Justia Energy, Oil & Gas Law Opinion Summaries

The DC Circuit granted a petition for review of FERC's orders finding that California and Oregon had not waived their water quality certification authority under Section 401 of the Clean Water Act (CWA) and that PacifiCorp had diligently prosecuted its relicensing application for the Klamath Hydroelectric Project. At issue was whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly withdrawn and resubmitted water quality certification requests as new requests. The court held that the withdrawal-and-resubmission of water quality certification requests did not trigger new statutory periods of review. Therefore, California and Oregon have waived their Section 401 authority with regard to the Project. Furthermore, the court disagreed that a finding of waiver was futile. View "Hoopa Valley Tribe v. FERC" on Justia Law

The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam (referred to as the Oroville Facilities Project, Project, Settlement Agreement or "SA"). The plaintiffs brought this action in the superior court to stay the license procedure on the premise the environmental effects of relicensing the dam concern the operation of the dam and that jurisdiction to review the matter lies in the state courts pursuant to the California Environmental Quality Act. They claimed that a CEQA document offered to support the DWR’s application to FERC failed to consider the impact of climate change on the operation of the dam for all the purposes served by the dam. The superior court dismissed the complaint on the ground that predicting the impact of climate change is speculative. The plaintiffs appealed. A federal license is required by the Federal Power Act for the construction and operation of a hydroelectric dam. The license is issued by FERC. With one relevant exception, the FPA occupies the field of licensing a hydroelectric dam and bars review in the state courts of matters subject to review by FERC. Plaintiffs did not seek federal review as required by 18 C.F.R part 4.34(i)(6)(vii)(2003). The Court of Appeal concluded it lacked jurisdiction to hear this case. It returned the case to the trial court with an order to dismiss. View "County of Butte v. Dept. of Water Resources" on Justia Law

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

Regional transmission organizations manage the interstate grid for electricity, conduct auctions through which many large generators of electricity sell most or all of their power, and are regulated by the Federal Energy Regulatory Commission (FERC) Illinois subsidizes nuclear generation facilities by granting “zero emission credits,” which generators that use coal or gas to produce power must purchase from the recipients at a price set by the state. Electricity producers and municipalities sued, contending that the price‐adjustment aspect of the system is preempted by the Federal Power Act because it impinges on the FERC’s regulatory authority. They acknowledge that a state may levy a tax on carbon emissions; tax the assets and incomes of power producers; tax revenues to subsidize generators; or create a cap‐and‐trade system requiring every firm that emits carbon to buy credits from firms that emit less carbon. They argued that the zero‐emission‐credit system indirectly regulates the auction by using average auction prices as a component in a formula that affects the credits' cost. The Seventh Circuit affirmed summary judgment for the defendants. Illinois has not engaged in discrimination beyond that required to regulate within its borders. All Illinois carbon‐emitting plants need to buy credits. The subsidy’s recipients are in Illinois. The price effect of the statute is felt wherever the power is used. All power (from inside and outside Illinois) goes for the same price in an interstate auction. The cross‐subsidy among producers may injure investors in carbon‐ releasing plants, but only plants in Illinois. View "Village of Old Mill Creek v. Star" on Justia Law

Sierra Club filed suit against Dominion under the citizen-suit provision of the Clean Water Act, alleging that Dominion was violating 33 U.S.C. 1311(a), which prohibits the unauthorized "discharge of any pollutant" into navigable waters. The Fourth Circuit held that the landfill and settling ponds on the Chesapeake site of a coal-fired power plant did not constitute "point sources" as that term was defined in the Clean Water Act, and thus reversed the district court's ruling that Dominion was liable under section 1311(a). The court held, however, that Dominion's discharge permit did not regulate the groundwater contamination at issue and affirmed as to those claims. View "Sierra Club v. Virginia Electric & Power Co." on Justia Law

Coal residuals, “one of the largest industrial waste streams,” contain myriad carcinogens and neurotoxins. Power plants generally store it on site in aging piles or pools, risking protracted leakage and catastrophic structural failure. Regulations implementing the 1976 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, were long delayed. The Environmental Protection Agency (EPA), facing public outrage over catastrophic failures at toxic coal residual sites, and directed by a federal court to comply with its obligations under RCRA, promulgated its first Final Rule regulating coal residuals in 2015, 80 Fed. Reg. 21,302. Opponents challenged that Rule under the Administrative Procedure Act and RCRA, which requires EPA to promulgate criteria distinguishing permissible “sanitary landfills” from prohibited “open dumps.” Each claim relates to how coal residuals disposal sites qualify as sanitary landfills. EPA announced its intent to reconsider the Rule. The D.C. Circuit denied the EPA’s abeyance motion; remanded as to pile-size and beneficial-use issues; vacated 40 C.F.R. 257.101, which allows for the continued operation of unlined impoundments and a provision that treats “clay-lined” units as if they were lined; found the Rule’s “legacy ponds” exemption unreasoned and arbitrary; rejected claims by industry members that EPA may regulate only active impoundments; found that EPA provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments; and held that EPA did not arbitrarily issue location requirements based on seismic impact zones nor arbitrarily impose temporary closure procedures. View "Utility Solid Waste Activities v. Environmental Protection Agency" on Justia Law

