A “Time of Heightened Tensions”: Homeland Security and National Security Agency Issue Joint Cybersecurity Alert

On July 23, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), joined by the National Security Agency (NSA), issued a cybersecurity alert to operators of critical infrastructure.  This cybersecurity alert outlines a series of “immediate actions” companies should take to reduce the risk of operational interference resulting from cyberattack. Unlike the bulletin issued by the Department of Homeland Security in January of 2020,… More

Massachusetts Attorney General Strikes Down First Municipal Fossil Fuel Ban

Just over a year ago, the city of Berkeley, California, became the first City in the United States to ban natural gas hookups in new buildings.  The trend of municipalities enacting fossil fuel bans, driven by a desire to reduce greenhouse gas emissions and combat climate change, has spread across California and a few other states and has now reached the east coast.  Yesterday, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such municipal fossil fuel ban to come across its desk as inconsistent with the general laws of the Commonwealth.… More

FERC NOI Considers Expansion of Cybersecurity Rules to Distributed Generation

On Wednesday, June 24, 2020, the Federal Energy Regulatory Commission (FERC or “the Commission”) published a Notice of Inquiry (NOI) in the Federal Register soliciting comments on Federal Energy Regulatory Commissionpotential enhancements to the Critical Infrastructure Protection (CIP) Reliability Standards[1] that currently exist to help our energy infrastructure protect itself from attack. (Initial Comments are due by August 24, 2020, and Reply Comments are due by September 22,… More

BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications

Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct,… More

California’s Agreement With Quebec Is Not Preempted — At Least For Now

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Foreign Affairs Doctrine.  Judge Shubb had previously ruled that the Agreement did not violate either the Treaty Clause or the Compact Clause.

As before, I think Judge Shubb got it right,… More

Massachusetts Department of Public Utilities Investigates Advanced Metering and Time-Varying Rates for Customers with Electric Vehicles

On July 2, 2020, the Massachusetts Department of Public Utilities launched an “Investigation into the Modernization of the Electric Grid – Phase Two.”  In this investigation, the DPU will look again at deploying advanced metering capabilities in Massachusetts, this time with a specific focus on customers with electric vehicle charging (including site hosts).

There is history here.  Some readers will recall the previous phase of “Grid Mod,” which began in 2012,… More

D.C. Circuit Decision Upholds Access to Wholesale Markets for Energy Storage Resources, but Will More Litigation Follow?

On July 10, 2020, the D.C. Circuit upheld FERC Order 841, the landmark order requiring wholesale markets to allow participation by energy storage resources.  Challengers had contended that by prohibiting states from barring energy storage resources on the distribution system from participating in wholesale markets, FERC had exceeded its jurisdiction and infringed on state authority.

The D.C. Circuit rejected those claims. … More

New Smart Program Final Regulations

On July 14, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed the final version of the emergency regulations for the Solar Massachusetts Renewable Target (“SMART”) Program DOER filed in April 2020.  Foley Hoag discussed the emergency regulations in an earlier blog post. Responding to comments received from solar developers, lawmakers, and others, DOER made two major changes in the final version of the regulations, reworking provisions dealing with land use exclusions and behind the meter generation incentive payment calculations.… More

Dakota Access Must Shut Down. Is It a Harbinger?

I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States.  I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. 

First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. … More

Perhaps, Some Day, There Will Be a Carbon Tax

There are few people left, at least in my orbit, who don’t share the goal of prompt decarbonization of the economy.  The quaintly named $64,000 question ($64 trillion question?) is how we get from here to there.

Today, the New England Power Generators Association released a report prepared by Analysis Group that explains how an economy-wide price on carbon can help New England do just that. … More