On June 9, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) dismissed challenges to the Environmental Protection Agency’s (“EPA”) proposed rule reducing carbon dioxide emission limits from existing power plants (“Proposed GHG Rule”).  In doing so, the D.C. Circuit held that it did not have the authority to review the Proposed GHG Rule because it was still being drafted and, therefore, no final agency action subject to judicial review existed.
Continue Reading D.C. Circuit Rejects Challenges to EPA’s Proposed Greenhouse Gas Rule

On June 2, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied nineteen consolidated petitions for review of the Environmental Protection Agency’s (“EPA”) compliance determinations with EPA’s 2008 ground-level ozone standards, known as the National Ambient Air Quality Standards (“NAAQS”).  By denying review, the D.C. Circuit affirmed EPA’s authority to make such compliance determinations under the Clean Air Act, and upheld EPA’s interpretation of the Clean Air Act and EPA’s corresponding obligations as applied to the NAAQS.
Continue Reading D.C. Circuit Denies Review of EPA’s Designations of Ozone Attainment Rule

On May 15, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition for review of FERC’s order determining that the La Grange Hydroelectric Project (“Project”) fell within the mandatory licensing provisions of the Federal Power Act (“FPA”).  In doing so, the D.C. Circuit rejected arguments made by the owners of the Project – the Turlock Irrigation District and the Modesto Irrigation District (collectively, the “Districts”) – that FERC’s decision was arbitrary and capricious for asserting jurisdiction over a historical hydro facility that owners contend does not qualify for FPA’s mandatory licensing triggers.
Continue Reading D.C. Circuit Upholds FERC Jurisdiction over California Hydro Facility

On May 20, 2015, the U.S. District Court of the Eastern District of California (“District Court”) upheld FERC’s decision that it had jurisdiction over Barclays Bank PLC and four traders (collectively, “Barclays”) for allegedly manipulating electricity markets in the West.  In doing so, the District Court held that FERC maintained jurisdiction, and not the Commodity and Futures Trading Commission (“CFTC”).  The District Court also ruled that FERC’s jurisdiction under Federal Power Act (“FPA”) sections 201 and 222 – FERC’s authority to regulate transmission and sale of wholesale electric energy in interstate commerce and FERC’s anti-manipulation rule, respectively – was appropriate.
Continue Reading California District Court Affirms FERC’s Jurisdiction in Barclays Civil Penalty Case

On April 29, 2015, the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) held that FERC failed to comply with the court’s remand order in a 2004 case involving the California Energy Crisis—California ex rel. Lockyer v. FERC (“Lockyer”)—by improperly structuring its administrative fact-finding proceeding to focus solely on the accumulation by wholesale power sellers of excessive market share, and not including an analysis of possible deficiencies in transaction reporting by those sellers.  The court remanded the case back to FERC for further proceedings.
Continue Reading Ninth Circuit Finds Scope of FERC’s California Energy Crisis Remand Proceedings Too Narrow, Remands for Further Proceedings

On May 1, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held that the Environmental Protection Agency (“EPA”) acted arbitrarily and capriciously when it modified its National Emissions Standards and New Source Performance Standards (“NSPS”) to allow backup generators to operate without emission controls for up to 100 hours per year in emergency demand-response programs.  As a result of the ruling, the D.C. Circuit reversed the 100-hour exemption and remanded the rules back to EPA for further action.
Continue Reading D.C. Circuit Reverses and Remands Portions of EPA Backup Generator Rules

On April 24, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied Petitioners’ (Citizens of the town of Myersville) review challenging FERC’s orders approving Dominion Transmission, Inc.’s (“Dominion”) “Allegheny Storage Project,” and specifically FERC’s approval of the construction of a new natural gas compressor station in Myersville, Maryland (the “Myersville Compressor”).   In denying the petition, the D.C. Circuit concluded that each of the Petitioners’ challenges lacked merit.
Continue Reading D.C. Circuit Upholds FERC Approval of Gas Compressor Station for Allegheny Storage Project

On April 22, 2015, the United States Court of Appeals for the Second Circuit (the “Second Circuit”) upheld the Commission’s approval of NERC’s Bulk Electric System (“BES”) definition—a regulatory mechanism that plays a key role in determining which facilities are subject to NERC mandatory Reliability Standards.
Continue Reading Second Circuit Upholds FERC’s Approval of NERC’s BES Definition

On April 2, 2015, the United States Court of Appeals for the Second Circuit (“Second Circuit”) upheld the Commission’s approval of a new capacity zone and demand curve for the New York Independent System Operator, Inc. (“NYISO”).  Previously, on June 4, 2014, the Second Circuit denied an emergency motion requesting a stay of the implementation of the new zone (see June 9, 2014 edition of the WER).
Continue Reading Second Circuit Upholds FERC’s NYISO Capacity Zone Order

On March 9, 2015, the United States Supreme Court (the “Court”) issued its ruling in Nikols v. Mortgage Bankers Association, holding that federal agencies do not need to issue notice-and-comment procedures when amending or repealing an “interpretive” rule.  The impact of this ruling means that federal agencies, including FERC, may modify or repeal their interpretative orders and policy statements without providing notice or a public comment period.
Continue Reading U.S. Supreme Court: Notice-and-Comment Procedures Not Needed when Federal Agencies Modify Interpretive Rules