Articles Posted in U.S. D.C. Circuit Court of Appeals

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Braintree, and other municipally owned utilities in southeastern Massachusetts, petitioned for review of four orders of the Commission. The orders denied petitioners' claim that they were being unjustly charged in order to ensure system reliability on Cape Code. The dispute was first addressed in a FERC-approved settlement agreement that reserved certain litigation rights to the petitioners. Because the Commission reasonably resolved the claims that were reserved, and reasonably construed the settlement agreement to foreclose petitioners' additional claims, the court affirmed the Commission's orders and denied the petitions for review. View "Braintree Electric Light Dept., et al. v. FERC, et al." on Justia Law

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PSEG challenged orders of the FERC accepting the results of an auction for electric generation capacity conducted by ISO New England. In those orders, FERC approved ISO New England's determination that PSEG's resources in Connecticut could not reduce their capacity supply obligation because doing so would endanger the system's reliability. FERC also held that ISO New England could reduce the per unit price paid to PSEG for that capacity. The court held that because the latter holding was based on tariff provisions that the FERC thought were clear but now conceded were ambiguous, and because in the course of construing those provisions it failed to respond to PSEG's facially legitimate objections, the petition was granted and the orders were remanded for further consideration. View "PSEG Energy Resources & Trade, et al. v. FERC" on Justia Law

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AMEA purchases power wholesale from various sources, including Southern, and sells it to 11 municipally owned utilities in Alabama. AMEA uses "unbundled" transmission service provided by one of Southern's subsidiaries. When AMEA uses Southern's transmission system for such unbundled transmission, it pays the "Open Access Transmission Tariff" paid by any party receiving such service from Southern. Southern also sells power directly to retail consumers in Alabama. For the transmission of these "bundled" retail sales, it uses the Alabama component of its transmission system, which has lower unit costs than its transmission system as a whole. According to AMEA, the relatively high cost of transmission service in Georgia drives Southern's systemwide average above its Alabama unit costs. AMEA subsequently filed a complaint with FERC, challenging the rate differential. At issue was whether Southern's pricing violated FERC's comparability policy. Giving FERC the appropriate level of deference on its interpretation of its own orders, the court concluded that it did not. Accordingly, the petition for review was denied. View "AL Municipal Elec. Authority v. FERC" on Justia Law

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Three state and local governmental units, along with individual citizens, petitioned the court for review of and other relief from two "determinations" made by the Department of Energy (DOE) and the other respondents: the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission (NRC) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste depository. The court concluded that the Nuclear Waste Policy Act, 42 U.S.C. 10101-270, set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE had submitted a construction license application for the Yucca Mountain repository and the NRC maintained a statutory duty to review that application. Therefore, the court held that unless and until petitioners were able to demonstrate that one of the respondents had either violated a clear duty to act or otherwise affirmatively violated the law, petitioners' challenges to the ongoing administrative process was premature. Accordingly, the court held that it lacked jurisdiction over petitioners' claims and dismissed the petitions. View "In re: Aiken County" on Justia Law

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Appellants, nonprofit environmental organizations, appealed from a judgment of dismissal entered by the district court in an action against the EPA under the citizen suit provision of the Clean Air Act (CAA), 42 U.S.C. 7401 et seq., challenging the EPA Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The court held that the validity of the Prevention of Significant Deterioration (PSD) permits issued under the noncompliant State Implementation Plan (SIP), and the possible invalidity of the amended SIP, sufficiently raised a current controversy to save the litigation from mootness. The court also held that the Administrative Procedures Act, 5 U.S.C. 500 et seq., did not provide a cause of action to review the EPA Administrator's failure to act under section 7477 of the CAA because her decision was an agency action "committed to agency discretion by law." Therefore, the EPA Administrator's decision was discretionary and not justiciable and thus, appellants failed to state a claim upon which relief could be granted. Although the district court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the court affirmed the district court's action because dismissal would otherwise have been proper under Federal Rule of Civil Procedure 12(b)(6). View "Sierra Club, et al. v. Jackson, et al." on Justia Law

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The Alcoa Power Generating Company ("Alcoa") petitioned for review of two orders of the Federal Energy Regulatory Commission ("Commission") with respect to the relicensing of its Yadkin Project facilities in North Carolina. At issue was whether the petition for review was ripe in light of on-going state administrative review and stay of certification and whether the certifying agency waived its authority by not issuing a certification that was effective and complete within one year under section 401 of the Clean Water Act ("Act"), 33 U.S.C. 1341(a)(1). The court held that the petition was ripe for review where the waiver issue was fit for review and the legally cognizable hardship that Alcoa would suffer from delay sufficed to outweigh the slight judicial interest in the unlikely possibility that the court may never need to decide the waiver issue. The court also held that there was no waiver issue where the "effective" clause would not operate to delay or block the federal licensing proceeding beyond section 401's one-year period.