Justia Government & Administrative Law Opinion Summaries

Appellant TW Telecom of New Mexico (TW Telecom) appealed a final order issued by the New Mexico Public Regulation Commission (PRC) in "In the Matter of the Development of an Alternative Form of Regulation Plan for Qwest Corporation" (AFOR III Final Order). TW Telecom claimed that the PRC (1) adopted certain conclusions from a previous final order, lacking justification in the AFOR III record; (2) deregulated Qwest Corporation's (Qwest) rates in violation of the New Mexico Telecommunications Act and the separation of powers doctrine in the New Mexico Constitution; and (3) deprived TW Telecom of proper due process. The claims raised in this appeal involved three cases before the PRC that concerned the development of various alternative forms of regulation plans issued by the PRC, and Qwest's compliance with the terms and conditions therein.  The cases addressed various issues, including pricing provisions and detailed requirements for the filing of tariff changes, tariffs for new services, promotional offerings, packaged services, and individual contracts for services. Upon review, the Supreme Court annulled and vacated AFOR III Final Order and remanded the case back to the PRC for further proceedings. The Court concluded that the PRC indeed violated TW Telecom's due process because it adopted conclusions from a previous proceeding without affording the parties an opportunity to be heard. The Court did not address TW Telecom's second claim.

Three state and local governmental units, along with individual citizens, petitioned the court for review of and other relief from two "determinations" made by the Department of Energy (DOE) and the other respondents: the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission (NRC) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste depository. The court concluded that the Nuclear Waste Policy Act, 42 U.S.C. 10101-270, set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE had submitted a construction license application for the Yucca Mountain repository and the NRC maintained a statutory duty to review that application. Therefore, the court held that unless and until petitioners were able to demonstrate that one of the respondents had either violated a clear duty to act or otherwise affirmatively violated the law, petitioners' challenges to the ongoing administrative process was premature. Accordingly, the court held that it lacked jurisdiction over petitioners' claims and dismissed the petitions.

Appellants, nonprofit environmental organizations, appealed from a judgment of dismissal entered by the district court in an action against the EPA under the citizen suit provision of the Clean Air Act (CAA), 42 U.S.C. 7401 et seq., challenging the EPA Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The court held that the validity of the Prevention of Significant Deterioration (PSD) permits issued under the noncompliant State Implementation Plan (SIP), and the possible invalidity of the amended SIP, sufficiently raised a current controversy to save the litigation from mootness. The court also held that the Administrative Procedures Act, 5 U.S.C. 500 et seq., did not provide a cause of action to review the EPA Administrator's failure to act under section 7477 of the CAA because her decision was an agency action "committed to agency discretion by law." Therefore, the EPA Administrator's decision was discretionary and not justiciable and thus, appellants failed to state a claim upon which relief could be granted. Although the district court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the court affirmed the district court's action because dismissal would otherwise have been proper under Federal Rule of Civil Procedure 12(b)(6).

Petitioner Jefferson Utilities, Inc. (JUI), a privately-held public utility authorized to provide water service to several areas of Jefferson County, filed a request with the Public Service Commission of West Virginia for a rate increase of approximately 72.2 percent. The ALJ recommended a rate increase of 22.4 percent, and the Commission reduced the rate increase recommended by the ALJ to 4.4 percent. JUI appealed, contending that the Commission erred by rejecting the recommended decision of the ALJ regarding the rate increase. The Supreme Court affirmed, holding that although the evidence in this case was controverted, it was clear that the Commission's decision was not arbitrary, did not result from a misapplication of legal principles, and was supported by substantial evidence in the record.

Plaintiff, operator of an electricity plant, sued defendant ("the county"), seeking to enjoin Expedited Bill 29-10, which imposed a levy on large stationary emitters of carbon dioxide within the county, on the ground that it violated the United States and Maryland Constitutions. At issue was whether a Montgomery County exaction on carbon dioxide emissions, levied only upon plaintiff's electricity-generating facility, was a tax or a fee. The court held that the carbon charge, which targeted a single emitter and was located squarely within the county's own "programmatic efforts to reduce" greenhouse gas emissions, was a punitive and regulatory fee over which the federal courts retained jurisdiction. Accordingly, the court reversed and remanded for further proceedings.

