EIB Energy Highlights: Nat Gas Outpowers Coal, NC Renewables, CPP En Banc, Fed Energy Bill Awaits Conference & More

Our goal is to serve as a leading-edge resource for companies navigating the rapidly evolving landscapes of the domestic and global energy markets. Moore & Van Allen’s EIB Energy Highlights is a complement to our Energy Interdependency Blog’s in-depth individual treatment of critical issues emerging in energy policy, regulation, and related litigation. EIB Energy Highlights hits the highlights of recent energy developments, streamlining access to critical information for our readers. Subscribe to the Energy Interdependency Blog via email or RSS to ensure that you receive EIB Energy Highlights, as well as our comprehensive posts. Please contact us if you have any questions regarding the materials covered.

Natural Gas

• • Natural Gas-Fired Electricity Generation to Exceed Coal-Fired Generation in 2016: The EIA recently projected that for the first time, on an annual basis, natural gas will exceed coal as a fuel for electric power generation in 2016. The EIA reports that 7 gigawatts of new gas-fired capacity is expected to be added between 2016 and 2018.
  • U.S. Expected to Become Net Exporter of Natural Gas by 2018: The Energy Information Administration’s early release of its Annual Energy Outlook 2016 reference case reflects the expectation that increased natural gas production will propel the U.S. to become a net exporter of natural gas by 2018, with net exports increasing 5-fold and totaling 7.5Tcf (18% of production) by 2040. The majority of production growth is attributed to shale and tight oil sources and driven by the industrial and electric power sectors.

Electricity

• • New York State Assembly Approves Legislation Requiring 50% Renewable Electricity Production by 2030 and 0% State GHG Emissions by 2050: On June 2, the New York Assembly approved the New York State Climate and Community Protection Act, which requires the graduated reduction of statewide greenhouse gas emissions limits to 0% by 2050, as follows: 2020: 100% of 1990 emissions, 2025: 75% of 1990 emissions, 2030: 50% of 1990 emissions, 2035: 40% of 1990 emissions, 2040: 30% of 1990 emissions, 2045: 20% of 1990 emissions, 2050: 0% of 1990 emissions. The Act also requires 50% of electricity production subject to regulation by the Public Service Commission, the Power Authority of the State of New York and the Long Island Power Authority be produced by renewable energy by 2030. The bill was forwarded to the Senate Environmental Conservation Committee for consideration. The NY Senate did not act on the bill before adjourning its regular session until January 2017.

• • NC Senate Renewable Energy Bill Proposes Restrictions on New Wind, Solar & Renewable Facilities: SB 843, entitled An Act to Prevent Interference with Property Rights, Environmental Damage, and Harms to Public Health Resulting from the Siting and Operation of Renewable Energy Facilities, recently was introduced by Senators Cook and Brock. The proposed bill requires (1) pre-application procedures to be initiated at least 180 days in advance of filing an application, (2) a setback of 1.5 miles from adjacent property lines and a setback of 2.5x the height of any turbine from easements and right-of-way of government roadways, (3) operation of the facility must not create an ambient noise measurement exceeding 35 decibels, as measured from any adjacent property line, (4) solar farms must have a “landscape buffer” to shield solar farms from sight, and (5) the facilities must be decommissioned after cessation of use and a showing of financial assurance sufficient to handle decommissioning must be made during the application process. The bill also establishes strict liability for any damage done to person or property caused by building, operating, and decommissioning the facility, with limited exceptions.

• • DC Circuit to Hear Clean Power Plan Challenge En Banc in September: Oral arguments in the challenge against the U.S. Environmental Protection Agency’s controversial Clean Power Plan (CPP) originally were scheduled for June 2, 2016. The D.C. Circuit, however, decided in mid-May to cancel the three-panel hearing for an en banc review of the case in September 2016. Back in early February, the U.S. Supreme Court stayed implementation of the CPP pending the outcome of the D.C. Circuit’s and High Court’s review. The D.C. Circuit’s decision could carry more force now that the Supreme Court consists of only eight Justices, as a 4-4 split would leave the D.C. Circuit’s decision intact. If it is any indication of how the currently composed High Court views the merits of the CPP challenge, four Supreme Court Justices opposed the stay of the CPP pending the outcome of the case.

• • House Energy & Commerce Committee Begins Review of Federal Power Act with Letter to FERC: On June 10, 2016, the U.S. House Energy and Commerce Committee initiated what it describes as a “long-term review of the Federal Power Act to ensure [the] nation’s electric system [is] equipped for 21st century challenges.” The Committee sent a letter to FERC Chairman Bay, seeking the agency’s perspective regarding the current state and future of the electricity markets. The Committee letter noted the rapidly evolving changes occurring in the market in conjunction with recent issues taken to and decided by the U.S. Supreme Court regarding FERC jurisdiction under the FPA as indicators that a comprehensive review by Congress may be warranted. The letter presented five specific questions to FERC and a request for technical assistance in moving through this review process. Oversight hearings have yet to be scheduled by the Committee.
  • Comprehensive Energy Legislation Awaits House and Senate Conference Over Differences: The U.S. Senate passed S. 2012, the Energy Policy Modernization Act in a bipartisan 85–12 vote on April 20, 2016, sending the comprehensive legislation to the House for consideration. The House considered and passed S. 2012 on May 25, 2016 with an amendment that incorporated provisions of multiple bills passed in the House, including the House’s own comprehensive energy bill, H.R. 8, the North American Energy Security and Infrastructure Act of 2015. The House amendment to S. 2012 has drawn criticism from Democrats and many of the provisions added reportedly are under threat of veto by the President. A summary of the House Amendment can be found here. Comparisons of the Senate-passed S. 2012 vs. the S. 2012 House Amendment (here) and H.R. 8 vs. the S. 2012 House Amendment (here) illustrate the extent of changes made by the House to the Senate’s bill. The House and Senate are expected to convene a conference eventually to resolve differences in the legislation. The House already has appointed conferees and Senator Lisa Murkowski expressed her expectation that the conference process will prove successful. Any comprehensive energy legislation ultimately agreed upon is expected to contain provisions seeking to bolster energy industry cybersecurity (see our previous post) – what form that will take remains to be seen.
  • Legislation Introduced to Identify and Defend Against Energy Infrastructure Cybersecurity Vulnerabilities: On June 6, 2016, S. 3018 – the Securing Energy Infrastructure Act was introduced in the Senate seeking to create a pilot program to identify new types of security vulnerabilities facing critical energy “infrastructure where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security” and to develop platforms and controls to defend against such vulnerabilities. A working group would be formed under the Act “to develop a national cyber-informed engineering strategy” for defending critical infrastructure. S. 3018 has been referred to the Senate Energy and Natural Resources Committee.

In our dynamic global energy market, data is king and leading-edge information is a critical input for the development of sound policy and business strategies. We highlight several resources that recently have been made available and reflect up-to-date insight into industry data and market fluctuations:

U.S. Energy Information Administration (EIA)

• • Annual Energy Outlook 2016 Release: The EIA issued its early release of the Annual Energy Outlook 2016 in May, reflecting analysis of two case scenarios – a Reference Case that assumes Clean Power Plan compliance and a No Clean Power Plan Case that assumes the CPP is never implemented. The AEO2016 projects the U.S. will become a net exporter of energy by 2040. The full AEO2016 is scheduled to be released July 7 and will include several additional cases, including alternative CPP scenarios, high and low world oil price, high and low oil and natural gas resources/technology and more. The EIA released the first of several “Issues in Focus” sections of the AEO – Effects of the Clean Power Plan – on June 20, with the remaining Issues in Focus scheduled to be released between June 22 – June 30.