Administrative Agency Energy & Utilities Civil Procedure

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Kansas Thumbed Its Nose at EPA’s SIP Requirements — How’d That Work Out?

The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule. The Court found that EPA was not arbitrary or...more

Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP

Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley.  While the trade press has been focusing on the...more

Texas Supreme Court: Companies Shielded from Defamation Claims for Statements in Internal Investigation Reports

Last week, the Texas Supreme Court joined the majority of jurisdictions in holding that a company enjoys an absolute privilege when providing the Department of Justice (DOJ) with an internal investigation report containing...more

MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, the Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order...more

California Water Law Update

To address the worsening drought, on April 1, 2015, Governor Brown issued Executive Order B-29-15 (“Executive Order”), mandating a 25% reduction in potable urban water consumption. In response, the State Water Resources...more

Slow and Steady Wins the Race? Another Chapter in Ontario’s Ostrander Point Wind Farm Challenge

In an important development in the ongoing saga of judicial challenges to wind farm developments in the province, the Ontario Court of Appeal (“ONCA”) has restored the finding of the Environmental Review Tribunal (“ERT”) that...more

D.C. Circuit Vacates 100-Hour Exemption for Emergency Generators

On May 1, 2015, the D.C. Circuit in Delaware v. EPA vacated a portion of EPA’s National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) for Reciprocating Internal...more

EPA Is Not an Expert in Determining Electric System Reliability

The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response. It’s an important decision that could have lessons...more

Supreme Court Finds No Pre-emption in Natural Gas Act Case

The U.S. Supreme Court recently held in ONEOK Inc. v. Learjet, Inc., that the Natural Gas Act (NGA) does not pre-empt state-law antitrust suits over manipulation of natural gas indices. The court’s decision has important...more

ONEOK, Inc. v. Learjet, Inc.: The Supreme Court Holds that Natural Gas Jurisdictional Sellers are Subject to State Antitrust...

On April 21, 2015, the Supreme Court issued its much-anticipated decision in ONEOK Inc. v. Learjet, Inc. addressing the extent to which the Natural Gas Act (“NGA”) preempts state antitrust claims brought against...more

MassDEP Provided Substantial Discretion to Interpret Legislative Mandate in Global Warming Solutions Act

Just how much discretion will the courts give to the MassDEP to interpret legislative intent when it implements legislative directives such as a requirement to develop rules under the Global Warming Solutions Act? The...more

Virginia Supreme Court Opinions Affecting Local Government Law – April 16, 2015

The Virginia Supreme Court issued opinions this morning during its April term. This term resulted in several opinions affecting Virginia local government law. Opinions addressed evidence in a condemnation case, interpreted...more

Landowners, Developers Win Big In Wetlands Case

Building on a 2012 U.S. Supreme Court decision, the Eighth Circuit ruled on April 10th that Clean Water Act jurisdictional determinations made by the U.S. Army Corps of Engineers can be challenged in a “pre-enforcement”...more

When Uncertainty Surrounds California Solar Project, Court Defers to Agency Not Tortoise

Project opponents have been invoking the Endangered Species Act (ESA) with increasing regularity in an attempt to block the construction of large-scale renewable energy projects. ...more

Court of Appeal Upholds Regional Water Quality Control Board's TMDL Based on Pollutants in Lake Bed Sediment

On March 30, 2015, the California Court of Appeal for the Second Appellate District upheld a novel, sediment-based total maximum daily load (TMDL) set by the Regional Water Quality Control Board (Regional Board) for McGrath...more

Alberta Judgment a Strong Reminder to Exercise Caution When Claiming Litigation Privilege Protection

The Alberta Court of Queen’s Bench recently released its decision in TransAlta Corporation v. Market Surveillance Administrator (TransAlta v. MSA), ordering TransAlta Corporation (TransAlta) to produce hundreds of documents...more

D.C. District Court Denies Utility’s Intervention Because of Timing

On March 17, 2015, the D.C. District Court denied the Public Service Company of New Hampshire’s (PSNH’s) motion to intervene in a Sierra Club-initiated proceeding urging the U.S. EPA to object to a Title V permit for one of...more

Supreme Court’s Perez Decision Shines the Light on Federal Agencies’ Authority to Use “Interpretations” (Often called Shadow...

Over the last three decades, federal agencies have increasingly used “interpretations” to “explain” what a formal regulation means, rather than to go through the more expensive, complicated and slow process of changing the...more

Amicalola EMC Prevails in Dispute over Chattahoochee Technical College

After a decision in favor of Amicalola EMC under the large-load (900kW) exception of the Georgia Territorial Act, Georgia Power Company has agreed to relinquish the disputed building to Amicalola EMC to serve. ...more

Source Aggregation: Recent Court Decision Addresses Whether Certain Facilities are "Adjacent"

On February 23, 2015, the U.S. District Court for the Middle District of Pennsylvania issued a decision finding eight compressor stations to be "separate sources" under the Clean Air Act and State of Pennsylvania regulations....more

No Exception for Energy Management Patent—CBM Review Instituted - Opower Inc. v. Cleantech Business Solutions

In its decision to institute a covered business method (CBM) patent review of an energy management patent, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB or Board) agreed with the petitioner...more

PUC Steps In To Protect Supplier From Defending Phantom Allegations and Complaints Outside Its Jurisdiction

Granting a Motion for Summary Judgment and dismissing Complaints filed against a competitive electric generation supplier (EGS), Blue Pilot Energy (Blue Pilot), the Pennsylvania Public Utility Commission (PUC) issued an...more

Texas Supreme Court Relaxes Its Grip on the Discovery Rule

The Texas Supreme Court – that elephants’ graveyard of claims and causes of action – has sided with a lessor-plaintiff who relied on the discovery rule to defeat a limitations defense. For the many with low expectations when...more

FERC Issues Order to Show Cause to Maxim Power

On February 2, 2015, FERC issued an Order to Show Cause and Notice of Proposed Penalty to Maxim Power Corporation and its named subsidiaries (“Maxim”), jointly and severally, as well as executive, Kyle Mitton (the “Order”)....more

Illinois Supreme Court Affirms Revenue Decoupling for Natural Gas Rates

In the closing days of its January term, the Illinois Supreme Court unanimously affirmed the Appellate Court’s decision in People ex rel. Madigan v. Illinois Commerce Commission, approving the use of the so-called...more

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