It’s 2022 and it’s likely you’ve heard of the terms “Bitcoin” or “cryptocurrency.” And although Bitcoin has been around since 2009, people’s understanding of cryptocurrency (or, crypto for short) still varies drastically. Some were early “investors” or “users” of Bitcoin and understand a lot. Others don’t care to learn anything about it, seeing it as fraud. But regardless of where you fall on the spectrum, cryptocurrency is here to stay for the foreseeable future. This article will discuss what could be in store for crypto in 2022 from a legal and policy perspective. Government. There’s a saying in the crypto community: if a government can’t control your money (or currency) then it may not be able to tax it. One of the most pressing issues still facing crypto is taxation. The problem of taxation stems from the root question of “what are cryptocurrencies?” Are they hard assets, like gold? Are they soft assets, like stock shares? Or are they true currency? Well, depending on which government agency you ask, you’ll get a different answer. The big three federal agencies—IRS, SEC, and CFTC—each treat crypto a little different. Although there are differences, 2022 will be a year for harmonizing and hammering. Here’s what I mean: we’ll likely see these differing federal opinions become more alike. But we’ll also see more required reporting to federal agencies for taxation, similar to how the Biden administration is now scrutinizing Venmo transactions for small businesses. Harmony among federal agencies’ treatment of crypto, but those agencies will hammer reporting requirements and taxation. On the topic of taxation, the big rumor is that Treasury Secretary Janet Yellen is floating the idea to tax crypto transactions at a whopping 80%. There’s no official word on this, but such a rate would certainly hinder crypto’s growth in the U.S. Real Estate. This year we’ll likely see crypto currencies, mainly Bitcoin, begin to creep in to the real estate market. Why? Well, because its popular. First, Bitcoin is the most popular cryptocurrency. It has a market cap of almost one trillion dollars. For reference the market cap for the silver market is only 1.4 trillion. So, its use in commerce is only growing in popularity; purchasing real estate is no exception. Second, many folks in the U.S. and around the world use crypto as payment for real estate transactions because it removes the need for escrow accounts. Either the Bitcoin transfers immediately at closing or it doesn’t—no need for clearing houses or escrow accounts to hold funds for security. Lastly, there’s the growing trend related to real estate deeds and NFTs (non-fungible tokens). A non-fungible token is a crypto asset on a blockchain with a unique identification code and metadata. So, how do real estate deeds interact with NFTs? Well, a land deed is also a unique piece of paper that lays out the exact property you own. There has been a trend to convert the physical piece of paper into an NFT and transmit the NFT on the blockchain, sometimes with the crypto payment transaction. However, it’s unlikely we’ll see this exact trend take root in Arkansas because we are a race-notice state. But, if you do real estate transactions in notice states, be sure there’s no wild deed in the form of an NFT floating out there. Environmental. There’s been a growing trend of using fuel sources—natural gas, steam, coal, solar, etc.—to power Bitcoin and crypto mining plants instead of selling the energy on the energy market. You may ask, why? Well, the explanation is simpler than you think—supply and demand. When the demand on fuel sources is low (making energy prices low for sellers), sellers will utilize a portion of that fuel to electrically power a mining operation (a.k.a a bunch of computers). This allows energy suppliers to “capture” the inexpensive fuel price to create Bitcoins. Then, if the price of Bitcoin goes up drastically or an energy supplier is short on supply, they can use the Bitcoin to buy energy. The supplier could also use the Bitcoin to offset the cost in purchasing energy when the price of energy soars (like we saw with the Texas winter storm last year). Thus, in 2022 you can expect more energy suppliers, buyers, and brokers to use crypto to help stabilize their balance sheets. Altcoins & ICOs. Lastly, with crypto growing in popularity, we’ve seen a growing class of second-tier cryptos called “altcoins.” These cryptos vary greatly. What we’ll see more of this year are what are called Initial Crypto Offerings. These are similar to Initial Public Offerings, when a company goes public. We’ll likely see more ICOs because more-and-more people think they have the latest and greatest idea for a new type of crypto currency. These ideas can be worth investing in, but only for those investors with high‑risk appetites. Innovation breads litigation. On the other side of the coin, we’ll likely see more of the following: (1) the SEC going after these altcoins for noncompliant public offerings; (2) lawsuits for fraud and Ponzi schemes surrounding altcoins; and (3) more federal regulations of altcoins. At bottom, you should hesitate before giving away the family farm for the latest altcoin. It may just be 2022’s version of magic beans. Conclusion. Crypto may be too new and unattractive to some, while others see it as an established way of the future. No matter where you fall on the spectrum, in 2022 you’re going to see cryptocurrencies more in the news and more in your life, business, and daily dealings. My best advice is where you have hesitations, reach out to trusted professionals and get your questions answered before buying, selling, or engaging with crypto.
On Monday, January 24, 2022, the Supreme Court granted certiorari to answer one question: whether the Ninth Circuit Court of Appeals used the proper test to determine if wetlands are “waters of the United States” under the Clean Water Act (“CWA”). The case first began in Idaho when two landowners were told to obtain a CWA permit from the Environmental Protection Agency (“EPA”) before building a house on their property. The landowners argued the lot they wanted to build a house on lacks a surface water connection to any body of water and therefore should not be subject to CWA permit requirements. After much litigation, a Ninth Circuit panel of judges ruled for the EPA and applied Justice Anthony Kennedy’s test from Rapanos v. United States that casts a wider net on jurisdictional waters under the CWA. The SCOTUS review will pit Justice Kennedy’s broader jurisdictional view against Justice Antonin Scalia’s narrower plurality opinion from Rapanos. The Supreme Court decision is expected to address which test governs wetlands and whether the Sackett’s property is subject to federal regulation under the CWA. The case is Michael Sackett et al. v. U.S. Environmental Protection Agency et al., Case No. 21-454, in the Supreme Court of the United States.
On August 13, 2020, the U.S. Environmental Protection Agency (EPA) issued final policy amendments to the 2012 and 2016 New Source Performance Standards (NSPS) and final technical amendments to the 2016 NSPS in an effort to reduce regulation and provide greater compliance savings to the oil and gas industry.
Read the Arkansas Bar Association article as published March 18, 2020.
U.S. EPA Proposes NSPS Rule Changes for the Oil & Natural Gas Industry In response to President Trump’s Executive Order 13783, “Promoting Energy Independence and Economic Growth,” section 1(c) (March 28, 2017), EPA reviewed the 2012 and 2016 rules for new source performance standards (NSPS) and national emission standards for hazardous air pollutants (HAPs) that apply to the oil and natural gas industry. On October 1, 2019, EPA proposed amendments to the rules for certain provisions that it determined were inappropriate or redundant. Proposed changes include a 2-part “Primary Proposal” and an “Alternative Proposal.” EPA is accepting public comments on the proposed amendments through November 25, 2019.