Justia Government & Administrative Law Opinion Summaries

Articles Posted in Energy, Oil & Gas Law
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S Bar Ranch owned approximately 3000 acres of land in rural Elmore County, Idaho. S Bar purchased the land in 2015. There were very few structures on S Bar’s property, save for an airplane hangar that included a five-hundred square-foot apartment. S Bar’s address was listed in Sun Valley, Idaho, and its principal, Chris Stephens, used the property for recreational purposes. Cat Creek Energy, LLC, an Idaho company managed by John Faulkner, owned and managed more than 23,000 acres of land in Elmore County near Anderson Ranch reservoir. Faulkner, on behalf of his other companies, leased land to Cat Creek to develop the project at issue in this dispute. In late 2014 and early 2015, Cat Creek began the process of obtaining conditional use permits (“CUPs”) for a proposed alternative energy development (“the project”) in Elmore County. As initially proposed, the project had five components: a 50,000 acre-foot reservoir with hydroelectric turbines, up to 39 wind turbines, approximately 174,000 photovoltaic solar panels, electrical transmission lines, and an onsite power substation. Cat Creek sought to build the project on approximately 23,000 acres of land that it had leased near Anderson Ranch Reservoir. In 2019, the district court issued a Memorandum Decision and Order, affirming the Board’s decisions with respect to the CUPs. The district court found that S Bar only had standing to challenge the CUPs relating to wind turbines, electric transmission lines, and the on-site substation. The district court also reiterated its prior oral ruling that a 2017 CUP Order was a final agency action and that S Bar’s petition for judicial review of that order was untimely. With regard to the development agreement and a 2018 CUP Amendment, the district court concluded that the Board did not err in a manner specified by Idaho Code section 67-5279 and that S Bar had not shown that its substantial rights had been prejudiced. S Bar appealed, but finding no reversible error in the district court's judgment, the Idaho Supreme Court affirmed judgment in favor of Cat Creek. View "S Bar Ranch v. Elmore County" on Justia Law

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The Supreme Court affirmed in part and reversed in part the judgment of the district court which partially affirmed and partially reversed two earlier orders on reconsideration issued by the Montana Public Service Commission, holding that the district court erred in affirming the Commission's orders as related to interconnection costs associated with a certain transmission line.Specifically, the Supreme Court held that the district court (1) erred in upholding the Commission's determination assigning $267 million in network upgrade costs to Appellants; (2) correctly upheld the Commission's decision to calculate avoided energy costs using a proxy model; (3) properly upheld the Commission's decision to calculate ancillary service deductions based on NorthWestern Energy Corporation's proposed rates; and (4) properly upheld the Commission's determination that fifteen-year contract lengths were appropriate for all three of Appellant's projects. View "CED Wheatland Wind, LLC v. Montana Department of Public Service Regulation" on Justia Law

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OXY USA, Inc. appealed a decision of the U.S. Department of the Interior’s Office of Natural Resources Revenue (“ONRR”) ordering it to pay an additional $1,820,652.66 in royalty payments on federal gas leases that were committed to the Bravo Dome Unit (“the Unit”). The owner of the leases OXY subsequently acquired - Amerada Hess Corporation (“Hess”) - used almost all of the CO2 it produced in the Unit for its own purposes rather than sale. ONRR rejected Hess’s valuation method and established its own. Hess appealed, and ONRR’s Director issued a decision reducing the amount Hess owed but affirming the remainder of ONRR’s order. Hess appealed to the Interior Board of Land Appeals, but the Board did not issue a final merits decision prior to the 33-month limitations period. On appeal to the United States District Court for the District of New Mexico, the district court rejected OXY’s challenge to the amount of royalties owed and affirmed the Director’s decision. Finding ONRR's interpretation and application of the marketable-condition rule to this case was not plainly erroneous or inconsistent with the applicable regulations, the Tenth Circuit Court of Appeals affirmed. View "OXY USA v. DOI, et al." on Justia Law

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Plaintiff Magnum Energy, Inc. appealed a Board of Adjustment for the City of Norman (Board) decision denying Plaintiff's application for a variance from the City's business licensing requirement that oil and gas operators maintain two million dollars in umbrella liability coverage. The trial court granted summary judgment in Plaintiff's favor, finding that the requirement conflicted with State law and was therefore unenforceable. The Board appealed the trial court's order; the Court of Civil Appeals reversed the order, finding no conflict between the requirement and State law. The Oklahoma Supreme Court reversed the appellate court, finding the requirement conflicted with 52 O.S.Supp.2015 section 137.1, rendering the requirement invalid and unenforceable. View "Magnum Energy v. Bd. of Adjustment for the City of Norman" on Justia Law

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LSP, an independent electric transmission developer, bids on proposals to build transmission projects throughout the U.S. LSP sought judicial review of a Federal Energy Regulatory Commission (FERC) decision under 16 U.S.C. 824e concerning ISO New England’s compliance with Commission Order 1000, which required “the removal from Commission-jurisdictional tariffs and agreements” of rights of first refusal to construct transmission facilities and directed incumbent transmission providers to engage in competitive selection of developers. FERC recognized an exception if the time needed to solicit and conduct competitive bidding would delay the project and thereby threaten system “reliability.” FERC found “insufficient evidence” that ISO was incorrectly implementing Order 1000.The D.C. Circuit denied LSP’s petition for judicial review, first holding that FERC’s ruling bears all the indicia of a substantive decision produced after a contested proceeding involving ISO and numerous intervenors and is subject to judicial review. The court found nothing irrational in FERC’s response to LSP’s general criticism of ISO’s use of more conservative assumptions regarding its system capacity and future management in determining when to apply the exception. Although the number of reliability projects exempted from competitive bidding exceeded those open to competition, the appropriate balance between competitive procurement and quick redress of reliability needs is a policy judgment for FERC. View "LSP Transmission Holdings II, LLC v. Federal Energy Regulatory Commission" on Justia Law

