Intellectual property comprises some of the most valuable assets a business may hold – its brands, patents, know-how, and other intangible rights that make the business unique.  The intellectual property assets (IP) throughout the energy sector—upstream, midstream, downstream and service providers along the way—will be affected as more energy companies seek bankruptcy relief in the…

In a little over a couple of months, the COVID-19 outbreak has dramatically altered the landscape of business. Companies are struggling to cope with massive uncertainty and an array of unforeseen challenges, including everything from supply chain and revenue disruptions caused by reduced consumer demand, to staffing shortages, travel restrictions, business closures, and other such issues. At the same time, these companies are bound by obligations in a variety of transactional instruments and regulatory requirements developed in normal times—like purchase and sale agreements, agreed consent orders or decrees, and operating permits. Those transactional instruments presume continued performance in all but the most unusual of circumstances. Similarly, regulatory requirements at law demand strict compliance. In the wake of novel COVID-19, parties are increasingly pressed to find creative ways to address their inability to meet such requirements. While this is far from a “one-size-fits-all” exercise, three areas of potentially available flexibility are considered below.

Previously shuttered businesses and offices are gearing up to reopen as many states are beginning to lift closure orders.  Each employer will need to determine when it is legally permitted to reopen based upon state and local mandates.  While plans to reopen will vary widely from state to state and company to company, all employers should take appropriate safety measures to reduce potential exposure to the virus that causes COVID-19, to ensure the health of their employees and visitors while reducing liability and business risks.  The recommendations below may change rapidly and we advise that you double check the information provided against the links provided to cross-check any changes that may have been made by the referenced agencies since this was posted.

As an update to last week’s post concerning Regional Greenhouse Gas Initiative’s (RGGI) new Strategic Funding Plan, the New Jersey Department of Environmental Protection (NJDEP), in celebration of Earth Day, announced that they will be investing an additional $45 million into the electrification of New Jersey’s transportation sector.

The money will be used to reduce…

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.

In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.”  The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.

The Federal Energy Regulatory Commission (FERC) issued Order 864-A on Public Utility Transmission Rate Changes to Address Accumulated Deferred Income Taxes (ADIT). Order No. 864-A addresses requests for clarification and rehearing concerning the obligation of public utilities with either transmission formula rates or transmission stated rates to return excess ADIT arising from the reduction in…

Over the past several months, the federal Occupational Safety and Health Administration (OSHA) has steadily issued guidance to both employers and agency officials on strategies to navigate regulatory matters related to the COVID-19 pandemic, as we have discussed here, here, here, here, and here. However, federal OSHA is not the only government agency addressing the crisis at hand. Below is an outline of efforts OSHA State Plan agencies have also implemented, as of April 23, 2020, to address COVID-19 issues in the workplace. Should you operate in any one or more of these jurisdictions, you will want to be cognizant of the guidance outlined below. (Please note that this outline is limited to measures that state “OSHA” agencies have taken to address COVID-19; it does not include all state measures that state governments have taken, such as shelter-in-place orders, business closures, public health orders, and so forth).

Late last night, the New Jersey Department of Environmental Protection (NJDEP) released guidance confirming that site remediation work may continue under Governor Murphy’s Executive Order 122 (EO-122), which shut down all non-essential construction projects as of Friday, April 10 to help prevent community spread of COVID-19.

As anticipated in our blog last week, NJDEP…

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s repeal and replace approach clears up years of uncertainty in the wake of the Obama Administration’s 2015 rule. The final rule, called the “Navigable Waters Protection Rule,” will become effective on June 22, 2020.

On April 16, 2020, the Offshore Marine Service Association (OMSA) issued a memorandum providing guidance for the protection of maritime personnel on vessels during the COVID-19 pandemic. The memorandum aims to support the uninterrupted flow of the nation’s marine transportation system while maintaining the safety of maritime personnel. The guidelines contained and referenced in the…