Justia Utilities Law Opinion Summaries

The Supreme Judicial Court affirmed an order of the Public Utilities Commission granting in part and denying in part a petition for a certificate of public convenience and necessity (CPCN) to operate as a competitive local exchange carrier. Enhanced Communications of Northern New England, Inc. appealed. The Supreme Judicial Court affirmed, holding (1) after after finding that Enhanced met all three criteria set forth in section 4(A) of chapter 280 of the Commission’s regulations, the Commission could nonetheless deny Enhanced’s petition for a CPCN on public interest grounds; and (2) the Commission lawfully denied Enhanced’s petition on public interest grounds. View "Enhanced Communications of Northern New England, Inc. v. Public Utilities Commission" on Justia Law

This case involves the allocation of production costs among the Entergy Operation Companies. LPSC petitioned for review of FERC's implementation of its decision to delay the effective date of the Bandwidth Remedy. The DC Circuit denied LPSC's petition with respect to FERC's advancement of the effective date to the 2005 period, and denied its petition as to the application of the Bandwidth Remedy to the 2005 period. The court granted FERC's request to remand to FERC for further consideration of the denial of Section 206 refunds for the September 2001-May 2003 effective period. View "Louisiana Public Service Commission v. FERC" on Justia Law

In a 2005 Cooperation and Option Agreement to facilitate Russell's construction and operation of the Energy Center, a natural gas-fired, combined cycle electric generating facility in Hayward, the city granted Russell an option to purchase 12.5 acres of city-owned land as the Energy Center's site and promised to help Russell obtain permits, approvals, and water treatment services. Russell conveyed a 3.5-acre parcel to the city. The Agreement's “Payments Clause” prohibited the city from imposing any taxes on the “development, construction, ownership and operation” of the Energy Center except taxes tethered to real estate ownership. In 2009, Hayward voters approved an ordinance that imposes “a tax upon every person using electricity in the City. … at the rate of five and one-half percent (5.5%) of the charges made for such electricity” with a similar provision regarding gas usage. Russell began building the Energy Center in 2010. In 2011, the city informed Russell it must pay the utility tax. The Energy Center is operational.The court of appeal affirmed a holding that the Payments Clause was unenforceable as violating California Constitution article XIII, section 31, which provides “[t]he power to tax may not be surrendered or suspended by grant or contract.” Russell may amend its complaint to allege a quasi-contractual restitution claim. View "Russell City Energy Co. v. City of Hayward" on Justia Law

Tetrachloroethylene (also known as perchloroethylene or PCE) and trichloroethylene (TCE), were detected in groundwater drawn from a drinking water well in the South Basin area operated by the Irvine Ranch Water District (IRWD). The Orange County Water District (District) undertook efforts to identify the source of groundwater contamination and engaged consultants to recommend further avenues of investigation. Although the District's investigation has continued, it had not yet developed a final treatment plan or remediated any contamination by the time of the underlying litigation. During its investigation, the District filed suit against various current and former owners and operators of certain sites in the South Basin area that it believed were in some way responsible for groundwater contamination. The District asserted statutory claims for damages under the Carpenter-Presley Tanner Hazardous Substance Account Act (HSAA) and the Orange County Water District Act (OCWD Act) and for declaratory relief. The District also asserted common law claims for negligence, nuisance, and trespass. Following numerous motions for summary judgment and summary adjudication, and a limited bench trial on the District's ability to bring suit under the HSAA, the trial court entered judgments in favor of the defendants on all of the District's claims. The District appealed, challenging the judgments on numerous grounds. The Court of Appeal confirmed that the HSAA allowed the District to bring suit under the circumstances here, and that the District could recover certain remediation-related investigatory costs under the OCWD Act. The Court also addressed the HSAA's nonretroactivity provision and concluded its requirements were not satisfied here. Furthermore, the Court concluded the theory of continuous accrual applies to the District's negligence cause of action, such that no defendant except one has shown the statute of limitations barred that claim. As to the District's causes of action for trespass and nuisance, the Court concluded the District raised a triable issue of fact regarding its potential groundwater rights in the South Basin. In doing so, the Court addressed the State’s potential interests in groundwater (as allegedly delegated to the District), the District's regulatory powers over groundwater, and its rights based on its groundwater replenishment or recharge activities. The Court concluded the District's potential rights in groundwater were insufficient, on the current record in this case, to maintain a trespass cause of action. However, triable issues of fact precluded summary judgment on the District's nuisance claim for all defendants except one. Finally, the Court concluded most of defendants' site-specific arguments (primarily based on causation) did not entitle them to summary adjudication of any causes of action. The judgments will therefore be affirmed in part and reversed in part. View "Orange Co. Water Dist. v. Sabic Innovative Plastics" on Justia Law

The district court lacks the authority to extend the deadline for filing the opening brief in a petition for judicial review of a public utilities commission.Rural Telephone Company (Appellant) filed an application with Public Utilities Commission of Nevada (PUCN) seeking a change in its telephone service rates and charges. PUCN denied the requested changes. Appellant then filed a timely petition for judicial review in the district court and subsequently requested an extension of time to file its opening memorandum of points and authorities. The district court denied the motion for an extension and dismissed the petition. The Supreme Court affirmed, holding that the district court lacked statutory authority to grant Appellant an extension of time to file its opening memorandum of points and authorities. View "Rural Telephone Co. v. Public Utilities Commission of Nevada" 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

