Articles, Alerts & Perspectives

The Legal Intelligencer

(by Alex Farone)

As outside counsel for a company, a concern is always whether the corporation will be named as a respondent or defendant in litigation. When those situations do arise, counsel should pay particular attention to the nuances of the attorney-client privilege when beginning an investigation. Many attorneys make assumptions regarding the applicability of the attorney-client privilege when dealing with the company’s employees. Those assumptions, in certain circumstances, can result in discoverable communications. Because in-house counsel serve a dual role of providing legal advice as well as business advice, a more careful analysis must be given to their communications with employees. Therefore, this article focuses solely on typical communications to and from outside counsel when performing an investigation.

In Pennsylvania, the attorney-client privilege operates as a two-way street to protect client-to-attorney and attorney-to-client communications made for the purpose of obtaining or providing legal advice. When the client is a company, do all employees count as an extension of the client such that conversations with them would be privileged? In most situations, they do not.

For a corporate client, the attorney-client privilege extends to communications between the attorney and the corporation’s agents or employees authorized to act on the corporation’s behalf. This is typically interpreted as directors, officers and management employees.

Until the U.S. Supreme Court’s decision in Upjohn v. United States, 449 U.S. 383 (1981), some courts used to adhere to the so-called “control group test,” a similar but restricted version of the “authorized to act” standard used in Pennsylvania. The control group test only applied the privilege to communications made to officers or agents of the corporation responsible for directing the corporation’s actions in response to legal advice. …

Washington, DC

Renewables Law Blog

(By Ben Clapp)

A bipartisan group of federal lawmakers recently introduced a bill aimed at jumpstarting growth in the energy storage sector.  If enacted, the Energy Storage Tax Incentive and Deployment Act of 2021 would broaden the investment tax credit program, which is widely credited with stimulating considerable growth in the solar sector, to include standalone energy storage projects.  The tax credit is currently only available for energy storage projects that are charged directly from other clean energy projects that qualify for the credit, such as solar.  In contrast, the proposed legislation would revise the investment tax credit so that it covers residential battery systems as well as large commercial and utility-scale storage projects, including batteries, pumped hydropower, hydrogen storage, thermal energy storage, and regenerative fuel cells, regardless of whether they are coupled with a qualifying solar project.  Expanding the credit to standalone projects is intended to drive investment to storage projects with greater charging flexibility, potentially allowing storage systems to access a larger piece of the energy market.

The large-scale deployment of domestic energy storage systems is largely viewed as critical to the continued growth of the renewables sector, as well as a key component of achieving the nation’s energy reliability and resiliency goals.  While it may be unrealistic to expect that extension of the tax credit to energy storage projects would result in the stratospheric levels of growth enjoyed by the solar industry over the past decade, the tax credit’s proven track record for stimulating renewables development has energy storage advocates hopeful that the proposed legislation would drive significant investment in the sector, resulting in a meaningful increase in energy storage deployment.

Tags: energy storage, Energy Storage Tax Incentive and Deployment Act of 2021, tax credits

Pittsburgh, PA

Renewables Law Blog

(By Christopher Hall)

The Department of Energy (DOE) recently announced that it will be awarding up to $20Million to support research and development of emerging flow battery storage technology.  The DOE’s announcement can be found here.  Battery storage has been identified by the DOE as an integral piece of the puzzle to modernizing our grid and enabling the deployment of additional renewable energy resources.  Regarding flow battery technology, the DOE stated that “while lithium-ion batteries are commonly used in electric vehicles and portable devices for various applications, flow batteries are particularly well-suited for grid storage needs.”  The DOE aims to incentivize development of scalable and cost-effective “mid-sized” flow battery systems (between 10 to 100kWh).  This funding opportunity follows several other recent announcements supporting the growth of energy storage, including the DOE’s Energy Storage Grand Challenge, a Department-wide program to accelerate the development, commercialization, and utilization of next-generation energy storage technologies and sustain American global leadership in energy storage, and a recently proposed Federal Bill to introduce a federal tax credit for energy storage, similar to those available to solar and wind projects.

