Energy & Utilities Civil Procedure

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Ohio Appeals Court Finds Leases To Be Valid

On September 26, 2014, the Ohio Court of Appeals for the Seventh District issued its opinion rejecting a trial court opinion in a statewide class action that had invalidated thousands of oil and gas leases based on a commonly...more

On to the Supreme Court? The D.C. Circuit Denies FERC’s Request for Rehearing En Banc of its Decision to Vacate FERC’s Demand...

On September 17, 2014, the United States Court of Appeals for the District of Columbia Circuit denied the Federal Energy Regulatory Commission’s request for rehearing en banc of the D.C. Circuit’s decision to vacate FERC’s...more

UPDATE: Punitive Damages for Jones Act Seamen are not “Pining for the Fjords, they’re Dead”!

On September 25, 2014, the en banc Fifth Circuit, in McBride v. Estis Well Serv., L.L.C., No. 12-30714 (5th Cir. Sept. 25, 2014), concluded in a brief opinion that the Supreme Court’s decision of Miles v. Apex Marine Corp.,...more

Insurance Recovery Law - September 2014

Pollution Exclusion Doesn’t Bar Coverage for Worker Exposed to Hazardous Chemicals That Were Not “Dispersed”: Why it matters - A federal district court in Texas strictly construed a pollution exclusion in...more

BP Found Grossly Negligent for Deepwater Horizon Spill: Ultimate Liability for Punitive Damages Still to Be Determined

In the post-trial Findings of Fact and Conclusions of Law issued on September 4, 2014, after Phase One of the BP oil spill trial, the United States District Court for the Eastern District of Louisiana found BP Exploration &...more

Real Estate and Land Use - Sep 2014

Evidence of Economic Infeasibility of CEQA Alternatives Explained (SPRAWLDEF v. San Francisco Bay Conservation and Development Commission) - Why it matters: In upholding the approval of a 260-acre expansion to the...more

New Jersey Appellate Court Limits Measure of Damages for Contaminated Properties

On August 27, 2014, the Superior Court of New Jersey ruled in favor of Puritan Oil against a New Jersey property owner, finding that where the oil company had already taken steps to remedy contamination it caused on...more

What Does “Sprawling Litigation” Look Like?

It looks like what you’d expect: a bunch of litigants spending lots of time at a courthouse in Goliad, Texas, with no end in sight. After much ”sprawl” in Harkins v. Northshore Energy it came down to the meaning of this...more

Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability

On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for...more

Texas Supreme Court Argument Preview (9/14)

On Wednesday, September 17, 2014, the Texas Supreme Court will hear argument in three cases. The arguments will begin at 9:00 am, and you can watch them live. You can also watch the recording later at the same link....more

EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions...more

North Dakota Good Faith Purchasers: At What Point is Notice Relevant?

The Question - In order to be a good faith purchaser, a party must not have actual or constructive notice of another’s rights. Northern Oil and Gas v. Creighton asked, When should the determination of whether a party...more

Third Circuit Affirms District Court Decision Invalidating New Jersey’s Long-Term Capacity Pilot Program

On September 11, 2014, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously affirmed an October 2013 decision of the U.S. District Court for the District of New Jersey that New Jersey’s Long-Term...more

Time for the Courts to go Green

The Supreme People’s Court has set up an environmental tribunal and clarified in its new Opinions which parties are able to pursue cases, the courts of first instance and the rules on litigation fees and funds. In...more

Some PURPA Qualifying Facilities are More Qualified Than Others

In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public...more

Fifth Circuit Allows Texas Commission to Limit PURPA Sales

On September 8, 2014, the U.S. Court of Appeals for the Fifth Circuit dealt a blow to Exelon Corp. (“Exelon”), rejecting challenges by various Exelon wind-generating entities to a Texas Public Utility Commission (PUCT)...more

Fifth Circuit Holds that Texas Public Utility Commission Can Limit Ability of Intermittent Wind Generators to Sell Their Power...

On September 8, 2014, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”), in a 2-1 decision, reversed an opinion by the United States District Court for the Western District of Texas (“District Court”)...more

Trial Judge Concludes The Deepwater Horizon Spill Caused By BP’s Gross Negligence And Willful Misconduct

On September 4, 2014 the federal district judge overseeing the multidistrict litigation resulting from the Deepwater Horizon oil spill issued long-awaited rulings as to liability. The court concluded that BP is subject to...more

Fourth Circuit Vacates Certification of Five Classes as "Manifestly Improper"

Plaintiffs, alleged owners of an interest in coalbed methane gas (“CBM”), brought five related putative class actions against defendants, CBM producers, for alleged failure to pay royalties and for a declaration that owners...more

Ruling on Discovery Disputes in “SolarCity” Cash Grant Litigation

On August 29, 2014, Judge Bruggink heard oral argument and ruled on plaintiffs’ motion to compel the production of documents and information requested from the Department of the Treasury (“Treasury”) regarding plaintiffs’...more

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean...more

How Low Will They Go? A Lower Ozone NAAQS Begins to Have An Air of Inevitability

On Friday, EPA released its “Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards.” EPA staff concluded: that it is appropriate in this review to consider a revised primary O3 standard level...more

Subcontractors Score a Victory in Federal Court

On August 27, in In re Heritage Consolidated, L.L.C., the Fifth Circuit Court of Appeals granted subcontractor’s lien rights to two oil and gas drilling contractors. The Court reversed a district court ruling which upheld a...more

District Court Dismisses $265 Billion OCSLA Suit Against BP

A U.S. District Court Judge in Houston dismissed a lawsuit by a former contractor on behalf of the United States against BP alleging claims under the False Claims Act that had been pending since 2009. In U.S. ex rel. Abbott...more

Federal Agencies Cannot Be Fined for Reliability Standard Violations

The D.C. Circuit concluded that sovereign immunity prevents FERC and NERC from imposing monetary penalties on federal agencies that violate Reliability Standards....more

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