Justia Government & Administrative Law Opinion Summaries

Petitioner Green Development, LLC (Green Development) sought interconnection with the distribution system of Narragansett Electric Company (Narragansett), a public utility. Accommodation of the increased flows of electricity required certain upgrades to the transmission system owned by Respondent-Intervenor New England Power Company d/b/a National Grid (NE Power). NE Power assigned the costs of the transmission system upgrades directly to Narragansett. The newly assigned costs were reflected in a revised transmission service agreement (TSA) that NE Power and Narragansett filed for approval by the Federal Energy Regulatory Commission (Commission or FERC). Green Development protested the revised TSA. The Commission denied Green Development’s protest.  Green Development petitions for review contending that the Commission (1) erroneously concluded that Green Development’s arguments in the underlying section 205 proceeding operated as a “collateral attack” on the Complaint Order; (2) improperly applied the governing seven-factor test; (3) misinterpreted the Tariff’s definition of “direct assignment facilities”; and (4) erroneously failed to apply the filing procedures of Schedule 21-Local Service of the Tariff.   The DC Circuit denied the petitions. First, the court held that Commission has cured any purportedly erroneous ruling that Green Development’s section 205 protest constituted a collateral attack on the Complaint Order. The court rejected Green Development’s fourth claim. The court wrote that the issue with Green Development’s contention is that it presumes that the procedures in Schedule 21-Local Service are “mandatory processes” that applied to the filing of the TSA. But, the SIS and associated technical arrangements “pertain to initiating transmission service” and “do not demonstrate that Narragansett as an existing transmission customer was required to request new transmission service” under the Tariff. View "Green Development, LLC v. FERC" on Justia Law

The Supreme Court affirmed the order of the Ohio Power Siting Board authorizing Firelands Wind, LLC to construct, operate, and maintain a wind farm in Huron and Erie Counties, holding that the nineteen nearby residents and the Black Swamp Bird Observatory that brought this appeal (collectively, Appellants) have not established that the Board's order was unlawful or unreasonable.On appeal, Appellants challenged the Board's determination that the wind farm satisfies the statutory requirements for constructing a major utility facility, asserting, among other things, that the project could kill birds and create excessive noise for residents near the wind farm and that the Board improperly failed to follow its administrative rules. The Supreme Court affirmed, holding that the Board's order was neither unlawful nor unreasonable. View "In re Application of Firelands Wind, L.L.C." on Justia Law

The First Circuit denied Petitioners' petition objecting to a permit issued by the Environmental Protection Agency (EPA) and affirmed by the Environmental Appeals Board requiring General Electric Company (GE) to clean up polychlorinated biphenyls from certain portions of the Housatonic River, holding that the EPA's challenged actions were not arbitrary or capricious.On appeal, Petitioners brought three substantive challenges and also brought procedural challenges to the permit's issuance. The First Circuit denied the petition after noting that should GE's cleanup of the river not achieve the goals set out in the permit, the permit requires further measures, holding that Petitioners were not entitled to relief on their procedural and substantive legal challenges. View "Housatonic River Initiative v. U.S. Environmental Protection Agency" on Justia Law

The Natural Gas Act authorizes private entities who have received a certificate of public convenience and necessity to acquire property “by the exercise of the right of eminent domain.” Sabal Trail Transmission, LLC, invoked this power of eminent domain to acquire easements to build a pipeline on land owned by Sunderman Groves, Inc. In the condemnation proceeding, the district court determined that the Act incorporates state eminent domain law, and it consequently applied Florida law to grant attorneys’ fees, costs, and prejudgment interest to Sunderman Groves. Sabal Trail appealed these awards, arguing that the district court should have applied federal law instead. A different panel decided on a nearly identical case that arose out of Sabal Trail’s use of eminent domain power to build this same pipeline.   The Fourth Circuit affirmed. The court explained that it is firmly established” that “each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). The court explained that the court’s prior construction of the Natural Gas Act is now the law in the Circuit, and it conclusively resolves this appeal. View "Sabal Trail Transmission, LLC v. Sunderman Groves, Inc" on Justia Law

the Federal Energy Regulatory Commission granted Algonquin a certificate of public convenience and necessity that allowed it and the owner of the neighboring Maritimes & Northeast pipeline to undertake a series of upgrades. Those upgrades are known collectively as the Atlantic Bridge Project (“Project”). As part of the Project, Algonquin planned to build a new compressor station in Weymouth, Massachusetts. The compressor station would pressurize gas traveling north towards Maine. The Town of Weymouth, as well as several residents and environmental groups, petitioned this court to overturn the Commission’s certification decision for the Project. This court found no relevant error in the Commission’s decision and denied the petition. The entities sought review of two orders that followed the Commission’s issuance of the certificate of public convenience and necessity.   The DC Circuit dismissed the petitions. The court explained that to construe the Commission’s denial of rehearing as a reviewable new “order,” that would not change anything. That is because the statute strictly requires that every single “order” we review be accompanied by an “application to the Commission for rehearing.” The court further wrote that the denial of rehearing is not a reviewable order, so the Fore River Residents may not obtain judicial review under 15 U.S.C. Section 717r(b). And even if it were a reviewable order, their petition would be jurisdictionally deficient because they failed to request rehearing of it. View "Fore River Residents Against the Compressor Station v. FERC" on Justia Law

