Articles Posted in Government & Administrative Law

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The DC Circuit upheld the Department's final rule defining e-cigarette use as "smoking" for purposes of airplane travel under 49 U.S.C. 41706. The Department rested its authority for the regulation on two sections authorizing past aircraft smoking regulations, 49 U.S.C. 41706 (prohibition on "smoking" on scheduled passenger flights within, to, or from the United States) and 49 U.S.C. 41702 ("air carrier shall provide safe and adequate interstate air transportation"). The court held that a "smoking prohibition" reasonably applies to products intended to enable users to inhale and exhale nicotine; the regulation was not arbitrary; the Department acknowledged petitioners' contrary evidence and explained why the regulation was still warranted; and the Department did not impermissibly rely on new studies in the final rule, but instead included new supplementary information that expands on and confirms data in the rulemaking record. Because the court upheld the regulation under section 41706, the court need not address section 41702. View "Competitive Enterprise Institute v. DOT" on Justia Law

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The DC Circuit affirmed the dismissal of Nueva's application to the FCC for a license to construct and operate a Lower Power FM Radio (LPFM) station in Philadelphia. Because Nueva's interpretation of a Blog Post authored by the Chief of the Media Bureau, which was intended to give guidance to applicants, was not correct, the court affirmed the Commission's denial of the application for review without reaching Nueva's claim that the Blog Post was binding upon the Commission. In this case, the Commission's interpretation of the Blog Post was not arbitrary and capricious. The court also held that Nueva forfeited its argument that it did not have fair notice of the Commission's interpretation of the Blog Post. View "Nueva Esperanza, Inc. v. FCC" on Justia Law

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Sierra Club petitioned for review of EPA's determination that EPA satisfied its responsibilities under 42 U.S.C. 7412(c)(6) to establish "maximum achievable control technology" (MACT) standards for emissions of certain hazardous air pollutants (HAPs). The DC Circuit held that the petition was timely and EPA did not adequately respond to petitioners' comments raising the issues concerning the use of surrogacy in the administrative proceedings. Accordingly, the court denied EPA's motion to dismiss and ordered the matter remanded to EPA for further proceedings. View "Sierra Club v. EPA" on Justia Law

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Orangeburg challenged the Commission's approval of an agreement between two utilities, alleging that the approval constituted an authorization of the North Carolina Utilities Commission's (NCUC) unlawful regime. The DC Circuit held that Orangeburg has standing to challenge the Commission's approval because, among other reasons, the city has demonstrated an imminent loss of the opportunity to purchase a desired product (reliable and low-cost wholesale power), and because that injury was fairly traceable to the Commission's approval of the agreement at issue. On the merits, the court held that the Commission failed to justify its approval of the agreement's disparate treatment of wholesale ratepayers; to justify the disparity, the Commission relied exclusively on one line from a previous FERC order that, without additional explication, appeared either unresponsive or legally unsound. Accordingly, the court vacated in part the orders approving the agreement and denying rehearing, and remanded. View "Orangeburg, South Carolina v. FERC" on Justia Law

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Section 205 of the Federal Power Act does not allow FERC to make modifications to a proposal that transform the proposal into an entirely new rate of FERC's own making. Electricity generators petitioned for review of FERC's decision modifying PJM's proposed changes to its rate structure. FERC's modifications created a new rate scheme that was significantly different from PJM's proposal and from PJM's prior rate design. The D.C. Circuit held that FERC contravened the limitation on its Section 205 authority. Therefore, the court granted the petitions for review and vacated FERC's orders with respect to several aspects of PJM's proposed rate structure -- the self-supply exemption, the competitive entry exemption, unit-specific review, and the mitigation period. The court remanded to FERC. View "NRG Power Marketing, LLC v. FERC" on Justia Law

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After Big Bus Tours won a contract with the Park Service that would allow it to provide guided tours of the National Mall, National Mall Tours filed suit against the Park Service under the Administrative Procedure Act, 5 U.S.C. 500 et seq., and the National Park Service Concessions Management Improvement Act of 1998, 54 U.S.C. 101911 et seq. The D.C. Circuit affirmed the district court's grant of summary judgment to the Park Service regarding the agency's decision to award the contract to Big Bus Tours; because National Mall Tours lacks standing to bring its claim regarding submission of the contract to certain congressional committees, the district court lacked jurisdiction to hear it; and the court vacated the portions of the district court's order addressing that claim, remanding the case with instructions to dismiss it for lack of jurisdiction. View "National Mall Tours of Washington v. DOI" on Justia Law

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Petitioners sought review of the FCC's order reversing a decades-old, rebuttable presumption that determined whether state and local franchising authorities may regulate cable rates. Under its new Order, the Commission presumes there is Competing Provider Effective Competition and places the burden upon the franchising authority that wants to regulate basic cable rates to prove there is not effective competition in its area. The D.C. Circuit denied the petition for review and held that the Commission's use of a rebuttable presumption to comply with the statutory requirement that it make a finding on the state of competition in each franchise area was a permissible construction of the statutory requirement that the Commission find effective competition before terminating rate regulation; the Commission reasonably interpreted the Communications Act to allow, after a finding of effective competition, termination of existing certifications without having to wait for a petition of the kind referenced in 47 U.S.C. 543(a)(5); and the court rejected arguments regarding the STELA Reauthorization Act. The court also held that the Commission's rule was not arbitrary nor capricious. View "National Association of Telecommunications Officers and Advisors v. FCC" on Justia Law

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Petitioners challenged the EPA's decision to stay implementation of portions of a final rule concerning methane and other greenhouse gas emissions. The DC Circuit held that, although absent a stay, it would have no authority to review the agency's decision to grant reconsideration, because EPA chose to impose a stay suspending the rule's compliance deadlines, the court must review its reconsideration decision to determine whether the stay was authorized under section 307(d)(7)(B) of the Clean Air Act (CAA), 42 U.S.C. 7607(d)(7)(B). The court also held that the 90-day stay was unauthorized by section 307(d)(7)(B) and was thus unreasonable. View "Clean Air Council v. Pruitt" on Justia Law

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The Commission determined that Florida Power overcharged Seminole for electricity and ordered a refund. Seminole petitioned for review, claiming that it was entitled to a larger refund. The DC Circuit denied the petition for review, holding that the Commission correctly concluded that the service agreement required Seminole to make any challenge to a bill within 24 months of receiving that bill, and thus limited Florida Power's refund liability. The court also held that, in the face of ambiguity, the Commission reasonably concluded that the tariff allowed transmission providers to use non-apportionment. View "Seminole Electric Cooperative v. FERC" on Justia Law

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Plaintiff filed suit against DHS and DOD under the Privacy Act, 5 U.S.C. 552a, after a DHS agent sent an Inspector General's report regarding plaintiff to DOD. The DC Circuit held that DHS's disclosure of the report to DOD was permissible under the Act because the disclosure constituted a "routine use" of the record where the purpose of DHS's disclosure of the Inspector General's report to DOD was compatible with the purpose for which the report was collected, and DHS's disclosure of the report met the requirements of DHS routine use notice. In this case, DHS’s purpose in collecting the report was to determine whether plaintiff had committed wrongdoing that could affect her suitability for federal employment, and the disclosure met the requirements of Routine Use G and Routine Use H. View "Ames v. DHS" on Justia Law