Justia Government & Administrative Law Opinion Summaries

In 2009, the Energy Facilities Siting Board approved the petition of Brockton Power Company, LLC to build and operate a combined-cycle energy generating facility powered by natural gas and ultra-low sulfur distillate in the City of Brockton. The City, the Town of West Bridgewater, and a group of residents of the City and Town, all intervenors in the proceedings below, filed appeals of the decision. The Supreme Judicial Court affirmed the decision of the Board, holding (1) the Intervenors’ contention that the Board’s failure to apply unspecified “substantive equal protection” principles to its review of the proposed facility was without merit, as there was no requirement in the 2002 environmental justice policy to do so; (2) the Board did not abuse its discretion by relying on the National Ambient Air Quality Standards for fine particulate matter; (3) the Board did not erroneously accept Logan Airport weather data as representative of the proposed facility site; (4) the Board did not abuse its discretion in determining that Brockton Power’s evidence regarding the facility’s impact on the Town’s water supply was accurate and complete; and (5) the Board did not improperly designate delivery routes to and from the facility. View "City of Brockton v. Energy Facilities Siting Bd." on Justia Law

In 2009, the Energy Facilities Siting Board approved the petition of Brockton Power Company LLC to build and operate a combined-cycle energy generating facility powered by natural gas and ultra-low sulfur distillate in the City of Brockton. The Supreme Judicial Court affirmed the Board’s decision. In 2009, while the consolidated appeal was pending, Brockton Power submitted a project change filing (PCF) to the Board seeking approval of three changes to its project. The Board denied one of Brockton Power’s proposed changes but approved the two other project changes. Both Brockton Power and the City appealed. The Supreme Judicial Court affirmed the Board’s PCF decision in all respects, holding (1) the procedure the Board adopted to review potentially material changes to Brockton Power’s project did not constitute an abuse of its discretion; (2) the Board’s approval of Brockton Power’s proposed use of water from the City’s advanced wastewater reclamation facility for the facility’s cooling tower was not invalid; and (3) the Board did not err by concluding that the CO emissions from a gas-only plant satisfied statutory standards. View "Brockton Power Co. LLC v. Energy Facilities Siting Bd." on Justia Law

In 2012, the Environmental Protection Agency (EPA) promulgated a final Federal Implementation Plan (FIP) to reduce regional haze by regulating emissions of nitrogen oxides (NOx) and particulate matter (PM) at the five units of the Four Corners Power Plant on the Navajo Reservation. WildEarth Guardians filed a petition under 42 U.S.C. 7607(b)(1) for review of the FIP. It argued that promulgation of the FIP did not comply with the Endangered Species Act (ESA) because the EPA failed to consult with the Fish and Wildlife Service about the effect of the FIP even though the EPA had discretion to act to protect endangered fish near the Plant from mercury and selenium emissions. WildEarth argued that the EPA had four grounds for the exercise of discretion that could have benefitted the fish. But the principal ground was mooted by the closure of three units of the Plant, and two other grounds were not raised in WildEarth’s opening brief. "As for the fourth alleged ground, it could not create a duty to consult under the ESA because it would have required the EPA to exceed the clearly delineated boundaries of the FIP." The Tenth Circuit denied the petition. View "WildEarth Guardians v. EPA, et al" on Justia Law

Shamokin Filler, a coal preparation facility in Shamokin, Pennsylvania, has been regulated by the Federal Mine Safety and Health Administration (MSHA) since 1977. After a change in ownership in 2009, the new owners challenged MSHA’s jurisdiction, contending that the Occupational Safety and Health Administration (OSHA), not MSHA, should oversee it. Presumably the new owners wanted to avoid the more stringent requirements imposed by MSHA regulations and the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801. MSHA, rather than OSHA, has much stricter oversight requirements including regarding respirable coal dust standards. The Secretary of Labor and an Administrative Law Judge for the Federal Mine Safety and Health Review Commission disagreed and concluded that Shamokin was engaged in the “work of preparing the coal,” as defined in the Mine Act. Shamokin argued that its plant does not engage in the “work of preparing the coal” because it makes its 100% coal products out of already processed coal. The Third Circuit rejected the argument and denied a petition for review. Shamokin’s interpretation of the statute lacked any basis in the text of the Mine Act. View "Shamokin Filler Co. Inc v. Fed. Mine Safety & Health Review Comm'n" on Justia Law

Petitioners sought review of FERC's orders affecting the administration of the Independent System Operator-New England (ISO-NE) and specifically directed to curtailment of the exercise of market power in the New England energy market. The court held that FERC has jurisdiction to regulate the parameters comprising the Forward Capacity Market, and that applying offer-floor mitigation fits within the Commission's statutory rate-making power. The court concluded that none of the petitioners established that FERC has committed reversible error and the court denied the petition for review. View "New England Power Gen. Assoc. v. FERC" on Justia Law

