Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

Articles Posted in Energy, Oil & Gas Law
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The DC Circuit denied the Refinery's motion to proceed under a pseudonym. The court weighed the markedly thin showing of potential injury by the Refinery against the substantial public interest in transparency and openness in cases involving the government's administration of an important statutory and regulatory scheme, holding that the Refinery has not overcome the customary and constitutionally-impeded presumption of openness in judicial proceedings.In this case, the Refinery has failed to demonstrate that requiring it to proceed in its own name will risk the disclosure of sensitive and highly personal information; the Refinery itself faces no risk of physical or mental harm; and the Refinery has chosen to sue a government agency regarding the operation of a statutory program and, in particular, applications for special exemptions from the law's obligations. The court held that none of the factors commonly involved in analyzing a request to proceed anonymously weigh in the Refinery's favor. Furthermore, the Refinery's additional arguments add nothing to its side of the scale either. View "In re: Sealed Case" on Justia Law

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The EPA issued a regulation known as the Pathways II Rule, allowing renewable-fuel producers to use a measurement method "certified by a voluntary consensus standards body" (VCSB), or a method "that would produce reasonably accurate results as demonstrated through peer reviewed references." EPA then issued the Cellulosic Guidance to explain its interpretation of the applicable regulatory requirements and clarify the types of analyses and demonstrations that might meet them.The DC Circuit dismissed in part and denied in part POET's petition for review of the Cellulosic Guidance. The court held that POET's challenge to the Guidance's treatment of VCSB-certified methods is unripe because no such method yet exists and POET's registration efforts rely on the peer-reviewed alternative. In regard to POET's challenge to the Guidance's discussion of peer-reviewed methods, the court held that the Guidance announces a final, interpretive rule that lawfully construes the underlying regulation. View "POET Biorefining, LLC v. Environmental Protection Agency" on Justia Law

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The DC Circuit denied petitions for review challenging FERC's orders concerning SFPP's tariffs. SFPP challenges FERC's decisions to deny SFPP an income tax allowance, to decline to reopen the record on that issue, and to deny SFPP's retroactive adjustment to its index rates. Shippers challenge FERC's disposition of SFPP's accumulated deferred income taxes (ADIT) and its temporal allocation of litigation costs.The court held that FERC's denial of an income tax allowance to SFPP was both consistent with the court's precedent and well-reasoned, and that FERC did not abuse its discretion or act arbitrarily in declining to reopen the record on that issue. Furthermore, FERC reasonably rejected retroactive adjustment to SFPP's index rates. The court also held that FERC correctly found that the rule against retroactive ratemaking prohibited it from refunding or continuing to exclude from rate base SFPP's ADIT balance, and that FERC reasonably allocated litigation costs. View "SFPP, LP v. Federal Energy Regulatory Commission" on Justia Law

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In three consolidated petitions for review, petitioners challenged five FERC orders on two intertwined El Paso rate cases under the Natural Gas Act, the 2008 Rate Case and the 2011 Rate Case.The DC Circuit denied the petitions for review, holding that FERC's removal of both the undistributed subsidiary earnings and the loan to El Paso's parent from the equity component of El Paso's capital structure was reasoned and supported by substantial evidence. The court also held that FERC's conclusion that El Paso had not demonstrated that its proposed rates would comply with the 1996 settlement was reasonable; FERC reasonably excluded the two compressor stations from El Paso's rate base; and FERC's approval of a zone-of-delivery rate design measured by contract-paths and its rejection of equilibration for lack of quantitative support were neither arbitrary nor contrary to law. View "El Paso Natural Gas Co., LLC v. Federal Energy Regulatory Commission" on Justia Law

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The DC Circuit denied a petition for review of orders related to FERC's efforts to remove existing barriers to the participation of electric storage resources (ESRs) in the Regional Transmission Organization and Independent System Operator markets (RTO/ISO markets), independent, nonprofit companies that manage segments of the federal grid.The court held that petitioners failed to show that Order Nos. 841 and 841-A run afoul of the Federal Power Act's jurisdictional bifurcation or that they are otherwise arbitrary and capricious. After determining that petitioners have standing to bring their claims and that the matters are ripe for review, the court held that because the challenged orders do nothing more than regulate matters concerning federal transactions – and reiterate ordinary principles of federal preemption – they do not facially exceed FERC's jurisdiction under the Act. The court also held that FERC's decision to reject a state opt-out was adequately explained. View "National Association of Regulatory Utility Commissioners v. Federal Energy Regulatory Commission" on Justia Law

