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Applicant LK Holdings, LLC appealed the Public Utility Commission’s dismissal of its application for a certificate of public good for a proposed group net-metered photovoltaic electric power system. The Commission dismissed the petition as incomplete because applicant failed to provide notice to adjoining landowners that its application had been filed. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Petition of LK Holdings, LLC" on Justia Law

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The Supreme court affirmed the judgment of the district court granting summary judgment to NorthWestern Corporation, doing business as NorthWestern Energy (NWE), on Boulder Hydro LP’s (Boulder) complaint, holding that the district court’s decision was not in error or an abuse of discretion. At issue in this contract pricing dispute was how to move forward after the Dow Jones Mid-C price index ceased publication in September 2013 and could no longer serve as the price setting reporting term in the parties’ power purchase agreement (PPA). The district court concluded that the Dow should be replaced with a reasonable market rate reporting substitute and held Boulder to its fifteen-year, market rate PPA. The Supreme Court affirmed, holding that the district court correctly interpreted the PPA between NWE and Boulder, properly granted summary judgment for NWE, and did not err in finding that a reasonable price reporting index should replace the Dow Mid-C index under the parties’ PPA. View "Boulder Hydro Limited Partnership v. NorthWestern Corp." on Justia Law

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In 1999, after deregulation of the energy industry in Illinois, Exelon sold its fossil-fuel power plants to use the proceeds on its nuclear plants and infrastructure. The sales yielded $4.8 billion, $2 billion more than expected. Exelon attempted to defer tax liability on the gains by executing “like-kind exchanges,” 26 U.S.C. 1031(a)(1). Exelon identified its Collins Plant, to be sold for $930 million, with $823 of taxable gain, and its Powerton Plant, to be sold for $870 million ($683 million in taxable gain) for exchanges. Exelon identified as investment candidates a Texas coal-fired plant to replace Collins and Georgia coal-fired plants to replace Powerton. In “sale-and-leaseback” transactions, Exelon leased an out-of-state power plant from a tax-exempt entity for a period longer than the plant’s estimated useful life, then immediately leased the plant back to that entity for a shorter sublease term. and provided to the tax-exempt entity a multi-million-dollar accommodation fee with a fully-funded purchase option to terminate Exelon’s residual interest after the sublease. Exelon asserted that it had acquired a genuine ownership interest in the plants, qualifying them as like-kind exchanges. The Commissioner disallowed the benefits claimed by Exelon, characterizing the transactions as a variant of the traditional sale-in-lease-out (SILO) tax shelters, widely invalidated as abusive tax shelters. The tax court and Seventh Circuit affirmed, applying the substance over form doctrine to conclude that the Exelon transactions failed to transfer to Exelon a genuine ownership interest in the out-of-state plants. In substance Exelon’s transactions resemble loans to the tax-exempt entities. View "Exelon Corp. v. Commissioner of Internal Revenue" on Justia Law

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Robert Post Johnson and A.V.M., Inc. ("Johnson and A.V.M.") appealed the district court's grant of summary judgment in favor of Statoil Oil & Gas LP and others ("Statoil"). Johnson and A.V.M. argued the district court incorrectly determined the primary three-year terms of two oil and gas leases were extended by continuous drilling operations clauses within the lease agreements. The North Dakota Supreme Court concluded the Pugh clauses in the pertinent leases at issue here were irreconcilable with the habendum and continuous drilling operations clauses, and the Pugh clauses controlled: the Pugh clauses terminated the leases with regard to the disputed units at the end of the primary three-year period because of the lack of oil or gas production in paying quantities within those units. The Court therefore found the district court's determination that the leases could be extended by drilling was not correct. The Supreme Court reversed the judgment of the district court. View "Johnson v. Statoil Oil & Gas LP" on Justia Law

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Borsheim Builders Supply, Inc., doing business as Borsheim Crane Service, ("Borsheim") appealed a declaratory judgment granting summary judgment to Mid-Continent Casualty Company and dismissing Borsheim's claims for coverage. After review of the facts presented, the North Dakota Supreme Court concluded the district court erred in concluding Construction Services, Inc. ("CSI"), and Whiting Oil and Gas Corporation were not insureds entitled to defense and indemnity under the "additional insured" endorsement in the commercial general liability ("CGL") policy Mid-Continent issued to Borsheim. Furthermore, the Court concluded the court erred in holding Mid-Continent had no duty to defend or indemnify Borsheim, CSI, and Whiting under the CGL policy for the underlying bodily injury lawsuit. View "Borsheim Builders Supply, Inc. v. Manger Insurance, Inc." on Justia Law

