Justia Government & Administrative Law Opinion Summaries

Articles Posted in Environmental Law
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The Federal Power Act (“FPA”), 16 U.S.C. Section 824d(d), ISO-NE filed tariff revisions with the Federal Energy Regulatory Commission (“FERC” or “the Commission”) to compensate generators for maintaining an inventory of energy during the winter months of 2023–24 and 2024–25. The revisions implemented the Inventoried Energy Program (“IEP”), under which ISO-NE will provide additional payments to generators to maintain up to three days’ worth of fuel on-site and convert it into electricity.  The Commission issued an order accepting ISO-NE’s proposed tariff revisions. Petitioners contended that FERC’s decision to approve IEP imposes unjust and unreasonable, discriminatory, and preferential rates.   The DC Circuit upheld all but one component of the Commission’s decision to approve ISO-NE’s proposed tariff revisions implementing the Inventoried Energy Program. The court left in intact the Commission’s June 2020 order except for the portion of IEP that is arbitrary and capricious: the agency’s inclusion of nuclear, biomass, coal, hydroelectric generators. The court wrote that it believes there is no substantial doubt that FERC would have adopted IEP if it had not included these resources in the first place, and IEP can function sensibly without them. View "Belmont Municipal Light Department v. FERC" on Justia Law

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The Natural Gas Act (“NGA”) vests the Federal Energy Regulatory Commission (“Commission “) with broad authority to regulate the transportation and sale of natural gas. The case at issue concerns the Commission’s application of its pipeline requirement to a liquified natural gas (“LNG “) handling facility in San Juan, Puerto Rico. The facility, constructed and operated by New Fortress Energy LLC (“NFE”) receives LNG from a floating storage unit moored at San Juan Harbor which, in turn, receives LNG from shuttle vessels that deliver LNG imports from ocean-going, bulk-carrier tankers.   While constructing the facility, New Fortress received “informal advice” from Commission staff suggesting the Commission would not assert jurisdiction. Shortly after the facility began operating, the Commission issued an order to show cause why the facility is not subject to Commission jurisdiction as an LNG terminal operating in foreign commerce. In response, NFE argued among other things that the 75-foot pipe is not a “pipeline,” but the Commission disagreed, finding the facility “connected to a pipeline” because the pipe “sends out gas” to San Juan Power Plant.   The DC Circuit denied NFE’s petition seeking review of the Federal Energy Regulatory Commission’s application of its pipeline requirement. The court explained that the physical characteristics of piping are merely a function of the volume of LNG to be imported or exported and the relative distance between the LNG terminal and the ultimate end-user. The Commission also pointed out that it “has never considered” a pipeline’s physical characteristics when determining whether a facility is an LNG import or export terminal. View "New Fortress Energy Inc. v. FERC" on Justia Law

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TexCom sought to develop a commercial-waste-disposal facility on a 27-acre site in Montgomery County, near Conroe, that had one existing nonoperative injection well. TexCom sought to operate the existing well and construct up to three additional wells. Class I underground injection-control wells manage industrial waste by injecting it thousands of feet underground but can potentially harm drinking water and petroleum, so these injection wells undergo an extensive permitting process with the Texas Commission on Environmental Quality (TCEQ). A permit application must be accompanied by a letter from the Railroad Commission (RRC) concluding that the proposed wells “will not endanger or injure any known oil or gas reservoir.” RRC issued such a letter for TexCom but rescinded it after six years of administrative hearings, around the same time TCEQ issued its final order granting the permit application.The Texas Supreme Court affirmed TCEQ’s order granting the permit application as supported by substantial evidence; a migration finding, combined with the injection zone’s geological suitability, is sufficient to support TCEQ’s ultimate finding that the wells would be protective of water. The rescission did not deprive TCEQ of jurisdiction, and, on these facts, TCEQ did not violate the Texas Administrative Procedure Act by declining to reopen the administrative record for further proceedings. View "Dyer v. Texas Commission on Environmental Quality" on Justia Law

