Justia Utilities Law Opinion Summaries

King County, Washington enacted a first-of-its-kind ordinance that required electric, gas, water and sewer utilities to pay for the right to use the county's rights-of-way (franchise). The associated planned charge was called "franchise compensation," and was based on an estimate of a franchise's value. If the county and utility couldn't agree on an amount, the county barred the utility from using its rights-of-way. The issue presented for the Washington Supreme Court's review centered on the County's authority to collect franchise compensation. Secondarily, the issue was whether water-sewer districts or private utilities could use the rights-of-way without a franchise from the County. The superior court ruled King County lacked authority to collect franchise compensation. The Supreme Court reversed, holding that generally, King County could collect franchise compensation. Water-sewer districts and private utilities had no general right to use King County's rights-of-way without a franchise. View "King County v. King County Water Dists." on Justia Law

The City of Wetumpka sued Alabama Power Company because Alabama Power refused to relocate overhead electrical facilities located within the City's downtown area at the power company's expense. The circuit court dismissed the case, finding that it was within the exclusive jurisdiction of the Alabama Public Service Commission. To this, the Alabama Supreme Court agreed: the City challenged service regulations of the PSC, and the PSC had exclusive jurisdiction to adjudicate such challenges. View "City of Wetumpka v. Alabama Power Company" on Justia Law

This appeal arose from the final order of the New Mexico Public Regulation Commission (Commission) granting part, but not all, of the increase in retail electric rates sought by the Public Service Company of New Mexico (PNM). The Commission’s final order was appealed by PNM and cross-appealed by the Albuquerque Bernalillo County Water Utility Authority (ABCWUA), New Energy Economy (NEE), and the New Mexico Industrial Energy Consumers (NMIEC). On appeal, PNM, NEE, ABCWUA, and NMIEC all raised numerous issues with the Commission’s final order. In this opinion the New Mexico Supreme Court addressed challenges made to the Commission’s decisions regarding Palo Verde Nuclear Generating Station, the installation of balanced draft technology at San Juan Generating Station, the new coal supply agreement at Four Corners Power Plant, the inclusion of Rate 11B in rate banding, PNM’s prepaid pension asset, and the adoption of Method A. The Supreme Court rejected each of the arguments on appeal except one: the Court concluded that, by denying PNM any future recovery for its nuclear decommissioning costs related to the Palo Verde capacity at issue in this case, the Commission denied PNM due process of law. Therefore, the Court declared all other aspects of the Commission’s final order to be lawful and reasonable, yet annulled and vacated the final order in its entirety pursuant to NMSA 1978, Section 62-11-5 (1982). The matter was remanded to the Commission for further proceedings as required and the entry of an order consistent with the Court’s opinion. View "Public Serv. Co. of N.M. v. N.M. Pub. Regulation Comm'n" on Justia Law

Plaintiffs Startley General Contractors, Inc. ("Startley"), and Mandy Powrzanas, appealed the denial of their renewed motion to have Jefferson Circuit Court Judge Robert Vance, Jr. recuse himself from the underlying action the plaintiffs filed against the Water Works Board of the City of Birmingham ("BWWB"), Board members, Jones Utility and Contracting Co., Inc., and Richard Jones (collectively, “defendants.”). Plaintiffs alleged the defendants conspired to violate Alabama's competitive-bid law in ways that resulted in financial harm to the plaintiffs. Plaintiffs contended that Judge Vance had received monetary contributions to his 2018 campaign for Chief Justice of the Alabama Supreme Court from law firms and attorneys representing the defendants. The Alabama Supreme Court concluded the renewed motion to recuse did not fall under the auspices of section 12–24–3, Ala. Code 1975, because it was not based on campaign contributions in "the immediately preceding election." Moreover, “even if [section] 12–24–3 did apply, the plaintiffs failed to establish a rebuttable presumption for recusal because, in order to meet the required threshold, the plaintiffs: (1) included contributions from law firms and individuals who were not ‘parties,’ as that term is defined in 12–24–3(c), to the case; (2) aggregated campaign contributions from multiple parties in contravention to 12–24–3(b) addressing campaign contributions made by ‘a party to the judge or justice’; and (3) incorrectly assumed that ‘total campaign contributions raised during the election cycle’ refers to one-month totals for campaign contributions rather than the ordinary meaning of an ‘election cycle,’ which concerns a longer period.” The Court concluded plaintiffs did not establish that a single, actual "party" to this case gave a "substantial campaign contribution" that would give rise to the conclusion that "[a] reasonable person would perceive that [Judge Vance's] ability to carry out his ... judicial responsibilities with impartiality is impaired." View "Startley General Contractors, Inc. v. Water Works Board of the City of Birmingham et al." on Justia Law

