Energy Update: Week of December 17

Energy Update - December 17, 2018


Congrats to The Cure, Radiohead, Stevie Nicks, Roxy Music, Janet Jackson and Def Leppard for induction into the Rock ‘n Roll Hall of Fame.  Unfortunately, I spent all Friday raging over Rage Against The Machine being left out.  How does Rage NOT get in?  Just look at this classic performance at the 2000 DNC in Los Angeles that I may have seen live.  I think I might start a riot... or maybe just go back to my office and continue our corporate consulting.

It certainly was a busy weekend…and that’s not just my indoor FH umpiring.  On Friday, Equinor and two others won offshore wind leases off Massachusetts’ coast, netting a record-setting $405 million for the Treasury while showing interest in the technology continues to expand. Then, Saturday morning after the giant Interior lease sale, Secretary Ryan Zinke said he would be stepping down at the end of the year.  My colleague Ann Navaro has commented on David Bernhardt stepping in on a temporary basis (below) and can offer more insights should you need it.  Bloomberg’s Jen Dlouhy and WaPo’s Juliet Eilperin both have great stories about Bernhardt.  And there are whispers that are pointing to former Nevada Sen. Dean Heller as a viable/confirmable possible replacement.  And over in Poland, the COP 24 conference ended with another press release touting a “successful” new agreement outlining Paris rules. Of course, the biggest question: Will they follow it?  We will see how it plays out, but my guess… 

Finally, this morning, Sen. Lamar Alexander announced he will retire at the end of this term.  Alexander has been a significant player on energy policy over his 16-year career in the Senate, particularly in his role as chairman of Senate Appropriations Committee’s Energy and Water Approps, nuclear power and funding for DOE and the labs.  My colleague Scott Segal said Alexander leaves an impactful legacy on energy policy in this country.

Segal: “His support for nuclear energy was noteworthy and stimulated a national conversation on the rebirth of the industry. His support extended from oversight of DOE programs to extension of critical tax credits.  His skepticism on wind power ironically helped that industry improve its advocacy.”

ClearPath Action Executive Director Rich Powell said:

“Alexander has long been a powerful voice in ensuring that proper investments have been made at Oak Ridge National Lab and for innovation efforts writ large that have made sizable impacts to our nation's clean and reliable power supply and potential.  He is an innovation lion who will be sorely missed and we look forward to working with him next Congress to ensure his clean energy legacy is further cemented."

Now for this week: the potential partial (about 25% including EPA) government shutdown takes the precedent with deeply divided political arguments over border wall funding and must be resolved by Friday.  We also have heard that we may see the EPA’s revised new mercury rule after the Supreme Court called the Obama rule’s economic analysis unconstitutional.  And remember to tune TOMORROW as the US Chamber’s Global Energy Institute and Laborers’ International Union of North America (LIUNA) roll out a new report at 11:00 a.m. exploring the economic impact of the “Keep It In the Ground” movement on energy infrastructure projects across the country. U.S. Chamber Global Energy Institute President Karen Harbert will participate in the call along with LIUNA General President Terry O’Sullivan.  Drop me or Matt Letourneau ( a note for the call details.   Finally, also tomorrow, the DC Circuit hears industry challenges to the NAAQS.

Last week, you probably saw that the Supreme Court granted cert last week in the Kisor case.   This is a big deal because the case presents an opportunity for the court to affirm, modify, or jettison Auer deference.  Auer deference is akin to Chevron deference, but for agency interpretations of rules rather than statutes.  We have been a heavy player in these cases over the years and it is an issue many of my colleagues (Kevin Ewing, Holmstead, Ann Navaro, Hutt, etc) can discuss should you need info as the case goes forward in SCOTUS.   Please keep that in mind.

Finally, in case you’ve missed last week’s WOTUS issues, I have attached some detailed info.  Again, my colleague Ann Navaro is on the case and can comment.

Happy holidays!!!!  Probably no update over the next two weeks but will update as needed.  Please feel free to call with questions.  




