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

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

Transmissions Owners provide transmission services for customers in New England. Consumers, Massachusetts and various consumer-side stakeholders, filed suit under section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e(a), alleging that Transmission Owners' base return on equity (ROE) had become unjust and unreasonable. At issue are FERC's orders in the section 206 proceeding. Both Transmission Owners and Customers filed petitions for review challenging whether FERC satisfied the statutory requirements under section 206 in setting a new ROE. The court explained that, to satisfy its dual burden under section 206, FERC was required to do more than show that its single ROE analysis generated a new just and reasonable ROE and conclusively declare that, consequently, the existing ROE was per se unjust and unreasonable. Therefore, the court concluded that, because FERC's single ROE analysis failed to include an actual finding as to the lawfulness of Transmission Owners' existing base ROE, FERC acted arbitrarily and outside of its statutory authority in setting a new base ROE for Transmission Owners. The court also concluded that FERC failed to provide any reasoned basis for selecting 10.57 percent as the new base ROE. Accordingly, the court granted the petitions for review, vacated FERC's orders, and remanded for further proceedings. View "Maine v. FERC" on Justia Law

Petitioner, a major producer of solar power, challenged the Commission's order denying its effort to obtain financial instruments known as Congestion Revenue Rights. The court concluded that FERC erroneously determined that the relevant contract and tariff provisions unambiguously foreclose petitioner's request. In this case, the court held that FERC overlooked an ambiguity in the Interconnection Agreement. Therefore, the court remanded to the Commission so that it may consider the question in light of the ambiguity. View "NextEra Desert Center Blythe v. FERC" on Justia Law

This case concerns the Trans Alaska Pipeline System. Oil companies depositing crude oil extracted from their fields on the North Slope into the pipeline receive the same proportion of oil they initially contributed at the southern end of the pipeline at Valdez, but the companies do not receive the same quality of oil because the oil has been commingled in the pipeline. FERC oversees a mechanism for calibrating payments known as the Quality Bank, which assigns each company’s crude oil a value based on the quality of its components or "cuts." At issue is the formula used to value one of these cuts, called Resid. The court concluded that the Commission failed to respond meaningfully to evidence presented by Petro Star, rendering its decision arbitrary and capricious, and that Petro Star’s purported failure to provide a viable methodology does not provide an independent ground for the Commission’s decision. Therefore, the court granted the petition for review and remanded for the Commission to reconsider the methodology used to value Resid or to provide a more reasoned explanation for its approach. The court also found that Alaska lacks standing to intervene. View "Petro Star Inc. v. FERC" on Justia Law

The Secretary of Labor exercised his authority under the Federal Mine Safety and Health Act of 1977, Pub. L. No. 95-164, 91 Stat. 1290, to promulgate regulations that require mine operators to test the continuity and resistance of “grounding systems” for mining equipment. At issue is whether the Secretary properly determined that power cables and extension cords are regulated parts of those “grounding systems.” The court upheld the Secretary’s decision because, under the regulations’ plain language, power cables and extension cords are most naturally considered components of “grounding systems.” Accordingly, the court denied the petition for review. View "Tilden Mining Co. v. Secretary of Labor" on Justia Law

In 2014, Dominion obtained authorization from the Commission to convert the Cove Point liquefied natural gas (“LNG”) facility from an import maritime terminal to a mixed-use, import and export terminal. BP Energy receives pipeline and terminal services as an import customer of Cove Point under a contract with Dominion, the facility's owner. BP Energy petitions for review of the Commission’s determination that Dominion did not act in an unduly discriminatory manner under section 3(e)(4) of the Natural Gas Act (NGA), 15 U.S.C. 717b(e)(4), when it agreed to shorten the contract term of a non-open access customer’s terminal services contract, Statoil Natural Gas, without offering a corresponding “turn back” option to open access customers such as BP Energy. The court remanded to the Commission for further explanation of why the 2012 turn back agreement between Dominion and Statoil was not unduly discriminatory as to BP Energy under NGA section 3(e)(4). Although the court need not reach BP Energy’s contention that the agreement was an impermissible “sweetheart deal,” the Commission may also wish to consider and explain on remand the extent to which such a deal is relevant to the undue discrimination analysis. View "BP Energy Co. v. FERC" on Justia Law