City of Lancaster (“the City”) enacted a measure (“Ordinance 16-2013”) that sought to superimpose municipal requirements upon state-regulated utilities that used the City’s rights-of-way to deliver services. PPL Electric Utilities Corp. (“PPL”) challenged the Ordinance, contending, inter alia, that it intruded upon, and thus was preempted by, the Code. The Commonwealth Court largely agreed, upholding PPL’s challenge with regard to all but one of the challenged provisions of the Ordinance. The provision that the Commonwealth Court upheld authorized the City to impose an “annual occupancy fee” upon utilities that utilize its municipal rights-of-way. The Pennsylvania Supreme Court held that all of the provisions challenged by PPL, including the annual occupancy fee, were preempted by the Code. Accordingly, the Supreme Court affirmed the Commonwealth Court’s decision except with respect to its allowance for the annual occupancy fee, which latter ruling was reversed. View "PPL Elec. Utilities v. City of Lancaster, et al -" on Justia Law

Daufuskie Island Utility Company, Inc. (DIUC) filed an application with the Public Service Commission for a rate increase for the water and sewer service it provides to residents of Daufuskie Island in Beaufort County. During a hearing on the merits of the application, the commission approved a purported settlement agreement between the Office of Regulatory Staff (ORS) and three property owners' associations: Haig Point Club and Community Association Inc., Melrose Property Owner's Association, Inc., and Bloody Point Property Owner's Association. DIUC appealed, and the South Carolina Supreme Court reversed, finding the agreement "was not a true settlement" because DIUC did not agree to it. The case was thereafter remanded the case to the commission for a new hearing on all issues. On remand, the commission held a second hearing on the merits and issued a second order. DIUC appealed the second order, arguing the commission erred in disallowing certain rate case expenses and refusing to include items of capital in DIUC's rate base. DIUC argued ORS and the commission applied a higher standard of scrutiny on remand in retaliation against DIUC for successfully seeking reversal of the commission's initial order. At oral argument on this second appeal, when pressed by the Court to respond to DIUC's "retaliation" argument, appellate counsel for ORS conceded a heightened standard had been employed. In reversing the Commission, the Supreme Court determined the arbitrary, higher standard of scrutiny affected substantial rights of DIUC. The commission's findings of fact and conclusions of law therefore had to be reversed. The matter was remanded again for a new hearing. View "Daufuskie Island v. SC Office of Regulatory Staff" on Justia Law

After years of investigation, the San Diego Regional Water Quality Control Board (Regional Board), issued a cleanup and abatement order (CAO) to San Diego Gas & Electric Company (SDG&E) and several other entities, in connection with a power plant’s operations that discharged waste into the San Diego Bay. The Regional Board found that SDG&E caused or permitted waste to be discharged into the Bay and thereby created, or threatened to create, pollution and nuisance conditions. SDG&E contested its designation as a responsible "person" under Water Code section 13304 (a), and petitioned for a writ of mandate to have the CAO vacated. The superior court denied the writ. SDG&E argued then, as it did before the Court of Appeal, that shipyard companies comparatively discharged greater amounts of pollutants into the Bay and that two appellate opinions required application of the "substantial factor" causation test to determine whether SDG&E created or threatened to create a condition of pollution or nuisance. The Court of Appeal found it was undisputed that SDG&E directly discharged and thus "caused or permitted" waste to enter the Bay, distinguishing the aforementioned appellate cases. Further, the Regional Board adequately demonstrated that the waste discharged by SDG&E created, or threatened to create, a condition of pollution or nuisance. Accordingly, the Court affirmed the judgment. View "San Diego Gas & Electric Co. v. San Diego Regional Water etc." on Justia Law

