Justia Government & Administrative Law Opinion Summaries

Atlantic sought to construct a 604-mile natural gas pipeline from West Virginia to North Carolina, crossing 16 miles of land within the George Washington National Forest. Atlantic secured a special use permit from the U.S. Forest Service, obtaining a right-of-way for a 0.1-mile segment of pipe 600 feet below a portion of the Appalachian National Scenic Trail, which also crosses the National Forest. The Fourth Circuit vacated the permit.The Supreme Court reversed. The Department of the Interior’s assignment of responsibility for the Appalachian Trail to the National Park Service did not transform the Trail land into land within the National Park System that is not eligible for a pipeline lease. The Forest Service had the authority to issue the special use permit.Under 16 U.S.C. 521, the Forest Service has jurisdiction over the National Forest. The National Trails System Act, 16 U.S.C. 244(a), applies to the Appalachian Trail; the Secretary of the Interior has delegated to the National Park System the authority to enter into “rights-of-way” agreements for the Trail. The Leasing Act enables any “appropriate agency head” to grant “[r]ights-of-way through any Federal lands . . . for pipeline purposes,” 30 U.S.C. 185(a), except lands in the National Park System. The National Park System is administered by the Secretary of the Interior, through the National Park Service, 54 U.S.C. 100501. The Forest Service “right-of-way” agreements with the National Park Service for the Appalachian Trail did not convert National Forest “Federal lands” under the Leasing Act into “lands” within the “National Park System.” A right-of-way grant only nonpossessory rights of use. Although the federal government owns all lands involved, a right-of-way between two agencies grants only an easement, not jurisdiction over the land itself. View "United States Forest Service v. Cowpasture River Preservation Association" on Justia Law

The First Circuit vacated an air permit granted by the Massachusetts Department of Environmental Protection (DEP) for a proposed natural gas compression station set to be built in Weymouth, Massachusetts as part of Algonquin Gas Transmission, LLC's Atlantic Bridge Project, holding that the DEP did not follow its own established procedures for assessing whether an electric motor was the Best Available Control Technology (BACT).The Atlantic Bridge Project is a natural gas pipeline connecting the Northeastern United States and Canada. The DEP approved Algonquin's non-major comprehensive plan application for the station and granted the station's air permit, certifying its compliance with the Massachusetts Clean Air Act (CAA), Mass. Gen. Laws ch. 111, 142A-142F. Petitioners, nearby municipalities and two citizen-petition groups, argued that DEP violated the CAA and related laws and regulations. The First Circuit (1) vacated the air permit and remanded to DEP for it to conduct further proceedings, holding that the DEP's final decision excluding an electric motor was arbitrary and capricious; and (2) resolved the remaining issues in favor of DEP. View "Town of Weymouth v. Massachusetts Department of Environmental Protection" on Justia Law

The plaintiffs each own a wind farm that was put into service in 2012. Each applied for a federal cash grant based on specified energy project costs, under section 1603 of the American Recovery and Reinvestment Tax Act of 2009. The Treasury Department awarded each company less than requested, rejecting as unjustified the full amounts of certain development fees included in the submitted cost bases. Each company sued. The government counterclaimed, alleging that it had actually overpaid the companies.The Claims Court and Federal Circuit ruled in favor of the government. Section 1603 provides for government reimbursement to qualified applicants of a portion of the “expense” of putting certain energy-generating property into service as measured by the “basis” of such property; “basis” is defined as “the cost of such property,” 26 U.S.C. 1012(a). To support its claim, each company was required to prove that the dollar amounts of the development fees claimed reliably measured the actual development costs for the windfarms. Findings that the amounts stated in the development agreements did not reliably indicate the development costs were sufficiently supported by the absence in the agreements of any meaningful description of the development services to be provided and the fact that all, or nearly all, of the development services had been completed by the time the agreements were executed. View "California Ridge Wind Energy, LLC v. United States" on Justia Law

SPP, a Regional Transmission Organization (RTO), is authorized by the Commission to provide electric transmission services across a multi-state region. Pursuant to SPP's license-plate rate design, SPP is divided into different zones, and customers in each zone pay rates based on the cost of transmission facilities in that zone.The Eighth Circuit denied a petition for review brought by NPPD of FERC's approval of SPP's placement of Tri-State into Zone 17. The court held that substantial evidence supported the Commission's finding that Tri-State's placement into Zone 17 was just and reasonable. In this case, because the Commission stated plausible and articulable reasons for why the costs and benefits were comparable in this case, the court could not say that its cost-causation analysis was arbitrary and capricious. Furthermore, the Commission did not act arbitrarily and capriciously in deciding that Tri-State's placement into Zone 17 was just and reasonable. View "Nebraska Public Power District v. Federal Energy Regulatory Commission" on Justia Law

The Supreme Court dismissed Appellant's appeals from orders of the Nebraska Public Service Commission (PSC) that granted applications requesting changes to existing boundaries so that the applicants could receive advanced telecommunications services from another service provider in lieu of service from Appellant, holding that Appellant's notices of intention to appeal were not timely filed with the PSC.The PSC entered orders in both cases on July 10, 2018. Appellant subsequently submitted motions for rehearing requesting that the PSC reconsider its orders. Each motion was file stamped as having been received by the PSC on July 23. On August 21, the PSC entered orders denying the motions for rehearing. On September 13, in each case, Appellant filed a notice of intention to appeal with the PSC. The Supreme Court dismissed the appeals for lack of jurisdiction, holding (1) based on the file stamps, the motions for rehearing were not filed within ten days of the effective date of the respective orders; (2) under Neb. Rev. Stat. 75-134.02, the motions did not suspend the time for filing a notice of intention to appeal; and (3) therefore, Appellant's notices of intention to appeal were filed beyond the thirty-day time limit allowed under section 75-136(2) to perfect appeals from the July 10 orders. View "In re Application No. C-4973 of Skrdlant" on Justia Law

