Justia Utilities Law Opinion Summaries

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8x8 provides telephone services via Voice over Internet Protocol (VoIP). Customers use a digital terminal adapter, containing 8x8’s proprietary firmware and software. Customers’ calls are switched to traditional lines and circuits when necessary; 8x8 did not pay Federal Communications Excise Tax (FCET) to the traditional carriers, based on an “exemption certificate,” (I.R.C. 4253). Consistent with its subscription plan, 8x8 collected FCET from its customers and remitted FCET to the IRS. In 2005, courts held that section 4251 did not permit the IRS to tax telephone services that billed at a fixed per-minute, non-distance-sensitive rate. The IRS ceased collecting FCET on “amounts paid for time-only service,” stated that VoIP services were non-taxable, and established a process seeking a refund of FCET that had been exacted on nontaxable services, stating stated that a “collector” can request a refund if the collector either “establishes that it repaid the amount of the tax to the person from whom the tax was collected”; or “obtains the written consent of such person to the allowance of such credit or refund.” The IRS denied 8x8’s refund claim. The Claims Court concluded that 8x8 lacked standing and granted the government summary judgment. The Federal Circuit affirmed; 8x8 did not bear the economic burden of FCET, but sought to recover costs borne by its customers, contrary to the Code. The court rejected an argument that FCET was “treated as paid” during the transfer of services to traditional carriers. View "8x8, Inc. v. United States" on Justia Law

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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

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Petitioners challenged the Commissions' determinations following compliance filings by the regional transmission organization for New England's electric grid. The court concluded that the Transmission Owners have standing to bring their challenges, but concluded that the Commission's orders were not inconsistent with its past decisions; the Commission did not apply the wrong legal standard for measuring whether the Mobile-Sierra presumption had been overcome; and the Commission's determination was in accord with the evidence before it. In regard to State Petitioner's challenges, the court concluded that, in light of the clarifications made by the Commission, there is no inconsistency with Order No. 1000. The court also concluded that the Commission did not exceed its bounds of authority under the Federal Power Act (FPA), 16 U.S.C. 824(a). Accordingly, the court denied the petitions for review. View "Emera Maine v. FERC" on Justia Law

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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

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Transco, which operates the 10,000-mile-long Transcontinental Pipeline from South Texas to New York City, sought a certificate of public convenience and necessity for the Leidy Southeast Expansion Project, including construction of four new pipeline “loops” and the upgrade of turbines at four compressor stations. The Skillman Loop and the Pleasant Run Loop, totaling 13.23 miles, would be located in New Jersey; the Franklin Loop and Dorrance Loop, totaling 16.74 miles, would be located in Pennsylvania. The Federal Energy Regulatory Commission (FERC) completed the requisite Environmental Assessment and issued the certificate in December 2014, conditioned on Transco’s receipt of “all applicable authorizations under federal law” enumerated in the Environmental Assessment, including from New Jersey and Pennsylvania. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP, NJDEP) reviewed Transco’s proposal for potential water quality impacts and issued. In consolidated appeals, the Third Circuit upheld the approvals. NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits. View "New Jersey Conservation Foundation v. New Jersey Department of Environmental Protection" on Justia Law

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Rowe, age 12, suffered catastrophic injuries during a family camping trip at San Mateo County Memorial Park, when a tree fell on his tent as he lay sleeping. Pacific Gas and Electric (PG&E) owns and maintains an electricity distribution line that serviced a nearby restroom, and has a license permitting it to enter the park to inspect and maintain its equipment and vegetation near its power lines, including near Rowe's campsite. Rowe’s family paid an entrance fee to the county, but paid nothing to PG&E. The county paid PG&E for electricity. Civil Code section 846 confers property owners with immunity from liability arising from the recreational use of their property, with an exception applicable when permission to enter the premises for a recreational purpose “was granted for a consideration.” The court of appeal concluded that the consideration exception applies to PG&E even though Rowe’s fee was not paid to PG&E. Payment of consideration for permission to enter premises for a recreational purpose abrogates section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff’s injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access. View "Pacific Gas and Electric Co. v. Superior Court" on Justia Law

