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

The Federal Energy Regulatory Commission’s (FERC) licensing of the Conowingo Dam on the Susquehanna River in Maryland. Under section 401(a)(1) of the Clean Water Act, FERC may issue a license only if the state where the dam is located either certifies that the dam will comply with the Act’s water quality standards or waives its authority to do so. After initially granting a section 401(a)(1) certification, Maryland attempted to withdraw it and waive its authority as part of a settlement with the dam’s operator, which FERC then used as the basis for the Conowingo license.   The DC Circuit vacated the license explaining that by issuing a license under such circumstances, FERC exceeded its authority under section 401(a)(1). The court remanded o FERC for further proceedings. The court explained that Section 401(a)(1) limits FERC’s power to issue a license to two circumstances: (1) where a state has granted a certification; or (2) where the state has waived its authority to certify “as provided in the preceding sentence” by failing or refusing to act. This leaves no room for FERC’s third alternative, in which it issued a license based on a private settlement arrangement entered into by Maryland after the state had issued a certification with conditions but then changed its mind. Accordingly, the court held that vacatur is appropriate. View "Waterkeepers Chesapeake v. FERC" on Justia Law

This case involves an ongoing dispute between owners and operators of power lines and power generators over who is responsible for paying for upgrades to existing power lines. The Federal Energy Regulatory Commission ruled in favor of the owners and operators; however, FERC's decision was not "reasonably explained." Thus, the D.C. Circuit remanded the case back to FERC without vacating the FERC order because the court found that the FERC ruling may very well stand once it is explained. View "American Clean Power Assoc v. FERC" on Justia Law

Ohio Nuclear-Free Network (Ohio Nuclear) and Beyond Nuclear petitioned for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing an amended materials license to American Centrifuge Operating, LLC (American Centrifuge). The amended license authorizes American Centrifuge to produce high-assay, low-enriched uranium (HALEU) at a facility near Piketon, Ohio pursuant to a demonstration program with the U.S. Department of Energy (DOE). Petitioners contended that the NRC issued the amended license without first preparing an Environmental Impact Statement (EIS), which they assert was required by the National Environmental Policy Act (NEPA).   The DC Circuit dismissed their petition. The court concluded that because Petitioners failed to properly intervene in the manner required by 42 U.S.C. Section 2339 and the NRC’s AEA regulations, they were not parties to the licensing amendment proceeding they asked the DC Circuit to review. Accordingly, under the Hobbs Act, 28 U.S.C. Section 2344, the court dismissed their petition for review for lack of jurisdiction View "Ohio Nuclear-Free Network v. NRC" on Justia Law

Tri-State Generation and Transmission Association, Inc., a generation and transmission cooperative, admitted Mieco, Inc., a natural gas supplier, as a member. The Federal Energy Regulatory Commission (FERC) concluded that owing to the admission of Mieco (1) Tri-State was subject to its jurisdiction and (2) the Commission has exclusive jurisdiction over the exit charge levied by Tri-State upon a member that leaves the cooperative. United Power, Inc., (United) a utility and member of Tri-State, opposed the admission of Mieco and wants United’s exit charge adjudicated in a state forum. United challenged the FERC’s conclusions as ultra vires and arbitrary and capricious.   The DC Circuit dismissed the petitions for review insofar as they raise objections that have not properly been exhausted before the agency, and denied the petitions in all other respects. The court first explained that it was reasonable for the FERC to conclude that providing such clarity was a prudent and efficient use of a declaratory order. Further, the FERC has exclusive jurisdiction over an exit charge. A state proceeding adjudicating whether an exit charge is just and reasonable is therefore preempted because it is “unmistakably and unambiguously directed” at something that is in “the FERC’s exclusive domain.” View "United Power, Inc. v. FERC" on Justia Law

The Department of the Interior sells offshore leases to oil and gas companies for development. This case concerns the adequacy of an environmental impact statement prepared in connection with two lease sales held in 2018. Three environmental groups asserted that the supplemental environmental impact statements (EIS) did not comply with NEPA. They sued Interior and the Bureau of Ocean Energy Management (BOEM), the component agency within Interior that had prepared the EIS. They argued that BOEM failed to assess a true “no action” alternative because it had assumed that energy development would occur sooner or later, even if Lease Sales 250 or 251 did not. The district court granted summary judgment to Interior. In upholding BOEM’s “no action” analysis, it found the Bureau had reasonably assumed that development was inevitable.   The DC Circuit reversed the summary judgment in part and remand the case to the district court with instructions to remand it to the agency for further consideration of the GAO report. In so doing, the court declined to vacate any of the administrative orders under review. The court further affirmed the summary judgment in all other respects. The court held that the Interior adequately considered the option of not leasing, reasonably refused to consider potential future regulatory changes, and unreasonably refused to consider possible deficiencies in environmental enforcement. View "Gulf Restoration Network v. Debra Haaland" on Justia Law

Constellation Mystic Power, LLC (Mystic)—a subsidiary of Exelon Generation Company, LLC (ExGen), which itself is a subsidiary of Exelon Corporation (Exelon)—announced its intention to retire the Mystic Generating Station (Mystic Station). ISO New England entered into a cost-of-service agreement with Mystic and ExGen to keep two of Mystic Station’s generating units, referred to as Mystic 8 and 9, in service between June 2022 and May 2024. The parties filed the proposed agreement (Mystic Agreement) with the Federal Energy Regulatory Commission (Commission or FERC). The Commission ultimately approved the terms of the Mystic Agreement.   At issue are Commission orders related to its approval of the Mystic Agreement. Two groups of petitioners sought review: Mystic and a group of New England state regulators (State Petitioners). The DC Circuit dismissed Mystic’s petition for review in part and denied it in part; the court granted the State Petitioners’ petitions. The court held that the Commission’s application of the original cost test to determine Mystic 8 and 9’s rate base was not arbitrary and capricious. The court dismissed Mystic’s objection to the Commission’s selection of capital structure as moot in light of the Commission’s May 2022 Order. The court further concluded that the Commission properly included historical rate base components in the true-up mechanism but also find that the Commission failed to respond to the State Petitioners’ request for clarification. View "Constellation Mystic Power v. FERC" on Justia Law