Once the NRC determines there is a significant deficiency in its National Environmental Policy Act (NEPA) compliance, it may not permit a project to continue in a manner that puts at risk the values NEPA protects simply because no intervenor can show irreparable harm.The DC Circuit granted a petition for review in part of the Commission's grant of a license to Powertech to construct a uranium mining project in the Black Hills of South Dakota. The court held that the Commission's decision violated NEPA where the Commission conditioned enforcement of NEPA on a showing of irreparable harm by the Tribe, but lacked an adequate environmental analysis when it first issued the license and the significant NEPA deficiencies identified by the Board remained unaddressed at the time of the Commission's decision. The court further held that it did not have jurisdiction to review the bulk of the rulings challenged by the Tribe because the Commission's order did not end the agency proceedings as to all issues. View "Oglala Sioux Tribe v. NRC" on Justia Law

Wayne Land and Mineral Group, wanting to obtain natural gas by fracking reserves, sought a declaratory judgment that an interstate compact does not give the Delaware River Basin Commission authority to review Wayne’s proposal. The district court dismissed the case after determining that Wayne’s proposed activities constituted a “project” subject to the Commission’s oversight, according to the Compact's unambiguous terms. The Third Circuit vacated, concluding that the meaning of the word “project” is ambiguous. The court remanded the case for fact-finding on the intent of the Compact's drafters. The Compact defines “project” as “any work, service or activity which is separately planned, financed, or identified by the [C]ommission, or any separate facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation” and requires approval for any project having a substantial effect on the water resources of the Basin. In 2009 the Commission imposed a moratorium on fracking. View "Wayne Land and Mineral Group LLC v. Delaware River Basin Commission" on Justia Law

The Arizona Department of Revenue (ADOR) is not authorized to value solar panels owned by SolarCity Corporation and Sunrun, Inc. (collectively, Taxpayers) and leased to residential and commercial property owners.For tax year 2015, ADOR notified Taxpayers that their panels had been assigned full cash values and that taxes would be assessed. Taxpayers sought a declaratory judgment that the panels were considered to have no value under Ariz. Rev. Stat. 42-11054(C)(2) and were not subject to valuation. The tax court ruled that the panels were “general property” that must be valued by county assessors pursuant to section 42-13051(A) and that the county assessors cannot assign a zero value because applying section 42-11054(c)(2)’s zero value provision to the panels would violate the Exemptions Clause and the Uniformity Clause of the Arizona Constitution. The Supreme Court affirmed the tax court’s judgment to the extent it concluded that ADOR lacked statutory authority to value Taxpayers’ leased solar panels but reversed the remainder of the judgment and remanded for a determination as to whether section 42-13054 authorizes county assessors to value the solar panels and, if so, whether section 42-11054(C)(2) requires a zero valuation. If section 42-11054(C)(2) applies, the tax could should determine whether that provision violates the Exemptions Clause or Uniformity Clause. View "SolarCity Corp. v. Arizona Department of Revenue" on Justia Law

The Arizona Department of Revenue (ADOR) is not authorized to value solar panels owned by SolarCity Corporation and Sunrun, Inc. (collectively, Taxpayers) and leased to residential and commercial property owners.For tax year 2015, ADOR notified Taxpayers that their panels had been assigned full cash values and that taxes would be assessed. Taxpayers sought a declaratory judgment that the panels were considered to have no value under Ariz. Rev. Stat. 42-11054(C)(2) and were not subject to valuation. The tax court ruled that the panels were “general property” that must be valued by county assessors pursuant to section 42-13051(A) and that the county assessors cannot assign a zero value because applying section 42-11054(c)(2)’s zero value provision to the panels would violate the Exemptions Clause and the Uniformity Clause of the Arizona Constitution. The Supreme Court affirmed the tax court’s judgment to the extent it concluded that ADOR lacked statutory authority to value Taxpayers’ leased solar panels but reversed the remainder of the judgment and remanded for a determination as to whether section 42-13054 authorizes county assessors to value the solar panels and, if so, whether section 42-11054(C)(2) requires a zero valuation. If section 42-11054(C)(2) applies, the tax could should determine whether that provision violates the Exemptions Clause or Uniformity Clause. View "SolarCity Corp. v. Arizona Department of Revenue" on Justia Law