Tags: battery storage, Department of Energy, DOE, Energy Storage Grand Challenge

The Legal Intelligencer

(by Dan Hido)

On Feb. 27, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published the final revision to the technical guidance document (TGD) No. 562-4180-306, titled “Civil Penalty Assessments for Coal Mining Operations,” 51 Pa.B. 1083 (Feb. 27, 2021). The previous version of the TGD was last updated in 2005. The PADEP first published draft revisions to the TGD on May 4, 2019, and subsequently re-published an updated draft on Oct. 3, 2020 because substantial changes were made in response to public comments.

The TGD sets the procedure and formula that the PADEP will generally follow in assessing penalties against coal mining operators for violations of Pennsylvania’s coal mining laws and the Clean Streams Law. The revised TGD makes several significant changes to how such penalties are calculated, including new, separate procedures for assessing penalties for water quality violations and revisions to the calculation of penalties for all other violations based on the seriousness of the violation and the culpability of the operator.

New Procedures for Water Quality Violations

The most significant change to the TGD is the addition of new procedures for assessing civil penalties for water quality violations under Section 605 of the Clean Streams Law, 35 P.S. Section 691.605(b). Such violations include violations of NPDES permit effluent limitations, and under the TGD each parameter exceeding an effluent limitation may constitute a separate violation. These procedures generally follow the 2005 TGD’s existing formula applicable to all violations, which is based on seriousness of the violation, culpability of the operator, costs to the commonwealth, savings to the violator, violation history and speed of compliance. However, the application of these factors will evaluate components specifically relating to water quality, such impacts to water resources or degree of exceedance of effluent limitations. …

RMMLF Mineral Law Newsletter

(by Joe Reinhart, Sean McGovern and Casey Snyder)

On November 18, 2020, Senate Bill 790 (SB 790), the Conventional Oil and Gas Wells Act, sponsored by Sen. Scarnati (R-Jefferson), was presented to Governor Tom Wolf for signature. Governor Wolf vetoed the bill on November 25, 2020. See Governor Wolf’s Veto Letter for SB 790 (Nov. 25, 2020). SB 790 would have set a legislative framework for regulations for the conventional oil and gas industry in Pennsylvania. See Memorandum from Sen. Scarnati to All Senate Members, “Conventional Oil and Gas Wells Act” (June 6, 2019). In his veto letter, Governor Wolf acknowledged the difficulty in regulating conventional and unconventional operations under Pennsylvania’s current program, which was updated by law in 2012 and by regulations for the unconventional industry in 2016. These updates were tailored to the new unconventional industry developing in the state, and placed new requirements on the conventional industry. Proposed regulations for the conventional industry were not promulgated in 2016 after the state legislature passed legislation requiring rules for the conventional industry to be promulgated separately from the unconventional rulemaking. See Pennsylvania Grade Crude Development Act, 58 Pa. Stat. §§ 1201–1208.

Governor Wolf cited several reasons for vetoing the bill and why he believed it posed a risk to the public health and environment. He characterized the bill as including “roll backs,” stating that protections for drinking water, public resources, spills, and erosion and sediment control are weakened for the conventional industry, which he alleged violates regulations at a rate “three to four times” higher than the unconventional industry. Additionally, he stated that several parts of the bill were “likely” unconstitutional under the Pennsylvania Constitution. …

RMMLF Mineral Law Newsletter

(by Joe Reinhart, Sean McGovern, Daniel Hido and Gina Falaschi)

