Justia Utilities Law Opinion Summaries

The DC Circuit affirmed the district court's judgment upholding the Commission's nondisclosure decisions in this Freedom of Information Act (FOIA) case brought by Niskanen, seeking the names and addresses of property owners along the route of a proposed pipeline. In this case, although the Commission concluded that the property owners' privacy interests outweighed the public interest in this identifying information, and it agreed to a more limited disclosure—the property owners' initials and street names. The court agreed with the district court's finding that the Commission's proposal struck the proper balance between these competing interests. The court explained that Niskanen identifies a weighty public interest in understanding the Commission's compliance with its notice obligations, but it articulates no reason it needs the full names and addresses of landowners along a pipeline route to do so. View "Niskanen Center v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit granted CPUC's petition for review of the Commission's approval of CAISO's proposal for revising the compensation structure for its Capacity Procurement Mechanism (CPM), a voluntary program designed to provide electric capacity necessary to maintain grid reliability within CAISO's network. Here, as in Delaware Division of Public Advocate v. FERC, 3 F.4th 461 (D.C. Cir. 2021), the Commission failed to grapple with the distinction between bids submitted below or above the soft-offer cap, resulting in the Commission's reliance on precedent without recognition of the substantial differences between the two cases. The court wrote that, apart from the Commission's misplaced reliance on its 2015 CPM Order, the record contains no evidence or findings to support its decision. Accordingly, the court vacated the order and remanded for further proceedings. View "California Public Utilities Commission v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit denied a petition for review challenging FERC's two orders regarding a utility company, Entergy Services, and a subset of sales at issue called the Grand Gulf Sales. The Louisiana Commission alleges that FERC's exclusion of the Grand Gulf Sales from the damage calculation was an irrational change of position. The court found no merit in this contention, explaining that the allegations regarding the Grand Gulf Sales do not concern Section 30.03 of the System Agreement because those sales were always treated as Joint Account Sales and therefore never treated as part of Entergy Arkansas's native load.The Louisiana Commission also alleged that the Grand Gulf Sales—despite being accounted for as Joint Account Sales—still violated the System Agreement. The court concluded that FERC reasonably concluded that the two complaints at issue alleged different violations of the System Agreement and therefore that the 2009 Complaint did not preserve the allegations in the 2019 Complaint for purposes of the 2015 Settlement Agreement waiver provisions. In this case, neither Section G(1) or G(2) saves the allegations in the 2019 Complaint from being barred by the 2015 Settlement Agreement. Finally, even if the Louisiana Commission's mutual mistake argument was not waived, FERC reasonably determined on the merits that the Louisiana Commission presented no evidence that any initial shared impression about the Grand Gulf Sales was a material fact that formed the basis of the 2015 Settlement Agreement. View "Louisiana Public Service Commission v. Federal Energy Regulatory Commission" on Justia Law

Several utilities that are managed by the Southwest Power Pool (SPP), a regional transmission operator, paid for upgrades to the transmission grid. The operative tariff required other utilities who benefitted from these upgrades to share the costs of the expanded network. The tariff, however, also required SPP to invoice the charges monthly and to make adjustments within one year. The reimbursement calculation proved complicated. It took SPP eight years to implement it, during which time SPP did not invoice for the upgrade charges. FERC initially granted SPP a waiver of the tariff’s one-year time bar but later determined it lacked the authority to waive this provision retroactively. FERC’s revised determination meant the utilities that had made substantial outlays for upgrades were denied reimbursement for the eight years that had elapsed.The D.C. Circuit denied petitions for review filed by SPP and a company that sponsored upgrades and has been denied reimbursement. Once a tariff is filed, FERC has no statutory authority (16 U.S.C. 824d(d)) to provide equitable exceptions or retroactive modifications to the tariff. SPP may impose only those charges contained in the filed rate. Because the one-year time bar for billing is part of the filed rate, FERC could not retroactively waive it, even to remedy a windfall for users of the upgraded networks. View "Oklahoma Gas and Electric Co. v. Federal Energy Regulatory Commission" on Justia Law

Entergy, a public utility holding company, owns five operating companies that sell electricity in four states, including Louisiana. The companies have been governed by an agreement requiring them to act as a “single economic unit” and requiring “rough equalization” of their production costs. In 2005, the Federal Energy Regulatory Commission (FERC) determined that the production costs were not roughly equal and imposed a “bandwidth remedy”: Whenever the yearly production costs of an individual operating company deviated from the average by more than 11%, companies with lower costs were required to pay companies with higher costs as necessary to bring all five companies within that range. Entergy filed a tariff establishing a formula to calculate production costs subject to the bandwidth remedy, which FERC largely accepted.Utilities often spread their recovery of large, non-recurring costs by creating a regulatory asset, a type of credit. The company then amortizes the asset in later years, creating debits chargeable to customers. Historically, the Entergy companies recorded regulatory assets and their related amortization expenses in FERC accounts not referenced in the bandwidth formula; this effectively accounted for deferred production costs when they were incurred, rather than when the related amortization expenses were recorded. FERC rejected that approach and excluded purchased-power costs that a Louisiana affiliate incurred in 2005 and amortized in 2008 and 2009.The D.C. Circuit denied the Louisiana Public Service Commission’s petition for review. The Federal Power Act requires electric utilities to charge “just and reasonable” rates. 16 U.S.C. 824d(a). If FERC finds a rate unreasonable, it may establish a just and reasonable rate; FERC may reallocate production costs under the Entergy system agreement, including by ensuring compliance with the bandwidth remedy. View "Louisiana Public Service Commission v. Federal Energy Regulatory Commission" on Justia Law