Petitioners seek review of the Commissions' conditional authorization of the conversion of the Cove Point liquefied natural gas (“LNG”) facility from an import maritime terminal to a mixed-use, import and export terminal. For the reasons set forth in Sierra Club v. FERC (Freeport), the court concluded that the Commission was not required under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., to consider indirect effects of increased natural gas exports through the Cove Point facility, including climate impacts. In regard to petitioners’ remaining challenges to the Commission’s NEPA analysis of the impacts of ballast water on water quality, maritime traffic on the North Atlantic right whale, and the Cove Point facility’s operations on public safety, the court concluded that petitioners fail to show that the Commission did not adequately address these concerns. Accordingly, the court denied the petition for review. View "EarthReports, Inc. v. FERC" on Justia Law

Plaintiffs filed suit alleging that the government violated various federal statutes by allowing Cape Wind's offshore energy project to move through the regulatory approval process. The Bureau allegedly violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), the Shelf Lands Act, 43 U.S.C. 1337(p), the National Historic Preservation Act, 54 U.S.C. 306108, and the Migratory Bird Treaty Act, 16 U.S.C. 703(a). The Bureau and the United States Coast Guard allegedly violated the Coast Guard and Maritime Transportation Act, Pub. L. No. 109-241, 414, 120, Stat. 516, 540 (2006). The Fish and Wildlife Service allegedly violated the Endangered Species Act, 16 U.S.C. 1538. The district court rejected most of plaintiffs' claims and granted partial summary judgment to the government agencies. The district court then rejected plaintiffs’ remaining claims, granted summary judgment, and dismissed the case. The court reversed the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and the court vacated both statements. The court affirmed the district court's judgment dismissing plaintiffs' remaining claims, and remanded for further proceedings. View "Public Employees v. Hopper" on Justia Law

Until recently, incumbent public utilities were free to include in their tariffs and agreements “the option to construct any new transmission facilities in their particular service areas, even if the proposal for new construction came from a third party.” The Commission ordered utilities to remove rights of first refusal from their existing tariffs and agreements. In S.C. Pub. Serv. Auth. v. FERC, the court upheld the Commission's removal mandate. Under the Mobile-Sierra doctrine, FERC must presume a contract rate for wholesale energy is just and reasonable and cannot set aside the rate unless it is contrary to the public interest. The Commission had reserved judgment on whether to apply this presumption to the rights of first refusal until evaluating the individual utilities’ compliance filings. The court also reserved judgment. Petitioners seek review of FERC's determination at the compliance stage, urging that the Commission erred in concluding that Mobile-Sierra does not in fact protect their rights of first refusal contained in their Regional Transmission Organization (RTO) Membership Agreement. The court held that the Commission painted with a broader brush than necessary in applying potentially applicable Supreme Court precedent, but the court denied the petition nonetheless because nothing in the Mobile-Sierra doctrine requires its extension to the anticompetitive rights of first refusal at issue here. View "Oklahoma Gas and Electric Co. v. FERC" on Justia Law

SFPP and several shippers challenged aspects of three of FERC's orders related to filings by SFPP for cost-of-service tariffs on its pipelines. SFPP disputes FERC’s choice of data for calculating SFPP’s return on equity and the Commission’s decision to grant only a partial indexed rate for the 2009 index year. Shippers claim that FERC’s tax allowance policy for partnership pipelines, such as SFPP, is arbitrary or capricious and results in unjust and unreasonable rates. The court concluded that FERC's choice of data for assessing SFPP's real return on equity was arbitrary or capricious under the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), because the Commission provided no reasoned basis to justify its decision to rely on the September 2008 data. Therefore, the court granted SFPP's petition on this issue. The court concluded that FERC's indexing analysis was not arbitrary or capricious where FERC complied with the plain text of its regulations when it found that granting SFPP a full indexed rate adjustment would result in unjust and unreasonable rates. Finally, the court also concluded that FERC must demonstrate that there is no double recovery of taxes for partnership pipelines. Accordingly, the court granted SFPP's petition in part and denied the petition in part. The court granted Shippers' petition and vacated FERC's orders with respect to the double recovery issue, and remanded to FERC. View "United Airlines, Inc. v. FERC" on Justia Law