Petitioners sought review of the FCC's order governing the rates that utility companies may charge telecommunications providers for attaching their networks to utility-owned poles. The Eighth Circuit denied the petition, holding that the term "cost" in the Pole Attachments Act, 47 U.S.C. 224, was ambiguous and the same "cost" definition need not be used to determine the upper bound for cable rates under section 224(d) and the rate for telecommunications providers under section 224(e). Therefore, the statute permits, but did not require, the Cable Rate and the Telecom Rate to diverge. The court rejected petitioners' argument that the FCC's interpretation of the statute rendered section 224(e) superfluous; concluded that the order constituted a reasonable interpretation of the ambiguity in section 224(e); and denied the petition for review. View "Ameren Corp. v. FCC" on Justia Law

Flint, which previously obtained water from DWSD, decided to join the Karegnondi Water Authority (KWA). The DWSD contract terminated in 2014. Because KWA would take years to construct, Flint chose the Flint River as an interim source. A 2011 Report had determined that river water would need to be treated to meet safety regulations; the cost of treatment was less than continuing with DWSD. Genesee County also decided to switch to KWA but continued to purchase DWSD water during construction. Flint did not upgrade its treatment plants or provide additional safety measures before switching. Residents immediately complained that the water “smelled rotten, looked foul, and tasted terrible.” Tests detected coliform and E. coli bacteria; the water was linked to Legionnaire’s disease. General Motors discontinued its water service, which was corroding its parts. Eventually, the city issued a notice that the drinking water violated standards, but was safe to drink. Subsequent testing indicated high levels of lead and trihalomethane that did not exceed the Safe Drinking Water Act (SDWA) Lead and Copper Rule’s “action level.” The tests indicated that corrosion control treatment was needed to counteract lead levels. The City Council voted to reconnect with DWSD; the vote was overruled by the state-appointed Emergency Manager. The EPA warned of high lead levels; officials distributed filters. Genesee County declared a public health emergency in Flint, advising residents not to drink the water. The Emergency Manager ordered reconnection to DWSD but the supply pipes' protective coating had been damaged by River water. Flint remains in a state of emergency but residents have been billed continuously for water. The Michigan Civil Rights Commission determined that the response to the crisis was “the result of systemic racism.” The Sixth Circuit reversed dismissal, as preempted by SDWA, of cases under 42 U.S.C. 1983. SDWA has no textual preemption of section 1983 claims and SDWA’s remedial scheme does not demonstrate such an intention. The rights and protections found in the constitutional claims diverge from those provided by SDWA. The court affirmed dismissal of claims against state defendants as barred by the Eleventh Amendment. View "Boler v. Earley" on Justia Law

Petitioner Daufuskie Island Utility Company ("DIUC") appeals an order of the South Carolina Public Service Commission ("Commission") granting only thirty-nine percent of the additional revenue requested in its application. DIUC applied to the Commission for approval of a new rate schedule which would provide a 108.9% revenue increase. Due to the substantial increase in its tax liability and its inability to seek further revenue increases until July 2014, DIUC entered into an agreement with Beaufort County to pay the back taxes for years 2012, 2013, 2014, and the projected tax for 2015. Critical to this case was the ownership of an elevated water tank, well, water pump, system pipes, and other DIUC equipment located on a site which was sold at a tax sale in 2010 (“Elevated Tank Site”). Due to a clerical error, tax on the property was not paid, and DIUC did not discover the property had been sold until 2012. Although the tax deed purported to convey the property "all and singular . . . with the appurtenances," DIUC presented testimony from the Beaufort County Treasurer, Maria Walls, that the tax deed did not convey "the elevated water tank, the well, the water pump, system pipes, or other DIUC property located on the Elevated Tank[] Site." Despite providing no evidence to the contrary to support its recommendation, ORS proposed excluding the value of the utility equipment located on the property when calculating DIUC's rate base and property taxes. A hearing on the merits of DIUC's application was held in October 2015. The day before the hearing, several intervening property owner associations (POAs) filed a Settlement Agreement they had entered with ORS for the Commission's consideration. Pursuant to the Agreement, ORS and the POAs stipulated to each party's testimony and exhibits in the record, and the parties agreed to accept all of ORS's adjustments and recommendations, with the exception of the bad debt expense for which they agreed to adopt DIUC's proposal.5 At the hearing, DIUC objected to the admission of the Settlement Agreement, arguing it was irrelevant and prejudicial because it bolstered ORS's recommendations without providing any new or additional evidence to support them. Over DIUC's objection, the Commission admitted the Agreement, reasoning it was more probative than prejudicial. The South Carolina Supreme Court found the Commission erred in admitting evidence of the POA settlement; and the Commission’s findings and conclusions with respect to DIUC’s property taxes were not supported by substantial evidence. The Court remanded for a new hearing. View "Daufuskie Island v. Regulatory Staff" on Justia Law

Orangeburg challenged the Commission's approval of an agreement between two utilities, alleging that the approval constituted an authorization of the North Carolina Utilities Commission's (NCUC) unlawful regime. The DC Circuit held that Orangeburg has standing to challenge the Commission's approval because, among other reasons, the city has demonstrated an imminent loss of the opportunity to purchase a desired product (reliable and low-cost wholesale power), and because that injury was fairly traceable to the Commission's approval of the agreement at issue. On the merits, the court held that the Commission failed to justify its approval of the agreement's disparate treatment of wholesale ratepayers; to justify the disparity, the Commission relied exclusively on one line from a previous FERC order that, without additional explication, appeared either unresponsive or legally unsound. Accordingly, the court vacated in part the orders approving the agreement and denying rehearing, and remanded. View "Orangeburg, South Carolina v. FERC" on Justia Law