Justia Energy, Oil & Gas Law Opinion Summaries

With the approval of the Public Utilities Commission (PUC), in 2005 the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as "Comanche 3." When Xcel sought to recover a portion of its construction costs nearly four years later in a rate proceeding, Petitioner Leslie Glustrom intervened. Petitioner sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Petitioner challenged. Petitioner separately challenged the depreciation rate and the possibility that Comanche 3 might not be "used and useful" at the time rates went into effect. The PUC denied her challenges, and the district court affirmed. Upon review, the Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Petitioner's testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. Lastly, the PUC was free to exercise its discretion in departing from a strict application of the "used and useful" principle. Petitioner failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences. View "Glustrom v. Colorado Public Utilities Commission" on Justia Law

The issue before the Eleventh Circuit concerned a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OSCLA). The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Plan covered ten exploratory wells on offshore Alabama leases in the central Gulf. This case was a consolidated appeal in which Petitioners the Defenders of Wildlife, the Gulf Restoration Network and others filed comments on the Shell EP, participated in the ancillary administrative proceedings, and then filed a petition with the Court for review. The only issues for the Court's review were whether the Shell EP violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). After review of the parties' briefs and the record below, the Court denied the petition for review, finding the BOEM's decision to approve the Shell EP was not arbitrary or capricious and instead, "reflected the agency's balance of environmental concerns with the expeditious and orderly exploration of resources in the Gulf of Mexico." View "Defenders of Wildlife, et al v. Bureau of Ocean Energy Managem, et al" on Justia Law

At issue in this case was the Montana Board of Oil & Gas Conservation's (MBOGC) issuance of twenty-three gas well permits to Fidelity Exploration and Production Company in the area known as the Cedar Creek Anticline (CCA). The Montana Wildlife Federation and National Wildlife Federation (collectively, Federations) challenged the issuance of the permits. The district court granted summary judgment in favor of Appellees, MBOGC, Fidelity, and Montana Petroleum Association, holding that the Federations failed to rebut the presumption of validity in the MBOGC's decision. The Supreme Court affirmed, holding that the district court did not err in (1) conducting its review under Mont. Code Ann. 82-11-144 and in considering evidence outside the administrative record; (2) determining that the environmental assessments prepared by MBOGC for gas development in the CCA were adequate under the Montana Environmental Policy Act; and (3) ruling that MBOGC did not have to prepare a programmatic environmental impact statement for oil and gas development in the CCA. View "Mont. Wildlife Fed'n v. Bd. of Oil & Gas Conservation" on Justia Law

Petitioners petitioned the court for review of the Commission's rulemaking regarding temporary storage of permanent disposal of nuclear waste. The court held that the rulemaking issue constituted a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact. The court further held that the Commission's evaluation of the risks of spent nuclear fuel was deficient in two specified ways. Accordingly, the court granted the petitions for review, vacated the Commission's orders, and remanded for further proceedings. View "State of New York v. NRC" on Justia Law

API petitioned for review of a 2008 EPA regulation deregulating many "hazardous secondary materials" under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k. After the parties completed briefing, the EPA issued a notice of proposed rulemaking that, if made final, would significantly amend the EPA's 2008 decision. As a result, the court deemed this controversy unripe as a prudential matter and ordered the case held in abeyance, subject to regular reports on the status of the proposed rulemaking. View "American Petroleum Institute v. EPA" on Justia Law

In 1957 the Commonwealth constructed the Quehanna Wild Area Nuclear Site. Part of the site was donated to Pennsylvania State University. Until 1967 Penn State leased to a Lockheed predecessor, conducting work under Atomic Energy Commission contracts, involving Strontium-90, a radioactive isotope. The predecessor partially decontaminated. According to Lockheed, the Commonwealth was aware that Strontium-90 remained and could not be removed without dismantling the facility. In the 1990s, the Nuclear Regulatory Commission ordered the Commonwealth, the Pennsylvania Department of Environmental Protection, and the Department of Conservation and Natural Resources to decommission the facility. This cost more than $20 million. PADEP sued Lockheed under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607(a). Lockheed defended that the Commonwealth should recover less than its demand based on its own conduct and liability and the doctrines of unclean hands, estoppel, waiver, and laches. Lockheed also alleged that PADEP was liable under CERCLA as an owner-operator and as having arranged for or transported hazardous substances. The district court dismissed Lockheed’s third-party complaint, concluding that the Commonwealth and DCNR retained Eleventh Amendment immunity when PADEP filed a federal suit. The Third Circuit vacated with instructions to dismiss the third party complaint as moot, based on the sufficiency of Lockheed’s affirmative defenses. View "Commonwealth of PA Dep' of Envtl. Prot. v. Lockheed Martin Corp." on Justia Law

