Articles Posted in U.S. Court of Appeals for the District of Columbia Circuit

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Environmental groups requested records from the EPA that the agency had previously obtained from power plants under Section 308 of the Clean Water Act, 33 U.S.C. 1318(a), (b). The records requested are exempt from disclosure under Exemption 4 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4), but seemingly must be disclosed under Section 308. At issue was what statute prevailed. The DC Circuit held that the Administrative Procedure Act (APA), 5 U.S.C. 559, directly addressed the issue. Section 559 provides that FOIA exemptions apply unless a later statute expressly supersedes or modifies those exemptions. In this case, section 308 is the later statute. Because section 308 does not expressly supersede Exemption 4, EPA impermissibly invoked Exemption 4 to deny the FOIA requests. Accordingly, the court affirmed the judgment. View "Environmental Integrity Project v. EPA" on Justia Law

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OFAC is authorized to impose civil penalties against any person who exports goods to a third party who it has reason to know intends to send them to Iran. At issue was whether OFAC must also show that the goods actually ended up in Iran. The DC Circuit held that the government need not make that showing and affirmed the district court on that ground. However, the court held that OFAC did not adequately explain parts of its determination that the exporter in this case had reason to know that its shipments would be sent on to Iran. Therefore, the court affirmed the district court's order granting the government defendants' motion for summary judgment as to OFAC's determination that Epsilon's 34 shipments to Asra International between August 2008 and March 2011 violated section 560.204 of the Iranian Transactions and Sanctions Regulations. The court reversed as to OFAC's determination that Epsilon's five shipments to Asra International in 2012 violated the same regulation. The court remanded with instructions. View "Epsilon Electronics v. US Department of Treasury" on Justia Law

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Plaintiff filed suit alleging that the Army unlawfully relieved him of command in retaliation for whistleblowing, in violation of the Military Whistleblower Protection Act of 1988, 10 U.S.C. 1034. On appeal, plaintiff challenged the decision of the Chief of Staff for the Office of the Under Secretary of Defense for Personnel and Readiness. The DC Circuit ordered this action to be transferred to district court, holding that nothing in section 1034 or any other provision of the Act provides for direct review in the courts of appeal. View "Rodriguez v. Penrod" on Justia Law

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Neustar petitioned for review of the FCC's orders naming another company, Telcordia, to replace it as the Local Number Portability Administrator (LNPA). The DC Circuit held that it had jurisdiction to hear Neustar's petition; the Order did not qualify as a rule, and there was no requirement of notice-and-comment rulemaking when selecting the LNPA; neither the FCC's neutrality determination nor its cost analysis was arbitrary and capricious; and the FCC's Best and Final Offers (BAFO) determination was not arbitrary and capricious. Because the court found no error in the FCC's decision, the court denied the petitions for review. View "Neustar, Inc. v. FCC" on Justia Law

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Riverkeeper petitioned for review of FERC's Certificate of Public Convenience and Necessity conditionally approving the Leidy Project. The DC Circuit denied the petition and held that it had jurisdiction to consider Riverkeeper's challenge to the Certificate Order on the ground that FERC violated the sequencing requirement of the Clean Water Act (CWA) by issuing its Certificate Order before Pennsylvania issued its section 401 certification; the sequencing requirement of section 401 was not triggered because the Commission's conditional approval of the Leidy Project construction did not authorize any activity which might result in a discharge in navigable waters; the court need not decide whether the letter orders impermissibly approved activity that might have resulted in a discharge before Pennsylvania issued its section 401 certification; FERC did not violate the National Environmental Policy Act (NEPA) by misclassifying wetlands; even if FERC technically erred in some of its classifications, Riverkeeper has not shown any prejudice; and FERC's NEPA review of the Leidy Project's proposed gas flow velocities appeared to be fully informed and well-considered. View "Delaware Riverkeeper Network v. FERC" on Justia Law