The Supreme Court held that the Minnesota Public Utilities Commission (MPUC) lacks the authority to require Otter Tail Power Company to amend an existing transmission cost-recovery rider (TCRR) approved under Minn. Stat. 216B.16, subd. 7b(b) to include the costs and revenues associated with two high-voltage interstate transmission lines, known as the Big Stone Access Transmission Lines (Big Stone Lines).In 2013, the MPUC approved Otter Tail's request for a TCRR for three transmission projects. In 2016, Otter Tail filed this general rate case with the MPUC seeking an annual-rate increase on its retail electricity sales to help offset company-wide investment costs and asserted that the costs and revenues associated with the Big Stone Lines should not be considered when setting the retail rates. The MPUC directed Otter Tail to amend the TCRR approved in 2013 to include the costs and revenues of the Big Stone Lines. The court of appeals reversed. The Supreme Court affirmed, holding that the MPUC does not have statutory authority to compel Otter Tail to include the Big Stone Lines in the TCRR. View "In re Application of Otter Tail Power Company for Authority to Increase Rates for Electric Service in Minnesota" on Justia Law

The DC Circuit held that FERC's rejection of Gulf South's application for incremental-plus rates was arbitrary and capricious. The court held that FERC failed to justify the disparity between how materially identical shippers will pay dramatically different rates for the use of the same facilities. Furthermore, FERC's decision violated fundamental ratemaking principles—namely, that rates should generally reflect the burdens imposed and benefits drawn by a given shipper. Accordingly, the court vacated the order denying incremental-plus rates and remanded for further proceedings. The court denied Gulf South's petition for review in all other respects. View "Gulf South Pipeline Co. v. Federal Energy Regulatory Commission" on Justia Law

The Supreme Court affirmed the judgment of the district court dismissing two lawsuits brought by Black Diamond Energy of Delaware, Inc. (BDED) in an attempt to challenge the forfeiture of its bonds by the Wyoming Oil and Gas Conservation Commission, holding that the complaint in Case No. 2017-0074 was outside the scope of 30-5-113(a) and that the complaint in Case No. 2018-0011 was brought in the wrong venue.BDED, an oil and gas exploration company, secured a Wyoming oil and gas lease by posting bonds with the Commission and the Wyoming Office of State Lands and Investments. After the Commission ordered the bonds forfeited, BDED did not seek administrative review but, instead filed these lawsuits claiming that certain statutes authorized the direct action. The district court dismissed both lawsuits on the ground that BDED had failed to comply with the Wyoming Administrative Procedures Act. The Supreme Court affirmed but on different grounds, holding (1) BDED's complaint against the Commission in Case No. 2017-0074 was not properly brought pursuant to Wyo. Stat. Ann. 30-5-113(a); and (2) BDED did not bring its Wyoming Governmental Claims Act complaint in Case No. 2018-0011 in the proper venue. View "Black Diamond Energy of Delaware Inc. v. Wyoming Oil & Gas Conservation Commission" on Justia Law

BGE petitioned for review of FERC's orders arising out of its efforts to apply its "matching" principles to divergences between the timing of deductions for tax purposes and timing for purposes of allocating costs to ratepayers. BGE filed a new rate proposal seeking a net recovery of $38 million and FERC denied BGE's request. FERC concluded that BGE had breached the requirements of Order No. 144 by failing to file for recovery in its "next rate case," which, according to FERC, was BGE's 2005 rate filing. BGE countered that FERC's application of Order No. 144 was arbitrary and capricious under the Administrative Procedure Act.The DC Circuit denied the petition for review, holding that FERC's orders were not arbitrary and capricious. The court held that FERC reasonably interpreted its regulations and the settlement agreement to mean that BGE simply failed to comply with 18 C.F.R. 35.24 by its next rate case, as required by Order No. 144. The court rejected BGE's argument that, notwithstanding the requirements of Order No. 144, FERC has been more permissive with four "similarly situated" utilities and fails to explain its disparate treatment of BGE's filing. Therefore, FERC's rejection of BGE's tariff filing is a reasonable and reasonably explained application of Order No. 144. View "Baltimore Gas and Electric Co. v. Federal Energy Regulatory Commission" on Justia Law

The Supreme Judicial Court affirmed the decision of the Maine Public Utilities Commission granting Central Maine Power Company's (CMP) petition for a certificate of public convenience and necessity (CPCN) for the construction and operation of the New England Clean Energy Connect (NECEC) project, holding that the Commission followed the proper procedure and that there was sufficient evidence in the record to support the Commission's findings.In 2017, CMP filed a petition with the Commission for a CPCN for the NECEC project, a 145-mile transmission line. The Commission voted to grant CMP a CPCN for the construction and operation of the NECEC project. The Supreme Judicial Court affirmed, holding (1) the Commission did not commit legal error when it decided that CMP was not required to file the results of a third-party investigation into nontransmission alternatives; (2) the Commission did not err in its construction and application of Me. Rev. Stat. 35-A, 3132(6); and (3) the Commission did not abuse its discretion in approving a stipulation between the parties requiring the project to provide myriad benefits to ratepayers and the State as conditions to the recommended Commission approval of the stipulated findings and issuance of the CPCN. View "NextEra Energy Resources, LLC v. Maine Public Utilities Commission" on Justia Law