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Editorial

Clifford Chance – Their Voices

Oil and gas commodity prices saw a great deal of fluctuation throughout 2018; significant depression in the market ended with a slight uptake in prices in early 2019. On the pipeline side, an increasing number of projects are being developed to transport natural gas from the Appalachian Basin to the East Coast and to export oil from the Permian Basin to other countries.

In general, royalty class action cases were on the rise, as were disputes arising from joint operating agreements between upstream entities. A number of lawsuits hinging on the conditions under which leases are valid also emerged, raising questions of whether leases still apply when production is non-existent or when wells have been shut-in. Region-specific litigation trends are also observable; contentious work arising from the Permian Basin tends to center on lease validity and the acquisition of property, while The Eagle Ford shale sees more friction pertaining to operational or drilling processes.

Also discernible were various ‘existential’ cases against major oil and gas entities, some of which are still ongoing. A string of climate change lawsuits have been filed by several municipalities across the US; the plaintiffs are attempting to sue the companies on the grounds of torts, alleging that their activities will cause climate change, the damaging effects of which the municipalities must take protective measures against. While a number of these cases have been dismissed, others are still pending before the courts of appeals. In a similar vein, plaintiffs are suing fracking companies alleging that their activities cause earthquakes in a wave of ‘seismic litigation’; these cases are still in their infancy and require proof of proximate cause to progress further.

The Federal Energy Regulatory Commission (FERC) has seen some instability in the past year due to constant turnover; Commissioner Robert Powelson departed in June 2018 and Trump-appointed chairman Kevin McIntyre passed away in January 2019. The vacancies have been filled, but the new commissioners’ diametrically opposed views have resulted in an increasingly partisan split. These strains have taken a toll on pipeline approvals, which have become much more difficult to obtain and are no longer a regular occurrence.

Energy transportation infrastructure – especially pipeline capacity – is in great demand now that the US has become a net exporter of oil, and seeks to become one of natural gas also. The Asian market, and China in particular, is the primary target of natural gas exports, and pipeline projects are being developed with this aim in sight, even as trade relations between China and the US have deteriorated. These projects also continue to face opposition from environmentalist groups.

With Trump’s reduction of the corporate tax rate from 35% to 21%, FERC is turning an eye on the way in which oil and gas entities are implementing this change. The commission is taking a particularly hard look at the rates of service of oil, natural gas and liquefied natural gas (LNG) pipelines. This is a novel situation for most LNG pipelines, some of which have not filed a rate case for decades due to their status as transporters rather than suppliers of the commodity. If unsatisfied by how pipelines have handled the tax cut, FERC is likely to open rate investigations.

As the electric grid continues to incorporate renewable sources of generation, the conventional energy space has seen more litigation relating to solar power, wind power and battery storage. Also observable is a general increase in the number of consumer class actions brought against utilities. The East Coast market, which is strongly predicated on the concept of the free market and competition, has been subject to friction caused by federal and state interventions to promote energy from nuclear sources.

A key example of this is the ongoing saga of ‘zero emission credit’ litigation brought by electric-power producers against the state-mandated programs. A trade group representing producers is currently before the Supreme Court, seeking to overturn two appellate court decisions passed in 2018 upholding the programs in New York and Illinois.

Issues surrounding electric capacity markets dominate discussion in the conventional energy space and FERC has been slow to address these due to not having enough members for a quorum until late 2017. Capacity prices have decreased and markets are failing to make an adequate return on power production in certain parts of the US. The implementation of state-level credits is being postulated as a possible solution.

Decline is also evident in some states with deregulated markets; in Texas, many power plants are being retired and there is uncertainty over how to incentivize the construction of new ones. There are also notable anxieties concerning generation capacity in New England, which is situated at the end of pipelines, leaving it with relatively weak access to natural gas.

Individual states are attempting to compensate for the gaps in Trump’s greenhouse gas policy by pushing state-level efforts to increase renewable power production. In a particularly ambitious example, California passed a measure requiring the state to produce all of its electricity from renewable source by 2045.

However, due to the current unreliability of renewable sources and the large space occupied by natural gas in the power generation market, states are also keen to retain nuclear-powered facilities. In order to prevent the decommissioning of nuclear power plants, a number of states, including Illinois and New York, have adopted zero-emission credits, which subsidize generators that do not emit greenhouse gases.

In early 2019, major Californian Utility Pacific Gas and Electric filed for bankruptcy following its being held liable for $30bn in damages arising from California’s wildfires.

Looking to the environmental landscape, From the get-go, the Trump administration made it clear that, in terms of environmental legislation, its objective was to deregulate. Part of what this means in practice is that federal agencies like the Environmental Protection Agency (EPA) will have reduced capabilities and responsibilities. Additionally, the aim is to significantly roll back climate change and environmental protection legislation, with the aim of reviving the fossil fuel industry and, in general, making it easier for corporates to prosper.

