Posts from Rick Smead

The recent drama related to the U.S. debt ceiling may have illustrated the chaos that polarization has brought to Washington, but it showed one other thing as well: there’s an appetite for federal permitting reform from Democrats and Republicans alike. The Fiscal Responsibility Act (FRA), signed into law Saturday by President Biden, addressed some immediate priorities — including changes to the review process under the National Environmental Policy Act (NEPA) — but its mandate to expedite completion of the long-delayed Mountain Valley Pipeline (MVP) caught many of the project’s supporters and critics by surprise. In today’s RBN blog, we look at the permitting issues that have kept MVP in regulatory limbo and how the FRA is designed to overcome them and bring the project back to life.

The NAESB Contract is a familiar element in the day-to-day dealings between natural gas buyers and sellers in the U.S. — a standard form that serves as a useful draft for short- and long-term gas supply agreements — just fill in its blanks and use it, or adjust it until you have a deal. Winter Storm Uri, the devastating deep-freeze event that brought much of Texas to an icy standstill and a deadly blackout in February 2021, raised all kinds of questions about how to interpret the contract’s boilerplate force majeure provisions. As part of the aftermath, some electric industry participants (primarily in other states, not Texas) are pushing at NAESB for changes to the force majeure provisions with the aim of clarifying things and maybe reducing their use to forgive a failure for gas to show up. But nothing is uncomplicated in the world of contracts and force majeure, as we discuss in today’s RBN blog.

On December 15, the Federal Energy Regulatory Commission (FERC) issued a permanent certificate authorizing the Spire STL natural gas pipeline serving the St. Louis area to continue operations. Spire STL had been on a treacherous legal roller-coaster, wherein its owner got a FERC certificate in 2018, built and started operation of the 65-mile pipeline in 2019, then in 2021 saw its certificate “vacated” — wiped out — by a U.S. Court of Appeals. Then, during the white-knuckled tail end of the ride, with the winter of 2021-22 looming, Spire STL got emergency/temporary authorization from FERC to keep operating while a brand-new application for a certificate was being considered. In today's RBN blog, we discuss the case — in which RBN played a part — and what it means for upcoming midstream projects.

After the catastrophic experience of Winter Storm Uri in February 2021, the Electric Reliability Council of Texas was restructured, with new statutory requirements and a whole new cast of characters. The Texas Railroad Commission (TRRC) put in place a number of fixes, including more stringent reliability rules for natural gas suppliers, from producers to transmission pipelines. At the same time, booming LNG exports, largely to Europe, combined with growth in Permian production have created new pressures and opportunities around the Texas energy mix — as well as implications for the ongoing transition to low- or no-carbon energy sources. How can all of these issues be understood and addressed at once — and in a way that doesn’t bore us all to tears? In today’s RBN blog, we outline the major themes to be discussed during the Texas Energy Symposium being planned by the Energy Bar Association and the University of Texas Law School.

Europe is trying to wean itself off Russian natural gas, and few things would help it more than an expansion of U.S. LNG export capacity. But LNG projects don't just need long-term commitments for their output, they also need pipelines to transport natural gas from the Marcellus/Utica and other distant production areas to their coastal liquefaction plants. And, in case you hadn't noticed, new interstate gas pipelines face a lot of hurdles during the regulatory review process these days — getting a pipeline approved is tougher than snagging a Saturday morning tee time. Which brings us to, of all things, an important court ruling. In today's RBN blog, we discuss the implications of the DC Circuit's decision in City of Oberlin v. FERC

