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Federal Power Act Appeals

Bracewell LLP

Third Circuit Provides Guidance on Reviewability of Constructive Approvals Resulting From FERC Deadlocks in PJM Focused-MOPR...

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On December 1, 2023, the U.S. Court of Appeals for the Third Circuit held that outcomes by operation of law caused by deadlocks among the members of the Federal Energy Regulatory Commission (FERC or Commission) are judicially...more

White & Case LLP

Summary of FERC Meeting Agenda for April 2023

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Below are summaries of the agenda items for the Federal Energy Regulatory Commission's open meeting to be held on April 20, 2023, pursuant to the sunshine notice released on April 13, 2023....more

Mitchell, Williams, Selig, Gates & Woodyard,...

Section 401/Clean Water Act: Federal Appellate Court Addresses Federal Energy Regulatory Commission Licensing Issue

The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) addressed in a December 20th Opinion an issue involving the Federal Energy Regulatory Commission (“FERC”) licensing process. See...more

Bracewell LLP

"A Clash of Two Congressionally Constructed Titans": Fifth Circuit Declares Bankruptcy Court Victorious Over FERC in In re Ultra...

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On March 14, 2022, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) revisited the issue of the rejection of filed-rate contracts in bankruptcy where such contracts are governed by the Federal...more

Morgan Lewis

DC Circuit Rejects FERC’s Use of Tolling Orders; FERC Issues Statement Asking Congress to Act

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A decision by the US Court of Appeals for the DC Circuit on June 30 rejected the near routine use by the Federal Energy Regulatory Commission of tolling orders to prevent rehearing requests from being denied by operation of...more

Dorsey & Whitney LLP

Eighth Circuit Upholds Minnesota Incumbent Utilities’ Right of First Refusal to Build and Own Transmission Facilities that Connect...

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On March 25, 2020, the United States Court of Appeals for the Eighth Circuit upheld a Minnesota statute granting incumbent electric transmission owners a right of first refusal (ROFR) to construct, own, and maintain electric...more

Kramer Levin Naftalis & Frankel LLP

Sixth Circuit Holds Bankruptcy Court Has Jurisdiction Over Rejection of Power Purchase Agreements

In FERC v. FirstEnergy Solutions Corp. (In re FirstEnergy Solutions Corp), Case No. 18-3787 (6th Cir. Dec. 12, 2019), the Sixth Circuit affirmed the bankruptcy court’s jurisdiction over the rejection of certain power purchase...more

Eversheds Sutherland (US) LLP

Sixth circuit weighs FERC authority over rejection of power contracts in bankruptcy

On December 12, 2019, the US Court of Appeals for the Sixth Circuit issued a highly anticipated ruling in the FirstEnergy Solutions Corp. bankruptcy case, regarding the efforts of FirstEnergy Solutions Corp. (FirstEnergy or...more

Dechert LLP

Jurisdiction Over Rejection of Power Purchase Agreements—Confusion Continues

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Periods of volatility in energy prices cause spikes in energy companies’ bankruptcies. These bankruptcies lead to debtors’ attempts to reject power purchase agreements (“PPAs”). These attempts ignite the unresolved legal...more

Wilson Sonsini Goodrich & Rosati

Sixth Circuit Affirms Bankruptcy Courts’ Jurisdiction over Rejection of Energy Contracts, Subject to Certain Constraints

On December 12, 2019, a divided panel of the U.S. Court of Appeals for the Sixth Circuit ruled that the bankruptcy court in the bankruptcy proceedings of FirstEnergy Solutions Corp. (FES) has jurisdiction to decide whether...more

Foley Hoag LLP - Environmental Law

Deadlines For Permit Issuance Are Double-Edged Swords

On January 25, 2019, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water...more

Akin Gump Strauss Hauer & Feld LLP

Second Circuit Joins Seventh Circuit in Upholding Constitutionality of ZECs, Ending the Current Preemption Fight Against Nuclear...

On September 27, 2018, the U.S. Court of Appeals for the Second Circuit (Second Circuit) affirmed a district court’s finding that New York’s Zero Emissions Credit (ZEC) program is not preempted by federal law. The Second...more

Bricker Graydon LLP

Second Circuit follows lead of Seventh: Nuke subsidies upheld

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On September 27, 2018, the Second Circuit Court of Appeals issued its decision in Coalition for Competitive Electricity v. Zibelman, 2nd Cir. No. 17-2654, 2018 U.S. App. LEXIS 27605 (Sep. 27, 2018). ...more

Akin Gump Strauss Hauer & Feld LLP

Seventh Circuit Rejects Federal Preemption and Dormant Commerce Clause Challenges to Illinois Nuclear ZEC Program

In a surprisingly terse opinion, the U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) recently affirmed a district court’s finding that Illinois’ Zero Emissions Credit (ZEC) program is not preempted by federal...more

Bricker Graydon LLP

7th Circuit Court of Appeals affirms Illinois subsidy for nuclear generation facilities

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On September 13, 2018, the Seventh Circuit Court of Appeals issued its long-awaited decision in the consolidated cases of Elec. Power Supply Assn. v. Anthony M. Star, 7th Cir. Nos. 17-2433, 17-2445, 2018 U.S. App. LEXIS 25980...more

Nossaman LLP

District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

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Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two...more

Pillsbury Winthrop Shaw Pittman LLP

Supreme Court’s Environmental and Administrative Law Decisions in 2015-2016 Term

This Advisory briefly reports on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law. ...more

Morgan Lewis

DC Circuit Ruling Threatens to Topple FERC Tax Allowance Policy

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Court rules that FERC policy permitting a tax allowance for pass-through entities may unjustifiably permit “double-recovery” of tax expense. On July 1, the US Court of Appeals for the District of Columbia Circuit issued...more

Moore & Van Allen PLLC

Supreme Court Questions FERC Authority to Regulate Electricity Market Demand Response to Bolster Grid Reliability

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Ensuring the reliability of the electric power grid in times of extreme weather and other times of peak usage is critical to avoid interruptions in power and black outs. Reflecting on the 2014 Polar Vortex, the paramount...more

Akin Gump Strauss Hauer & Feld LLP

BP Case May Again Test Limits of FERC’s “In Connection With” Enforcement Jurisdiction

A Federal Energy Regulatory Commission (FERC) Administrative Law Judge last week issued an Initial Decision finding that BP America (BP) and certain related BP entities violated FERC’s Anti-Manipulation Rule. Following a...more

Akin Gump Strauss Hauer & Feld LLP

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

McDermott Will & Emery

Divided Court of Appeals Panel Vacates FERC Order 745 on Compensation of Demand Response

McDermott Will & Emery on

FERC’s Order No. 745 requiring independent regional grid operators (RTOs and ISOs) in limited circumstances to compensate providers of state-authorized demand response services in the same amounts that they compensate...more

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