On November 29, WilmerHale held its second annual Women in Energy and Infrastructure—Powering the Future conference in Washington DC. The event and pre-conference dinner provided a forum for women thought leaders to discuss legal and policy issues impacting the energy and infrastructure sectors. Speakers included senior government officials, company executives, and leaders of non-governmental organizations:

• Marcella Burke—Deputy Solicitor for the Division of Energy and Mineral Resources, US Department of the Interior
• Eileen Sobeck—Executive Director, California State Water Resources Control Board
• Kathleen Staks—Executive Director, Colorado Energy Office
• Cara Hair—Vice President Corporate Services, Chief Legal and Compliance Officer, Helmerich & Payne, Inc.
• Nadia El Mallakh—Assistant General Counsel, Xcel Energy
• Maryam Brown—Vice President, Federal Government Affairs, Sempra Energy
• Amanda Simpson—Vice President, Research and Technology, Airbus Americas
• Kristie Tice—Senior Counsel, Chevron USA Inc.
• Amy Farrell—Senior Vice President, Government & Public Affairs, American Wind Energy Association
• Liz Klein—Deputy Director, State Energy and Environmental Impact Center, NYU School of Law
• Sarah Wallach—Chief Operating Officer at Massachusetts Clean Energy Center
• Sherri Goodman—Senior Advisor for International Security, The Center for Climate and Security and Senior Fellow, Wilson Center
• Whitney Fiore—Senior NEPA and Natural Resources Specialist, SWCA Environmental Consultants

Below are key takeaways from each of the conference sessions. To stay up to date on events and developments related to the energy and infrastructure industries, subscribe to our newsletters.

Policies, Permitting and Projects: Energy and Infrastructure Regulatory Reform
Moderator: Counsel Raya Treiser, WilmerHale

The conference began with a panel discussion on the significant efforts currently underway to reform the federal regulations that govern the development and operation of large energy and infrastructure projects. This panel covered issues ranging from the Council on Environmental Quality and US Department of the Interior’s efforts to streamline the environmental review process under the National Environmental Policy Act (NEPA), the reform of Endangered Species Act (ESA) regulations, changes to agency interpretation of the Migratory Bird Treaty Act (MBTA), and a variety of reforms related to oil and gas permitting. Key points of discussion included:

• The Council on Environmental Quality and the Department of the Interior are taking important steps to reform the regulations and process for conducting environmental reviews under NEPA. The Department of the Interior has developed a process for implementing the Secretarial Order imposing time and page limits for completing NEPA review, which includes certain internal procedural improvements intended to facilitate timely review. 
• Another area of reform with significant potential impact for future development is the ongoing effort by the Fish and Wildlife Service to reform SA regulations, including significant potential changes to the regulations governing federal agency consultations (Section 7), the criteria by which species are listed or delisted and critical habitat is designated (Section 4), and the protections covering threatened species (Section 4(d)).
• The Department of the Interior Solicitor Opinion concluding that the MBTA does not prohibit the incidental take of migratory birds provides welcome certainty to developers but it remains a short-term solution absent a rulemaking or other more lasting reform on this issue. It also doesn’t resolve the underlying uncertainty created by the circuit split in the courts.
• Project proponents and operators need to balance regulatory reform efforts against the risk of litigation and the need to ensure that agency decisions are supported by robust administrative records that are legally defensible and reliable.
• A number of specific areas merit particular focus in future reform efforts, including providing further guidance on the appropriate analysis of greenhouse gases during NEPA environmental review processes and finding a more permanent solution for defining potential liability under the MBTA.

Under Scrutiny: Insights on Compliance and Investigations

WilmerHale Partner Kimberly Parker and Special Counsel Lillian Potter discussed with Helmerich & Payne Vice President, Corporate Services and Chief Legal Officer Cara Hair an investigation the company faced regarding violations of the Foreign Corrupt Practices Act (FCPA). Key observations included: 

• Helmerich & Payne conducted a training program on the FCPA for employees, which prompted a whistleblower to tell the company about improper payments made in Argentina. The company subsequently conducted an internal investigation where it investigated not only the claims in Argentina, but also how business was being conducted in all other countries. 
• Helmerich & Payne decided to make a voluntary disclosure of the violation to the government. After disclosing, the company was fully cooperative with the government investigation. This resulted in a far lower fine than other companies who had similar violations but were not as cooperative. The company was also the first allowed to self-monitor compliance with the consent decree. 
• Ms. Hair attributed part of the success of Helmerich & Payne’s current compliance program to having an in-person training program, and creating a culture where employees feel comfortable to speak out if something seems wrong. She explained the value of taking the time to create a compliance culture, while still being cognizant of the unique issues that come with working in foreign countries. 
• As a matter of best practice, companies should conduct a formal risk assessment every few years to ensure the compliance program is tailored to their risks.