This case concerns how PJM, the manager of a large, multi-state electrical grid, prices the flow of electricity to utilities in times of congestion. Such congestion arises when energy is scarce in a particular location on the grid due to, for example, extreme weather conditions or a fire at a transmission station. That scarcity causes the dispatch of more expensive generation and can trigger the Transmission Constraint Penalty Factor (“Penalty Factor”) when such alternative generation is unavailable. The Penalty Factor imposes an upper bound on the costs PJM will incur to control a transmission constraint, and it is designed to send transparent price signals to the market and incentivize investment that will resolve the congestion and prevent it from recurring. Petitioner Citadel FNGE Ltd. is an energy trading firm. It challenged the Commission’s suspension of the Penalty Factor as arbitrary and capricious.   The DC Circuit denied the petitions. The court explained that substantial evidence supported the Commission’s decision that the Penalty Factor, as applied to the unique Northern Neck circumstances, could not work as designed because it increased costs without incentivizing supply or demand responses. Because application of the Penalty Factor increased costs for consumers without a commensurate benefit, the Commission reasonably found that its application in this context was unjust and unreasonable. View "Citadel FNGE Ltd. v. FERC" on Justia Law

Utility companies responsible for a planned electric transmission line asked the Fish and Wildlife Service (FWS) to allow construction across the Upper Mississippi River National Wildlife and Fish Refuge alongside an existing road and railroad. Rural Utilities Service completed an environmental impact statement under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C). FWS adopted the statement and issued a right-of-way permit.While litigation was pending, the utility companies sought to slightly alter the route and asked FWS to consider a land exchange. FWS discovered that it had relied on incorrect easement documents in issuing its original determination. It revoked the determination and permit but promised to consider the proposed land exchange. The district court ruled in favor of the environmental groups but declined to enjoin ongoing construction of the project on private land outside the Refuge.The Seventh Circuit vacated in part, first rejecting a mootness argument. FWS has revoked the compatibility determination but has not promised never to issue a new permit. However, FWS’s current position does not meet the criteria of finality. Whatever hardship the plaintiffs face comes not from FWS’s promise to consider a land exchange but from the Utilities’ decision to build on their own land, so the district court erred in reviewing the merits of the proposed land exchange. Plaintiffs’ request for relief against the Utilities under NEPA likewise is premature. Adopting the environmental impact statement did not “consummate” the decisionmaking process. View "Driftless Area Land Conservancy v. Rural Utilities Service" on Justia Law

The Supreme Court quashed the order of the district court granting the motion to dismiss filed by the State of Rhode Island, acting by and through the Division of Taxation (Division), in this appeal stemming from a series of transactions for the purchase and sale of gasoline, holding that the district court erred in granting the Division's motion to dismiss based on Plaintiff's failure to exhaust its administrative remedies.The tax at issue was levied on a transaction between Plaintiff and another party and was the subject of several transactions between various entities. Plaintiff reimbursed a third-party for the tax assessed on the sale of 300,000 barrels of gasoline and then initiated this action alleging constitutional violations and violations of the Motor Fuel Tax. The trial judge dismissed the case for Plaintiff's failure to exhaust administrative remedies. The Supreme Court reversed, holding that the trial judge erroneously dismissed the action based on Plaintiff's failure to exhaust its administrative remedies. View "Gunvor USA, LLC v. State, ex rel. Division of Taxation" on Justia Law

This petition challenges several interrelated orders of the Federal Energy Regulatory Commission (“FERC” or “Commission”) that permitted the creation of a new energy transmission service across several states in the Southeast region of the United States, entitled the Southeast Energy Exchange Market (“SEEM”). FERC adopted the first order (“Deadlock Order”) by operation of law when its four Commissioners deadlocked 2-2 on whether the overall proposal was “just and reasonable” and otherwise met the requirements of the Federal Power Act (“FPA” or “Act”), and related FERC regulations. In a later order by majority vote, the Commission accepted tariff revisions by transmission service providers within SEEM to enable the new transmission service. Petitioners challenged these orders throughout the initial proceedings, on rehearing at the Commission, and now in this petition.   The DC Circuit granted the petition in part, denied the petition in part, and remanded it to the Commission for further proceedings. The court explained that since SEEM “began operations in November 2022” and only provides energy transactions for non-firm service, it follows that vacatur would not be disruptive, and the parties offer no arguments to the contrary in their briefing. Accordingly, vacatur of the Tariff Order is appropriate. The court wrote that the Commission’s orders finding Petitioners’ rehearing requests of the Deadlock Order untimely are vacated, and the petition—as it relates to review of the Deadlock Order and the associated orders accepting amendments to the SEEM Proposal—is remanded without vacatur of the related orders. View "Advanced Energy United, Inc. v. FERC" on Justia Law

XO Energy petitioned for a review of the Federal Energy Regulatory Commission’s approval of filings implementing a regional transmission organization’s (“RTO”) revised Forfeiture Rule for Financial Transmission Rights (“FTRs”). It contends that the Commission erred as a matter of law in declining to issue refunds to market participants who incurred forfeitures under the unapproved interim Rule. It further contends that the Commission’s approval of the revised 2021 Rule was arbitrary and capricious.   The DC Circuit granted the petition in part and denied it in part. The court affirmed the Commission’s denial of refunds and remands without vacating the 2021 Rule for further explanation of the Commission’s decision to exclude consideration of leverage as a required element of the Rule. The court explained that although the Commission acknowledges that leverage might be one way to determine cross-product manipulation, it states that it opted to allow PJM to employ other means to detect this conduct rather than require exemptions based on leverage. That is the extent of the Commission’s explanation. It does not address XO Energy’s position that market manipulation cannot occur when the net losses of a trader’s virtual transaction portfolio exceed the net profits from its FTR portfolio. Nor does it explain why the exclusion of this requirement strikes the appropriate balance between preventing manipulative conduct and not hindering legitimate hedging activity. Absent such explanation of its decision, the Commission’s failure to order a leverage exemption appears arbitrary and capricious. View "XO Energy MA, LP v. FERC" on Justia Law