Justia Utilities Law Opinion Summaries

The Fifth Circuit agreed with the district court that sovereign immunity bars the ratepayers' claims against the Mississippi Public Service Commissioners. The court also agreed that the Johnson Act does not preclude federal jurisdiction over the claims against the utility. However, the court disagreed with the accrual date the district court used in dismissing the case on limitations grounds. The court explained that the ratepayers' claims did not accrue on August 6, 2015, when the Commission approved the refund plan, or on August 16, 2016, when an economist concluded that Mississippi Power shorted them. The court affirmed the dismissal of the claims against the Commissioners but vacated the district court's dismissal of the claims against Mississippi Power on imitations grounds. Given the uncertainties in the record and the possible benefit of limited discovery on the limitations issue, the court remanded to the district court for further proceedings. View "Turnage v. Britton" on Justia Law

The Fifth Circuit affirmed the district court's dismissal of plaintiffs' complaint alleging that Southern Pine is required to distribute to them $112.5 million in "excess revenues." Because the previously-enacted 1936 Electric Power Association Act, Miss. Code Ann. 77-5-201, did not grant plaintiffs a vested right, the court concluded that the modern statute provides the applicable law. Under the modern statute, the court concluded that plaintiffs have not stated a claim for relief. In this case, plaintiffs seek to impose a specific asset-to-equity ratio beyond which any and all revenues must be deemed excessive and returned to the member-ratepayers. The court explained that plaintiffs do not have a right to revenues until the board deems that those revenues are "not needed" for other purposes. Because the board has not done so, plaintiffs fail to state a claim upon which relief can be granted. View "Harper v. Southern Pine Electric Cooperative" on Justia Law

The Texas Public Utility Commission issued two orders decertifying territory from the certificate of convenience and necessity (CCN) issued to Green Valley for sewer (wastewater) service. Green Valley filed suit alleging that, because it had "provided or made available" sewer service, 7 U.S.C. 1926(b) protected that service from encroachment.The Fifth Circuit granted en banc review and held that a utility has "provided or made available" service under section 1926(b) if it (1) has adequate facilities to provide service to the relevant area within a reasonable time after a request for service is made and (2) has the legal right to provide service. Therefore, the court overruled North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910 (5th Cir. 1996) (per curiam). The court modified the dismissal of Green Valley's preemption claim as to TWC 13.254(a-1) to make it without prejudice and affirmed as modified; vacated the judgments invalidating the PUC's orders and remanded with instructions to dismiss those claims as barred by state sovereign immunity; vacated the remaining judgments related to the GVDC Order and remanded with instruction to dismiss those claims as moot; and vacated the judgments on Green Valley's section 1926(b) claims related to the Schertz Order and remanded for further proceedings. View "Green Valley Special Utility District v. City of Schertz" on Justia Law

Plaintiffs, members of three rural power cooperatives, filed suit alleging that the cooperatives failed to refund excess "patronage capital" to their members as required by state law. In this case, the cooperatives argued that Mississippi Code 77-5-235(5)'s refund requirement conflicts with Congress's purposes and objectives as expressed in the Rural Electrification Act, federal regulations, and the cooperatives' loan agreements with the Rural Utility Service. Furthermore, they argued that plaintiff's for request appointment of a trustee or receiver conflicts with federal interests and the provision in their loan agreements that appointment of a receiver constitutes an event of default. The Fifth Circuit reversed the district court's decision to remand these consolidated cases to state court, holding that the cooperatives have a colorable federal preemption defense and were entitled to remove under 28 U.S.C. 1442's provision for federal officer removal. View "Butler v. Coast Electric Power Assoc." on Justia Law

At issue in this appeal was whether a certain Public Utility Commission of Texas (PUCT) order conflicted with a prior Federal Energy Regulatory Commission (FERC) order. The Fifth Circuit reversed the district court's order and rendered judgment in favor of PUCT and TIEC, holding that PUCT's order was not in conflict with any FERC order. The court held that FERC's orders requiring the Entergy compliance filing did not call for a retroactive reallocation of 2007 Bandwidth Payments; Entergy's compliance filing did not contain a retroactive reallocation that FERC approved in the 2015 FERC Order; the 2015 FERC Order did not retroactively reallocate 2007 Bandwidth Payments; and PUCT's Order was consistent with the 2015 FERC Order. View "Entergy Texas, Inc. v. Nelson" on Justia Law

At issue in this appeal was whether a certain Public Utility Commission of Texas (PUCT) order conflicted with a prior Federal Energy Regulatory Commission (FERC) order. The Fifth Circuit reversed the district court's order and rendered judgment in favor of PUCT and TIEC, holding that PUCT's order was not in conflict with any FERC order. The court held that FERC's orders requiring the Entergy compliance filing did not call for a retroactive reallocation of 2007 Bandwidth Payments; Entergy's compliance filing did not contain a retroactive reallocation that FERC approved in the 2015 FERC Order; the 2015 FERC Order did not retroactively reallocate 2007 Bandwidth Payments; and PUCT's Order was consistent with the 2015 FERC Order. View "Entergy Texas, Inc. v. Nelson" 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

Green Valley filed suit seeking an injunction based on its claim that 7 U.S.C. 1926(b) prohibits the City of Cibolo from encroaching on its sewer service. The Fifth Circuit reversed the district court's dismissal of the complaint, holding that the district court's interpretation was inconsistent with the statute's plain language. The court held that section 1926(b)'s plain language does not limit the statute's protection to services that have received federal financing. The court declined the city's invitation to read adjectives into section 1926(b) and remanded. View "Green Valley Special Utility District v. City of Cibolo" on Justia Law

Total Gas and two of its trading managers filed a declaratory judgment action against the Commission arguing that the Commission was precluded from adjudicating violations or imposing civil penalties because the Natural Gas Act (NGA) vests authority for those activities exclusively in federal district courts. The Fifth Circuit affirmed the Commission's motion to dismiss, holding that Total's suit was not ripe for review in light of controlling precedent, Energy Transfer Partners, L.P. v. FERC. In this case, instead of objecting to any actions FERC has already taken, Total seeks to preemptively challenge a FERC order that may never be issued. The court explained that all of Total's arguments were predicated on future events and were brought before FERC has even scheduled the matter for a hearing—let alone issued an order finding a NGA violation and imposing a civil penalty. View "TOTAL Gas & Power North America, Inc. v. FERC" on Justia Law