Justia Utilities Law Opinion Summaries

These consolidated petitions for review challenged a contract between the BPA and one of its long-time customers, Alcoa. BPA's preference customers and others filed this petition for review, requesting that the court hold that the contract was unlawful because it was inconsistent with the agency's statutory mandate to act in accordance with sound business principles. Petitioners claimed, among other things, that instead of entering into a contract to sell power to Alcoa at the statutorily required Industrial Firm power (IP) rate, BPA should sell to other buyers at the market rate. The court denied the petitions for review insofar as they pertained to the Initial Period. Because the potential for BPA and Alcoa to enter into the Second Period of the contract was no longer before the court, the court dismissed those portions of the petitions. Finally, the court held that because BPA relied on a categorical exclusion to the National Environmental Policy Act's (NEPA), 42 U.S.C. 4321-4347, requirements, declining to complete an Environmental Impact Statement was not arbitrary and capricious. Accordingly, the court denied petitioner's NEPA claim.View "Alcoa Inc. v. BPA, et al" on Justia Law

Defendants, PG&E and Pacific Bell, own and maintain utility poles throughout the San Francisco Bay Area. Plaintiff filed this action against both companies, alleging that the poles discharged wood preservative into the environment in violation of the Clean Water Act (CWA), 33 U.S.C. 1251-1387, and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k. The court affirmed the district court's dismissal of the action under Rule 12(b)(6) where plaintiff failed to state a claim under the CWA because discharges of stormwater from the utility poles were neither a "point source discharge" nor "associated with industrial activity" and where plaintiff failed to state a claim under the RCRA because wood preservation that escaped from the utility poles was not a "solid waste." The court also held that the district court did not abuse its discretion in denying plaintiff leave to amend. View "Ecological Rights Foundation v. PG&E" on Justia Law

The Clean Air Act New Source Review program forbids construction of new pollution sources without a permit, 42 U.S.C. 7475. Operators of major pollutant-emitting sources who plan construction must make a preconstruction projection of the increase in emissions following construction, to determine whether the project constitutes a “major modification,” requiring a permit. DTE planned on replacing 2,000 square feet of tubing, the economizer, and large sections of reheater piping; installing a new nine-ton device that provides voltage that creates the electromagnetic field needed for the rotor to produce electricity; and refurbishing boiler feedwater pumps at its power plant. The project required 83 days and $65 million. DTE performed required calculations and projected an emissions increase of 3,701 tons per year of sulfur dioxide and 4,096 tons per year of nitrogen oxides. Under the regulations, an increase of 40 tons per year of either substance is significant. DTE determined that the increase fell under the demand growth exclusion. The Michigan Department of Environmental Quality took no action and construction began. The U.S. EPA filed notice of violation. The district court granted DTE summary judgment. The Sixth Circuit reversed. While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging blatant violations until after modifications are made. View "United States v. DTE Energy Co." on Justia Law

Casitas Water District operates the Ventura River Project, which is owned by the U.S. Bureau of Reclamation and provides water to Ventura County, California, using dams, reservoirs, a canal, pump stations, and many miles of pipeline. In 1997, the National Marine Fisheries Service listed the West Coast steelhead trout as an endangered species and determined that the primary cause of its decline was loss of habitat due to water development, including impassable dams. Casitas faced liability if continued operation of the Project resulted in harm to the steelhead, 16 U.S.C. 1538(a)(1), 1540(a)–(b). In 2003, NMFS issued a biological opinion concerning operation of a fish ladder to relieve Casitas of liability. Casitas opened the Robles fish ladder, then filed suit, asserting that the biological opinion operating criteria breached its 1956 Contract with the government or amounted to uncompensated taking of Casitas’s property. The Claims Court dismissed, citing the sovereign acts doctrine. The Federal Circuit affirmed dismissal of the contract claim, but reversed dismissal of Casitas’s takings claim. The court again dismissed, holding that Casitas had failed to show that the operating criteria had thus far resulted in any reduction of water deliveries, so a takings claim was not yet ripe. The Federal Circuit affirmed. View "Casitas Mun. Water Dist. v. United States" on Justia Law

At issue in this case was whether the court of appeals erred in (1) reversing a circuit court's judgment and applying the arbitrary and capricious standard of review to the State Water Control Board's decision to reissue a Virginia pollutant discharge elimination system permit to Virginia Electric and Power Company for its nuclear power station; and (2) reversing the circuit court and affirming the Board's determination that the discharge of heated water from the station into a waste heat treatment facility, classified as a "waste treatment facility" under state and federal regulations, did not require a separate discharge permit. For the reasons stated in Commonwealth v. Blue Ridge Environmental Defense League, Inc., the Court affirmed the judgment of the court of appeals.View "Blue Ridge Envtl. Defense League v. Commonwealth" on Justia Law

