On Nov. 30, 2022, the Transportation Security Administration (TSA) published an advance notice of proposed rulemaking (ANPRM) aimed at enhancing cyber risk management in the pipeline and rail sectors. Indeed, the ANPRM recognizes the critical role pipelines and railroads play in ensuring economic and national security. But the ongoing and growing risk of cyberattacks increases

On Jan. 18, 2023, a consumer advocacy group issued a letter urging the California Attorney General’s Office to initiate an investigation into rising natural gas prices in the state. If the group’s campaign gains traction, California could join New York as another sizable market investigating whether recent increases in energy prices might give rise to price gouging or other consumer protection-related liability for companies throughout the supply chain.

Continue Reading Consumer Watchdog Calls on California AG to Investigate Rising Energy Prices

As of October 6, 2022, operators of gas and hazardous liquid pipelines must comply with the Pipeline and Hazardous Materials Safety Administration’s (“PHMSA”) Final Rule on “Valve Installation and Minimum Rupture Detection Standards.”[1]  The Rule codifies several related design and performance standards across 49 C.F.R. Parts 192 and 195.  Those standards largely apply to new or replacement onshore gas transmission pipelines.[2]  Now, however, the Rule impacts gas distribution pipeline operators in two significant ways.  First, the Rule requires operators to implement and maintain certain emergency notification requirements.[3]  Second, the Rule obligates operators to develop, implement, and incorporate “lessons learned” from a post-failure or incident review into their written procedures.[4]  Unfortunately for operators, the second requirement illustrates the growing challenge operators face in ensuring that internal investigations remain protected by the work-product privilege.

Continue Reading New Federal Pipeline Safety Regulations Present Work-Product Concerns

Debtors in bankruptcy have broad authority to shed unfavorable contracts through the executory contract rejection process, subject to approval of the bankruptcy court. The Federal Energy Regulatory Commission (FERC), on the other hand, has exclusive jurisdiction over any request to modify or abrogate a “filed rate” under the Federal Power Act and the Natural Gas Act, which includes certain power purchase agreements and natural gas transportation contracts. For years, debtors and distressed counterparties faced uncertainty as to whether a bankruptcy court’s rejection order could fully relieve the debtor from performing under a filed-rate contract or if further relief from FERC (potentially applying the stringent “public interest” standard set out in the Mobile-Sierra line of cases) may be necessary to excuse future performance.
Continue Reading More Courts Reject FERC’s Jurisdictional Claims in Battle Over Rejection of Filed-Rate Contracts in Bankruptcy

On July 8, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice of regulatory enforcement discretion for particular gathering lines. Gathering lines are those pipelines that transport gas from a current production facility to a transmission line or main (see 49 C.F.R. § 192.3). The notice specifically applies to existing Type C gas gathering pipelines with an outer diameter greater than or equal to 8.625 inches, but less than or equal to 12.75 inches. It also applies only to violations of safety requirements identified in 49 C.F.R. § 192.9 until May 17, 2024.
Continue Reading PHMSA Issues Notice of Limited Enforcement Discretion for Some Gas Gathering Pipelines