Plaintiffs, several states, the city of New York, and three private land trusts, sued defendants, four private power companies and the federal Tennessee Valley Authority, alleging that defendants' emissions substantially and unreasonably interfered with public rights in violation of the federal common law of interstate nuisance, or in the alternative, of state tort law. Plaintiffs sought a decree setting carbon-dioxide emissions for each defendant at an initial cap to be further reduced annually. At issue was whether plaintiffs could maintain federal common law public nuisance claims against carbon-dioxide emitters. As a preliminary matter, the Court affirmed, by an equally divided Court, the Second Circuit's exercise of jurisdiction and proceeded to the merits. The Court held that the Clean Air Act, 42 U.S.C. 7401, and the Environmental Protection Act ("Act"), 42 U.S.C. 7411, action the Act authorized displaced any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. The Court also held that the availability vel non of a state lawsuit depended, inter alia, on the preemptive effect of the federal Act. Because none of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law, the matter was left for consideration on remand. Accordingly, the Court reversed and remanded for further proceedings.

The Public Utilities Commission allowed two electric power operating companies to adjust their economic-development cost-recovery riders and recover additional revenues. Industrial Energy Users-Ohio (IEU) sought a rehearing, which the commission denied. IEU appealed the order, arguing that the commission approved the rate increase without reviewing its reasonableness. The Supreme Court found the order prejudiced IEU because some of IEU's members paid higher rates as a result of the order. The Court then affirmed, holding that IEU failed to meet its burden to identify a legal problem with the order. Because the Court presumes that orders are reasonable, IEU must upset that presumption, and IEU did little more than disagree with the order, giving the Court no reason to reverse.

In consolidated appeals, plaintiff challenged the district court's conclusions that its property was properly included in the South of Laramie Water and Sewer District ("district") and that the district lawfully issued certain general obligation bonds. Plaintiff also challenged the refusal of the Board of County Commissioners of Albany County ("board") to exclude plaintiff's property from the district. The court affirmed Docket No. S-10-0199 and held that plaintiff was barred from challenging the inclusion of its property in the district and found that the district's proposed general obligation bond issue was not unlawful. In Docket No. S-10-0238, the court answered certified questions related to the Wyoming board of county commissioners' power to remove real property from a water and sewer district and the district court's dismissal of plaintiff's claim under W.R.C.P. 12(b)(6). The court affirmed the district court's dismissal of Claim I under section 12(b)(6) where a motion to dismiss under section 12(b)(6) was an appropriate vehicle in which to raise the issue of the passage of a period of limitations; where Wyo. State. Ann 41-10-107(g) unambiguously forbade any "petition in error [or] other appeal" from a board's resolution establishing a water district, and unambiguously stated that the "organization of the district shall not be directly or collaterally questioned in any suit, action or proceeding" except "an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty (30) days after the resolution..."; and where there was no inherent right to appeal from administrative action.

The Montana Department of Revenue ("Department") appealed a judgment reversing the State Tax Appeal Board's ("STAB") conclusion that the Department had applied a "commonly accepted" method to assess the value of PacificCorp's Montana properties. At issue was whether substantial evidence demonstrated common acceptance of the Department's direct capitalization method that derived earnings-to-price ratios from an industry-wide analysis. Also at issue was whether substantial evidence supported STAB's conclusion that additional obsolescence did not exist to warrant consideration of further adjustments to PacifiCorp's taxable value. The court held that substantial evidence supported the Department's use of earnings-to-price ratios in its direct capitalization approach; that additional depreciation deductions were not warranted; and that the Department did not overvalue PacifiCorp's property. The court also held that MCA 15-8-111(2)(b) did not require the Department to conduct a separate, additional obsolescence study when no evidence suggested that obsolescence existed that has not been accounted for in the taxpayer's Federal Energy Regulatory Commission ("FERC") Form 1 filing. The court further held that STAB correctly determined that the actual $9.4 billion sales price of PacifiCorp verified that the Department's $7.1 billion assessment had not overvalued PacifiCorp's properties.

The Alcoa Power Generating Company ("Alcoa") petitioned for review of two orders of the Federal Energy Regulatory Commission ("Commission") with respect to the relicensing of its Yadkin Project facilities in North Carolina. At issue was whether the petition for review was ripe in light of on-going state administrative review and stay of certification and whether the certifying agency waived its authority by not issuing a certification that was effective and complete within one year under section 401 of the Clean Water Act ("Act"), 33 U.S.C. 1341(a)(1). The court held that the petition was ripe for review where the waiver issue was fit for review and the legally cognizable hardship that Alcoa would suffer from delay sufficed to outweigh the slight judicial interest in the unlikely possibility that the court may never need to decide the waiver issue. The court also held that there was no waiver issue where the "effective" clause would not operate to delay or block the federal licensing proceeding beyond section 401's one-year period.