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Energy Regulation in the Post-Chevron Era: Agency Implications, Anticipated Impacts

Recording of a 90-minute premium CLE video webinar with Q&A

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Conducted on Thursday, September 19, 2024

Recorded event now available

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This CLE webinar will guide energy counsel through the recent notable U.S. Supreme Court decisions in Loper Bright Enterprises v. Raimondo, Corner Post v. Board of Governors of the Federal Reserve System, and Securities and Exchange Commission v. Jarkesy. The panel will address the anticipated impact these decisions will have on rulemaking, adjudication, and litigation in the energy sector, with a particular focus on renewable energy.

Description

Two decisions at the end of the 2024 U.S. Supreme Court term, Loper Bright Enterprises v. Raimondo and Corner Post v. Board of Governors of the Federal Reserve System, will have a significant impact on federal agency rulemaking, rule implementation, and legal challenges to federal rules. A third decision, Securities and Exchange Commission v. Jarkesy, is expected to imperil the Federal Energy Regulatory Commission's (FERC) use of ALJs to adjudicate energy market manipulation and similar claims—and potentially the legality of other agencies’ administrative dispute resolution forums.

Loper Bright overruled the Chevron doctrine which, for 40 years, has served as the two-step framework for federal courts in deciding disputes between federal agencies and private parties challenging agency actions as outside the scope of their statutory authority. Loper Bright has now put the task of interpreting ambiguous statutory provisions squarely in the hands of federal courts.

Corner Post has increased agency exposure to suits by redefining when the statute of limitations period begins for challenges to federal regulations. The Court held that the six-year statute of limitations begins to run only once the plaintiff has been injured, instead of as soon as the rule takes effect. Therefore, entities formed within the last six years may challenge regulations that have stood for decades.

Jarkesy held that the SEC must bring civil penalty actions for securities fraud in federal court and cannot do so in an in-house administrative hearing before an ALJ. The Court's decision is expected to trigger immediate challenges to FERC's use of administrative hearings for energy market manipulation and similar fraud-like claims, and might open the door for courts to strike down other administrative proceedings.

Listen as our expert panel discusses the Loper Bright, Corner Post, and Jarkesy decisions and discusses the anticipated impacts on the energy industry, focusing in particular on potential challenges to FERC's procedures, standards, and enforcement authority, as well as to federal permitting of energy projects. The panel will also discuss potential client impact.

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Outline

  1. Introduction: a brief history of federal regulatory interpretation under Chevron
  2. Loper Bright Enterprises v. Raimondo
  3. Corner Post v. Board of Governors of the Federal Reserve System
  4. Effect on administration litigation
  5. Effect on legislative drafting
  6. Securities and Exchange Commission v. Jarkesy
    1. Impact on use of administrative proceedings
  7. Client impact
  8. Counsel takeaways

Benefits

The panel will review these and other key issues:

  • How will Loper Bright impact FERC orders and FERC actions involving statutory interpretations, as well as environmental permitting of energy infrastructure?
  • How will Corner Post impact litigation challenging agency rules?
  • How will Jarkesy impact FERC's use of ALJ hearings to adjudicate market manipulation and similar claims, as well as other agencies’ administrative proceedings?
  • What is the potential impact of the decisions on clients?

Faculty

Hand, Emma
Emma F. Hand

Partner
Dentons

Ms. Hand is a founding partner and leader of Dentons' award-winning Energy Practice, and Co-chair of the Dentons...  |  Read More

Kaplowitz, Josh
Josh Kaplowitz

Senior Counsel
Locke Lord

Mr. Kaplowitz focuses his practice on regulatory, policy, contractual and litigation matters related to offshore wind...  |  Read More

Shepard, John Lee
John Lee Shepherd, Jr.

Partner
Hunton Andrews Kurth

For more than 20 years, Mr. Shepherd has represented public utility energy suppliers and transmission owners, regional...  |  Read More

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