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In this claim brought by an organization dedicated to ocean preservation against the National Marine Fisheries Service, a division of the U.S. Department of Commerce, the DC Circuit affirmed the judgment of the trial court in favor of the government defendants. In doing so, the court rejected both of the organization's claims that the National Marine Fisheries Service failed to provide sufficient protection for the dusky shark.The court held that the National Marine Fisheries Service did not violate the Magnuson-Stevens Act by failing to actually limit bycatch of the overfished dusky shark or hold fisheries accountable to any level of dusky shark bycatch. Nor did the national Marine Fisheries Service violate the Magnuson-Stevens Act by failing to establish a reasonable likelihood that training measures, communication protocols, and minor gear changes would reduce dusky shark bycatch by 35 percent, which is the minimum reduction needed to meet the statutory requirement to rebuild the dusky shark population. View "Oceana, Inc. v. Gina Raimondo" on Justia Law

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The Court of Appeals affirmed the decisions of the lower courts affirming a general permit that the Maryland Department of the Environment issued for operators of thirty-five small municipal separate storm sewer systems (MS4s) in Maryland, including Petitioner Queen Anne's County, which operated a small MS4, holding that conditions based on regulations of the Environmental Protection Agency (EPA) in the general permit for small MS4s are not unlawful simply because they may exceed the minimum requirements of the Clean Water Act.In Maryland Department of the Environment v. County Commissioners of Carroll County, 140 S. Ct. 1265 (2020), the Court of Appeals held that permits issued to counties that operated MS4s were lawful even if some permit conditions exceeded the minimum requirements of the Act. In the instant case, the circuit court for Queen Anne's County concluded that the decision in Carroll County addressed the issues raised by the County and affirmed the permit. The court of special appeals affirmed. The Court of Appeals affirmed, holding (1) the holdings of Carroll County applied in this case; and (2) an impervious surface restoration requirement in the permit, which was similar to but less onerous than a permit requirement assessed in Carroll County, did not unlawfully make the County responsible for discharges by third parties. View "Small MS4 Coalition v. Department of Environment" on Justia Law

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In October 2018, several public interest groups petitioned the California Fish and Game Commission to list four species of bumble bee as endangered species: the Crotch bumble bee, the Franklin bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee. In September 2019, petitioners challenged the Commission’s decision by filing a petition for writ of administrative mandate, asserting that the Commission’s determination that the four bumble bee species qualified for listing as candidate species under the California Endangered Species Act “violated the Commission’s legal duty, was a clear legal error, and was an abuse of discretion.” The trial court granted the writ petition. Because the Court of Appeal’s task in this appeal was to “review the Commission’s decision [designating the four bumble bee species in question as candidate species under the Act], rather than the trial court’s decision [granting the writ petition],” the Court focused on the trial court’s conclusion “the word ‘invertebrates’ as it appears in [s]ection 45’s definition of ‘fish’ clearly denotes invertebrates connected to a marine habitat, not insects such as bumble bees.” To this end, the Court of Appeal concluded a liberal interpretation of the Act, supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate was a threatened species “(express language we cannot ignore),” was that fish defined in section 45, as a term of art, was not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, could be listed as an endangered or threatened species under the Act. Judgment was reversed. View "Almond Alliance of Cal. v. Fish and Game Com." on Justia Law

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United Water Conservation District (“District”) manages the groundwater resources in Ventura County. City of San Buenaventura (“City)” pumps groundwater from the District’s territory and sells it to residential and commercial customers.   The District collects a fee from the city by applying a fixed ratio of rates for nonagricultural users, such as the City, who pump groundwater for municipal and industrial (M&I) uses. The District charged such users three times more than agricultural (also known as “Ag”) users in accordance with Water Code section 75594.   The City filed its complaint for determination of invalidity and declaratory relief and petition for writ of mandate. The City alleged section 75594 is facially unconstitutional because the groundwater extraction rates charged for the water year 2019-2020 were not allocated to the City and other M&I users in a manner that bears a reasonable relationship to the City’s burdens on or benefits from the District’s activities.   The Second Appellate District affirmed the trial court’s judgment and held that the groundwater extraction charge is invalid as to nonagricultural users and must be set aside and section 75594 violates the California Constitution and is therefore unconstitutional. The threshold issue concerned the applicable standard of review. The court held that District’s rates for the 2019-2020 Water Year do not comply with proposition 26. The court reasoned that the constitutional requirement of a ‘fair or reasonable relationship’ is not resolved by application of a rigid judicial standard nor by application of a deferential standard of substantial evidence. View "City of San Buenaventura v. United Water Conservation Dist." on Justia Law