Driving Forces: Projections for the Next Decades in Energy
Moderator: Counsel Rachel Jacobson, WilmerHale

The energy industry has undergone rapid change over the last decades, which will continue to accelerate over the coming decades. During this panel, leaders from a variety of sectors discussed what these changes look like, the drivers behind these changes, the interconnection with climate change and the potential opportunities. Insights included:

• Innovation and technology—and the pace of technological innovation—are key forces driving many changes and opportunities in the energy industry. The energy industry itself is a chief source driving the advances in technology in order to respond to consumer demands
• While disruption on a global scale may create the need for changes in the industry, many in the energy industry and its customers are welcoming the changes as an opportunity and are actively working to incorporate stakeholder feedback and consumer demand into plans for harnessing opportunities for the future.
• Although government regulation has been one driver of change, other forces have also played large—and sometime more important—roles, including consumers and customers, market forces, the desire to increase resiliency, and the ability to adapt to climate change. 
• Subnational governments, including states and local governments, have been key in driving and responding to changes in the energy industry in order to create jobs, increase resiliency, respond to citizen desires and help create economic growth for their communities.
• The transformation of the energy industry creates tremendous economic and innovation opportunities to meet consumer demand and respond to the need for energy resilience in the face of global, national and local forces. Energy companies which are poised to respond and take advantage of such opportunities will be well situated as the industry continues to experience rapid changes.

The Post-Election Landscape 

During the lunch session, Counsel Raya Treiser and Alyssa DaCunha discussed what to expect in the aftermath of the recent Congressional elections with respect to energy. Notable points included: 

• It is likely there will be an increase in the number of investigations now that the Democrats have control of the US House of Representatives, with both public and private sector targets. However, the Democratic investigative staffs are likely to conduct investigations in a thoughtful way rather than haphazardly issuing subpoenas as has been suggested by some in the media.
• The US Environmental Protection Agency and Department of the Interior will likely be the key focal points for Congressional investigations in the energy space, as Democrats in the House focus on some of the hallmark policies of the Trump Administration and on agencies’ decision-making processes for both policy- and project-specific decisions. 
• Freshman Democratic representatives and incoming Speaker Nancy Pelosi are calling for the revival of the House Select Committee on Energy Independence and Global Warming, which operated from 2007 to 2011 and would likely have investigatory powers. This could contribute to an increased focus on climate change issues and the energy sector. 
• A practical implication of an uptick in Congressional investigations and document requests may be an even heavier workload on the already overburdened senior career and political staff at the Department. 
• Companies will need to ensure they are thinking about the impacts of the new political landscape holistically and addressing all the issues that may arise from the different investigations. 

International Arbitration: Energy and Infrastructure Disputes

In this fireside chat, Partner Rachael Kent and Counsel Danielle Morris discussed international arbitration of energy and infrastructure-related disputes. Key takeaways included:

• Players in the energy and infrastructure sectors often choose to resolve disputes through international arbitration. Arbitration is generally preferred over national court litigation because many energy and infrastructure projects cross national borders, and disputes often arise in countries where investors do not have confidence in the local legal system or local courts.
• Disputes in the energy and infrastructure sectors can lead to commercial arbitration under contracts—such as joint operating agreements, construction contracts or supply agreements—and investment arbitrations under bilateral or multilateral investment treaties—such as the Energy Charter Treaty or the North American Free Trade Agreement.
• Investment arbitrations are sometimes used to challenge administrative actions or regulatory changes that affect the value of long-term investments and are contrary to the expectations of the investor when the investment was made. 
• Investment arbitration is coming under increasing criticism, and states are reacting to that criticism in various ways. Some states have withdrawn from international investment treaties, the EU has proposed a multilateral investment court as an alternative to bilateral investment arbitration and the US-Mexico-Canada Agreement, if ratified, would sharply limit investors’ access to arbitration. These changes will not affect the prevalence of arbitration clauses in commercial contracts in the energy and infrastructure sectors, but they do require investors to plan carefully for potential disputes that could affect their investments in other countries.