Frank Maisano

(202) 828-5864

C. (202) 997-5932



“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

EPA Administrator Andrew Wheeler on the new EPA rule replacing the Waters of The U.S. rule

“This will be a huge fight. There will be huge pushback from a number of states and even Congress and certainly from environmental groups. I think folks are ready to do battle. We have a lot of complicated litigation to look forward to.”

Ann Navaro, Bracewell lawyer and former Army Corps litigation council speaking about WOTUS in The Washington Post.


RFS Hurting Northeast Workers – Former New Jersey Rep. Mike Pappas argued in the Philadelphia Inquirer that the RFS is hurting industrial workers in the Northeast.  Pappas said the Renewable Fuel Standard (RFS) has made things worse, reducing air quality by increasing atmospheric pollutants. Both Democrats and Republicans acknowledge the extent of the problem, with some of the law's original, most passionate supporters now calling it a mistake.  Pappas urged Congress to reform the program and protect the industrial base in places like Pennsylvania.

ClearPath Expert Details Energy Storage Challenges – ClearPath nuclear expert Spencer Nelson and David Hart, a senior fellow for clean energy innovation policy at the Information Technology and Innovation Foundation and professor of public policy at the Schar School at George Mason University wrote an op-ed in Utility Dive detailing  a recent report by the Information Technology and Innovation Foundation on the innovation agenda for deep decarbonization identified six key areas that require significant further development. One of these is long-duration energy storage. It will certainly be needed if wind and solar power continue their extraordinary growth.


Equinor Wins Mass Wind Leases – Norwegian energy Company Equinor has won one of three Offshore wind leases after 32 rounds of sealed bidding, for Federal offshore wind area leases off the coast of Massachusetts on Friday. Other winners were EDF-Shell joint venture Mayflower Wind Energy and Avangrid JV Vineyard Wind, who is already building a project in Mass.  Bidders will each pay about $135 million for 33-year development rights in federal waters south of Cape Cod -- a record combined $405 million.  "Today's biggest winners are the American workers who will help build and operate these wind farms, and the consumers who will soon have access to a new large-scale source of clean, reliable electricity," said Nancy Sopko of the American Wind Energy Association.  The new acquisition provides Equinor with a "strong strategic position," the company said, and "gives us a foothold to engage in the Massachusetts and wider New England market, a region notable for its strong commitment to offshore wind."  Equinor already holds a lease are off New York, which it procured in 2016.

COP 24 Ends – The 24th Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 24) concluded its work on Saturday, attempting to establish a rulebook for implementation of the Paris Agreement. The agreement appears to reflect compromises between rigor and flexibility that exhibit the cooperative but self-determined nature of Paris.  The question is, how effective will that approach be given the political challenges and urgency of action being expressed by enviro activists.   Our friends at POLITICO EU outlined five key takeaways here: 1) It won’t stop climate change; 2) Disagreements about the science 3) China is moving in as the US steps back; 4) Talks are always almost derailed (nothing new there); and 5) Multilateralism is wounded but still standing (no surprise here).  I will add one additional key question: What happens when nobody really acts on these “rules” which they most likely will not?  As one who has followed this since 1997, I am happy to discuss

Business Council Weighs In – The Business Council for Sustainable Energy (BCSE) , who has been involved In negotiations, led a delegation of clean energy private sector executives to the two-week conference, hosting a series of public and private events detailing how existing solutions can deliver emissions reductions and enhance resilience today.  President Lisa Jacobson commended governments for establishing the rulebook for the Paris Agreement. Jacobson: “The delivery of the technical rulebook is an important step forward, but collectively all countries and sub-national actors, including the private sector, must now work to increase the ambition and pace of climate action.” Check out BCSE’s action at COP 24 here.