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The Supreme Court reversed the decision of the arbitration board ruling that the monthly transmission rate the City of Sidney’s whole-sale energy provider, Municipal Energy Agency of Nebraska (MEAN), charged Sidney was excessive, unfair, and unreasonable, holding that MEAN was permitted to charge Sidney the increased transmission rate. The board determined that MEAN breached the parties’ Service Schedule M (SSM) supplemental agreement by changing the transmission path for the electric power and energy it provided to Sidney and by charging the city for the increased transmission rates. The Supreme Court disagreed, holding (1) the increased monthly transmission rate charges were required for continued performance of the SSM after the parties learned they had insufficient contractual rights to complete the transmission path to Sidney, and therefore, the charges were not incurred arbitrarily; and (2) MEAN substantially complied with the SSM in transmitting energy to Sidney, and MEAN was permitted to charge the city the increased transmission rate under the SSM. View "City of Sidney v. Municipal Energy Agency of Nebraska" on Justia Law

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A group of electrical generators and trade groups of electrical generators challenged the constitutionality of New York's Zero Emissions Credit (ZEC) program. The ZEC program subsidizes qualifying nuclear power plants with ZECs: state‐created and state‐issued credits certifying the zero‐emission attributes of electricity produced by a participating nuclear plant. The Second Circuit affirmed the district court's dismissal and held that the ZEC program was not field preempted because plaintiffs failed to identify an impermissible "tether" under Hughes v. Talen Energy Marketing, LLC, 136 S. Ct. 1288, 1293 (2016), between the ZEC program and wholesale market participation; the ZEC program was not conflict preempted because plaintiffs have failed to identify any clear damage to federal goals; and plaintiffs lacked Article III standing to raise a dormant Commerce Clause claim. View "Coalition for Competitive Electricity v. Zibelman" on Justia Law

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The Supreme Court vacated in part the judgment of the Court of Appeals upholding a jury verdict against Appellants in the amount of $1,308,403 in compensatory damages and $2,686,000 in punitive damages, holding that the award of punitive damages, for what was essentially a breach of contract, was improper. The jury verdict arose from an action brought by Appellees asserting that Appellant violated its contractual obligations by fraudulently underpaying royalties owed under leases governing Appellants’ extraction of natural gas from Appellees’ land. Appellees brought its claim for unpaid royalties under breach of contract and fraudulent misrepresentation theories. The Supreme Court held (1) the award of punitive damages was improper; (2) the award of compensatory damages as determined by the trial court and jury was proper; and (3) Appellants’ post-verdict motions were timely made, no errors committed during trial warranted a new trial, and the trial court did not err in denying Appellees’ motion to amend the complaint. View "Nami Resources Co., LLC v. Asher Land & Mineral, Ltd." on Justia Law

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Under traditional rate regulation, an energy utility must first make improvements to its infrastructure before it can recover their cost through regulator-approved rate increases to customers. The process is an expensive, onerous rate-making case, which involves a comprehensive review of the utility’s entire business operations. In 2013 the legislature authorized utilities to obtain regulatory preapproval for “designated” improvements to their infrastructure. Under the “TDSIC” Statute, a utility can seek regulatory approval of a seven-year plan that designates eligible improvements, followed by periodic petitions to adjust rates automatically as approved investments are completed. The Indiana Utility Regulatory Commission preapproved approximately $20 million in infrastructure investments and authorized increases to NIPSCO’s natural-gas rates under the TDSIC mechanism. The approval referred to categories of improvements that describe broad parameters for future improvements but did not designate those improvements with specificity. The Indiana Supreme Court reversed, in part, concluding that the TDSIC Statute permits periodic rate increases only for specific projects a utility designates, and the Commission approves, in the threshold proceeding and not for multiple-unit projects using ascertainable planning criteria. A utility must specifically identify the projects or improvements at the outset in its seven-year plan and not in later proceedings involving periodic updates. Commission approval of “broad categories of unspecified projects defeats the purpose of having a plan.” View "NIPSCO Industrial Group v. Northern Indiana Public Service Co." on Justia Law

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Kentucky Utilities (KU) burns coal to produce energy, then stores the leftover coal ash in two man-made ponds. Environmental groups contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake, in violation of the Clean Water Act (CWA), 33 U.S.C. 1251(a), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(a). The Sixth Circuit affirmed, in part, the dismissal of their suit. The CWA does not extend liability to pollution that reaches surface waters via groundwater. A “point source,” of pollution under the CWA is a “discernible, confined and discrete conveyance.” Groundwater is not a point source. RCRA does, however govern this conduct, and the plaintiffs have met the statutory rigors needed to bring such a claim. They have alleged (and supported) an imminent and substantial threat to the environment; they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, so the district court had jurisdiction. View "Kentucky Waterways Alliance v. Kentucky Utilities Co." on Justia Law