Pennsylvania’s Environmental Quality Board (EQB) published its proposed Regional Greenhouse Gas Initiative (RGGI) CO2 Budget Trading Program rule in the Pennsylvania Bulletin on November 7, 2020, which opened the public comment period for the rule. See 50 Pa. Bull. 6212 (Nov. 7, 2020). EQB hosted a number of virtual public hearings in December 2020 and accepted comment until January 14, 2021. EQB received more than 13,000 public comments on the proposed rule. Currently, the Independent Regulatory Review Commission (IRRC) is reviewing the proposed CO2 Budget Trading Program rule. The IRRC reviews regulations under the Regulatory Review Act to determine whether a proposed regulation is consistent with the authorizing statute and whether the regulation is in the public interest. While the IRRC has access to all public comments submitted to EQB regarding the proposed CO2 Budget Trading Program rule, the IRRC has also received a significant number of comments directly from legislators and the public. The IRRC’s comments, recommendations, or objections on the proposed regulation were due to the Pennsylvania Department of Environmental Protection by February 16, 2021.

A final regulation is expected later in 2021, at which time EQB will also release its responses to the public comments submitted on the proposed rule. The rule is tentatively scheduled to take effect in January 2022. For detailed descriptions of the content and implementation of the proposed rule, see Vol. XXXVII, No. 4 (2020), Vol. XXXVII, No. 3 (2020), Vol. XXXVII, No. 2 (2020), Vol. XXXVII, No. 1 (2020), Vol. …

Washington, DC

EmTech Law Blog

(by Gina Falaschi)

The United States is experiencing a wave of state-led clean transportation initiatives that are gaining substantial momentum. Faced with insufficient federal action, states started focusing their efforts on the sector that produces the largest percentage of greenhouse gas: transportation. On November 10, 2020, the Environmental Law Institute and Babst Calland co-hosted a webinar that explored these initiatives, their potential impact, and funding sources. Click here for a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Tags: Transportation, Vehicles

Babst Calland has been named to this year’s Pennsylvania Business Central’s “Top 100 Organizations” list and profiled in its Signature Top 100 issue. Nominations were taken throughout the publication’s 23-county coverage area, and the final organizations were selected by an editorial committee due to their positive impacts in the business community of central Pennsylvania.

For the full list, click here.

Environmental Law Reporter

The United States is experiencing a wave of state-led clean transportation initiatives that are gaining substantial momentum. Faced with insufficient federal action, states started focusing their efforts on the sector that produces the largest percentage of greenhouse gas: transportation. On November 10, 2020, the Environmental Law Institute and Babst Calland co-hosted a webinar that explored these initiatives, their potential impact, and funding sources. Click here for a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

Pittsburgh, PA

Renewables Law Blog

(By Bruce Rudoy)

In another sign of various sectors of the energy industry coming together to advance decarbonization, Enterprise Products Partners LP, a company focused on pipeline, storage and natural gas processing, among other services and products to the energy industry, signed a virtual power purchase agreement for solar energy from the Space City Solar project located in Wharton County, Texas. “We are committed to being a responsible steward of the environment, including using energy sustainably across our footprint,” A.J. “Jim” Teague, co-CEO of the Houston-based midstream company’s general partner, said in a statement on March 1. The PPA made with EDF Renewables North America is the result, Teague said, of an initiative launched by Enterprise Products in 2020 to expand solar power purchasing and/or installations across its system. “We estimate that by 2025, approximately 25% of our power will be from renewable resources.” The Space City Solar project is expected to commence construction in Summer 2021 and begin delivery of clean electricity in Summer 2022. The power purchase agreement between EDF Renewables and an affiliate of Enterprise Products was for a second tranche of the project for 100 MWac/132 MWdc. The project’s total capacity is up to 345 MWac/455 MWdc.  Approximately 300 jobs are expected to be created during the construction phase with more than $30 million generated in new tax revenue over the operating life for Wharton County taxing entities, according to a joint release from Enterprise and EDF.

