators in their settlement calculations. As a result, price signals seen by energy resources do not always accurately represent the value of the services provided by such resources. In circumstances where revenues earned through the energy market fail to cover the resource's offer, the wholesale market operator will provide make-whole, or uplift, payments to the resource. The Commission's goal is to have the proposed rules promote the transparency of market prices, provide accurate price signals to market participants and reduce the reliance of uplift payments. If adopted, the proposed rules would likely require wholesale market operators and market participant to incur significant costs to make software, process and equipment changes. Comments on the proposed rulemaking are due by November 30, 2015.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.