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Section 309 of the Federal Power Act (FPA), 16 U.S.C. 825h, vests the Commission with broad remedial authority, including the authority to grant recoupment when it is justified; Section 201(f) does not limit the authority of the Commission to grant relief under Section 309 with respect to matters that are beyond the strictures of Sections 201(f) and 205; and an order of recoupment, as distinguished from an order to refund under Section 205, is beyond the strictures of Sections 201(f) and 205. In this case, Chehalis sought relief from the Commission by filing a Motion for an Order Requiring Recoupment of Payments, but the Commission concluded that it could not order recoupment because the Commission's refund authority does not extend to exempt public utilities such as the Intervenor Bonneville. The DC Circuit held that the Commission erred when it held that it lacked the authority to grant the Order Requiring Recoupment where the Commission clearly had jurisdiction over the subject of this dispute and the Commission retained the authority to order Bonneville to return the funds when the agency acknowledged that its initial order was mistaken. The court granted in part and denied in part Chehalis's petitions for review, and remanded for further proceedings. View "TNA Merchant Projects v. FERC" on Justia Law

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The FAA's Registration Rule requires the owners of small unmanned aircraft operated for recreational purposes (model aircraft) to register with the FAA. Advisory Circular 91-57A announced that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area. The DC Circuit granted the petition for review in this case, vacating the Registration Rule to the extent it applies to model aircraft because Section 336(a) of the FAA Modernization and Reform Act, 49 U.S.C. 40101 note, states that the FAA "may not promulgate any rule or regulation regarding a model aircraft." The DC Circuit held that petitioner's challenge to the Advisory Circular was untimely and petitioner did not have reasonable grounds for the late filing. View "Taylor v. Huerta" on Justia Law

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A district court has broad discretion to decide whether and when to grant an agency's request for a voluntary remand. But a voluntary remand is typically appropriate only when the agency intends to revisit the challenged agency decision on review. After the Department rejected Limnia's two loan applications, Limnia filed suit alleging that the Department's rejection of Limnia's applications was unlawful under the Administrative Procedure Act. The district court then granted the Department's voluntary remand request. The DC Circuit held that the district court erred by granting the Department's request for a voluntary remand in this case because the Department did not intend to revisit the original application decisions under review. Therefore, the DC Circuit reversed and remanded for further proceedings. View "Limnia, Inc. v. DOE" on Justia Law

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The DC Circuit affirmed the Bureau's withholding of water well location and depth information under Exemption 9 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(9), holding that Exemption 9 permits the government to withhold information and maps disclosing the locations and depth of certain water wells. The depth and location of wells straightforwardly qualifies as "geological and geophysical information," and providing the well-depth and location information to AquAlliance would thus necessarily disclose geological or geophysical information. View "AquAlliance v. United States Bureau of Reclamation" on Justia Law

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Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 824a-3, seeks to reduce reliance on fossil fuels by increasing the number of energy-efficient cogeneration and small power-production facilities. Oregon implements its PURPA responsibilities largely through its Public Utility Commission (OPUC), which has directed utilities subject to its jurisdiction to draft off-the-shelf, standard-form power-purchase agreements that OPUC then reviews for compliance with PURPA. OPUC has approved two standard-form power-purchase agreements submitted by petitioner Portland General Electric. Petitioner PáTu Wind Farm, a six-turbine, nine-megawatt generator in rural Oregon, is classified under PURPA as a small power producer. This appeal stems from the parties' dispute over the nature of Portland General's purchase obligation. The Commission ruled that under PURPA, Portland General must purchase all of PáTu’s power, though it rejected PáTu’s insistence that Portland General do so by utilizing a technology known as dynamic scheduling. The court concluded that PáTu’s petition dealing exclusively with Portland's refusal to utilize dynamic scheduling is without merit. Accordingly, the court denied PáTu’s petition. The court dismissed Portland's petition challenging the Commission's ruling that it must purchase all of PáTu’s power for lack of jurisdiction because FERC's orders were advisory. View "Portland General Electric Comp v. FERC" on Justia Law