On May 14, 2020, the New York State Public Service Commission (“Commission”) issued an order that will mark a turning point in the State’s electric grid modernization efforts (“Transmission Planning Order”). The Transmission Planning Order was issued in response to the recently enacted Accelerated Renewable Energy Growth and Community Benefit Act (“Accelerate Act”), which was signed into law on April 3, 2020, as previously reported in Phillips Lytle’s Energy Client Alert. The Accelerate Act directs the Commission to conduct a comprehensive study (“Power Grid Study”) to identify distribution, transmission and bulk investments to facilitate timely achievement of New York State’s nation-leading clean energy objectives set forth in the Community Leadership and Community Protection Act (CLCPA). Upon completion of the Power Grid Study, the Accelerate Act directs the Commission to establish utility-specific capital plans to support the development and implementation of appropriate electric system upgrades.

On May 1, 2020, President Trump issued an Executive Order (EO) declaring a national emergency due to “foreign adversaries” that are “creating and exploiting vulnerabilities” in the U.S. bulk-power system (BPS). The EO prohibits “transactions initiated after May 1, 2020” for BPS electric equipment with voltages 69 kilovolt and above if the transaction would pose…

The Commerce Department on May 4, 2020, announced a new investigation under Section 232 of the Trade Expansion Act of 1962, examining whether “laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.”

In April 2017, the UK Joint Committee on Human Rights suggested that it might be appropriate for a “failure to prevent” mechanism, such as the one found in section 7 of the Bribery Act 2010, to be applied to business and human rights. Earlier this year, the British Institute of International and Comparative Law (“BIICL”) published the results of a study that considered the feasibility of introducing such a mechanism in the UK, with reference to the UN Guiding Principles on Business and Human Rights (UNGPs).

During this pandemic, my crystal ball and I are social distancing; while I am working at home it is tucked away in my Capitol Hill office. Luckily, I was able to dig out my old magic-8 ball from the back of my closet, but each time I turn it over the message reads “Gone Fishing.” At first I thought it a fluke, but now I realize it might be trying to tell me something.

That is because the outlook for a federal infrastructure stimulus package is so murky even Nostradamus would not try to predict when Congress might act. In fact, we are all at risk of whiplash, given that it is “infrastructure week” yet again. Take for example this recent rapid exchange on infrastructure:

What action was taken to define the scope of federal jurisdiction?

On January 23, 2020, the Trump Administration released the final version of the Navigable Waters Protection Rule (NWPR), which defines which waters and wetlands are protected under the Clean Water Act. The NWPR replaces the Obama Administration’s “Waters of the United States” (WOTUS) rule.…

On April 29, 2020, US EPA and the CDC issued guidance on how best to disinfect and clean workplaces, schools, and other public spaces as the US economy begins to re-open during the COVID-19 pandemic. The guidance, mainly directed to employers, facility managers, and public school officials, is part of the larger federal “Guidelines for Opening Up America Again.” However, EPA adds that this particular guidance can be applied to individuals’ households as well.

Under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), most pesticides must be registered and are subject to product labeling requirements.  FIFRA defines a “pesticide” as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.” 7 U.S.C. § 136(u).  A “pest” is defined in the statute to mean: “…

For employers, both those expecting to reopen and those who remained open during the COVID-19 pandemic, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has several guidance documents regarding COVID-19 and workplace safety.  Irrespective of this guidance, employers must comply with OSHA’s safety and health standards and regulations or where applicable, an OSHA-approved…

The Federal Energy Regulatory Commission (FERC) issued two orders denying rehearing and offering some clarity on the PJM Interconnection, LLC (PJM) Minimum Offer Price Rule (MOPR), a construct that potentially prevents new capacity-market sellers from depressing prices by offering at reduced prices to clear a capacity auction. The April Orders relate to FERC’s June 2018…