Court Rulings

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On November 5, 2010, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued its remand opinion in Maine Public Utilities Commission v. FERC.  The D.C. Circuit remanded the case back to the Federal Energy Regulatory Commission (“FERC” or the “Commission”) for further consideration of the Commission’s position that, while auction rates may not be contract rates, the Mobile-Sierra doctrine nevertheless applies.

In a July 23, 2010 opinion, the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) denied several appeals regarding the Calfornia Independent System Operator Corporation’s (“CA ISO”) Market Redesign and Technology Upgrade (“MRTU”) initiative, in which the CA ISO overhauled its tariff, markets and the technology it employs to administer those markets. 

On May 4, 2010, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) vacated and remanded a decision by the Federal Energy Regulatory Commission (“FERC” or the “Commission”) requiring the California Independent System Operator (“CAISO”) to alter its open access transmission tariff to comply with FERC’s station-power netting requirements. 

On March 5, 2010, the U.S. Circuit Court of Appeals for the Second Circuit denied rehearing en banc of its decision in Connecticut v. American Electric Power to allow nuisance claims against emitters of greenhouse gases (GHG).  The 2nd Circuit’s decision comes approximately one week after the 5th Circuit announced it will reconsider its October ruling, Comer v. Murphy Oil, which had also allowed individuals to sue large emitters of GHG for damage caused by climate change. A third tort case based on GHG emissions, Native Village of Kivalina v. Exxon Mobil Corp., is still pending in the Ninth Circuit.  A more complete discussion of these cases may be found here. 

On March 9, 2010, the Supreme Court of Wyoming ruled that Basin Electric Power Cooperative can continue with construction of its new Dry Fork Station coal-fired power plant near Gillette, Wyoming.  Finding that the state did not have to require best available technologies for controlling carbon dioxide emissions, the court rejected a challenge to the state-issued air permit brought by Earthjustice on behalf of the Powder River Basin Resource Council and the Sierra Club.

On January 29, 2010, the United States Court of Appeals for the DC Circuit (“DC Circuit”) denied a petition by state utility regulators in New England to challenge a Federal Energy Regulatory Commission (“FERC” or the “Commission”) decision that applied a higher return on equity (“ROE”) rate for ISO New England, Inc. (“ISO-NE”) as an incentive to complete transmission projects more quickly. 

On January 22, 2010, the United States Court of Appeals for the D.C. Circuit (“DC Circuit”) remanded back to the Federal Energy Regulatory Commission (“FERC” or the “Commission”)  its final rule that adopted changes to the interstate natural gas pipeline reporting rules and financial reforms asserting that FERC failed to adequately respond to a dissenting commissioner in its order.

On January 18, 2010, the Supreme Court of the United States (“Supreme Court”) denied a request for certiorari by Edison Electric Institute (“EEI”) of a United States Court of Appeals for the Fourth Circuit (“Court of Appeals”) decision which limited the backstop authority of FERC to instances where a state commission withheld approval of certain interstate electric transmission projects for more than 1 year after the filing of an application for a permit (see the February 20, 2009 edition of the WER).