Energy Regulation in the Post-Chevron Era: Agency Implications, Anticipated Impacts
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Energy
- event Date
Thursday, September 19, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will guide energy counsel through the recent notable U.S. Supreme Court decisions in Loper Bright Enterprises v. Raimondo, Corner Post v. Board of Governors of the Federal Reserve System, and Securities and Exchange Commission v. Jarkesy. The panel will address the anticipated impact these decisions will have on rulemaking, adjudication, and litigation in the energy sector, with a particular focus on renewable energy.
For more than 20 years, Mr. Shepherd has represented public utility energy suppliers and transmission owners, regional transmission organizations, state agencies, large industrial concerns, and other electric power and natural gas market participants in a wide variety of complex regulatory litigation, certification, and enforcement matters before the Federal Energy Regulatory Commission (FERC) and federal courts. From 2018-2022, Mr. Shepherd served as Director of Legal Policy at FERC, where he advised three Chairmen and several Commissioners on the implementation of energy policy through administrative and appellate litigation. His responsibilities included drafting orders, facilitating negotiations, managing external litigation, and drafting briefs and arguing cases in matters before the Supreme Court, appellate courts, district courts, and bankruptcy courts. Mr. Shepherd's ongoing work in private practice continues to emphasize energy and capacity market design, transmission incentives and cost allocation, pipeline certification and abandonment, hydroelectric licensing, Mobile-Sierra issues, waivers, civil enforcement matters before FERC and federal courts.
Mr. Kaplowitz focuses his practice on regulatory, policy, contractual and litigation matters related to offshore wind and other forms of renewable energy. Most recently, he served as Vice President for Offshore Wind at the American Clean Power Association (ACP). Mr. Kaplowitz led ACP’s offshore wind advocacy efforts, working to advance the organization’s policy, legislative and regulatory priorities for offshore wind, with a particular emphasis on its engagement with the Bureau of Ocean Energy Management (BOEM), other key federal agencies and Capitol Hill. He also facilitated ACP’s collaboration with state and local governments, stakeholders and the public. Mr. Kaplowitz is a frequent speaker and writer on offshore wind law and policy. He also serves as an Adjunct Professor at the George Washington University College of Law where he teaches offshore wind law to second- and third-year law students.
Ms. Hand is a founding partner and leader of Dentons' award-winning Energy Practice, and Co-chair of the Dentons Global Energy Sector for the US Region. She plays an essential role on the US federal and state regulatory team, advising public power entities, municipalities, large energy customers and load-serving entities, including signature clients such as the City of New Orleans, CPS Energy in San Antonio, Municipal Electric Utility Association of New York (MEUA), and the Alliance to Save Energy in both regulatory and litigation settings. Ms. Hand has extensive experience litigating before administrative agencies and tribunals at the federal and state government levels; representing clients in appeals from agency decisions and rulemakings; and counseling clients on energy efficiency and all sources of electric generation, including renewables and distributed generation.
Two decisions at the end of the 2024 U.S. Supreme Court term, Loper Bright Enterprises v. Raimondo and Corner Post v. Board of Governors of the Federal Reserve System, will have a significant impact on federal agency rulemaking, rule implementation, and legal challenges to federal rules. A third decision, Securities and Exchange Commission v. Jarkesy, is expected to imperil the Federal Energy Regulatory Commission's (FERC) use of ALJs to adjudicate energy market manipulation and similar claims—and potentially the legality of other agencies’ administrative dispute resolution forums.
Loper Bright overruled the Chevron doctrine which, for 40 years, has served as the two-step framework for federal courts in deciding disputes between federal agencies and private parties challenging agency actions as outside the scope of their statutory authority. Loper Bright has now put the task of interpreting ambiguous statutory provisions squarely in the hands of federal courts.
Corner Post has increased agency exposure to suits by redefining when the statute of limitations period begins for challenges to federal regulations. The Court held that the six-year statute of limitations begins to run only once the plaintiff has been injured, instead of as soon as the rule takes effect. Therefore, entities formed within the last six years may challenge regulations that have stood for decades.
Jarkesy held that the SEC must bring civil penalty actions for securities fraud in federal court and cannot do so in an in-house administrative hearing before an ALJ. The Court's decision is expected to trigger immediate challenges to FERC's use of administrative hearings for energy market manipulation and similar fraud-like claims, and might open the door for courts to strike down other administrative proceedings.
Listen as our expert panel discusses the Loper Bright, Corner Post, and Jarkesy decisions and discusses the anticipated impacts on the energy industry, focusing in particular on potential challenges to FERC's procedures, standards, and enforcement authority, as well as to federal permitting of energy projects. The panel will also discuss potential client impact.
- Introduction: a brief history of federal regulatory interpretation under Chevron
- Loper Bright Enterprises v. Raimondo
- Corner Post v. Board of Governors of the Federal Reserve System
- Effect on administration litigation
- Effect on legislative drafting
- Securities and Exchange Commission v. Jarkesy
- Impact on use of administrative proceedings
- Client impact
- Counsel takeaways
The panel will review these and other key issues:
- How will Loper Bright impact FERC orders and FERC actions involving statutory interpretations, as well as environmental permitting of energy infrastructure?
- How will Corner Post impact litigation challenging agency rules?
- How will Jarkesy impact FERC's use of ALJ hearings to adjudicate market manipulation and similar claims, as well as other agencies’ administrative proceedings?
- What is the potential impact of the decisions on clients?