Spire planned to build a St. Louis-area pipeline and unsuccessfully solicited natural gas “shippers” to enter into preconstruction “precedent agreements.” Spire later entered into a precedent agreement with its affiliate, Spire Missouri, for 87.5 percent of the pipeline’s projected capacity. Spire applied to the Federal Energy Regulatory Commission (FERC) for a certificate of public convenience and necessity (Natural Gas Act, 15 U.S.C. 717f(c)(1)(A)), conceding that the proposed pipeline was not needed to serve new load but claiming other benefits. As evidence of need, Spire relied on its precedent agreement with Spire Missouri. FERC released an Environmental Assessment, finding no significant environmental impact. EDF challenged Spire’s application, arguing that the precedent agreement should have limited probative value because the companies were corporate affiliates. The Order approving the new pipeline principally focused on the precedent agreement.The D.C. Circuit vacated the approval. FERC may issue a Certificate only if it finds that construction of a new pipeline “is or will be required by the present or future public convenience and necessity.” Under FERC’s “Certificate Policy Statement,” if there is a need for the pipeline, FERC determines whether there will be adverse impacts on existing customers, existing pipelines, or landowners and communities. If adverse stakeholder impacts will result, FERC balances the public benefits against the adverse effects. FERC’s refusal to address nonfrivolous arguments challenging the probative weight of the affiliated precedent agreement did not evince reasoned and principled decision-making. FERC ignored evidence of self-dealing and failed to thoroughly conduct the interest-balancing inquiry. View "Environmental Defense Fund v. Federal Energy Regulatory Commission" on Justia Law

In 2016, the Federal Energy Regulatory Commission approved, as just and reasonable, cost allocations filed by PJM, the Mid–Atlantic’s regional transmission organization, for a project to improve the reliability of three New Jersey nuclear power plants. The Commission denied a complaint lodged by Delaware and Maryland alleging a large imbalance between the costs imposed on the Delmarva transmission zone and the benefits that zone would accrue from the project. On rehearing in 2018, the Commission reversed course, concluding that application of PJM’s cost–allocation method to the project violated cost–causation principles and was therefore unjust and unreasonable under the Federal Power Act, 16 U.S.C. 824e. The Commission’s replacement cost–allocation method shifted primary cost responsibility for the project from the Delmarva zone to utilities in New Jersey.The New Jersey Agencies argued that the Commission departed from precedent without adequate explanation, made findings that are unsupported by substantial evidence, and failed to respond meaningfully to objections raised during the proceedings. The D.C. Circuit denied their petitions for review. The Commission reasonably decided to adopt a different cost–allocation method for the type of project at issue here and adequately explained its departure from the cost allocations it had approved in 2016. View "Public Service Electric and Gas Co. v. Federal Energy Regulatory Commission" on Justia Law

The Communications Act of 1934 restricts the rates that telecommunications carriers may charge for transmitting calls across their networks, 47 U.S.C. 201(b). Iowa-based Aureon is a joint venture through which local carriers connect to long-distance carriers such as AT&T and has “subtending” agreements with participating local carriers. AT&T alleged that Aureon imposed interstate and intrastate access charges that violated the Federal Communications Commission (FCC) transitional pricing rules; improperly engaged in access stimulation (enticing high call volumes to generate increased access charges); committed an unreasonable practice by agreeing with subtending carriers to connect calls involving access stimulation; and billed for service not covered by its 2013 interstate tariff. The FCC found that Aureon violated the transitional rule.The D.C. Circuit reversed in part. The transitional rule applies to all “competitive local exchange carriers,” and Aureon falls into that category but the rule applies to intrastate rates so Aureon’s 2013 increase of its interstate rate was not covered. The court remanded the question of whether Aureon’s subtending agreements qualify as access revenue sharing agreements. The court affirmed the FCC’s determination that Aureon’s interstate tariffs apply to traffic involving any local carriers engaged in access stimulation. The FCC erred in refusing to adjudicate AT&T’s unreasonable-practices claim. View "AT&T Corp. v. Federal Communications Commission" on Justia Law

Virginia power wholesalers who buy electricity from Dominion challenged the Commission's conclusion that Dominion's Virginia customers, but not its North Carolina customers, should bear the costs of undergrounding new transmission wires.The DC Circuit denied the petitions for review and rejected petitioners' claim that the Commission did not properly invoke its power under section 206 of the Federal Power Act; held that petitioners were provided adequate notice of the Commission's intent to modify Dominion's filed rate; and held that the ALJ did not misinterpret a Commission order and thereby improperly cabined the scope of an evidentiary hearing. Finally, the court rejected petitioners' claim that the Commission acted arbitrarily by requiring Dominion's Virginia customers to bear the costs of undergrounding. View "Northern Virginia Electric Cooperative, Inc. v. FERC" on Justia Law

Petitioner, owner of a number of electric generation resources in New England, challenged FERC's adoption of changes to the Transmission, Markets, and Services Tariff proposed by the Independent System Operator for New England (ISO-NE). The DC Circuit held that the parties' dispute may be illusory and thus remanded the record for the agency to sort out what it really means. In this case, at oral argument, counsel for FERC suggested that FERC interpreted the tariff rules in a way that largely squares with Exelon's view of its rights. View "Exelon Corp. v. FERC" on Justia Law