Justia Utilities Law Opinion Summaries

Florida Water Environment Association Utility Council and South Florida Water Management District (appellants) appealed the district court's order approving a consent decree between the EPA and a group of environmentalist organizations (plaintiffs). The consent decree settled a suit by plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the State of Florida. Appellants claimed that the consent decree was substantively and procedurally unreasonable and that the district court abused its discretion in approving the decree. The court held that because appellants have not demonstrated a live case or controversy that would give the court jurisdiction over their case, the court dismissed their appeal. View "FWEA Utility Council, et al. v. Jackson, et al." on Justia Law

The Sierra Club and several related parties brought this action against the U.S. Army Corps of Engineers (the Corps) seeking to set aside a Clean Water Act, 33 U.S.C. 1251 et seq., permit (the section 404 permit) the Corps had issued to the Southwestern Electric Power Company (SWEPCO) which planned to construct a new power plant. SWEPCO subsequently appealed the preliminary injunctions ordered by the district court, arguing that the district court lacked subject matter jurisdiction and that the district court abused its discretion in granting the preliminary injunction. The court held that the district court did not err in concluding that the Sierra Club and Hunting Club had Article III standing. The court also held that plaintiffs have shown a likelihood of success where there was ample evidence in the record to show that plaintiffs were likely to succeed on at least three of their claims; that there was a likelihood of irreparable harm; that the balance of harms weighed in favor of an injunction; and that the public interest that might be injured by a preliminary injunction did not outweigh the public interest that would be served by the injunction. Accordingly, the court affirmed the preliminary injunction. View "Sierra Club, et al. v. U.S. Army Corps of Engineers, et al.; Hempstead County Hunting Club, Inc. v. Southwestern Elec. Power Co., et al." on Justia Law

The Wisconsin smelting plant owed more than $1.3 million in delinquent utility charges to the local municipal utility when it filed for Chapter 11 bankruptcy. Months later, despite the automatic stay, the utility implemented a process pursuant to sections 66.0809 and 66.0627, Wisconsin Statutes and local ordinance, under which unpaid utility bills become a lien against the property. The bankruptcy court and district court found that none of the exceptions to the automatic stay applied to the debt, which constituted more than one-third of the utility's operating revenue. The Seventh Circuit affirmed, holding that no exception to the stay applied. The utility did not obtain a pre-petition security interest in the plant property by providing service or billing. The utility bills were not a tax or special assessment. View "Reedsburg Util. Comm'n v. Grede Foundries, Inc." on Justia Law

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

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

St. Charles Tower, Inc. (St. Charles) filed suit against defendants after they declined to issue St. Charles a conditional use permit necessary to construct a proposed cell-phone tower in Franklin County. After the district court entered a consent judgment, trustees of a homeowner's association that opposed construction of the tower (Intervenors) sought to intervene in the litigation in order to challenge the consent judgment on the grounds that it violated state law. The district court granted their motion to intervene but denied their motion to alter, amend, or vacate the consent judgment and intervenors appealed. The court held that the consent judgment impermissibly circumvented sections 32 and 81 of the Land Use Regulations. Therefore, the court held that the district court erred in holding that the consent judgment did not violate state law and that any violation was justified as a necessary remedy for a violation of the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B)(v). Accordingly, the court reversed the denial of intervenors' motion and remanded for further proceedings. View "St. Charles Tower, Inc. v. Kurtz, et al." on Justia Law

The U.S. Department of Energy breached its agreement to accept spent nuclear fuel from nuclear power utilities, including plaintiff, a Wisconsin power cooperative, no longer in operation. Plaintiff maintains 38 metric tons of spent uranium on its property. Had DOE not breached the agreement, the material would have been removed in 2006. Plaintiff joined a consortium of 11 utilities to develop a private repository. The district court awarded about $37.6 million: $16.6 million for maintaining the fuel on-site from 1998 to 2006, $12 million for investment in the consortium, and $6.1 million for various overhead costs associated with mitigation. The Federal Circuit vacated in part. The claims court properly determined that plaintiff was entitled to damages for the entire period, 1999-2006; properly awarded overhead; properly offset the consortium costs; but should have limited the award with respect to the consortium to expenses incurred for mitigation. View "Dairyland Power Coop. v. United States" on Justia Law

Petitioner Jefferson Utilities, Inc. (JUI), a privately-held public utility authorized to provide water service to several areas of Jefferson County, filed a request with the Public Service Commission of West Virginia for a rate increase of approximately 72.2 percent. The ALJ recommended a rate increase of 22.4 percent, and the Commission reduced the rate increase recommended by the ALJ to 4.4 percent. JUI appealed, contending that the Commission erred by rejecting the recommended decision of the ALJ regarding the rate increase. The Supreme Court affirmed, holding that although the evidence in this case was controverted, it was clear that the Commission's decision was not arbitrary, did not result from a misapplication of legal principles, and was supported by substantial evidence in the record. View "Jefferson Utils., Inc. v. Pub. Serv. Comm'n of W. Va." on Justia Law

Plaintiff, operator of an electricity plant, sued defendant ("the county"), seeking to enjoin Expedited Bill 29-10, which imposed a levy on large stationary emitters of carbon dioxide within the county, on the ground that it violated the United States and Maryland Constitutions. At issue was whether a Montgomery County exaction on carbon dioxide emissions, levied only upon plaintiff's electricity-generating facility, was a tax or a fee. The court held that the carbon charge, which targeted a single emitter and was located squarely within the county's own "programmatic efforts to reduce" greenhouse gas emissions, was a punitive and regulatory fee over which the federal courts retained jurisdiction. Accordingly, the court reversed and remanded for further proceedings. View "Genon Mid-Atlantic, LLC v. Montgomery County, Maryland" 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