U.S. Energy & Infrastructure Update

Explore our U.S. Energy & Infrastructure Group's latest update covering the most critical developments impacting renewables, infrastructure, and clean hydrogen. In this issue:

• The Impact of the U.S. Supreme Court Overturning Chevron Deference. On June 28, 2024, the U.S. Supreme Court released its much-anticipated joint decision in Loper Bright Enterprises, et al. v. Raimondo, et al. and Relentless, Inc., et al. v. Department of Commerce, et al., overturning the landmark 1984 case Chevron U.S.A. Inc. v. Natural Resources Defense Council, which previously required, absent a clear intention from Congress addressing the precise question at issue, that federal courts must defer to the federal agency’s interpretation as long as that interpretation was based on a permissible construction of the statute.
• U.S. Federal Energy Regulatory Commission Updates and Expands Electric Transmission Siting Rules. On May 13, 2024, the U.S. Federal Energy Regulatory Commission issued Order No. 1977, revising its backstop electric transmission siting rules to incorporate changes resulting from the Infrastructure Investment and Jobs Act, which, among other things, expanded FERC’s siting authority.
• Council on Environmental Quality Finalized NEPA Modifications and the Ongoing Litigation. In May 2024, the White House Council on Environmental Quality completed its multi-phase approach to modifying its National Environmental Policy Act regulations by promulgating the Phase 2 Rule, which is broader and more comprehensive than Phase 1.
• U.S. Supreme Court Significantly Extends Time to Challenge Regulations and the Resulting Implications. Reversing over 75 years of administrative practice, the U.S. Supreme Court has ruled in Corner Post Inc v. Board of Governors FRS that, for purposes of claims filed against agencies under the Administrative Procedure Act, the timing of the 6-year statute of limitations does not begin to count until the “plaintiff is injured by final agency action.”
• Legislation Enacted to Revitalize Domestic Nuclear Industry. On July 9, 2024, President Biden signed into law the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act, which builds on the Nuclear Energy Innovation and Modernization Act by reducing costs for developers by further streamlining the NRC permitting process and incentivizes development of new-wave nuclear projects, like Small Modular Reactors.
• New IRS Guidance Provides Some Clarity to Taxpayers regarding tax credits for SAF and Clean Hydrogen, and the new ITC and PTC. On April 10, 2024, the IRS and Treasury issued a supplemental notice of proposed rulemaking pertaining to the clean hydrogen PTC and ITC under Sections 45V and 48 of the Code, that focused exclusively on procedures to be followed in order to request a provisional emissions rate, and then on April 30, 2024, issued Notice 2024-37, pertaining to the tax credit for SAF under Section 40B.