Court Rulings

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On June 9, 2009, the United States Court of Appeals for the Ninth Circuit issued a decision that upheld orders from the Federal Energy Regulatory Commission (“FERC” or the “Commission”) granting PPL Montana, LLC, PPL Colstrip LLC, and PPL Colstrip II LLC (collectively, “PPL”) market-based rate authority despite challenges by petitioners Montana Consumer Council and REC Silicon (collectively, “Montana Consumer Council” or “Petitioners”). 

On July 20, 2009, a split panel from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) voted 2-1 to uphold the Commission’s decision to deny two environmental groups’ untimely attempt to intervene in proceedings to amend the flow requirements at Pyramid Dam in Los Angeles County. The Ninth Circuit concluded that the Commission reasonably determined that California Trout and Friends of the River (collectively, the “petitioners”) lacked good cause in their untimely attempt to intervene.

Longleaf Energy Associates v. Friends of the Chattahoochee, the Georgia case that last year became the first legal authority in the nation for imposing carbon dioxide (CO2) limits on power plants, was overruled on Tuesday. The Georgia Court of Appeals reversed the Fulton County Superior Court decision that vacated Longleaf’s permit for a new coal-fired power plant in south Georgia. The Court of Appeals decision represents a significant victory for industry on a number of important points of law.

On Wednesday, the Supreme Court of the United States, in a 6-3 decision, reversed the United States Court of Appeals for the Second Circuit (“Court of Appeals”) and upheld the EPA rule that it could consider costs and benefits for existing cooling water intake structures. The EPA estimates that the Supreme Court’s ruling affects over 500 facilities that account for over half of the United States’ electricity production.

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit reversed EPA’s 2006 revision to the National Ambient Air Quality Standard (“NAAQS”) for fine particulate matter on the ground that the standard may not be sufficiently stringent. Commonly referred to as PM-2.5 (particulate matter that is less than or equal to 2.5 microns in diameter), PM-2.5 results from the emission of nitrogen oxides and sulfur dioxide, which are chemically transformed in the atmosphere into microscopic nitrate and sulfate particles.

On Wednesday, the United States Court of Appeals for the Fourth Circuit (“Court of Appeals”) reversed a Federal Energy Regulatory Commission (“FERC” or “Commission”) ruling interpreting its authority to approve certain interstate electric transmission projects that had been previously denied by state commissions.

On Wednesday, the U.S. District Court for the Western District of North Carolina held that SO2 and NOx emissions from four of TVA’s coal-fired power plants constitute a public nuisance. Specifically, the court agreed with the claims made by the State of North Carolina that the pollution from TVA’s Bull Run, Kingston, John Sevier, and Widows Creek facilities “clouds its scenic vistas, poisons its wildlife, and sickens its people.”