In response, however, there was an uptick on the part of states and citizen organisations in initiating judicial proceedings and reinforcing state law to protect environmental interests. California in particular has instituted some of the most comprehensive environmental protections.

Nationwide, the main topic was climate change, and, more specifically, climate change tort litigation, as counties, municipalities and states sought to hold fossil-fuel companies – such as Chevron, Anadarko, Hess, Marathon Oil, and Repsol – liable for damages caused by the changing climate. In parallel, the Southeast Louisiana Flood Protection Authority-East brought a lawsuit against nearly 100 members of the oil and gas industry alleging liability for coastal erosion and seeking damages potentially in excess of $10 billion.

CERCLA/Superfund and other contaminated site issues also kept law firms busy, with some of the most intensive cases being the Portland Harbor Superfund site in Oregon and the Lower Passaic River Superfund site in New Jersey.

Another highly publicized and highly scrutinized topic in the US market is the state of the healthcare system. The ongoing political challenges to the Affordable Care Act occurring in the US healthcare market resulted in both heightened transactional activity, as well as an increasing need for court representation on the insurers’ and service providers’ side. In order to increase their competitiveness, healthcare providers have developed vertical integration models, which involves the formation of several providers with various specialties to one network offering a broad range of services. Apart from M&A transactions in the insurance sector, another popular method to combine revenue was the establishment of joint ventures between providers and/or insurers. On the contentious side, law firms again noted a growth in governmental investigations against insurers regarding the Medicare Advantage program, as well as reimbursement disputes under the False Claims Act against service providers. Healthcare privacy issues present relatively new problems in the legal market. Thus far, there have been a number of large cybersecurity and data breach claims made against service providers, which then turn to their insurers for cost recovery. The safety of patient data is an ongoing topic which needs solving, not least because of the current boom in healthcare AI technology. Both the healthcare providers and the tech companies providing the solutions require legal assistance with obtaining approval from the Food and Drug Administration (FDA), as well as on the related licensing, outsourcing and distribution aspects associated with the development of these advanced technologies.

While FDA regulatory work is prominent also in life sciences practices more broadly, IP and patent litigation are gaining more and more importance. This is partly due to the blossoming industry of biosimilar products, a new type of drug designed to have similar effects to biological drugs that have been previously licensed. M&A transactions between pharmaceutical and biopharma companies are also on the rise, with the acquisition of Celgene by Bristol-Myers Squibb being one high-profile example. The focus on pharmaceutical products’ pricing is another remarkable trend and yet another issue that has become highly politicized.

An issue that crosses the bridge between the healthcare and insurance sectors is the current trend of opioid litigation, which involves lawsuits filed by the public sector mainly against drug manufacturers, but also against various other entities within the chain of distribution for opioid products. These lawsuits primarily concern the costs of public healthcare treatments generated by disorders arising from opioid dependence. Other types of contentious matters dominating the insurance sector include natural catastrophes (especially in relation to the 2018 wildfires in California and flooding damages occurring due to superstorms), sexual abuse cases (mainly generated by the #MeToo movement), and D&O liability claims concerning white-collar crime and non-criminal CEO behaviour. The former is also linked to the flurry of activity in insurance sector M&A, which has spurred litigation over merger pricing and warranties insurance policies. Law firms also mention large environmental matters such as insurance claims for polluted Superfund sites and class actions concerning asbestos injuries, as well as cyber claims arising from network interruption losses.

Due to changes in the regulatory environment, the life insurance business continues to be a difficult area for profit increases, which is why we see insurance companies shedding businesses that require a lot of capital to private equity funds, as well as the aforementioned M&A activity, one of the primary aims of which is consolidation and efficiency.

Finally, aviation finance enjoyed a particularly strong year, with the aviation sector consistently expanding given increasing demand for air travel and air cargo. In addition, firms have noted a spike in private equity investment in the rail and aviation sectors, a trend that is not necessarily brand new, but is nonetheless more prevalent than in years past.

Although, the US shipping market is in recovery mode, ship owners are increasingly looking to alternative financing as traditional lending is still not as robust as it once was. Similar to aviation finance, private equity firms are becoming increasingly involved in ship finance deals. As a result, New York is emerging as a key hub for ship finance.

In the regulatory space, there have been murmurs of a development that would potentially transform shipping in the US: a congressional review of the Jones Act. Although the effect on the domestic shipping market is disputed, and it’s unclear how much appetite there is for serious Jones Act reform in Washington, given its potential effect, the very possibility of reform is something to be mindful of. In addition – as in virtually every industry sector – advanced technology is dominating much of the commercial and regulatory activity, as the commercial appetite for drones, connected cars and autonomous cars is creating a raft of never-before-considered regulatory concerns.

In terms of disputes in the aviation space, catastrophe litigation has steadily declined as catastrophic incidents have declined, but class action claims involving noise control and toxic fumes are still prevalent. In the automotive sector, large-scale emissions litigation remains ongoing, while in the shipping sector, contaminated bunker fuel, which has affected the shipping markets globally, is an issue in numerous ship damage cases.

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