Justia Utilities Law Opinion Summaries

The Nuclear Waste Policy Act of 1982 authorized the Department of Energy (DOE) to contract with power utilities for a planned national nuclear waste disposal system, 42 U.S.C. 10222. Utilities were to pay into a Nuclear Waste Fund; the government was to dispose of their spent nuclear fuel beginning by January 31, 1998.. Under the Standard Contract, utilities must provide “preparation, packaging, required inspections, and loading activities necessary for the transportation … to the DOE facility.” DOE is responsible for “arrang[ing] for, and provid[ing], a cask(s) and all necessary transportation … to the DOE facility.” In 1983, System Fuels entered Standard Contracts concerning the Grand Gulf and Arkansas Nuclear One power stations. The government has yet to begin accepting spent nuclear fuel. System Fuels obtained damages for costs incurred through August 31, 2005 (Grand) and June 30, 2006 (Arkansas), including costs to construct Independent Spent Fuel Storage Installations (ISFSIs) and later successfully sought damages for continued breach. The Claims Court denied costs incurred to load spent fuel into storage casks at the ISFSIs by first loading it into canisters, then loading those canisters into dry fuel storage casks and welding the casks closed. The Federal Circuit reversed, noting that under the Standard Contracts, DOE cannot accept any of the canistered fuel as is, so System Fuels will incur costs to unload the casks and canisters and to reload fuel into transportation casks if and when DOE performs. View "System Fuels, Inc. v. United States" on Justia Law

Capital Electric Cooperative, Inc. appealed a judgment affirming a Public Service Commission order granting Montana-Dakota Utilities Company ("MDU") a certificate of public convenience and necessity to extend its electric service in Burleigh County. Because the Commission's order was in accordance with the law, its findings of fact were supported by a preponderance of the evidence and sufficiently addressed the evidence presented, and those findings supported the conclusions of law, the North Dakota Supreme Court affirmed the judgment. View "Capital Electric Cooperative, Inc. v. N.D. Public Service Commission" on Justia Law

Section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d(a), mandates that all rates and charges demanded, or received by any public utility for the transmission or sale of electric energy subject to the jurisdiction of the Commission shall be just and reasonable. Xcel petitioned for review of three of the Commission's orders denying a retroactive refund for unlawful rates. As a preliminary matter, the court concluded that, to the extent the Commission denied Xcel relief because it lacks authority to order refunds from Tri-County, a non-jurisdictional entity, this was not responsive to Xcel’s request. On the merits, the court concluded that the Commission’s reliance on section 2.4(a) of its regulations and related cases to deny Xcel retroactive relief is misplaced. Because the Commission’s reliance on section 2.4(a) of its regulations as applied in its precedent is inapposite, and its position that its section 205 error of law is irremediable beyond prospective relief under section 206 appears irreconcilable with the authority Congress granted it in section 309 to remedy its errors, the court granted the petition in part and remanded the case to the Commission for appropriate action. View "Xcel Energy Servs. Inc. v. FERC" on Justia Law

Until 1997, Illinois residents could only purchase power from the local public utility, whose rates were regulated by the Commerce Commission (ICC). The 1997 Electric Service Customer Choice and Rate Relief Law allows residents to buy electricity from their local public utility, another utility, or an Alternative Retail Electric Supplier (ARES). The ICC was not given rate-making authority over ARESs, but was given certain oversight responsibilities, 220 ILCS 5/16-115. The Law did not explicitly provide a mechanism for recovering damages from an ARES related to the rates. In 2012, Zahn began purchasing electricity from NAPG, after receiving an offer of a “New Customer Rate” of $.0499 per kilowatt hour in her first month of service, followed by a “market-based variable rate.” Zahn never received NAPG’s “New Customer Rate.” NAPG charged her $.0599 per kilowatt hour for the first two months, followed by a rate higher than Zahn’s local public utility charged. Zahn filed a class-action complaint, claiming violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. The court dismissed for lack of subject-matter jurisdiction, or for failure to state a claim. The Seventh Circuit certified, to the Illinois Supreme Court, the question of whether the ICC has exclusive jurisdiction to hear Zahn’s claims, noting that Illinois appellate courts are in conflict. View "Zahn v. N. Am. Power & Gas, LLC" on Justia Law

The Federal Power Act authorizes the Federal Energy Regulatory Commission (FERC) to regulate “sale of electric energy at wholesale in interstate commerce,” including wholesale electricity rates and any rule or practice “affecting” such rates, 16 U.S.C. 824(b), 824d(a), 824e(a), leaving the states to regulate retail sales. To ensure “just and reasonable” wholesale rates. FERC encourages nonprofit entities to manage regions of the nationwide grid. These entities hold auctions to set wholesale prices, matching bids from generators with orders from utilities and other wholesale buyers. Bids are accepted from lowest to highest until all requests are met. Rates rise dramatically during peak periods and the increased flow of electricity can overload the grid. Wholesalers devised demand response programs, paying consumers for commitments to reduce power use during peak periods. Offers from aggregators of multiple users or large individual consumers can be bid into the wholesale auctions. When it costs less to pay consumers to refrain from use than it does to pay producers to supply more, demand response can lower prices and increase grid reliability. FERC required wholesalers to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority bars participation. FERC further issued Order 745, requiring market operators to pay the same price for conserving energy as for producing it, so long as accepted bids actually save consumers money. The D.C. Circuit vacated the Rule as exceeding FERC’s authority. The Supreme Court reversed. FERC has authority to regulate wholesale market operators’ compensation of demand response bids. The practice directly affects wholesale rates; FERC has not regulated retail sales. Wholesale demand response is all about reducing wholesale rates as are the rules and practices that determine how those programs operate. Transactions occurring on the wholesale market unavoidably have natural consequences at the retail level. View "Fed. Energy Regulatory Comm'n v. Elec. Power Supply Ass'n" on Justia Law

