Justia Government & Administrative Law Opinion Summaries

Duke Energy Ohio, Inc. sought to recover over $30 million for the costs of restoring its system following the destruction caused by Hurricane Ike. The Public Utilities Commission allowed Duke to recover roughly half that amount, finding that several of Duke's requests lacked adequate supporting evidence. Duke appealed, raising five propositions of law, all variations on the theme that the Commission's order lacked record support. The Supreme Court affirmed, holding (1) the Commission's finding reducing the amount that Duke could recover because it found substantial problems with the supporting evidence was confirmed by the record; and (2) each of Duke's arguments lacked merit.

The Land Use Regulation Commission (LURC) approved the issuance of a permit to TransCanada Maine Wind Development, Inc. to construct a wind energy facility. Friends of the Boundary Mountains (FBM) appealed. The Supreme Court affirmed, holding that LURC (1) did not abuse its discretion in denying FMB's request to reopen a public hearing on TransCanada's original application or to conduct a new hearing on the amended application; (2) did not violate its own procedural rules; (3) properly handled consideration of several issues raised by FMB during the administrative proceedings; and (4) did not err in finding that TransCanada's wind energy project would provide significant "tangible benefits" under 12 Me. Rev. Stat. 685-B(4-B)(D).

The Supreme Court addressed the question of what level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal. Each of the four petitions for writs of superintending control stemmed from an appeal of a decision made by one of two administrative agencies, the New Mexico Environmental Improvement Board (EIB) or the New Mexico Water Quality Control Commission (WQCC). Those petitions arose from appeals of administrative rule makings: one appeal challenging rules adopted by EIB and the other challenging rules adopted by WQCC. The Court of Appeals denied appellee status to all four Petitioners, and the Petitioners requested that the Supreme Court issue writs of superintending control to overturn those rulings. The Court consolidated the four petitions and, after hearing oral arguments, issued the writs requested by three of the Petitioners while rejecting the fourth: "[b]eyond the party initiating the proceeding, [the Court] need only decide in this case whether participants who have presented technical testimony are 'parties' to an appeal as contemplated under [New Mexico] rules. [The Court concluded] that they are." [Petitioners] were not just participants who happened to be recognized as parties by EIB and WQCC. Rather, each participated in the rule-making proceedings in a legally significant manner. Each was required to file advance notice of participation, naming their witnesses and the witnesses' qualifications, and each was required to satisfy other prerequisites to their testimony. In addition, Petitioners contributed the kind of evidence that directly informed the inquiries made by EIB and WQCC in making their final decisions. Thus, the Court concluded that the requirements imposed upon Petitioners afforded them a right to defend their positions as parties on appeal.

The Atomic Energy Act, 42 U.S.C. 2011, requires that nuclear generators implement access authorization programs. Many employees at privately-owned nuclear power plants must receive a security clearance with "unescorted access" privileges. When such access is denied or revoked, the Nuclear Regulatory Commission requires owner-licensees to provide the aggrieved worker with a review procedure. From 1991 to 2009, the Commission took the position that labor arbitrators could review access denials at unionized facilities. Courts agreed. In 2009, the Commission completed post-9/11 overhaul of security requirements. New language was ambiguous as to whether the Commission had changed its policy to prohibit arbitral review. The district court entered declaratory judgment that the amendments prohibited arbitration of access denial decisions. The Seventh Circuit reversed, concluding that the Commission did not "flip-flop on an important, longstanding, and controversial policy without clearly indicating either in the text of the rule or at any point in the rulemaking history that it was doing so."

Occidental and a number of its subsidiaries petitioned for review of final orders of the FERC granting negotiated rate authority to Tres Amigas, a proposed energy transmission project. Occidental argued that Tres Amigas did not satisfy the criteria the FERC had set out as preconditions for such authority. Because the court concluded that Occidental lacked standing to challenge these orders, the court did not reach this question and instead dismissed the petition.

Noble Energy and other lessees sued in the Court of Federal Claims, alleging that application of the Coastal Zone Management Act, 16 U.S.C. 1451-1464, suspension requests constituted a material breach of their lease agreements to drill for, develop, and produce oil and natural gas on submerged lands off the coast of California. The Court of Federal Claims agreed; on appeal the Federal Circuit affirmed. One year after the Federal Circuit's decision in the breach-of-contract litigation, the Minerals Management Service (MMS), sent a letter to Noble ordering it to plug and abandon Well 320-2 permanently. The district court ruled that the common law doctrine of discharge did not relieve Noble of the regulatory obligation to plug its well permanently, an obligation that the lease did not itself create. Resolution of the dispute depended on what the plugging regulations meant. The court held that it was up to MMS's successor to interpret its regulation in the first instance and to determine whether they apply in situations like Noble's. If they do, the agency must explain why. Therefore, the court vacated the judgment and sent the case back to the district court with instructions to vacate Interior's order and to remand to the Secretary for further proceedings.

Buckeye Wind filed an application to construct a proposed wind-powered electric generation facility with the power siting board (the board). A group of neighboring landowners (the neighbors) opposed the application. Several other entities, including the county and several local townships (collectively, the county) also intervened. The board approved construction of most of the proposed turbines. The neighbors and county appealed. Buckeye intervened on behalf of the board. The Supreme Court affirmed, holding that the board acted in accordance with all pertinent statutes and regulations and based its determinations on the evidence in the record, and therefore, the board's decision was reasonable and lawful.

The Industrial Commission and Slawson Exploration Company appealed a district court judgment that reversed the Commission's assessment of a risk penalty against Gadeco, LLC. The issue in this case arose from a challenge to the validity of an invitation to participate in the cost of drilling a well which resulted in the Commission's assessment of a 200 percent risk penalty. Because the Supreme Court was unable to discern the basis for the Commission's decision, the Court reversed the judgment and remanded the case back to the Commission for the preparation of findings that explain the reasons for its decision.

Petitioner filed a petition with the court, purporting to challenge the NRC's decision to reinstate the Tennessee Valley Authority's (TVA) construction permits for the Bellefonte Nuclear Plant. Petitioner stated that it was not challenging the NRC order, but rather, petitioner asserted that its petitions for review challenged only a compilation of "Response Sheets" filed by individual Commissioners in December 2008 and January 2009. Petitioner contended that this compilation of Commissioners' views resulted in a final order on January 27, 2009. Under the Hobbs Act, 28 U.S.C. 2342(4), the court had jurisdiction to review only "final orders" of the NRC. The court held that the petitions at issue did not seek review of final NRC orders and therefore, the court lacked jurisdiction and dismissed.

This case arose out of plaintiffs' second challenge to the sufficiency of the DOE's Environmental Assessment (EA) of a prospective "biosafety level-3" (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL). On appeal, plaintiffs petitioned the court to require the DOE to prepare an Environment Impact Statement (EIS), or in the alternative, to revise its EA, in light of the allegations set forth in its original complaint, to determine whether an EIS was required. The court held that the DOE took the requisite "hard look" at the environmental impact of an intentional terrorist attack in the manner required by the National Environment Policy Act (NEPA), 42 U.S.C. 4321, et seq., and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission. The court further held that the district court did not abuse its discretion in denying plaintiffs' motion to supplement the record. Accordingly, the judgment was affirmed.