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Florida Public Utilities Company (FPUC), an electric utility that relies solely on wholesale purchase power agreements with other electric utilities, entered into a settlement agreement with the Office of Public Counsel (OPC) in resolution of its then-pending petition for an increase in base rates. The Florida Public Service Commission unanimously approved the settlement agreement. FPUC subsequently petitioned the Commission for approval of its fuel adjustment and purchased power cost recovery factors for the year 2016. Contrary to the terms of the settlement agreement, FPUC’s petition sought to recover costs associated with constructing a new interconnection with Florida Power & Light Company (FPL). The Commission ultimately approved the recovery of the entire FPL interconnection costs. The Supreme Court reversed, holding (1) the Commission departed from the requirements of law by failing to properly consider and apply the terms of the settlement agreement with regard to FPUC’s petition; (2) the Commission erred in concluding that such construction capital expenditures are capable of recovery through fuel clause proceedings; and (3) the settlement agreement prohibited FPUC from petitioning the Commission for recovery of costs associated with the transmission interconnection project through fuel clause proceedings. View "Citizens of the State of Florida v. Graham" on Justia Law

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This action arose out of the construction of a facility by United Plant Services (UPS), in Trout, to which Entergy Louisiana, LLC (Entergy) provided electric services. Entergy’s competitor, Concordia Electric Cooperative, Inc., filed a complaint with the Louisiana Public Service Commission (LPSC) asserting that Entergy’s service to the UPS facility violated La.R.S. 45:123 and LPSC General Order No. R-28269, collectively referred to as the 300 Foot Rule, by providing service to UPS at a point of connection Concordia presumed to be within 300 feet of its existing electrical lines. An ALJ recommended the LPSC dismiss Concordia's claims because the judge found Concordia failed to show UPS or Entergy had intentionally placed the building and meter in circumvention of the 300 Foot Rule (enabling UPS to select Entergy as opposed to Concordia as its electric service provider). Concordia appealed, and a district court reversed the LPSC order. Because the Supreme Court found the LPSC did not act arbitrarily and capriciously in reaching its decision, it reversed. View "Entergy Louisiana, LLC v. Louisiana Public Svc. Comm'n" on Justia Law

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Missouri American Water Company (MAWC) filed a petition to charge an infrastructure system replacement surcharge to its St. Louis County customers. The Public Service Commission (PSC) approved the petition. The Office of the Public Counsel appealed, arguing that the PSC lacked the authority to grant the petition because St. Louis County did not meet Mo. Rev. Stat. 393.1000-393.1006’s threshold population requirement at the time PSC approved the surcharge. The Office of the Public Counsel appealed. While the appeal was pending, MAWC and PSC reached an agreement establishing a new rate base that incorporated the costs of the MAWC projects for all then-existing surcharges. The Supreme Court dismissed this case as moot, holding (1) because the surcharge is no longer in effect and no effective relief may be granted, the issue as to whether MAWC can utilize the surcharge provisions of section 393.1003 is moot; and (2) the issues presented on appeal did not meet the requirements for an exception to the mootness doctrine. View "In re Petition of Missouri-American Water Company for Approval to Change its Infrastructure System Replacement Surcharge" on Justia Law

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This was the third appeal of this case arising from the efforts of appellee Southern LNG, Inc. (“Southern”) to compel State Revenue Commissioner Lynnette Riley (“the Commissioner”) to recognize Southern as a “public utility” under OCGA 48-5-511 and to accept Southern’s ad valorem property tax returns. On remand, the trial court granted summary judgment to the Commissioner on a mandamus claim, holding that Southern had an adequate alternative remedy. In a prior appeal, the Supreme Court laid out for the parties in considerable detail the potential legal and procedural issues bearing on the question of whether the Commissioner could become a party or be bound by a judgment rendered in the tax appeals. On remand, Southern and the Commissioner filed renewed cross-motions for summary judgment. The trial court granted summary judgment in favor of Southern, holding that it had no “equally convenient, complete and beneficial” remedy other than mandamus, and denied the Commissioner’s motion for summary judgment, and directed the Commissioner “to accept [Southern’s] ad valorem property tax returns pursuant to OCGA 48-5-511(a) instanter.” The Commissioner appealed, and the Supreme Court this time reversed, finding Southern did not show the Commissioner, in refusing to accept Southern’s ad valorem tax returns, violated a “clear legal duty,” that she failed to act, or that her actions were arbitrary, capricious and unreasonable, amounting to a gross abuse of discretion, so as to entitle Southern to a writ of mandamus. View "Riley v. Southern LNG, Inc." on Justia Law