This dispute arose under the Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117. At issue is whether the district court abused its discretion when it entered an order indefinitely staying this proceeding to allow the Commission to act on an administrative complaint filed by Occidental against a non-party to this action, which largely concerns the same issues. The court concluded that, under the doctrine of primary jurisdiction, a district court with subject matter jurisdiction may, under appropriate circumstances, defer to another forum, such as an administrative agency, which also has non-exclusive jurisdiction, based on its determination that the benefits of obtaining aid from that other forum outweigh the need for expeditious litigation. The court concluded that it has appellate jurisdiction under Hines v. D'Artois because Hines remains good law and this case is sufficiently close to the facts of Hines to give the court appellate jurisdiction under the “effectively out of court” rule. The court also concluded that, given that all parties agree it could take years for FERC to resolve the Integration Complaint, a deadline will give FERC a reasonable opportunity to act without the costs inherent in an indefinite delay. Accordingly, the court vacated the district court's stay order and remanded with instructions. View "Occidental Chemical Corp. v. Louisiana Public Service Comm'n" on Justia Law

On September 16, 2013, the Commission issued an Order Conditionally Accepting Tariff Revisions filed by ISO New England. In the same order, the Commission rejected the tariff proposal to allocate costs to transmission owners as inconsistent with cost-causation principles and directed ISO New England to submit a compliance filing that would allocate the costs of the Program to Real-Time Load Obligation. On April 8, 2014, FERC issued orders denying requests for rehearing of the Orders issued in Docket ER13-1851 and Docket ER13-2266. TransCanada and the Retail Energy Supply Association filed petitions for review challenging the Orders issued by FERC approving the Winter 2013-14 Reliability Program. The court declined to assess FERC’s conditional approval of the Program in Docket ER13-1851 because FERC made it clear that its decision was only tentative. The court concluded that the Commission’s decision regarding the allocation of the costs of the Program to Load-Serving Entities was a final action in Docket ER13-1851 and is ripe for review; the court found no merit in petitioners' challenges to the cost-allocation decision; and therefore, the court denied the petitions for review of the cost-allocation decision in Docket ER13-1851. The court granted in part the petition for review of Docket ER13-2266 because FERC could not properly assess whether the Program’s rates were just and reasonable. View "TransCanada Power Marketing v. FERC" on Justia Law

Petitioners challenged several FERC orders that were issued following the court's remand in Port of Seattle v. FERC. The key issue on appeal is the applicability of the Mobile-Sierra doctrine, which requires FERC to “presume that the rate set out in a freely negotiated wholesale-energy contract meets the ‘just and reasonable’ requirement” imposed by law. The court concluded that it has jurisdiction only as to the issue of whether FERC erred by invoking the Mobile-Sierra doctrine and that it lacks jurisdiction to review FERC’s evidentiary orders. The court held that FERC reasonably applied Mobile-Sierra to the class of contracts at issue and that FERC's interpretation is reasonable. In this case, FERC’s baseline assumption that the presumption applies to the contracts at issue is not unreasonable in light of Morgan Stanley Capital Grp., Inc. v. Pub. Util. Dist. No. 1. Accordingly, the court denied the petition with respect to petitioners' claim that the Mobile-Sierra presumption cannot apply to the spot sales at issue and dismissed the evidentiary challenges for lack of jurisdiction. View "State of California v. FERC" on Justia Law

Western Minnesota and intervenors petitioned for review of FERC's award of a permit for a hydroelectric project in Polk County, Iowa. The Commission concluded that the municipal preference under Section 7(a) of the Federal Power Act (FPA), 16 U.S.C. 800(a), applies only to municipalities “located in the[] vicinity” of the water resources to be developed. Petitioners claimed that the Commission’s geographic proximity test is an impermissible interpretation of the plain text of the statute. The court agreed that Congress has spoken directly to the question in defining “municipality” in Section 3(7) of the FPA. Accordingly, the court granted the petition for review, vacated the permit order and rehearing order, and remanded for further proceedings. View "Western Minnesota Municipal v. FERC" on Justia Law

The Swecker farm in Iowa has a wind generator and is a qualifying power production facility certified by the Federal Energy Regulatory Commission (FERC). The Sweckers sell surplus electric energy to Midland Power Cooperative at a rate established by the Iowa Utilities Board (IUB), implementing FERC rules and regulations, 16 U.S.C. 824a-3(f). For many years, the Sweckers and Midland have litigated rate disputes. The district court dismissed their current suit against Midland and its primary supplier, Central Iowa Power Cooperative (CIPCO), seeking declaratory and injunctive relief requiring Midland “to purchase available energy from plaintiffs . . . at Midland’s full avoided cost, rather than CIPCO’s avoided cost.” The Eighth Circuit affirmed. FERC’s interpretation is controlling and forecloses the contrary interpretation of 18 C.F.R. 292.303(d) urged by the Sweckers. View "Swecker v. Midland Power Coop." on Justia Law