Plaintiffs, members of three rural power cooperatives, filed suit alleging that the cooperatives failed to refund excess "patronage capital" to their members as required by state law. In this case, the cooperatives argued that Mississippi Code 77-5-235(5)'s refund requirement conflicts with Congress's purposes and objectives as expressed in the Rural Electrification Act, federal regulations, and the cooperatives' loan agreements with the Rural Utility Service. Furthermore, they argued that plaintiff's for request appointment of a trustee or receiver conflicts with federal interests and the provision in their loan agreements that appointment of a receiver constitutes an event of default. The Fifth Circuit reversed the district court's decision to remand these consolidated cases to state court, holding that the cooperatives have a colorable federal preemption defense and were entitled to remove under 28 U.S.C. 1442's provision for federal officer removal. View "Butler v. Coast Electric Power Assoc." on Justia Law

In 2013, a small business jet crashed into a Georgia Power Company transmission pole on Milliken & Company’s property near the Thomson-McDuffie Regional Airport in Thomson, Georgia. The two pilots were injured and the five passengers died. In the wake of the crash, the pilots and the families of the deceased passengers filed a total of seven lawsuits against multiple defendants, including Georgia Power and Milliken. The complaints in those seven suits alleged that a transmission pole located on Milliken’s property was negligently erected and maintained within the airport’s protected airspace. The record evidence showed Georgia Power constructed the transmission pole on Milliken’s property for the purpose of providing electricity to Milliken’s manufacturing-plant expansion, and that the pole was constructed pursuant to a 1989 Easement between Georgia Power and Milliken. In each of the seven suits, Milliken filed identical cross-claims against Georgia Power, alleging that Georgia Power was contractually obligated to indemnify Milliken “for all sums that Plaintiffs may recover from Milliken” under Paragraph 12 of the Easement. Georgia Power moved for summary judgment on the crossclaims, which were granted. The trial court reasoned Paragraph 12 of the Easement operated as a covenant not to sue, rather than as an indemnity agreement, because it “nowhere contains the word ‘indemnity’” and “it is not so comprehensive regarding protection from liability.” The Court of Appeals affirmed summary judgment to six cases. Rather than adopt the trial court’s reasoning, the appellate court held that the provision was an indemnity agreement and affirmed the trial court by applying Georgia’s anti-indemnity statute, OCGA 13-8-2 (b), to determine that Paragraph 12 of the Easement was “void as against public policy,” a theory argued before the trial court but argued or briefed before the Court of Appeals. The Georgia Supreme Court determined the Court of Appeals erred in its construction and application of OCGA 13-8-2(b), vacated the judgment and remanded for the lower court to consider whether, in the first instance, the trial court’s rationale for granting Georgia Power’s motions for summary judgment and any other arguments properly before the Court of Appeals. View "Milliken & Co. v. Georgia Power Co." on Justia Law

Families filed suit at the Circuit Court seeking, inter alia, a declaratory judgment that they owned lignite under a Mississippi Power Company (“MPC”) plant built on land MPC had purchased, a fact not disputed by any party. One month later, MPC filed suit to confirm and quiet title to its property and further asserted that lignite could only be removed economically by surface mining, a fact not disputed by any party. MPC asked to enjoin all defendants from asserting any right, title, or interest to the lignite. Alternatively, MPC asked for a declaratory judgment that lignite removal would deplete and destroy the surface of its land, rendering it unusable, a fact not disputed by any party. Two orders at issue before the Mississippi Supreme Court were "authored by two learned trial judges—one chancery, one circuit." Although the Supreme Court's review was de novo, the applicable law was neither new nor novel. Because neither trial court failed to follow controlling law, the Supreme Court affirmed. View "Barham v. Mississippi Power Company" on Justia Law