Justia Energy, Oil & Gas Law Opinion Summaries

The issue presented for the Tenth Circuit's review centered on whether the Bureau of Land Management violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) in granting more than 300 applications for permits to drill horizontal, multi-stage hydraulically fracked wells in the Mancos Shale area of the San Juan Basin in northeastern New Mexico. Appellants, four environmental advocacy groups) sued the Secretary of the Department of the Interior, the Bureau of Land Management, and the Secretary of the BLM, alleging that the BLM authorized the drilling without fully considering its indirect and cumulative impacts on the environment or on historic properties. The district court denied Appellants a preliminary injunction, and the Tenth Circuit affirmed that decision in 2016. After merits briefing, the district court concluded that the BLM had not violated either NHPA or NEPA and dismissed Appellants’ claims with prejudice. Appellants appealed, and this time, the Tenth Circuit affirmed in part, reversed in part, and remanded. The Tenth Circuit determined that, as to five EAs, Appellants have demonstrated that the BLM needed to, but did not, consider the cumulative impacts of water resources associated with 3,960 reasonably foreseeable horizontal Mancos Shale wells. The BLM’s issuance of FONSIs and approval of APDs associated with these EAs was therefore arbitrary and capricious and violated NEPA. The matter was remanded for the district court to vacate the FONSIs and APDs associated with those five environmental analyses; the Tenth Circuit affirmed as to all other issues. View "Dine Citizens v. Bernhardt" on Justia Law

The Supreme Court affirmed the district court's judgment granting summary judgment and dismissing Plaintiffs' claims challenging the decisions of a county board of supervisors approving a wind energy ordinance and a specific wind energy project, holding that Plaintiffs' claims were matters for the board of supervisors, and not the courts, to resolve.The board unanimously passed and approved a "wind energy conversion systems ordinance" and then granted conditional approval for the wind energy project at issue in this case. Plaintiffs then filed a petition for declaratory and injunctive relief and for a writ of certiorari against the board seeking a declaration that the ordinance was arbitrary, capricious, unreasonable, void and unenforceable and a writ determining that the approval of the project should be set aside as illegal, arbitrary and capricious, unreasonable and void. The district court granted summary judgment for the defendants. The Supreme Court affirmed, holding that the board did not act illegally, arbitrarily, or capriciously. View "Mathis v. Palo Alto County Board of Supervisors" on Justia Law

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