U.S. Energy Regulation, Development & Finance SECOND EDITION ROBERT A. JAMES, EDITOR Pillsbury Winthrop Shaw Pittman LLP ATTORNEY ADVERTISING. Results depend on a number of factors unique to each matter. Prior results do not guarantee a similar outcome. Pillsbury Winthrop Shaw Pittman LLP 1540 Broadway | New York, NY 10036 | 877.323.4171 www.pillsburylaw.com © 2013 Pillsbury Winthrop Shaw Pittman LLP. All rights reserved. Preprinted by permission of Law Business Research from the following publications: Electricty Regulation 2011, Gas Regulation 2012, Oil Regulation 2012, and Project Finance 2013. The U.S. energy and infrastructure sectors have undergone dramatic change since 2006, the year of Pillsbury’s first contribution to the Getting the Deal Through publications. Natural gas production and reserves have increased largely from shale and other unconventional sources, which have reinvigorated the petrochemical sector, challenged the prospects of power generation from coal, nuclear and renewable sources, and turned talk of LNG imports into talk of potential exports and gas as a more widespread transportation fuel. Oil production has increased in the Midwest, which faces obstacles for new and increased means of transportation, and the federal agencies regulating offshore oil leases and safety have been completely transformed after the Macondo accident. Power generators must, as ever, monitor the changing political drivers of policymakers and agencies, with higher renewable procurement standards being more concentrated in the Northeast and the West Coast and new generation projects often needing to coordinate with plans for greater local and regional transmission. A common thread is the greater need for investments in infrastructure of all types, including private finance and public-private partnerships (PPPs) to cope with the constraints on public funding. In this second edition of our pieces, we present the thought leadership of Pillsbury lawyers across the entire fuel spectrum—oil and gas on one hand, and nuclear, renewable, gas and coal power generation on the other—and across the private and PPP approaches to project development and finance for infrastructure as well as energy facilities. We couple overviews of the complex legislative and regulatory landscape in each sector with Pillsbury’s practical take on implications for domestic and foreign investors. We hope this information continues to be helpful as an initial reference by our energy and infrastructure clients and our other friends. Robert A. James Co-Leader, Energy Industry Team Pillsbury Winthrop Shaw Pittman LLP Pillsbury Winthrop Shaw Pittman LLP UNITED STATES United States Robert A James and Stella Pulman* Pillsbury Winthrop Shaw Pittman LLP General projected to increase until 2035 as rising world oil prices spur both onshore and offshore drilling. 1 Describe, in general terms, the key commercial aspects of the oil Although US energy consumption is projected to continue to sector in your country. increase over the next 25 years, crude oil as a share of overall energy The US oil industry is divided into three sectors: upstream (explora- is projected by the EIA to decrease as a result of federal and state tion and production), midstream (processing, storage and transporta- renewable energy programmes and the rising cost of fossil fuels. tion) and downstream (refining, distribution and marketing). ‘Proved reserves’ are estimates of the amount of oil that is reason- Industry participants are categorised as ‘supermajors’, ‘majors’ ably certain to be recoverable from known reservoirs under current and ‘independents’. ‘Supermajors’ are the handful of very large com- economic and operating conditions. According to the CIA World panies integrated across all sectors that account for most of the US Factbook, the United States ranked 13th among nations in proved oil industry revenues. US-based supermajors include ExxonMobil, oil reserves. The EIA estimated US proved reserves at 20.7 billion Chevron and ConocoPhillips, whereas the overseas-based superma- barrels at the beginning of 2011. US proved reserves peaked in 1970 jors, BP and Shell, have substantial US operations. Smaller-scale inte- and have since declined by 47 per cent. About one-fifth of proved grated firms include Marathon, Hess and Murphy Oil. reserves are located offshore. A larger number of companies specialise in particular sectors. In 2009, the Securities and Exchange Commission (SEC) changed The ‘independents’ engage predominantly in upstream activities and its reporting guidelines for public companies to permit companies to include Occidental, Devon, Anadarko and Apache. Midstream spe- report probable and possible reserves, as well as proved reserves. cialists include Kinder Morgan. Refining