Justia Energy, Oil & Gas Law Opinion Summaries
Articles Posted in Environmental Law
L.S. Starrett Co. v. Fed. Energy Regulatory Comm’n
After a generator failed, plaintiff ordered a replacement, believing that no permit was required for changes to its hydroelectric power facility, which is located on plaintiff's property on a non-navigable Massachusetts river. The facility consists of an 87-acre-foot reservoir, a 20-foot-high, 127-foot-long concrete gravity dam, two powerhouses, and appurtenant facilities. The Federal Energy Regulatory Commission concluded that plaintiff required a license under the Federal Power Act, 16 U.S.C. 817(1). The First Circuit affirmed, holding that the facility is in a stream that is subject to Commerce Clause jurisdiction, the proposed changes will constitute "post-1935 construction" under the Act, and the proposed changes will affect interstate commerce. The Commission's interpretation of "construction" as encompassing the work at issue was reasonable and substantial evidence supports a finding that small hydroelectric plants have a cumulative impact on interstate commerce.
Sierra Club v. Two Elk Generation Partners, LP
Plaintiff-Appellant Sierra Club filed a petition with the Tenth Circuit in an attempt to stop Defendant-Appellee Two Elk Generation Partners, LP (Two Elk) from building a coal-fired power plant in Wyoming. Sierra Club argued that Two Elk was building the plant in violation of the Clean Air Act, 42 U.S.C. 7604. For over ten years, Two Elk had planned to build the power plant, and filed the appropriate applications with the local environmental authorities to receive permission to start construction. In late 2007, state authorities notified Two Elk that its environmental permit had expired. In the process of getting the permit renewed, Sierra Club tried to intervene to stop the process. While Two Elk and Sierra Club were fighting one another in the state administrative bodies and courts, Sierra Club filed a citizen suit with the federal district court. The federal district court dismissed Sierra Club's case, holding that the state courts already decided the same issues in its suit. On appeal to the Tenth Circuit, Sierra Club argued that it was not a party to the permit-application proceedings, and that it should not be precluded from bringing suit now. Furthermore, the Club argued that the Clean Air Act established the circumstances under which a citizen suit may be brought, and those circumstances were not met at the state court level. Upon careful consideration of the arguments and the applicable legal authority, the Tenth Circuit affirmed the lower court's decision. The Court found that Sierra Club's arguments under the Clean Air Act were indeed precluded by decisions from the state court proceedings. The Court dismissed Sierra Club's appeal.
Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co.
Three questions of law were certified to the Supreme Court from the federal district court. The certified questions arose from a complaint from Petitioner Hempstead County Hunting Club, Inc. (Hempstead). Hempstead contended that Respondent Southwestern Electric Power Company (SWEPCO) violated multiple public utilities statutes in the construction of its "Turk Plant." The first question from the federal court involved whether Hempstead was required to bring its claims before the state Public Service Commission (PSC) before suing in federal court. The Supreme Court concluded that under Arkansas law, Hempstead was first required to bring its claims before the Arkansas PSC. A court review of its claims should be precluded until Hempstead exhausted its administrative remedies. As a result, the Supreme Court did not address the remaining two certified questions.
NJ Envtl Fed’n v. U.S. Nuclear Regulatory Comm’n,
Oyster Creek in Ocean County, New Jersey was licensed under the Atomic Energy Act, 42 U.S.C. 2133(c) in 1969 for a 40-year term and is the oldest operating commercial nuclear power plant in the country. Objectors claimed that the application for license renewal was deficient with respect to detection of corrosion in a safety structure. The Atomic Safety and Licensing Board rejected the claims; the Nuclear Regulatory Commission granted the license. After examining the objectors' specific technical claims, the Third Circuit denied review. The Board and the NRC provided hundreds of pages detailing their decision-making and gave due consideration to objectors' concerns; the review was well-reasoned and within the realm of the agency's unique expertise.
Pluck v. BP Oil Pipeline Co.
An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.