Solar Tariffs Hold Back Q3 Installations, Procurement Pipeline Booms – The Section 201 solar tariffs took a toll on U.S. utility-scale solar installations in the third quarter according to the U.S. Solar Market Insight Report for Q3 from Wood Mackenzie Power & Renewables (formerly GTM Research) and the Solar Energy Industries Association (SEIA). The residential market, meanwhile, continued to stabilize after a down 2017. Overall, the analysts expect 2018 growth to be flat.  For the first time since 2015, quarterly additions of utility-scale solar photovoltaics (PV) fell below 1 gigawatt (GW), highlighting the impact of the tariffs and the uncertainty surrounding them in late 2017 and early 2018. As a result, the U.S. solar market was down 15 percent year-over-year in the third quarter of the year, but the report notes that a strong project pipeline lies ahead.


New Trump WOTUS Rolls Out – EPA and Army Corps of Engineers are proposing a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act. Unlike the Obama administration's 2015 definition of “waters of the United States,” today’s proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.

Clarity, Predictability, Consistency – The agencies’ proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not. Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.

State, Tribes Get More Flexibility – The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.” The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act. 

Bracewell Army Corps Expert Offers View – Here is a comment from my colleague Ann Navaro, a former longtime chief counsel of litigation at the Army Corps of Engineers and Interior official from both the Obama and Trump Administrations:   

"The Administration’s proposed definition of waters of the United States is going to trigger a huge fight.  It will eventually end up in litigation that will likely go to the Supreme Court where it may very well be upheld if the Administration does a good job of substantiating its approach.   The proposed rule represents a significant revision to how jurisdiction under the Clean Water Act has been approached for decades by narrowing areas subject to regulation.  It will reduce the regulatory burden on landowners, developers, and industry.  It will simplify the reach of the Clean Water Act so that the regulated public can better understand how the law applies to their property without having to undertake complex subjective analysis.  For example, areas of the desert Southwest that were subject to Clean Water Act jurisdiction based only on rainwater will no longer be subject to regulation under the Act.  The proposed rule will focus on waters that are meaningfully connected to other jurisdictional waters, rather than trying to expand the reach of federal jurisdiction with difficult to understand and implement subjective standards."

You can reach Ann here if you have additional questions or seek addition insight.  ANN D. NAVARO (202.828.5811,

Electric Co-ops Applaud EPA New Water Rule – National Rural Electric Cooperative Association (NRECA) CEO Jim Matheson today issued the following statement on the Environmental Protection Agency’s proposal to replace the 2015 Waters of the U.S. (WOTUS) rule:

“We applaud the administration for recognizing the need to replace the WOTUS rule. The 2015 rule was a significant overreach of the federal government’s authority to regulate water and land. We look forward to working with regulators on a more workable and lawful regulation, one that allows electric co-ops to conduct maintenance and build new infrastructure without triggering additional and more onerous permitting requirements. Such an approach enables electric co-ops to continue providing reliable and affordable electricity to more than 42 million Americans.”

Chamber GEI Head Praises New WOTUS Rule – U.S. Chamber of Commerce Global Energy Institute President & CEO Karen Harbert issued the following statement regarding a new proposed rule revising the definition of “Waters of the United States (WOTUS)”:

“This new rule is good news for businesses, farmers, and localities because it strikes a better balance between economic growth and environmental progress than the rule it replaces. “The previous rule gave EPA and the Army Corps unprecedented authority to permit and enforce areas well beyond what Congress intended. This revised rule will end a great deal of uncertainty that came in the wake of the former rule, and it will provide much-needed clarity.” The Chamber has played a leading role in advocating for a reasonable standard to measure federal jurisdiction under the Clean Water Act both in the regulatory process and the courts.”

Comments, Hearings – The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

EPA Links – More information including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at:  


NSR Comments Due – The EPA is also taking comment through today on its proposed amendments to new source performance standards for oil and natural gas emissions from new, reconstructed and modified sources.

DC Circuit to Hear Ozone Arguments – The DC Circuit hears arguments on the ongoing NAAQS challenges from industry groups tomorrow at 9:30 a.m.

