Justia Utilities Law Opinion Summaries

The Natural Gas Act (NGA), 15 U.S.C. 717, allows private gas companies to exercise the federal government’s power to take property by eminent domain, if the company has a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (FERC); was unable to acquire the property by contract or reach agreement about the amount to be paid; and the value of the property exceeds $3,000. PennEast, scheduled to build a pipeline through Pennsylvania and New Jersey, obtained federal approval for the project and filed suit under the NGA to condemn and gain immediate access to properties along the pipeline route, including 42 properties owned, at least in part, by New Jersey or arms of the state. New Jersey sought dismissal, citing the Eleventh Amendment. The district court ruled in favor of PennEast. The Third Circuit vacated. The Eleventh Amendment recognizes that states enjoy sovereign immunity from suits by private parties in federal court. New Jersey has not consented to PennEast’s condemnation suits and its sovereign immunity has not been abrogated by the NGA. The federal government’s power of eminent domain and its power to hale sovereign states into federal court are separate and distinct. In the NGA, Congress has delegated only the power of eminent domain. View "In re: PennEast Pipeline Co. LLC" on Justia Law

The Eleventh Circuit held that the City of LaGrange did not enjoy state-action immunity when it ties its water-utility service to its natural-gas service for customers in unincorporated Troup County, Georgia. In this case, the Georgia legislature could have foreseen that cities would use their water monopoly to increase their share of an unrelated market and that such an anticompetitive move was not the inherent, logical, or ordinary result of the legislative scheme. Therefore, the district court correctly denied the City's motion to dismiss for state-action immunity and the court affirmed the district court's judgment in this interlocutory appeal. View "Diverse Power, Inc. v. City of LaGrange" on Justia Law

The issues this case presented for the Pennsylvania Supreme Court’s review centered on: (1) whether the penalty imposed against HIKO Energy, LLC (HIKO) was so grossly disproportionate as to violate the Excessive Fines Clause of the Pennsylvania and U.S. Constitutions; (2) whether the penalty impermissibly punished HIKO for litigating; and (3) whether the Pennsylvania Utility Commission (PUC) abused its discretion in imposing a penalty which was not supported by substantial evidence. The Supreme Court concluded HIKO waived its constitutional challenge to the civil penalty in this case, the penalty was not imposed as a punishment against HIKO for opting to litigate its case, and that the PUC’s conclusions in support of imposing the penalty were supported by substantial evidence. View "HIKO Energy, Aplt. v. PA PUC" on Justia Law

At issue was whether the former Mayor of the City of Audubon Park and individual members of the City Council were personally liable for excess sanitation funds generated by a monthly assessment for the stated purpose of paying for sanitation services that was not devoted to trash collection and recycling but had been spent for other municipal purposes.The circuit court dismissed this action, brought by a taxpayer pursuant to section 180 of the Kentucky Constitution and Ky. Rev. Stat. 92.330 and 92.340, for failure to state a cause of action due to lack of injury to the City. The court of appeals reversed, concluding that Defendants were liable for the excess sanitation funds. The Supreme Court affirmed in part, reversed in part and remanded, holding (1) the complaint stated a cause of action because the statutes prohibit the use of the sanitation tax revenue for other non-sanitation purposes; but (2) liability was not absolute if the individuals who acted on behalf of the City could establish that the tax revenue was spent for valid City obligations. View "Scalise v. Sewell-Scheuermann" on Justia Law

Regional transmission organizations manage the interstate grid for electricity, conduct auctions through which many large generators of electricity sell most or all of their power, and are regulated by the Federal Energy Regulatory Commission (FERC) Illinois subsidizes nuclear generation facilities by granting “zero emission credits,” which generators that use coal or gas to produce power must purchase from the recipients at a price set by the state. Electricity producers and municipalities sued, contending that the price‐adjustment aspect of the system is preempted by the Federal Power Act because it impinges on the FERC’s regulatory authority. They acknowledge that a state may levy a tax on carbon emissions; tax the assets and incomes of power producers; tax revenues to subsidize generators; or create a cap‐and‐trade system requiring every firm that emits carbon to buy credits from firms that emit less carbon. They argued that the zero‐emission‐credit system indirectly regulates the auction by using average auction prices as a component in a formula that affects the credits' cost. The Seventh Circuit affirmed summary judgment for the defendants. Illinois has not engaged in discrimination beyond that required to regulate within its borders. All Illinois carbon‐emitting plants need to buy credits. The subsidy’s recipients are in Illinois. The price effect of the statute is felt wherever the power is used. All power (from inside and outside Illinois) goes for the same price in an interstate auction. The cross‐subsidy among producers may injure investors in carbon‐ releasing plants, but only plants in Illinois. View "Village of Old Mill Creek v. Star" on Justia Law