Authority Shifts: The Role of Federalism in Energy and Infrastructure Policy and Regulation
Moderator: Counsel Bonnie Heiple, WilmerHale

States have assumed a lead role in shaping domestic energy and infrastructure policy in recent years. Panelists provided perspectives from states and experiences across the nation on topics including energy and infrastructure policies and incentives, renewable portfolio standards, permitting of large projects, and potential impacts of mid-term elections. Noteworthy points included:

State Roles in in Energy and Infrastructure

• States are making significant strides with renewable goals, and RPS-type standards in particular, some of which may conflict with federal policies (e.g., pipelines). States are making these efforts in part due to concerns regarding continued reliance on traditional fuel sources, grid vulnerability, and the need to improve resiliency capabilities.
• One key example of state and federal interplay is that state renewable standards are driving offshore wind energy development—particularly on the US eastern seaboard. States are taking the lead in investing in technology and infrastructure (e.g., port improvements and blade manufacturing), and both coasts are encouraging offshore development. Panelists expect an overall uptick in development in the next 5 to 10 years. 
• Energy efficiency remains an important area of focus; many states are developing different financing products for efficiency and renewable energy improvements. 
• States including California are aggressively developing solutions for resiliency in the face of increasing climate-related impacts. Local, state and federal overlays can complicate infrastructure issues (e.g., EPA remains a strong driving force for drinking water standards, but water districts are managed more locally).

Driving Forces 

• Panelists examined the causation between state- and federal-level actions (or lack thereof).
• There are numerous driving forces for increased visibility of state roles in energy and infrastructure; some initiatives are spurred by real or perceived gaps in federal programs, but certain states have a long history of regulations and policies geared towards renewables independent of federal focus. 
• States are not interested in moving backwards, or even in maintaining the current status quo in certain areas. For example, given the current absence of clear federal-level commitments to emissions reductions, 17 state governments have committed to reducing greenhouse gases consistent with the Paris Accord—amounting to a collective impact akin to a large nation. The question remains, however, as to how quickly states (and collectively, the nation) realistically can transition to large-scale renewable energy sources and meet accompanying infrastructure needs.
• Federal efforts including One Federal Decision and FAST 41 are aimed at fast-tracking renewable energy development, but there still is a state-level process that must be conducted (e.g., New York). That fact is often overlooked as the federal side of permitting is streamlined; better coordination of the various regulatory frameworks has its challenges but would provide better certainty for developers and investors.
• States are looking for economic opportunities that parallel energy infrastructure and development. More clean energy jobs are available than ever before, which drives the workforce to meet growing demand. 

Looking Ahead

• Panelists discussed the intersection between traditional and renewable energy sources, and examined areas in which states have increasing opportunities to shape energy and infrastructure development. 
• Midterm election results have the potential to significantly impact these sectors. The election of governors who campaigned on strong energy platforms, and state attorneys general (or in some cases, replacement of incumbents) who are tackling issues related to climate change, pricing, and reliability, will drive considerable change. A changing House majority also could have far-reaching impacts, ranging from investigations and oversight to extended renewables incentives. 
• The election results were driven in part by an increasing focus of constituents on energy choice and interest in individual measures that contribute to broader goals (efficiency investments, residential/community solar, EVs, local drinking water use and infrastructure).
• To a certain extent, “if you build it, they will come”—Colorado is an example of a state leading the way with respect to electrification of major transportation corridors to facilitate the growing electric vehicle market. 

Panel Conclusion

Across the board, the energy and infrastructure industry is evolving. While the federal government will continue to make gains in streamlining permitting to fostering development, states will remain active as leaders on the policy side. We can expect growth and innovation to continue in this key sector of our nation’s economy.

State roles in energy and infrastructure are both increasingly visible, and, in some cases, spurred by federal regulatory uncertainty. Active engagement at the state level is an overall positive as it responds most directly to constituent demands and local/regional resource and other capabilities. Healthy competition between states to secure renewable energy development (and the jobs that come with it) can serve as a positive driver. But emerging state efforts aren’t always coordinated with existing regional and/or federal programs; improved coordination between those bodies and between regulators and stakeholders on key issues would provide valuable certainty and further encourage domestic renewables development and infrastructure improvements. While it is too early to report on impacts of the midterm elections in these sectors, it is expected that states will continue to innovate and implement forward-looking policies and programs to respond to climate-related impacts, modernize infrastructure, and develop an energy portfolio that balances reliability, security, and environmental objectives.

This content reflects WilmerHale's summary of the key issues discussed during conference sessions and should not be attributed to any individual conference participant.