Chamber, Union to Roll Out ‘Keep it In Ground’ Report – The Chamber’s Global Energy Institute, in partnership with the Laborers’ International Union of North America, will hold a press call TOMORROW  at 11:00 a.m. to discuss a new report exploring the economic impact of the “Keep It In the Ground” movement on energy infrastructure projects across the country. U.S. Chamber Global Energy Institute President Karen Harbert will participate in the call along with LIUNA General President Terry O’Sullivan.  For call in information, contact the Chamber’s Matt Letourneau at

Nichols talks with E2 – Tomorrow at Noon Eastern/9:00 a.m. Pacific, E2 is hosting breakfast and an intimate interview and Q&A session with Mary Nichols, Chair of the California Air Resources Board (CARB) in Santa Monica.  

EPA to Discuss Disaster Debris Tool – Tomorrow at 2:30 p.m., EPA holds webinar on Region 5’s Disaster Debris Recovery Tool promoting the proper recovery, recycling, and disposal of disaster debris for emergency planners and responders.

France Holds Climate Forum – The Embassy of France holds forum in Washington, D.C., on international cooperation on trade, climate change, and security.  Jonathan Tepperman - Editor-in-Chief of Foreign Policy moderates a forum with Center for a New American Security CEO and former Ambassador Victoria Nuland, Stewart M. Patrick at the Council on Foreign Relations and Ambassador of France to the United States Gérard Araud.

Women Energy Network Happy Hour – The Washington DC Chapter of the Women's Energy Network is hosting its Holiday 2018 Happy Hour Event at Ballard Spahr.

Mass Transpo Meeting Set – Transportation for Massachusetts holds discussion in Boston on Wednesday morning looking at the report of GOP Gov. Charlie Baker’s Commission on the Future of Transportation in the Commonwealth. You can see the group’s recommendations to Baker’s Commission here.

EU Talking Truck Emissions – EU environment ministers will discuss a proposed regulation to set carbon-dioxide emission standards for trucks and buses that would, for the first time, make heavy-duty vehicles subject to greenhouse gas emission reduction targets in a public meeting on Thursday in Brussels.  The meeting with be live streamed

FERC Monthly Meeting – FERC holds its Monthly meeting on Thursday at 10:00 a.m.


Christmas Day – Tuesday December 25th

State of the Energy Industry Event Set – Mark your calendars for Tuesday January 8th when API will conduct its annual State of the Energy Industry event at the Reagan International Trade Center.   

Forum to Focus on Infrastructure, Resilience – The National Council for Science and the Environment will convene their 19th Annual Conference from January 7-10, 2019 in Washington, D.C. The NCSE Annual Conference brings together a diverse community of experts for an enriching opportunity to collaborate on exciting projects, share research and best practices, and build professional relationships. Attendees include national and international leaders in education, government, civil society, and business. The conference is recognized for its notable presenters and innovative programming.  NCSE 2019 will focus on Sustainable Infrastructure & Resilience. 

Detroit Auto Show Ready – The 2019 North American International Auto Show will begjn in Detroit on January 14th and runs through January 27th at Cobo Hall in the Motor City. With the largest concentration of the world’s top automotive and technology executives, designers, engineers and thought leaders, the North American International Auto Show serves as the global stage for companies to debut brand-defining vehicles and industry-shaping announcements.  Events start with the 13th annual ultra-luxury automotive event, The Gallery. The event has now become the official kick-off to the North American International Auto Show at the MGM Detroit.  Press days start on January 14th with public show launching January 19th

NPC to Host NOAA, Hurricane Resilience Expert to Discuss 2018 Hurricane Season – The National Press Club will host a Newsmaker on Tuesday January 15th at 10:00 a.m. in the Club’s Zenger Room to recap the 2018 hurricane season featuring NOAA forecasting expert Dr. Gerry Bell and MIT resilience expert Jeremy Gregory.  Bell will focus on the 2018 season impacts, climate change and what it may mean for the 2019 season, while Gregory will focus on the 2017 rebuilding in Houston, Puerto Rico and Florida, as well as the impacts of the 2018 season on the Carolina coast and Florida Panhandle.  

SEJ 2019 Journalists Guide to Energy, Environment – The Society of Enviro Journalists (SEJ) and Wilson Center will host the annual Journalists Guide to Energy and Environment on January 25th at the Wilson Center.  More on this as we get closer.