Husch Blackwell Partner Brian Hendrix recently published articles with Coal Age providing his legal perspective on MSHA and their relationship to mine operators:

In these articles, Brian writes about a recent cautionary tale of a belligerent mine operator; outlines the recently announced MSHA’s “Take Time Save Lives” campaign and how to benefit from it and the recent outcome of the OIG’s audit to MSHA. Be sure to catch these articles and hit subscribe for more original content on our blog.

 

 

The already-complicated relationship between wind energy and eagles has taken center stage recently. The U.S. Fish and Wildlife Service (USFWS) is ramping up its efforts to protect bald and golden eagles at development projects across the country, with a massive settlement and plans to revamp the eagle take permitting process by the end of this year.

Both bald and golden eagles are protected by the Bald and Golden Eagle Protection Act (Eagle Act) and by the Migratory Bird Treaty Act (MBTA). The Eagle Act and MBTA prohibit anyone from “taking” bald or golden eagles without a permit from USFWS.  To “take” means “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” A taking includes both intentional actions and incidental takings – “incidental” meaning resulting from activities that are otherwise lawful. USFWS has left it largely up to wind developers to determine whether their wind projects – specifically, collisions with the projects’ turbine blades – are likely to result in the incidental take of bald or golden eagles, with guidance suggesting that even a few minutes of eagles observed on the project site during preconstruction surveys necessitates obtaining an eagle take permit due to the project’s risk to eagles. In practice, though, this has not proven to be possible. Although countless wind energy developers have submitted applications for eagle take permits over the years, only a handful of eagle permits have ever been issued in the last thirteen years since USFWS first authorized incidental take in 2009.

Continue Reading U.S. Fish and Wildlife Service Makes Clear Its Commitment to Eagle Protection with a $35 Million Eagle Death Settlement and Upcoming Changes to Eagle Take Permitting Program

The second meeting of the Electric Reliability Council of Texas’s (ERCOT) Large Flexible Load Task Force (LFLTF) facilitated an opportunity for ERCOT, ERCOT market participants (MPs), and bitcoin miners to get to know one another through educational presentations and dialogue. Over 250 participated in-person and virtually.

ERCOT began the event by providing a detailed overview of its interim interconnection process that it hopes to turn into a long-term and permanent process in the future. This interim process enables large loads like bitcoin mining operations to quickly (within 150 days) interconnect with the ERCOT grid while also maintaining grid reliability and meeting existing interconnection requirements. ERCOT anticipates that as much as 17GW of large flexible loads may seek to interconnect with the ERCOT grid by 2026. The bulk of these interconnection requests are expected to be made in north and west Texas.

Continue Reading ERCOT, Market Participants, and Bitcoin Miners Become Acquainted at Second Task Force Meeting

The Bureau of Ocean and Energy Management (BOEM) revealed its intention to request Calls for Information and Nominations for a variety of Call Areas along the Central Atlantic and Oregon coasts on April 27. The Calls for Information and Nominations evidence BOEM’s continued push to advance the development of offshore wind resources. BOEM intends to officially publish the Call Areas—those portions of the Outer Continental Shelf (OCS) preliminarily identified as suitable for development—for public comment on April 29, 2022.

Continue Reading BOEM Readies Itself for Further Offshore Wind Development Along the Central Atlantic and Oregon Coasts

Delaware has long been a preferred jurisdiction for business formation, partly because of its well-developed body of case law with respect to commercial disputes (which makes predicting the outcome of – and thus resolving – those disputes relatively efficient).

Developers of renewable natural gas (“RNG”) and other energy projects have long taken advantage of that case law and other commercial features of Delaware law (including its lack of public filing requirements for corporate records) by forming special project entities in Delaware.

Continue Reading Delaware Court of Chancery Reaffirms LLC Member Protections

On April 21, 2022, a split Federal Energy Regulatory Commission (“FERC”) approved 4-1 a Notice of Proposed Rulemaking (“NOPR”) on transmission planning and cost allocation. Issued pursuant to section 206 of the Federal Power Act, the NOPR represents a significant and long-awaited step toward expansion and upgrade of the Nation’s high voltage grid. The NOPR is more limited than the Commission’s July 2021 Advanced Notice of Proposed Rulemaking, perhaps in an effort to bring the Commissioners closer together and to issue a Final Rule by year’s end. Comments are due 75 days from date of publication in the Federal Register, which will occur in the weeks following the Commission’s April 21 meeting. Reply comments are due 30 days after the initial comment deadline.

Continue Reading FERC’S Next Big Electric Initiative

In March 2022, Pacific Gas & Electric (“PG&E”) announced a partnership with General Motors to create a bidirectional electric vehicle (“EV”) charging program in California that would allow homes and small businesses to be powered in part, by charged EVs located on site.  The principal supplier of electricity in northern California, PG&E and General Motors, announced a Summer 2022 pilot program to test electric vehicle-to-grid and vehicle-to-home systems to improve electric reliability and increasingly satisfy consumer demand. Continue Reading California’s Bidirectional Electric Vehicle Residential Charging Program

Effective March 25, 2022, the Electric Reliability Council of Texas (“ERCOT”) began requiring documentation from large electrical loads like cryptocurrency miners before allowing them to connect to the Texas power grid. Through a Market Notice, ERCOT established an interim process requiring transmission service providers (“TSPs”) to submit interconnection studies that meet the requirements of the National Electric Reliability Council’s Reliability Standard FAC-00202 for interconnection of certain large loads. Specifically, TSPs will be required to submit the studies for interconnection of the following types of loads:

  • New loads not co-located with a Resource with total demand within the next two years of 75 MW or greater;
  • Existing loads not co-located with a Resource increasing total demand by 75 MW or greater within the next two years;
  • New loads co-located with a Resource with total demand within the next two years of 20 MW or greater; or
  • Existing loads co-located with a Resource increasing total demand by 20 MW or greater within the next two years.

Continue Reading ERCOT Now Requires Cryptocurrency Miners to Provide Information on Their Impact to the Texas Power Grid

The solar industry is reeling from an announcement made by the US Department of Commerce (“DOC”) this week that the agency has decided to initiate country-wide anti-circumvention inquiries regarding crystalline silicon photovoltaic cells from Cambodia, Malaysia, Thailand and Vietnam, to determine whether imports into the US from those countries using parts and components from China are circumventing the antidumping and countervailing duty orders on solar cells and modules from China. Continue Reading Department of Commerce Initiates Tariff Investigation on Imported Photovoltaic Panels, Rocking Solar Industry

Recently, there has been an uptick in Environmental, Social, and Governance (“ESG”) factors being considered and incorporated into commercial real estate transactions. As the focus on mitigating climate change has risen, the commercial real estate industry has seen an increase in green buildings and clean energy infrastructure. The desire to incorporate ESG factors in the industry has even trickled down into commercial real estate leases. Leases, which include various provisions to promote energy-efficiency and environmental sustainability, are often referred to as “green leases.” Green leases can be tailored to meet landlord and tenant requirements, as well as building specific needs. Here are some common ways landlords and tenants can incorporate green leasing provisions into commercial real estate leases. Continue Reading Incorporating Environmental Sustainability Concepts into Commercial Real Estate Leases