Public Service Company of Colorado applied for a tax refund from the state Department of Revenue. The company argued that it was entitled to a refund because it paid taxes when it was actually eligible for an exemption. The district court held in favor of the company, concluding that electricity was tangible personal property and that the production of electricity constituted manufacturing, thus entitling the company to the exemption (the "manufacturing exemption" under 39-26-709(1)(a)(II) C.R.S. (2013)). Upon review of the Department's argument on appeal, the Supreme Court reversed, finding that section 39-26-104(1)(d.1) applied in this case: electricity did not qualify as tangible personal property, and that the Code "contemplate[d] that 'electricity furnished and sold'" was to be taxed as a service. View "Department of Revenue v. Public Service Co." on Justia Law

The Clean Air Act requires permits for stationary sources, such as factories and powerplants. The Act’s “Prevention of Significant Deterioration” (PSD) provisions make it unlawful to construct or modify a “major emitting facility” in “any area to which [PSD program] applies” without a permit, 42 U.S.C. 7475(a)(1), 7479(2)(C). A “major emitting facility” is a stationary source with the potential to emit 250 tons per year of “any air pollutant” (or 100 tons per year for certain sources). Facilities seeking a PSD permit must comply with emissions limitations that reflect the “best available control technology” (BACT) for “each pollutant subject to regulation under” the Act and it is unlawful to operate any “major source,” wherever located, without a permit. A “major source” is a stationary source with the potential to emit 100 tons per year of “any air pollutant,” under Title V of the Act. In response to the Supreme Court decision, Massachusetts v. EPA, the EPA promulgated greenhouse-gas (GHG) emission standards for new vehicles, and made stationary sources subject to the PSD program and Title V, based on potential GHG emissions. Recognizing that requiring permits for all sources with GHG emissions above statutory thresholds would render the programs unmanageable, EPA purported to “tailor” the programs to accommodate GHGs by providing that sources would not become newly subject to PSD or Title V permitting on the basis of their potential to emit GHGs in amounts less than 100,000 tons per year. The D.C. Circuit dismissed some challenges to the tailoring rule for lack of jurisdiction and denied the rest. The Supreme Court affirmed in part and reversed in part, finding that the Act does not permit an interpretation requiring a source to obtain a PSD or Title V permit on the sole basis of potential GHG emissions. The Massachusetts decision held that the Act-wide definition of “air pollutant” includes GHGs, but with respect to PSD and Title V permitting provisions, EPA has employed a narrower, context-appropriate meaning. Massachusetts did not invalidate the long-standing constructions. “The Act-wide definition is not a command to regulate, but a description of the universe of substances EPA may consider regulating.” The presumption of consistent usage yields to context and distinct statutory objects call for different implementation strategies. EPA has repeatedly acknowledged that applying PSD and Title V permitting requirements to GHGs would be inconsistent with the Act’s structure and design, which concern “a relative handful of large sources capable of shouldering heavy substantive and procedural burdens.” EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds to accommodate its GHG-inclusive interpretation. EPA reasonably interpreted the Act to require sources that would need permits based on emission of conventional pollutants to comply with BACT for GHGs. BACT, which has traditionally been about end-of-stack controls, may be fundamentally unsuited to GHG regulation, but applying BACT to GHGs is not "disastrously unworkable," and need not result in a dramatic expansion of agency authority. View "Util. Air Regulatory Grp. v. Envtl. Prot. Agency" on Justia Law

The issue this case presented for the Supreme Court's review was an order of the Idaho Public Utilities Commission holding that it had jurisdiction to decide whether the force majeure clauses in the Appellants' contracts with Idaho Power Company excused them from their contractual obligations to have their power generation facilities constructed and in operation by specified dates in order to sell electricity to Idaho Power. Finding no reversible error, the Supreme Court affirmed the Commission. View "Idaho Power v. New Energy Two & IPUC" on Justia Law

Plaintiffs filed suit challenging a Maryland program subsidizing the participation of a new power plant in the federal wholesale energy market. Maryland's plan was ultimately formalized in the Generation Order. The district court agreed with plaintiffs' contention that the Maryland scheme was preempted under the Federal Power Act's (FPA), 16 U.S.C. 824(b)(1), authorizing provisions, which grant exclusive authority over interstate rates to FERC. The court concluded that the Generation Order is field preempted because it seeks to regulate a field that the FPA has occupied. The court also concluded that the Generation Order is conflict preempted because it conflicts with the auction rates approved by FERC and conflicts with PJM's new entry price adjustment (NEPA). Accordingly, the court held that the Generation Order was preempted under federal law and affirmed the judgment of the district court. View "PPL EnergyPlus, LLC v. Nazarian" on Justia Law

Power Survey Company sought a writ of certiorari before the Supreme Court contending that the Public Utilities Commission improperly interpreted and applied the Contact Voltage Statute when it approved the portion of the Narragansett Electric Company’s (NEC) contact voltage program providing for the issuance of a request for proposal for the purpose of choosing a vendor to provide the technology for the NEC’s contact voltage testing. The Supreme Court issued the writ. Respondents, the NEC and the Division of Public Utilities and Carriers, moved to quash the writ on the grounds that it was not timely filed. The Supreme Court granted Respondents’ motions, holding that, under the facts of this case, Power Survey’s petition was untimely. View "In re Proceedings to Establish a Contact Voltage Detection & Repair Program" on Justia Law