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The Energy and Infrastructure Pulse
Leading the Way
on Energy and Infrastructure Key Cases, Rules, and Developments
IRS Proposed Rule on Revived Superfund Chemical Taxes
On March 29, 2023, the U.S. Internal Revenue Service (IRS) published a Proposed Rule to amend the Environmental Tax Regulations, 25 C.F.R. part 52, specifically those provisions governing the chemical excise taxes used to fund the Hazardous Substance Response Trust Fund established pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)—known as the Superfund Chemical Tax. Because this is the first time the tax will be applied in over 25 years, its effects may not be well understood by affected industry taxpayers, and the IRS’s Proposed Rule offers critical guidance. Companies engaged in the manufacturing, import, or sale of taxable chemicals should evaluate the Proposed Rule and consider submitting comments by the May 30, 2023, deadline.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Brooklyn Hildebrandt
Los Angeles
bhildebrandt@sidley.com
U.S. House Passes GOP Energy Bill
On Thursday, March 30, 2023, the U.S. House of Representatives passed HR 1, the Lower Energy Costs Act. The bill — the GOP’s energy policy and permitting bill — passed by a vote of 225 to 204, with four Democrats joining Republicans in voting to pass the bill and one Republican legislator voting against it.
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Grace Dickson Gerbas
Dallas
gdicksongerbas@sidley.com
Sarah Tucker
Washington, D.C.
stucker@sidley.com
U.S. Bureau of Land Management Proposes Rule Promoting Conservation on Federal Land
On April 3, 2023, the Bureau of Land Management (BLM) published a proposed rule in the Federal Register that would put conservation of U.S. managed lands on an equal footing with oil and gas development and other economic activities (the Proposed Rule). Stakeholders interested in development on federal lands should consider carefully the implications of BLM’s proposal.
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Peter Whitfield
Washington, D.C.
pwhitfield@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Greta T. Carlson
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
FERC v. Powhatan Energy Fund, LLC Saga Ends With Default Judgment Against Powhatan Energy Fund
On March 22, 2023, the U.S. District Court for the Eastern District of Virginia (Court) granted the Federal Energy Regulatory Commission’s (FERC) Motion for Default Judgment and entered a default judgment against Powhatan Energy Fund, LLC (Powhatan Energy Fund). The Court awarded FERC $3,465,108 in disgorgement and $16,800,000 in civil penalties.
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Kenneth W. Irvin
Washington, D.C.
kirvin@sidley.com
Terence T. Healey
Boston
thealey@sidley.com
Christopher J. Polito
Casey Khan
Houston
ckhan@sidley.com
Keturah A. Brown
Washington, D.C.
kbrown@sidley.com
Southern District of Texas Enjoins New Waters of the United States Rule
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
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Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Caleb J. Bowers
Los Angeles
cbowers@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
U.S. Nuclear Regulatory Commission Announces Review of Power Plant Design for Small Modular Reactors
The Biden administration has voiced strong support for commercial nuclear energy as an essential element of the President’s goal of achieving “clean” electricity by 2035 and net-zero emissions by 2050. Last week, the U.S. Nuclear Regulatory Commission (NRC or the Agency), announced a regulatory milestone that inches the advanced nuclear technology sector closer to commercialization of small modular reactor (SMR) technology.
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Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Aaron L. Flyer
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
U.S. EPA Proposes New Wastewater Discharge Limits for Coal-Fired Power Plants
On Wednesday, March 8, the U.S. Environmental Protection Agency (EPA) proposed more stringent effluent limitations guidelines and standards for coal-fired power plants, which it estimates will cost $200 million annually while reducing pollutant discharges by approximately 584 million pounds per year. The proposed guidelines and standards update those published in 2015 and 2020 and focus on limiting the migration of toxic metals such as selenium, mercury, and arsenic to drinking water, recreational water, and aquatic life from the following types of wastewaters generated by coal-fired power plants: flue gas desulfurization wastewater, bottom ash transport water, and combustion residual leachate. The proposal includes additional standards for legacy wastewaters previously discharged to surface impoundments.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Aaron L. Flyer
Caleb J. Bowers
Los Angeles
cbowers@sidley.com
U.S. FERC Reverses Course on Rehearing, Rejecting Southwest Power Pool Effective Load-Carrying Capacity Accreditation Methodology
On March 2, 2023, in a 3–1 decision, the U.S. Federal Energy Regulatory Commission (FERC) rejected, without prejudice, Southwest Power Pool (SPP) proposal to adopt an Effective Load Carrying Capacity (ELCC) capacity accreditation methodology for wind and solar resources (Rehearing Decision). Commissioner Allison Clements issued a concurring statement, and Commissioner James Danly issued a dissenting statement. The Rehearing Decision reverses FERC’s August 2022 decision accepting, subject to conditions, SPP’s proposal to accredit wind and solar resources based on historical performance using an ELCC methodology (August Decision).
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Jimmie Zhang
Sarah Tucker
Washington, D.C.
stucker@sidley.com
Terence T. Healey
Boston
thealey@sidley.com
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Meet the Team
Cliff W. Vrielink
cvrielink@sidley.com
Kenneth W. Irvin
kirvin@sidley.com
Tara Higgins
thiggins@sidley.com
Herschel T. Hamner III
hmamner@sidley.com
James MacArthur
james.macarthur@sidley.com
Raymond A. Atkins Ph.D.
ratkins@sidley.com
Kevin P. Lewis
klewis@sidley.com