Petitioners, non-profit environmental protection organizations, filed petitions for judicial review challenging sixteen Department of the Interior (DOI) plan approvals, issued between March 29 and May 20, 2010, under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331-1356a. The court concluded that: (1) petitioners' OCSLA-based challenges were justiciable, except for four, which have become moot; (2) the DOI's approval of the exploratory and development plans were subject to judicial review by the court under OCSLA, 43 U.S.C. 1349(c)(2); (3) petitioners' failure to participate in the administrative proceedings related to the DOI's approval of the plans as required by section 1349(c)(3) did not oust the court's jurisdiction because that participation requirement was a non-jurisdictional administrative exhaustion rule; but, (4) petitioners have not shown sufficient justification for excusing them from that exhaustion requirement in this case. Accordingly, except for four of petitioners' petitions for judicial review that were dismissed as moot, petitioners' petitions for judicial review were dismissed because of their failure to participate in the administrative proceedings. View "Gulf Restoration Network, Inc., et al. v. Salazar, et al.; Ctr for Biological Diversity v. Salazar, et al." on Justia Law

Petitioner Town of Seabrook appealed an order of the New Hampshire Department of Environmental Services (DES) which granted Respondent NextEra Energy Seabrook, LLC (NextEra), several tax exemptions under RSA 72:12-a (Supp. 2011). Upon review of the record, the Supreme Court found that the record supported DES' decisions except for one: the Court found no evidence in the record to support an increase in a percentage allocation allowed under the statute. Accordingly, the Court partly affirmed, partly reversed the DES' decision, and remanded the case for further proceedings. View "Appeal of Town of Seabrook " on Justia Law

Appellant John Madden appealed the Public Service Board's order granting a certificate of public good for Appellee Cross Pollination, Inc.'s planned construction of a solar energy farm in the Town of New Haven. Appellant claimed that the Board erred in applying 30 V.S.A. 248, which regulates the construction of electric generation facilities, and should not have issued the certificate because the solar farm will have an "undue adverse effect" on the aesthetics of the natural landscape as defined by 30 V.S.A. 248(b)(5). Appellant's issue on appeal was the Board's use of the "Quechee test" so named from the Supreme Court's decision in "In re Quechee Lakes Corp.," 580 A.2d 957 (1990)): that the Board erred in applying the Quechee test and should have concluded that under 30 V.S.A. 248(b)(5) the project would have an "undue adverse effect" on the aesthetics of the land, and as a result, no certificate of public good should have issued. Upon review, the Supreme Court affirmed the Board's findings in this case, and held that its decision was based on a correct reading of the law and is supported by its findings. View "In re Petition of Cross Pollination for a Certificate of Public Good" on Justia Law

The Supreme Court addressed the question of what level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal. Each of the four petitions for writs of superintending control stemmed from an appeal of a decision made by one of two administrative agencies, the New Mexico Environmental Improvement Board (EIB) or the New Mexico Water Quality Control Commission (WQCC). Those petitions arose from appeals of administrative rule makings: one appeal challenging rules adopted by EIB and the other challenging rules adopted by WQCC. The Court of Appeals denied appellee status to all four Petitioners, and the Petitioners requested that the Supreme Court issue writs of superintending control to overturn those rulings. The Court consolidated the four petitions and, after hearing oral arguments, issued the writs requested by three of the Petitioners while rejecting the fourth: "[b]eyond the party initiating the proceeding, [the Court] need only decide in this case whether participants who have presented technical testimony are 'parties' to an appeal as contemplated under [New Mexico] rules. [The Court concluded] that they are." [Petitioners] were not just participants who happened to be recognized as parties by EIB and WQCC. Rather, each participated in the rule-making proceedings in a legally significant manner. Each was required to file advance notice of participation, naming their witnesses and the witnesses' qualifications, and each was required to satisfy other prerequisites to their testimony. In addition, Petitioners contributed the kind of evidence that directly informed the inquiries made by EIB and WQCC in making their final decisions. Thus, the Court concluded that the requirements imposed upon Petitioners afforded them a right to defend their positions as parties on appeal. View "New Energy Economy Inc. v. Vanzi" on Justia Law