The Supreme Court held that voter approval was not required for a transfer from a utility’s enterprise fund to the city’s general fund.Cal. Const. art. XIIIC prohibits local governments from imposing or increasing any tax without voter approval. Any charge imposed for a service or product that does not exceed the reasonable costs of providing it is excepted from the definition of tax. The City of Redding operated an electric utility as a department of its city government. At issue was whether an annual interfund transfer from the utility’s enterprise fund to the city’s general fund required voter approval where the transfer was intended to compensate the general fund for costs of services that other city departments provide to the utility. The Supreme Court held that because neither the budgetary transfer nor the rate the city charged its utility customers constituted a tax, voter approval was not required. View "Citizens for Fair REU Rates v. City of Redding" on Justia Law

Through a Department of Energy grant, Naperville received $11 million to update its grid and began replacing its residential, analog energy meters with digital “smart meters.” Traditional energy meters typically collect monthly energy consumption in a single lump figure once per month. Smart meters often collect thousands of readings every month, showing the amount of electricity being used inside a home and when it is used. This data reveals information about the happenings inside a home because individual appliances have distinct energy-consumption patterns; researchers can predict the appliances that are present in a home and when they are used. While some cities allow residents to decide whether to adopt smart meters, Naperville’s residents cannot opt out of the smart-meter program. Naperville stores the data for up to three years. Concerned citizens sued, alleging that Naperville’s smart meters reveal “intimate personal details and that collection of this data constitutes an unreasonable search under the Fourth Amendment as an unreasonable search and invasion of privacy under the Illinois Constitution. The Seventh Circuit affirmed dismissal. The data collection constitutes a search but, given the significant government interests in the program and the diminished privacy interests at stake, the search is reasonable. View "Naperville Smart Meter Awareness v. City of Naperville" on Justia Law

A Pennsylvania municipal lien is automatic; it is perfected by filing with the local court, without notice or a hearing, where it is publicly docketed. Until filed, a municipal lien may not be enforced through a judicial sale. Municipalities can delay filing a lien indefinitely, but it is not enforceable against subsequent purchasers until filed. A municipality can petition the court for a sale. Property owners may request a hearing on the legality of a lien at any time by paying the underlying claim into the court with a petition. PGW, a public utility owned by the city, scans its billing database, identifies delinquent accounts, then sends a pre-filing letter. If full payment is not made, the system automatically files the lien and sends another notice. Landlords are not normally apprised of tenants' growing arrearages. An exception is entered if the name/address associated with an account does not match the property tax records. PGW frequently enters “exceptions,” which do not prevent arrearages from continuing to grow nor do they interrupt service but prevent the lien from being filed. Landlords who learned of thousands of dollars of liens against their properties, due to nonpayment by tenants, filed suit. The court certified a class and held that the City had violated the landlords’ due process rights. The Third Circuit reversed. Whether the lien procedures comport with due process depends on three factors: the private interest that will be affected; the risk of an erroneous deprivation and the value of other procedural safeguards in avoiding errors; and the governmental interest. Although the filing of a lien is “significant” enough to trigger due process protections, it is a relatively limited interference with the landlords’ property. None of the plaintiffs have suffered injury to their credit. Nor have the liens interfered with their ability to maintain their properties or collect rents. Risks associated with an erroneous lien are mitigated by the statute's post-deprivation remedies. View "Augustin v. City of Philadelphia" on Justia Law

After negotiations failed between plaintiff and Trans-Pecos regarding the construction of a pipeline on plaintiff's land, Trans-Pecos invoked Texas eminent domain power via Tex. Util. Code 181.004. The Fifth Circuit affirmed the denial of plaintiff's application for a preliminary injunction under the Anti-Injunction Act. The district court held that the Act barred the injunction because the injunction would enjoin a state condemnation process that culminates in a judicial proceeding. As a preliminary matter, the court denied a motion to dismiss on mootness grounds. The court then held, on alternative grounds, that plaintiff could not meet the demanding standard for issuance of an injunction. The court explained that the significant differences between the Texas delegation of power to private entities and those delegations the Supreme Court has held unconstitutional mean that plaintiff's due process challenge faced long odds. Because of plaintiff's inability to establish a likelihood of success, much less a substantial one, he was not entitled to a preliminary injunction. View "Boerschig v. Trans-Pecos Pipeline, LLC" on Justia Law

In these consolidated appeals, the Supreme Court affirmed the decision of the State Corporation Commission upholding the constitutionality of Va. Code 56-585.1:1, which suspended the Commission’s biennial base rate reviews for Appalachian Power Company (APCO) and Virginia Electric and Power Company, d/b/a Dominion Virginia Power (Dominion Power) until the years 2020 and 2021, respectively. Appellants - Old Dominion Committee for Fair Utility Rates, VML/VACO APCO Steering Committee and Karen Torrent - appealed. In affirming, the Supreme Court held that section 56-585.1:1 is constitutional under Va. Const. art. IX, 2 because article IX, section 2 does not prohibit the general assembly from suspending the Commission’s biennial base rate reviews. View "Old Dominion Committee for Fair Utility Rates v. State Corp. Commission" on Justia Law