Novus Utilities, Inc. sought a writ of mandamus from the Supreme Court to direct the Cullman Circuit Court to dismiss negligence and private-nuisance claims against it as time-barred. Eleven property owners residing in Cullman County sued Defendants the Hanceville Water Works & Sewer Board and Southwest Water Company, alleging that the defendants had allowed approximately two million gallons of untreated raw sewage from the sewage-treatment facility operated by the Board to be discharged into waterways in Cullman County. They alleged that on January 21, 30, and 31, 2008, the sewage treatment facility released the untreated raw sewage, and that release created a health hazard and damaged and devalued their property. Novus was added as a defendant to the suit as a subsidiary of Southwest. Novus moved to dismiss claims against it. After careful consideration, the Supreme Court concluded the trial court was correct in denying Novus' motion to dismiss, and denied its petition for a writ of mandamus to quash the trial court's judgment. View "Roberts v. Hanceville Water Works & Sewer Board" on Justia Law

A public power and irrigation district (District) filed an action against a development and other sublessees (collectively, Development) to quiet title to land owned by District and leased by Development. Development filed motions to dismiss the complaint, arguing that District's complaint failed to state a claim upon which relief could be grante. The district court sustained the motions and overruled Development's motion for attorney fees. The Supreme Court reversed, holding that the district court erred in granting Development's motions to dismiss because (1) the allegations in District's complaint, taken as true, were plausible and thus were sufficient to suggest that District had presented a justiciable controversy, and (2) the motions to dismiss filed in this case provided no notice that Development was asserting the affirmative defenses of judicial estoppel, collateral estoppel and res judicata. Remanded. View "Central Neb. Pub. Power v. Jeffrey Lake Dev." on Justia Law

Plaintiff, an environmental organization, filed this administrative mandamus action to challenge the issuance of a federally required permit authorizing the Moss Landing Powerplant (MLPP) to draw cooling water from the adjacent Moss Landing Harbor and Elkhorn Slough. This case presented issues concerning the technological and environmental standards, and the procedures for administrative and judicial review, that apply when a thermal powerplant, while pursuing the issuance or renewal of a cooling water intake permit from a regional board, also sought necessary approval from the State Energy Resources Conservation and Development Commission (Energy Commission), of a plan to add additional generating units to the plant, with related modifications to the cooling intake system. The court held that the superior court had jurisdiction to entertain the administrative mandamus petition here under review. The court also held that the trial court erred when it deferred a final judgment, ordered an interlocutory remand to the board for further "comprehensive" examination of that issue, then denied mandamus after determining that the additional evidence and analysis considered by the board on remand supported the board's reaffirmed findings. The court further held that recent Supreme Court authority confirmed that, when applying federal Clean Water Act (CWA), 33 U.S.C. 1326(b), standards for the issuance of this permit, the Regional Water Board properly utilized cost-benefit analysis. The court declined to address several other issues discussed by the parties. Accordingly, the court affirmed the judgment of the Court of Appeals.View "Voices of the Wetlands v. CA State Water Resources Control Bd., et al." on Justia Law

Plaintiffs, several states, the city of New York, and three private land trusts, sued defendants, four private power companies and the federal Tennessee Valley Authority, alleging that defendants' emissions substantially and unreasonably interfered with public rights in violation of the federal common law of interstate nuisance, or in the alternative, of state tort law. Plaintiffs sought a decree setting carbon-dioxide emissions for each defendant at an initial cap to be further reduced annually. At issue was whether plaintiffs could maintain federal common law public nuisance claims against carbon-dioxide emitters. As a preliminary matter, the Court affirmed, by an equally divided Court, the Second Circuit's exercise of jurisdiction and proceeded to the merits. The Court held that the Clean Air Act, 42 U.S.C. 7401, and the Environmental Protection Act ("Act"), 42 U.S.C. 7411, action the Act authorized displaced any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. The Court also held that the availability vel non of a state lawsuit depended, inter alia, on the preemptive effect of the federal Act. Because none of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law, the matter was left for consideration on remand. Accordingly, the Court reversed and remanded for further proceedings. View "American Elec. Power Co., et al. v. Connecticut, et al." on Justia Law

This case stemmed from a challenge by environmental groups to a proposed incremental drawdown of water from Lake Roosevelt in eastern Washington. At issue was whether the U.S. Bureau of Reclamation (Reclamation) took a "hard look" and genuinely scrutinized the environmental consequence of its proposed action. The court held that, under its precedents and the circumstances presented, Reclamation's actions did not violate the National Environmental Protection Act (NEPA), 42 U.S.C. 4321 et seq. The court also held that its review revealed no other deficiencies in the substance of the Environmental Assessment (EA), and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. Therefore, the court affirmed the judgment of the district court. View "Center for Environmental Law and Policy, et al. v. U.S. Bureau of Reclamation, et al." on Justia Law