LSP Transmission Holdings II, LLC, Cardinal Point Electric, LLC, and LS Power Midcontinent, LLC are transmission development companies. They petition for review of a set of Federal Energy Regulatory Commission (FERC) orders that approve modifications to the criteria used by the Midcontinent Independent System Operator, Inc. (MISO), a regional transmission grid operator, to determine whether opportunities to develop proposed transmission upgrades to the interstate power grid are open to competitive bids from companies like petitioners. Petitioners challenge two aspects of the orders: (1) FERC’s decision to accept MISO’s proposal to use 230 kilovolts (kV) as the minimum voltage threshold for a project to qualify as a Market Efficiency Project (a category of projects subject to competitive bidding) rather than requiring a lower 100 kV threshold; and (2) FERC’s approval of an exception from competitive bidding for certain reliability projects needed soon. FERC defends its orders on their merits, but it first contests Petitioners’ standing to challenge the orders and whether the petitions are ripe for review.   The DC Circuit denied the petitions for review. The court explained that at least one petitioner—LS Power Midcontinent—has standing to raise these claims and that the petitions are ripe. But the petitions fail on their merits: FERC’s decision to accept 230 kV as the new voltage threshold was not arbitrary and capricious, and FERC reasonably approved MISO’s Immediate Need Reliability Exception. View "LSP Transmission Holdings II, LLC v. FERC" on Justia Law

Chevron U.S.A. Inc. intends to decommission two oil platforms located off the coast of California. The activity of those platforms is generally subject to the Clean Air Act. Chevron asked the Environmental Protection Agency for guidance on whether, as the process of decommissioning the two oil platforms moves forward, the platforms will cease to qualify as regulated sources under the Clean Air Act. EPA responded in a letter to Chevron. Unsatisfied with the views set out in EPA’s letter, Chevron now seeks judicial review of EPA’s response.The DC Circuit dismissed Chevron’s petition for review. The court wrote that it does not reach the merits of Chevron’s petition for review. In the circumstances of this case, the Clean Air Act’s venue provision allows for judicial review in this court only if EPA’s challenged action is “nationally applicable,” as opposed to “locally or regionally applicable.” 42 U.S.C. Section 7607(b)(1). The court concluded that EPA’s response letter is locally or regionally applicable, and that venue over Chevron’s challenge lies exclusively in the United States Court of Appeals for the Ninth Circuit. View "Chevron U.S.A. Inc. v. EPA" on Justia Law

The Oglala Sioux Tribe and its nonprofit association Aligning for Responsible Mining seek a review of the Nuclear Regulatory Commission’s decision to grant Powertech (USA), Inc., a source material license to extract uranium from ore beds in South Dakota. The Tribe maintains that the Commission failed to meet its obligations under the National Environmental Policy Act and the National Historic Preservation Act.   The DC Circuit denied the Tribe’s petition because the Commission adequately complied with the relevant statutory and regulatory requirements. The court explained that the Tribe failed to demonstrate any NEPA deficiencies that require setting aside the Commission’s decisions.   First, the Tribe argues the agency did not adequately consult with the Tribe. The Tribe’s refusal to participate in the 2013 Survey and its challenges to the opportunity the Tribe was, in fact, afforded. The Commission satisfied its consultation obligations under the NHPA. Second, the Tribe maintains the agency impermissibly failed to survey the Dewey-Burdock area for the Tribe’s historic properties. NHPA regulations permit an agency to conduct a survey as part of its efforts to identify historic properties, but agencies are free to use a survey or some other method to gather information. Finally, the Tribe suggests the agency impermissibly postponed identifying historic properties until after Powertech had begun operations. NHPA regulations, however, expressly contemplate this approach. View "Oglala Sioux Tribe v. NRC" on Justia Law

PJM Interconnection, LLC (“PJM”)  authorized a series of upgrades to facilities owned by the Public Service Electric and Gas Company (“PSE&G”). PSE&G’s Bergen and Linden switching stations; a second involved repairs to and around PSE&G’s Sewaren substation. Together, these two projects cost around $1.3 billion. Initially, PJM assigned most of the projects’ costs to entities that reroute electricity from northern New Jersey into the New York market. Thereafter, the New York-based entities gave up their rights to withdraw electricity from New Jersey, and PJM reassigned their costs to PSE&G. The Federal Energy Regulatory Commission (“FERC” or “the Commission”) approved both rounds of cost allocations. The petitions for review in these two cases are about whether these cost allocations were “just and reasonable” under the Federal Power Act, and whether FERC’s orders were “arbitrary [and] capricious” in violation of the Administrative Procedure Act (“APA”).   The DC Circuit denied the petitions for review in New Jersey Board v. FERC, and granted in part and denied in part the petitions in ConEd v. FERC. In denying the New York entities’ applications for rehearing of both the First and Second Linden Complaint Orders, the court explained that FERC failed to adequately distinguish its decision in Artificial Island from its treatment of the Bergen and Sewaren projects. Further, FERC upheld the de minimis threshold in its orders denying rehearing of the First and Second Linden Complaint Orders and the ConEd Complaint Order. The court, therefore, vacated FERC’s denial of Linden’s two complaints. The court also vacated its denial of ConEd’s complaint and remanded for further proceedings solely on the de minimis issue. View "New Jersey Board of Public Utilities v. FERC" on Justia Law