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Expert Analysis

• Alaska Enviro Suit Shows Gov't Is A Tough Tort Defendant

  

  The Ninth Circuit's recent decision in Nanouk v. U.S. concerning environmental contamination near an Alaska military installation highlights the fact that discretionary government action that yields an unfortunate result does not necessarily give rise to a tort claim, says Brandon Matsnev at Manko Gold.

• Streamlining Power Transmission Siting To Help Renewables

  

  It can take years and cost millions of dollars to secure state regulatory approval for electric transmission system upgrades needed to facilitate clean energy development, so it is important for states to create abbreviated siting processes for projects with limited anticipated impacts, says Andy Flavin at Troutman Pepper.

• FERC Nod To Energy Storage As Transmission Has Caveats

  

  While the Federal Energy Regulatory Commission recently approved the Midcontinent Independent System Operator plan to treat some electric storage facilities as transmission-only assets eligible for full cost-of-service rates, entities seeking similar approval will need to develop workable rules governing use of storage resources, say Mark Perlis and Bud Earley at Covington.

• EB-5 Ruling Shows Viability Of SEC Disgorgement Challenges

  

  In the first appellate decision applying the U.S. Supreme Court’s Liu decision, the Ninth Circuit recently reversed a large disgorgement award over an EB-5 visa scam in U.S. Securities and Exchange Commission v. Yang, demonstrating several ways companies and individuals facing investigations may be able to challenge SEC penalties, say attorneys at Cadwalader.

• 8th Circ. Ruling May Provide Relief For Bakken Debtors

  

  The Eighth Circuit’s recent decision that an oil and gas agreement provision requiring additional funds to participate in drilling a well was dischargeable in Slawson Exploration v. Nine Point Energy may aid debtors in the Bakken shale at a time when bankruptcy filings are expected to rise, say Isaac Griesbaum and Katherine Preston at Winston & Strawn.

• Trump Nationwide Permit Move Could Interrupt Pipeline Suit

  

  The Trump administration's proposal to revamp the nationwide permit program well ahead of schedule is clearly a response to recent litigation over the Keystone XL pipeline, and could moot those proceedings and force litigants to restart them, says Yvonne Hennessey at Barclay Damon.

• How Congress May Bail Out FERC On Tolling Orders

  

  The D.C. Circuit's recent ruling in Allegheny Defense Project v. Federal Energy Regulatory Commission deals a major blow to FERC's use of tolling orders to forestall judicial rehearings, but Congress may soon come to the agency's aid, say Sandra Rizzo and David Skillman at Arnold & Porter.

• Market Rebound May Curb Securities Class Actions, Damages

  

  The stock market's dramatic recovery from its pandemic-prompted plunge may provide securities class action defendants an opportunity to rely on the Private Securities Litigation Reform Act’s rarely invoked bounce-back provision to ward off stock-drop claims, or sharply limit available damages, say John Schreiber and John Tschirgi at Winston & Strawn.

• Unpredictable Wisconsin PFAS Regs Are Bad For Business

  

  As Wisconsin attempts to recover from the economic impact of the pandemic, uncertainties surrounding ramped-up regulatory efforts and costly cleanup of per- and poly-fluoroalkyl substances could slow real estate and business development and expansion in the state, says Delanie Breuer at Reinhart Boerner.

• Final IRS Rules On REIT Dividends Create Statutory Conflict

  

  The Internal Revenue Service's recent regulations, which confirm that real estate investment trust payouts to regulated investment company shareholders qualify for preferred tax treatment but are silent on publicly traded partnership income, conflict with the statute and congressional intent, says Andrew Howlett at Miller & Chevalier.

• Key Elements Of NY Agencies' Renewable Energy Plan: Part 2

  

  A proposal from two New York energy agencies that would significantly restructure the state's clean energy market could result in major impacts for load-serving entities and new economic opportunities for disadvantaged communities, says Kevin Blake of Phillips Lytle.

• Key Elements Of NY Agencies' Renewable Energy Plan: Part 1

  

  The framework for decarbonizing the power system set out in a new white paper from two New York energy agencies will require big changes to the state's Clean Energy Standard procurement structure, and could have major consequences for biofuels, hydropower and other energy sectors, says Kevin Blake at Phillips Lytle.

• Mass. Solar Incentive Restrictions Make Site Scrutiny Crucial

  

  In light of the Massachusetts Department of Energy Resources' recent rule changes restricting incentives for solar development on ecologically sensitive greenfield sites, landowners and solar developers should assess target properties carefully before building, say attorneys at Beveridge & Diamond.