EDF Renewables North America Signs Virtual Power Purchase Agreement with Enterprise Products for Solar Energy | Business Wire

Tags: Enterprise Products Partners LP, renewable, solar, Virtual Power Purchase Agreement

Charleston, WV

Renewables Law Blog

(By Robert Stonestreet)

Democratic Senators from West Virginia (Joe Manchin) and Michigan (Debbie Stabenow) have introduced legislation to make billions of dollars available to promote manufacturing related to energy efficiency and renewable energy.  According to a press release, the proposed “American Jobs in Energy Manufacturing Act of 2021” would provide up to $8 billion in tax credits to “manufacturers and other industrial users to retool, expand, or build new facilities that make or recycle energy-related products.”  Half of those credits are designated for communities adversely affected by closures of coal mines or power plants that have not previously received similar tax credits.  Under the proposed bill, credits are available for new construction or retrofitting of existing facilities to produce or recycle a range of energy products including:

• advance electric grid, energy storage, and fuel cell equipment;
• equipment for production of low-carbon, low emission fuels, chemicals and other products;
• renewable energy and energy efficiency equipment;
• products or technologies that capture, remove, use, or store carbon dioxide; and
• advanced vehicles, components, and related infrastructure.

The bill is intended to promote creation of domestic jobs that draw on skills possessed by individuals formerly employed in manufacturing, coal mining, or power plant operation.  The bill also seeks to promote investment in communities experiencing high unemployment due to coal mine or power plant closures.

Tags: energy, Energy Manufacturing Act of 2021, Manufacturing, tax credits

Smart Business

(by Sue Ostrowski featuring Julie Domike and Gina Falaschi)

As vehicle emissions continue to represent the largest contributor to air pollution, the Environmental Protection Agency is becoming more vigilant about prosecuting manufacturers of the parts designed to decrease the effectiveness of emissions controls, and those who use them. And if your business has these parts installed on your vehicles or other equipment, you could be at risk of fines, or jail time — even if you’re not aware that tampering has occurred.

“The EPA has been, and will continue to, look seriously at tampering with vehicle emissions controls and has issued guidance to clarify its approach and requirements,” says Julie Domike, shareholder at Babst Calland. “The transportation sector is a huge source of emissions, and the EPA is signaling it is working with the states to step up enforcement, taking a closer look at vehicles that have been tampered with for the purpose of increasing fuel economy and decreasing down time.”

Smart Business spoke with Domike and Gina Falaschi, an associate at Babst Calland, about the crackdown on the use of aftermarket defeat devices and how businesses can ensure they remain in compliance with the Clean Air Act.

Why is the EPA increasing its enforcement of tampering and the use of defeat devices?

The EPA reports that more than 550,000 diesel trucks have had emissions controls tampered within the last 10 years, increasing emissions equating to having 9 million additional diesel vehicles on the road. With a goal of reducing emissions, pursuing illegal tampering is much more palatable to states than limiting the use of vehicles. While the EPA has arguably the most robust enforcement authority for new vehicles and engines, it is looking to states and associations that deal with air quality issues to take on cases involving tampering with vehicles once they are in use. …

Washington, DC

Renewables Law Blog

(By Ashleigh Krick)

On February 17, 2021, the Biden Administration announced it will revoke amendments to the Desert Renewable Energy Conservation Plan (DRECP) filed during the last days of the Trump Administration.  The DRECP was a collaborative, interagency planning effort finalized in 2016 that was intended to balance renewable energy development and desert conservation across nearly 11 million acres of public lands in the deserts of California.  The DRECP carves out certain areas of the deserts for renewable energy development, and makes other areas off limits for reasons including conservation and recreation.  The Trump Administration’s amendments would have reduced the number of areas where renewable energy development was off limits, opening up an additional 800,000 acres for renewable energy development.  In a statement from the Bureau of Land Management, it was unnecessary to reopen and reconsider the DRECP, which had been developed after years of collaboration and stakeholder input.  Renewable energy development in the DRECP land area will continue on under the original plan.

Tags: Bureau of Land Management, Desert Renewable Energy Conservation Plan, DRECP, renewable