and marketing operations are conducted by Valero, Sunoco, Tesoro and Western. The industry 3 Does your country have an overarching policy regarding oil-related is supported by oil service companies led by Schlumberger, Halli- activities or a general energy policy? burton and Baker Hughes, and by a variety of trade associations including the American Petroleum Institute (API). There is no single source of law that can be considered a United US subsidiaries of national oil companies owned or controlled by States energy policy. At the federal level, the Department of the Inte- foreign governments (NOCs) are important participants in the US oil rior (DOI), the Department of Transportation (DOT), the Depart- industry. For example, Venezuelan-based Petróleos de Venezuela SA ment of Energy (DOE) and the Environmental Protection Agency (PDVSA) owns Citgo, which supplies gasoline to nearly 6,000 retail (EPA) play important roles in the development and maintenance of outlets and owns interests in three refineries in the US. a national energy policy. At the state level, their counterpart agen- cies, which are often delegated authority by federal legislation, play a similar role. 2 What percentage of your country’s energy needs is covered, directly Over the years, there have been several legislative efforts by or indirectly, by oil as opposed to gas, electricity, nuclear or non- the United States Congress to develop a general energy policy that conventional sources? What percentage of the petroleum product promotes the domestic production of oil and gas and other sources needs of your country is supplied with domestic production? What are of energy, while also responding to environmental concerns. For your country’s energy demand and supply trends, especially as they instance, after many years of debate, Congress passed the Energy affect crude oil usage? Policy Act of 2005. The Act is intended to facilitate the increased In 2010, oil provided an estimated 37 per cent of total US energy domestic production of oil and gas as well as electric and other forms needs, along with coal (21 per cent), natural gas (25 per cent), nuclear of energy. The law also clarified the reach of the Safe Drinking Water (9 per cent) and renewables (8 per cent). Seventy-one per cent of oil Act in hydraulic fracturing matters, and the application of EPA’s consumption occurred in the transport sector, primarily in the form storm water rules to the construction of oil and gas production sites. of gasoline. The industrial sector consumed another 22 per cent for On the heels of the 2005 Energy Policy Act, the Congress enacted heating, diesel engines and as petrochemical feedstock. Only 1 per the Energy Independence and Security Act of 2007 (EISA). The EISA cent of US power generation is fuelled by oil. expanded the renewable fuel programme established by the Energy In 2010, the US consumed 19.1 million bbl/d of petroleum prod- Policy Act, which required volumes of renewable fuel to be incorpo- ucts. The domestic production of the US represents approximately rated into gasoline sold in the United States. The EISA, and subse- 51 per cent of the total petroleum it consumes. Canada, Mexico, quent regulatory revisions implemented by EPA in 2010, increased Nigeria, Saudi Arabia and Venezuela collectively provided 67 per the volumes established for renewable fuel and added new specific cent of US net imports. volume requirements for advanced biofuels, biomass-based diesel The Energy Information Administration (EIA) projects US liquid and cellulosic biofuel. The EISA articulated a national policy aimed fuels and other petroleum consumption to increase by 0.5 per cent at reducing the country’s carbon footprint and dependence on foreign annually until 2035. US crude oil production peaked in 1970 and oil through the use of renewable fuels. has declined 45 per cent since. Domestic production is nonetheless www.gettingthedealthrough.com 199 Oil Regulation 2012 PillsburyPillsbury Winthrop Shaw Shaw Pittman Pittman LLP LLP Oil RegulationUNITED STATE 2012S UOilnited Regulation States 2012 Robert A James and Stella Pulman* Pillsbury Winthrop Shaw Pittman LLP General projected to increase until 2035 as rising world oil prices spur both onshore and offshore drilling. 1 Describe, in general terms, the key commercial aspects of the oil Although US energy consumption is projected to continue to sector in your country. increase over the next 25 years, crude oil as a share of overall energy The US oil industry is divided into three sectors: upstream (explora- is projected by the EIA to decrease as a result of federal and state tion and production), midstream (processing, storage and transporta- renewable energy programmes and the rising cost of fossil fuels. tion) and downstream