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This appeal centered around the Idaho Department of Water Resources' (“IDWR”) denial of Application 83160, brought by Jeffrey and Chana Duffin (“Duffin”), to transfer the licensed ground water right 35-7667 to a different parcel of land. During the appeal of this case, 3G AG LLC (“the LLC”) “purchased from Duffin the property where water right 35-7667 - the water right subject to Transfer No. 8316 which is the subject of this appeal - is located.” As a result of the transfer of ownership, the LLC sought to substitute itself for Duffin. Because there was no objection to the substitution, it was allowed. IDWR denied the transfer because, among other reasons, approving it would cause an “enlargement” in the use of water as proscribed by Idaho Code section 42-222(1). On judicial review, the district court agreed with the denial and affirmed. Finding no error in the district court's judgment, the Idaho Supreme Court affirmed the decision of the district court. View "3G AG LLC v. IDWR" on Justia Law

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TVA, wholly owned by the U.S. government, 16 U.S.C. 831, operates Tennessee's Kingston Fossil Fuel Plant. A containment dike that retained coal-ash sludge failed in 2008, causing 5.4 million cubic yards of coal-ash sludge to spill to adjacent property. TVA and the EPA responded under the National Oil and Hazardous Substances Pollution Contingency Plan. TVA, as the lead agency, engaged Jacobs as its “prime contractor providing project planning, management, and oversight,” including evaluating potential hazards to human health and safety. Jacobs submitted a Safety and Health Plan. More than 60 of Jacobs’s former employees sued, claiming that they were exposed to coal ash and particulate “fly ash” during this cleanup. The suits were consolidated.The district court denied Jacobs’s motions seeking derivative discretionary-function immunity, reasoning that Jacobs would be entitled to immunity only if it adhered to its contract and there were genuine disputes of material fact as to whether Jacobs acted within the scope of its authority. A jury returned a verdict in favor of the plaintiffs but did not designate any particular theory, as listed in the jury instructions, for which Jacobs could be held liable, broadly finding that Jacobs “failed to adhere to the terms of its contract," or the Plan. The Sixth Circuit affirmed. Jacobs is immune from suit only if TVA is immune; TVA would not have been immune from suit on the grounds that the plaintiffs’ claims raise either “inconsistency” or “grave-interference” concerns. View "Greg Adkisson v. Jacobs Engineering Group, Inc" on Justia Law

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In Case No. 02CW403, and Case No. 10CW306, the Colorado Water Court Division 1 determined, among other things, that the Farmers Reservoir and Irrigation Company (“FRICO”) did not have a decreed right to use seepage water accruing to a ditch known as the Beebe Seep Canal. FRICO nonetheless continued to utilize the seepage water outside the priority system to make additional water available to its shareholders for irrigation. In 2016, FRICO sought a decree confirming absolute and conditional water rights to use unappropriated: (1) water seeping from Barr Lake; and (2) natural runoff, drainage, waste, return flows, and seepage water arising in, flowing into, and accruing to the Beebe Seep Canal (the “Subject Water Rights”) to supplement water deliveries to its shareholders for irrigation. Following the culmination of stipulations with most of the twenty initial objectors and a five-day trial, the water court issued its final judgment confirming, adjudicating, approving, and decreeing FRICO’s use of the Subject Water Rights contingent upon certain terms and conditions outlined within the water court’s Amended Findings of Fact, Conclusions of Law, Judgment and Decree of the Court (“Amended Decree”). The issues raised by FRICO in this appeal concerned three of the specific terms and conditions that the water court placed upon FRICO’s use of the Subject Water Rights. The issue raised by three of the objectors in their cross-appeal concerned the water court’s authority to grant certain of these new rights. The Colorado Supreme Court found the water court's findings and its imposition of the challenged terms and conditions in the Amended Decree were supported by the record and did not violate FRICO's right to appropriate unappropriated water. Further, the Supreme Court held the water court was within its authority to grant FRICO the absolute rights challenged by the three objectors in their cross-appeal. View "Farmers Reservoir v. Arapahoe County" on Justia Law