Justia Utilities Law Opinion Summaries

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

Flint, which previously obtained water from DWSD, decided to join the Karegnondi Water Authority (KWA). The DWSD contract terminated in 2014. Because KWA would take years to construct, Flint chose the Flint River as an interim source. A 2011 Report had determined that river water would need to be treated to meet safety regulations; the cost of treatment was less than continuing with DWSD. Genesee County also decided to switch to KWA but continued to purchase DWSD water during construction. Flint did not upgrade its treatment plants or provide additional safety measures before switching. Residents immediately complained that the water “smelled rotten, looked foul, and tasted terrible.” Tests detected coliform and E. coli bacteria; the water was linked to Legionnaire’s disease. General Motors discontinued its water service, which was corroding its parts. Eventually, the city issued a notice that the drinking water violated standards, but was safe to drink. Subsequent testing indicated high levels of lead and trihalomethane that did not exceed the Safe Drinking Water Act (SDWA) Lead and Copper Rule’s “action level.” The tests indicated that corrosion control treatment was needed to counteract lead levels. The City Council voted to reconnect with DWSD; the vote was overruled by the state-appointed Emergency Manager. The EPA warned of high lead levels; officials distributed filters. Genesee County declared a public health emergency in Flint, advising residents not to drink the water. The Emergency Manager ordered reconnection to DWSD but the supply pipes' protective coating had been damaged by River water. Flint remains in a state of emergency but residents have been billed continuously for water. The Michigan Civil Rights Commission determined that the response to the crisis was “the result of systemic racism.” The Sixth Circuit reversed dismissal, as preempted by SDWA, of cases under 42 U.S.C. 1983. SDWA has no textual preemption of section 1983 claims and SDWA’s remedial scheme does not demonstrate such an intention. The rights and protections found in the constitutional claims diverge from those provided by SDWA. The court affirmed dismissal of claims against state defendants as barred by the Eleventh Amendment. View "Boler v. Earley" on Justia Law

Appellants sued the town of Alpine, alleging claims stemming from Alpine’s financing and construction of a new sewage treatment facility. Appellants sought a declaration that Alpine’s loans for the new sewage treatment facility exceeded the town’s constitutional and statutory indebtedness limits. Appellant’s also asserted a claim for injunctive relief to stop Alpine from enforcing assessments and exactions for the new sewerage system on Appellants. A few years later, while the original case was proceeding, Appellants filed another action against Alpine and Nelson Engineering, claiming that Alpine and Nelson made false reports to the Wyoming Department of Environmental Quality that Appellants had violated the agency’s rules and regulations when they upgraded their septic systems. The district court granted Alpine’s motion to dismiss all claims against the town and granted Nelson’s motion for summary judgment on all claims against the engineering firm. The Supreme Court affirmed in part and reversed in part, holding (1) Appellants sufficiently pled standing to pursue their declaratory judgment claim against Alpine; (2) the allegations supporting Appellants’ claim for injunctive relief against Alpine were legally sufficient; and (3) the district court’s respective orders on all the remaining claims in the two cases against Alpine and Nelson were not in error. View "Tavern, LLC v. Town of Alpine" on Justia Law

In 2013, legislation was enacted requiring the City of Asheville to involuntarily transfer the assets it uses to operate a public water system to a newly-created metropolitan water and sewerage district. The City filed a complaint and motion seeking injunctive relief, alleging that the involuntary transfer provisions of the legislation were unconstitutional. The trial court concluded that the involuntary transfer violated various provisions of the North Carolina Constitution and permanently enjoined the State from enforcing the legislation. The court of appeals reversed, in part, the trial court’s order and remanded to the trial court for the entry of summary judgment in favor of the State. The Supreme Court reversed, holding that the challenged legislation constitutes a prohibited local act relating to health and sanitation in violation of Article II, Section 24(1)(a) of the North Carolina Constitution. View "City of Asheville v. State" on Justia Law

Plaintiffs filed a class action suit on behalf of approximately 1.5 million Puerto Rican residents who are customers of Autoridad de Energia Electrica de Puerto Rico (PREPA), alleging that PREPA used a portion of its overall revenue to subsidize municipalities’ energy use. Plaintiffs claimed violations of the Takings Clause and their procedural due process rights because PREPA deprived them of their property interest in electricity and/or the funds they paid for electricity. The district court granted summary judgment for PREPA,concluding that Plaintiffs had not identified a valid property interest, that no taking had occurred, and that no valid procedural due process claim existed. The First Circuit affirmed on other grounds, holding that because Plaintiffs did not identify a valid property interest, they did not have standing to bring the takings and due process claims. View "Santiago-Ramos v. Autoridad de Energia Electrica de P.R." on Justia Law

The Federal Energy Regulatory Commission (FERC) has exclusive jurisdiction over interstate wholesale electricity sales. States regulate retail sales. In states that have deregulated their energy markets, “load serving entities” (LSEs) purchase wholesale electricity from generators for delivery to retail consumers. PJM, which manages segments of the electricity grid, operates an auction to identify need for new generation and to accommodate long-term contracts. PJM predicts demand for three years and assigns a share of that demand to each participating LSE. Producers enter bids. PJM accepts bids until it purchases enough capacity to satisfy anticipated demand. All accepted sellers receive the highest accepted rate (clearing price). LSEs then must purchase, from PJM, electricity to satisfy their assigned share. FERC regulates the auction to ensure a reasonable clearing price. Concerned that the auction was not encouraging development of sufficient new in-state generation, Maryland enacted a program, selected CPV to construct a new power plant and required LSEs to enter into 20-year contracts with CPV. Under the contract, CPV sells its capacity to PJM through the auction, but—through mandated payments from LSEs—receives the state price rather than the clearing price. The district court issued a declaratory judgment holding that Maryland’s program improperly sets CPV's rate for interstate wholesale capacity sales to PJM. The Fourth Circuit and Supreme Court affirmed. Maryland’s program is preempted because it disregards the rate FERC requires under its exclusive authority over interstate wholesale sales, 16 U.S.C. 824(b)(1). FERC has approved PJM’s capacity auction as the sole rate-setting mechanism for those sales. Maryland attempts to guarantee CPV a rate distinct from the clearing price, contrary to the Federal Power Act’s division of authority; states may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority. View "Hughes v. Talen Energy Mktg., LLC" on Justia Law

Maryland Underground Damage Prevention Authority cited Reliable Contracting Company for violating Md. Code Ann. Pub. Util. Cos. 12-101, under which advance notice must be given to the one-call system of certain types of excavation, and imposed a civil monetary penalty. Reliable Contracting petitioned for judicial review, asserting that the Authority’s enabling statute conferred judicial power on a non-judicial body in violation of separation of powers principles. Reliable Contracting also contended that the statute failed to provide adequate guidance to the Authority for the assessment of such penalties. The circuit court upheld the constitutionality of the statute. The Court of Special Appeals affirmed. The Court of Appeals vacated the judgment of the Court of Special Appeals and remanded, holding (1) the Authority is an administrative agency in the executive branch of State government that exercises quasi-judicial powers subject to judicial review, and therefore, its enabling law is not contrary to the State Constitution’s Judicial Vesting Clause or Separation of Powers Clause; and (2) because the Authority is an administrative agency, Md. Code Ann. State Gov't 10-1001 provides guidelines for the exercise of its discretion in assessing civil penalties. View "Reliable Contracting Co. v. Underground Facilities Damage Prevention Auth." on Justia Law