Volume 7, Issue 5
Thank you for reading our fifth issue of Currents for the year.

We would like to take a moment to recognize a large number of our attorneys who recently were recognized by West Virginia Super Lawyers and Virginia Super Lawyers for 2023.

The objective of the Super Lawyers selection process is to create a credible, comprehensive and diverse listing of outstanding attorneys from more than 70 practice areas. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

These are well-deserved recognitions and several of these attorneys focus on energy-related matters. You can learn more about Super Lawyers and see our West Virginia list here and our Virginia list here. Congratulations to all!

This is also a reminder that on May 15 in Chicago, our own Stephanie Eaton will be presenting at the DRI Wind Energy Litigation Seminar. At this seminar, attendees will gain an in-depth understanding about the onshore and offshore wind sector from experienced attorneys and directly from the industry itself. Click here to learn more and register.
We hope you enjoy this issue and, as always, thank you for reading.
Co-Editor, Currents
Co-Editor, Currents
An Uncertain Future for Nuclear Generation

As countries and companies around the world set goals for renewable energy targets, there is constant uncertainty as to the best path for reaching these goals. While wind and solar development are often top of mind, nuclear generation recently has entered the discussion to achieve a carbon-free energy future. 

Click here to read the entire article.
“In a short order, the justices granted Loper Bright Enterprises Inc. v. Raimondo, which challenges a NOAA Fisheries rule that requires Atlantic herring vessels to pay as much as 20 percent of their revenue to hire third-party monitors that collect data for conservation and management of the fishery.”

Why this is important: The article discusses the fact that the classic “Chevron deference” standard, which generally allows administrative agencies great discretion in interpreting ambiguous statutory authority, is being revisited by the Supreme Court in a case involving herring fishermen. The case addresses an NOAA regulation that would require herring fisherman to spend up to 20 percent of their revenue on data monitoring required by new rules. Since the 1984 Chevron case was decided, judicial deference to agency interpretations has largely been the norm, particularly at the federal Circuit Court of Appeals level. As the article notes, the Supreme Court has become more suspect, having recently concluded in the West Virginia vs. EPA case (addressing the so-called Clean Power Plan) that regardless of ambiguity in the originating statute, an agency may not apply its own interpretation to a “major question” of policy; rather, the “Major Questions Doctrine” requires that the issue must be addressed by Congress. In the current case, the D.C. Circuit Court of Appeals applied Chevron and upheld the NOAA Fishery rules; it appears, however, that the Supreme Court has taken up the appeal precisely so that it can address the ongoing validity of Chevron. --- Derrick Price Williamson
“Built in 1971, Liddell provided about 10 percent of the electricity used in New South Wales, Australia's most populous state.”

Why this is important: While Australia continues to be a major exporter of coal to the world, it is closing its own coal-fired electrical generation power plants. The Liddell Power Station, built in 1971 and producing 10 percent of New South Wales electricity, is now closing. Australia’s largest coal-fired plant, the Eraring Plant, will close in 2025. Renewables currently produce 30 percent of Australia’s power with goals to increase that to 82 percent of the nation’s power by 2030. --- Mark E. Heath
“This will be the first-of-its-kind geothermal study in West Virginia and will collect core samples and temperature data down to a depth of 15,000 feet, critical to testing the potential of geothermal energy in the region.”

Why this is important: West Virginia isn’t generally thought of as a place where geothermal energy on a utility scale would be possible. There aren’t any volcanoes or hot springs of the type seen in Yellowstone or elsewhere in the West. Nevertheless, the state is thought to have some geothermal potential, and to investigate those resources the state will be partnering with Northeast Natural Energy to drill a well almost three miles deep. Along the way, it will also provide information on the carbon sequestration potential of the rock that it passes through. --- David L. Yaussy
“The law would likely take effect in 2026 for most new buildings under seven stories and in 2029 for larger buildings.”

Why this is important: The article details a pending New York state law that will ban most fossil fuel-based appliances and stoves in new construction for buildings under seven stories in 2026 and for larger buildings beginning in 2029. The effect would be to eliminate gas stoves, oil and gas furnaces, and propane heating. The purpose is to transition to what the article refers to as “climate friendly” appliances. The article notes that states like California and Washington have used building code revisions to effectuate “electrification,” but that New York will become the first state to pass a law mandating zero-emissions for new homes and buildings. The law could include some exemptions and would not currently apply to existing residences. Importantly, however, the article acknowledges opponents who cite, among other things, resulting increased costs for residents with respect to electricity and new construction, as well as the likelihood of legal challenges. The article omits any material reference to the fact that implementation of electrification initiatives like these will ultimately require more electric power production and an enhanced electric grid, which raise additional cost and emissions concerns. --- Derrick Price Williamson
“The Biden administration will provide billions of dollars in tax incentives for clean energy developers and facilities to build projects in applicable communities, according to a joint announcement from the White House, Treasury Department and Department of Energy.”

Why this is important: In early April, the White House announced incentives to drive more green energy investment in communities hurt by coal plant and other fossil fuel shutdowns. The incentives are in addition to tax breaks in the Inflation Reduction Act. The plan includes tax incentives and $450 million from the infrastructure investment law along with $16 million for critical mineral refinery projects in West Virginia and North Dakota. --- Mark E. Heath
“The reason for this is that hydrogen gas reacts readily in the atmosphere with the same molecule responsible for breaking down methane, which is a potent greenhouse gas.”

Why this is important: Increased production of hydrogen presents its own perils, if it is allowed to escape from confinement, something it readily does. Hydrogen reacts with, and essentially neutralizes, molecules in the air that would otherwise scavenge ozone and methane. Hydrogen generation presents both risks and rewards from a climate standpoint. --- David L. Yaussy
“Put simply, the more you earn the more you pay for recurring charges (not related to energy usage).”

Why this is important: The article explains how a new state law in California has led to the state’s major electric utilities filing proposals for partial income-based electric service. In pertinent part, the fixed cost portion of residential bills would be based on household income level, with a gradated scale from low to high based on such levels. Income verification would be handled by a third-party agency, and each customer’s energy usage charges would still be based on actual consumption month-to-month. The proposal is important in that it may provide a vehicle to partially address the often-ignored fact that so-called climate friendly “electrification” initiatives will lead, at least in the short run, to increased electric costs that have a disproportionate impact on lower income households, people of color, and those in urban and rural communities. --- Derrick Price Williamson
“Green hydrogen might be a solution for some industries, but for home power experts say it doesn’t make much sense.”

Why this is important: Green hydrogen (produced without fossil fuels) is widely touted as one of the future cornerstones of a sustainable future. But, it isn’t the best fit for every purpose. It’s a small molecule that tends to escape pipes and embrittle steel, making it difficult to use in large quantities in the existing natural gas delivery system. That and the high cost of producing green hydrogen make it unsuitable for use in home heating and cooking systems. Understanding the limits, as well as the possibilities, of green energy is crucial to making sure that every energy source is fit for purpose. --- David L. Yaussy
EIA Energy Statistics
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