In its landmark West Virginia v. EPA decision, the Supreme Court on Thursday scaled back the powers of the Environmental Protection Agency — and, it would seem, other federal administrative agencies — to implement regulations that extend beyond what Congress specifically directed in its authorizing legislation, in this case the Clean Air Act. The ruling didn’t go as far as throwing out the long-standing deference of courts to federal agencies’ interpretations when it comes to acting under statutory law where there’s any ambiguity — the so-called “Chevron Deference” doctrine. But it does impose a threshold roadblock to the use of the doctrine, based on the “Major Question” doctrine. Yep, we have a duel of the doctrines here. The end result here is to hamstring the EPA and the Biden administration from reinstating emissions-limiting rules similar to the ones the Obama EPA put forth a few years ago in the “Clean Power Plan,” at least not without legislative approval. Most of the oil and gas industry and a lot of the power industry are likely to welcome the check on this particular regulatory authority, and certainly most of the oil and gas industry welcomes some restraint on the EPA in general. However, the broader implications of the ruling could make life more difficult in the near-term for industries like oil and gas that rely on a stable, or at least semi-predictable, regulatory environment for making long-term plans. In today’s RBN blog, we explain what was at stake in this case and what the decision could mean for the oil and gas industry.

The energy market has been in chaos for some time. Even before Russia’s horrific attack on Ukraine, the multinational push to decarbonize the global economy was slow-motion-crashing into reality. Of course, global supply shortages only got worse following the invasion and the widespread response to it. The disruptions highlight the critical need for a balanced energy policy, both in the U.S. and abroad. This became evident in Europe last year, when a heavy, early reliance on renewable energy, largely wind, left much of the continent short on fuel and scrambling for natural gas when the wind didn’t blow enough. The overall supply-demand balance caused prices to rise steadily as the global economy climbed out of its COVID-induced recession. Then the situation became more dire as embargoes on Russian crude oil and gas were planned and implemented. In the U.S., the Biden administration, eager to both “green” the economy and keep gasoline prices in check, has been giving mixed signals to E&Ps and their investors, telling them to both ramp up investments in production and expect to play a smaller and smaller role going forward. It’s a confusing world. In today’s RBN blog, we look at the current energy environment, the policy roller-coaster, challenges to the increased usage of renewables that remain unaddressed, and how the politics of decarbonization are making the ongoing energy transition a very difficult row to hoe.

In the aftermath of the massive Winter Storm Uri in February of last year and its impact on the natural gas industry, there has been a blizzard of civil and regulatory litigation. Whether it’s someone not providing contracted gas supply, not taking expensive must-take gas supply, or saying “not that contract, but this contract” where there was a big difference in pricing between the two, lawyers are having a field day with the meaning of two words: force majeure. To what extent was one party to an agreement protected from being in breach of contract because their deal said some things could be force majeure, or beyond their control? The purchase and sale of natural gas at issue in these contracts is overwhelmingly done through a standard base contract produced by the North American Energy Standards Board, or NAESB (pronounced “Nays-be,” not “Nazz-be”). In today’s RBN blog, we discuss the standard contract used for the vast majority of natural gas supply deals in the U.S. and how its provisions relate to the issues raised by last February’s Deep Freeze.

As nobody in Texas will soon forget, in February of this year freezing temperatures across the southern U.S. hammered energy markets and resulted in widespread and long-lasting blackouts across the Energy Reliability Council of Texas (ERCOT) power region. Life for many Texans came to a standstill for a week until power could be restored. The resulting economic damages have been estimated in the billions. Many people, rightfully, questioned how an energy-rich state like Texas could have been so affected. And then the blame-game started. Lacking a forum of qualified experts, productive discussions took a back seat to self-serving rhetoric, special-interest advocacy, and political posturing. But if real solutions were going to be found, it would take more than finger-pointing. It would take a meeting of experts whose primary focus was a resolution, rather than a constituency. Fortunately for Texans, that’s what they got two weeks ago. In today’s blog, we take you through the symposium and its outcome, particularly regarding the role of natural gas.  

Oil and gas pipeline regulation have two things in common: They’re both regulated by the Federal Energy Regulatory Commission (FERC), and they were both brought under regulatory oversight in the first place by a Roosevelt — oil pipelines by Teddy Roosevelt and gas pipelines by Franklin Roosevelt. However, that’s where the similarities end. They’re regulated under different statutes, with wildly different histories that have led to very different types of oversight and rate structures. These rules tend to offer oil pipelines a higher degree of flexibility, but in doing so, they also make their rate structures less predictable. Today, we wrap up our review of oil and gas pipelines, and how their separate histories led to the current differences in pipeline rate structures, this time with a focus on oil pipeline ratemaking.