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The DC Circuit denied the Commission's and Intervenor's motions to dismiss the petitions filed after thirty days of Commission inaction. The court explained that, before a party aggrieved by an order of the Federal Energy Regulatory Commission can obtain judicial review, that party must file an application for rehearing with the Commission. Congress directed that, if the Commission fails to act on that rehearing application within thirty days, the application may be deemed denied, allowing the aggrieved party to proceed to federal court. The court held that under the plain statutory language and context of the Natural Gas Act, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review.In this case, because the Commission's Tolling Order could not prevent the Homeowners and Environmental Associations from seeking judicial review, the initial petitions for review that they filed challenging the Certificate Order in Nos. 17-1098 and 17-1128 are properly before this court for review, and the motions to dismiss those petitions for lack of jurisdiction are denied. The court held that the Homeowners' and Environmental Associations' challenge to the Certificate Order falls short because the Commission did not rely on precedent agreements alone to find that the pipeline would be a matter of public convenience and necessity. Therefore, the court denied all four petitions for review, as well as the Commission's and Transco's motions to dismiss the petitions for review in Nos. 17-1098 and 17-1128. View "Allegheny Defense Project v. Federal Energy Regulatory Commission" on Justia Law

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The DC Circuit held that FERC's rejection of Gulf South's application for incremental-plus rates was arbitrary and capricious. The court held that FERC failed to justify the disparity between how materially identical shippers will pay dramatically different rates for the use of the same facilities. Furthermore, FERC's decision violated fundamental ratemaking principles—namely, that rates should generally reflect the burdens imposed and benefits drawn by a given shipper. Accordingly, the court vacated the order denying incremental-plus rates and remanded for further proceedings. The court denied Gulf South's petition for review in all other respects. View "Gulf South Pipeline Co. v. Federal Energy Regulatory Commission" on Justia Law

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BGE petitioned for review of FERC's orders arising out of its efforts to apply its "matching" principles to divergences between the timing of deductions for tax purposes and timing for purposes of allocating costs to ratepayers. BGE filed a new rate proposal seeking a net recovery of $38 million and FERC denied BGE's request. FERC concluded that BGE had breached the requirements of Order No. 144 by failing to file for recovery in its "next rate case," which, according to FERC, was BGE's 2005 rate filing. BGE countered that FERC's application of Order No. 144 was arbitrary and capricious under the Administrative Procedure Act.The DC Circuit denied the petition for review, holding that FERC's orders were not arbitrary and capricious. The court held that FERC reasonably interpreted its regulations and the settlement agreement to mean that BGE simply failed to comply with 18 C.F.R. 35.24 by its next rate case, as required by Order No. 144. The court rejected BGE's argument that, notwithstanding the requirements of Order No. 144, FERC has been more permissive with four "similarly situated" utilities and fails to explain its disparate treatment of BGE's filing. Therefore, FERC's rejection of BGE's tariff filing is a reasonable and reasonably explained application of Order No. 144. View "Baltimore Gas and Electric Co. v. Federal Energy Regulatory Commission" on Justia Law

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INEOS, a chemical producer, petitioned for review of the Commission's decision to accept tariff filings without an investigation under Section 15(7) of the Interstate Commerce Act (ICA). The DC Circuit dismissed the petition for review based on lack of jurisdiction, holding that INEOS lacked Article III standing.In this case, INEOS' claim of competitive injury from denial of access to the South Eddy Lateral was too speculative to support standing; INEOS has not established that it would have received access to the South Eddy Lateral more quickly absent the transfer of ownership; and INEOS also failed to demonstrate that harm it has allegedly suffered was fairly traceable to the Commission's acceptance of the protested tariff filings. Finally, the court rejected INEOS' contention that the Commission's determination denied it of the opportunity to challenge Mid-America's disposition of the South Eddy Lateral as an exercise of undue discrimination and affiliate abuse. View "INEOS USA LLC v. FERC" on Justia Law

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Petitioners challenged the Commission's order authorizing Nexus Gas to construct and operate an interstate natural gas pipeline and exercise the right of eminent domain to acquire any necessary rights-of-way. Although the DC Circuit rejected many of petitioners' arguments, the court agreed with petitioners that the Commission failed to adequately justify its determination that it was lawful to credit Nexus Gas's contracts with foreign shippers serving foreign customers as evidence of market demand for the interstate pipeline. Accordingly, the court remanded without vacatur to the Commission for further explanation of this determination. View "City of Oberlin v. FERC" on Justia Law