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The Federal Energy Regulatory Commission (FERC) awarded “incentive adders,” upward adjustments to utilities’ rate of return on equity, to three California-based public utilities. FERC regulations allow for incentive adders to induce voluntary membership in independent system operators. The Ninth Circuit previously concluded that FERC improperly awarded incentive adders to PG&E without considering the California Public Utilities Commission’s (CPUC) assertion that PG&E’s membership in the California independent system operator (CAISO) is mandated. The court directed FERC to “inquire into PG&E’s specific circumstances, i.e., whether it could unilaterally leave the C[AISO].” On remand, FERC concluded that membership in CAISO is voluntary.The Ninth Circuit upheld the decision, holding that its previous decision did not resolve whether California law prevented the utilities from leaving CAISO without approval. FERC did not deviate from the mandate on remand. There was no error in FERC’s conclusion that membership in CAISO was voluntary despite a contrary suggestion in a CPUC 1998 Decision. FERC was not required to apply the Erie doctrine and defer to California’s interpretation. The incentive adder and its requirements arose from federal law. The California Supreme Court has not decided whether membership in CAISO is voluntary; no California Code provision mandates CAISO membership, and no case law discusses whether CAISO members must remain such. California courts would not defer to the CPUC’s 1998 Decision because it was inconsistent with the statute. View "California Public Utilities Commission v. Federal Energy Regulatory Commission" on Justia Law

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The Fifth Circuit affirmed the bankruptcy court's judgment and held that, under the particular circumstances presented here, Ultra Resources is not subject to a separate public-law obligation to continue performance of its rejected contract, and that 11 U.S.C. 1129(a)(6) did not require the bankruptcy court to seek FERC's approval before it confirmed Ultra Resource's reorganization plan.Applying In re Mirant Corp., 378 F.3d 511 (5th Cir. 2004), the court concluded that the power of the bankruptcy court to authorize rejection of a filed-rate contract does not conflict with the authority given to FERC to regulate rates; rejection is not a collateral attack upon the contract's filed rate because that rate is given full effect when determining the breach of contract damages resulting from the rejection; and in ruling on a rejection motion, bankruptcy courts must consider whether rejection harms the public interest or disrupts the supply of energy, and must weigh those effects against the contract's burden on the bankrupt estate. Because Mirant clearly holds that rejection of a contract is not a collateral attack on the filed rate, the court concluded that FERC does not have the authority to compel continued performance and continued payment of the filed rate after a valid rejection. The court rejected any further arguments to the contrary. View "Federal Energy Regulatory Commission v. Ultra Resources" on Justia Law

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Petitioners sought review of the Commission's decision to authorize a new natural gas pipeline and compressor station in Agawam, Massachusetts. One of the petitioners, Berkshire, has failed to establish standing to challenge the Commission's decision. The other petitioner, Food & Water Watch, has raised challenges related to the Commission's compliance with the National Environmental Policy Act.The DC Circuit mainly rejected Food & Water Watch's claims, but agreed with its contention that the Commission's environmental assessment failed to account for the reasonably foreseeable indirect effects of the project—specifically, the greenhouse-gas emissions attributable to burning the gas to be carried in the pipeline. Accordingly, the court granted Food & Water Watch's petition for review on that basis and remanded for preparation of a conforming environmental assessment. View "Food & Water Watch v. Federal Energy Regulatory Commission" on Justia Law

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The Supreme Court reversed a portion of the utility regulatory commission's order that approved in part Duke Energy's request to increase its rates for retail consumers, holding that, absent specific statutory authorization, a utility cannot recoup its past costs adjudicated under a prior rate case by treating the costs as a capitalized asset.In 2020, the commission granted Duke's petition for a rate increase in part permitting Duke to recover about $212 million for coal-ash site closures, remediation, and financing costs, with the bulk of the costs having been incurred from 2015 to 2018. At issue was whether the commission could approve reimbursement for a deferred asset without violating the statutory bar against retroactive ratemaking. The Supreme Court answered in the negative, holding that the commission acted without statutory authority in re-adjudicating expenses already governed by a prior rate order. View "Indiana Office of Utility Consumer Counselor v. Duke Energy Indiana, LLC" on Justia Law

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The Supreme Court dismissed this appeal brought by Solarize Indiana, Inc. seeking judicial review of the administration decision of the Indiana Utility Regulatory Commission (IURC) approving two filings submitted by Vectren Energy Delivery of Indiana, Inc. under an expedited process known as the "Thirty-Day Rule," holding that Solarize lacked standing to bring this appeal.In objecting to Vectren's filings, Solarize, an organization that promotes the use of solar power in Indiana, asserted that the filings were not compliant with federal law. The IURC approved the filings, after which Solarize requested judicial review. The Supreme Court dismissed the appeal, holding that Solarize lacked standing because it failed to show that it was "adversely affected" by the IURC's order. View "Solarize Indiana, Inc. v. Southern Indiana Gas & Electric Co." on Justia Law