The uninitiated might be forgiven for thinking that oil and gas pipeline operations are similar. After all, they’re just long steel tubes that move hydrocarbons from one point to another, right? Well, that’s about where the similarity ends. While the oil and gas pipeline sectors are interlinked, they developed in quite distinctly different ways and that’s led to a vast chasm in both the way the two are regulated and how their transportation rates are determined. Bridging that gap between oil and gas can be a perilous and chaotic endeavor because you’ve got to consider how each sector evolved over time and the separate sets of rules that have been established to form today’s competitive marketplace. In today’s blog, we continue our review of oil and gas pipelines and how their separate histories led to the current differences in pipeline rate structures.

Here at RBN, we’ve built our analytics around the concept that hydrocarbon commodity markets — crude oil, natural gas, and NGLs — are fundamentally and closely linked. That’s why in all that we do, we emphasize that, in order to have an understanding of one market, you must also be competent in the others. That can be difficult at times when not only the market structure, but the very rules governing the upstream, midstream, and downstream sectors of oil and natural gas transportation are so different from each other. For example, consider the many contrasts between how oil and natural gas pipelines are regulated. Today, we look at how federal oversight of pipelines has evolved and why it matters for folks trying to move a barrel of crude oil or an Mcf of natural gas from Point A to Point B.

Just before the holidays, the Federal Regulatory Commission issued its final decision on the oil pipeline index rate for the next five years. The what?? Well, once rates for interstate oil pipelines are set and accepted by FERC, the rates can move around to match the market, but any increases are capped by an annual index announced by the FERC each year. The index is equal to the current year’s inflation rate, plus an “adder” that is calculated by the FERC every five years based on an examination of the industry’s results from the previous five years. In today’s blog, we explain how a few tweaks in the way FERC calculates the cost-of-service-based adder will significantly affect how much liquids pipeline rates can rise through the first half of the 2020s.

The U.S. natural gas pipeline sector is entering a challenging period for recontracting a major chunk of its capacity. The numerous pipeline systems built during the early years of the Shale Era’s midstream boom were anchored by 10-year, firm shipper contracts, mostly with producers, making them so-called “supply-push” pipelines. Many of those initial contract periods have begun to roll off, exposing pipelines to producer-shippers’ renewal decisions based on current fundamentals. Shippers typically expect substantially lower rates for a renewal contract, because much of the pipeline has been paid off through depreciation. But there’s another issue that is becoming more important: shipper recontracting may not happen for market reasons. For pipeline owners, this is happening at the worst possible time. The market is in turmoil and facing ongoing uncertainty. Gas production is down, demand from LNG export facilities is in flux, and regional supply-demand dynamics are shifting. As if that weren’t enough, new, large-diameter pipelines out of the Permian now nearing completion will reshuffle gas flows around the country. And other transportation corridors that not long ago were bursting at the seams and feverishly expanding to ease constraints are now at risk of being underutilized. Today, we discuss the factors that together may present significant risk for pipelines approaching the proverbial recontracting “cliff.”

On Thursday, June 18, the Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) to reset the index that’s used to make annual changes to the rate ceilings for interstate pipelines that transport crude oil, refined products, and other hydrocarbon liquids. Every year, the highest rate an indexed oil pipeline can charge goes up or down — almost always up — using the FERC index. The commission’s new proposal, which would become effective in July 2021, follows an already-approved index adjustment that will take effect a week from Wednesday, on July 1. Taken together, the two changes would reduce the maximum annual increase in the rate ceiling from more than 4% now to less than 1%, which could have a major impact on liquids pipeline owners. Today, we discuss the NOI, the meaning of the pipeline index, where it came from, and where it might be headed.