Court Rulings

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On Monday, February 24, 2014, the Supreme Court of the United States (“Supreme Court”) denied a petition for certiorari challenging a United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) decision that upheld a FERC order approving the Midcontinent Independent System Operator, Inc.’s (“MISO”) cost allocation methodology for multi-value projects (“MVPs”). 

On February 21, 2014, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded a FERC gas storage order for failure to offer a reasoned basis for its decision.  The D.C. Circuit held that FERC acted arbitrarily and capriciously when it ordered that new natural gas storage customers pay for replenishing base gas via incremental rates, rather than spreading the costs amongst all customers through rolled-in rates.

On January 24, 2014, the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) published an opinion upholding FERC’s decision to grant incentive-based rate treatment to Virginia Electric Power Company (“VEPCO”) to spur investment in transmission infrastructure.  The North Carolina Utilities Commission (“NCUC”) argued that FERC violated section 219 of the Federal Power Act (“FPA”) and abused its discretion by granting incentives to five of VEPCO’s facilities and by denying NCUC’s petition for rehearing.

On January 3, 2014, the U.S. Department of Energy (“DOE”) filed a petition for rehearing with the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) requesting the court reconsider a November 19, 2013 ruling that ordered DOE to stop collecting nuclear waste disposal fees.  DOE requested the D.C. Circuit rehear the case en banc – where all members of the court participate.

On December 3, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded FERC’s 2011 order regarding certain aspects of the Joint Operating Agreement (“JOA”) between the Midcontinent Independent System Operator, Inc. (“MISO”) and the Southwest Power Pool (“SPP”).  The case involves the impact on SPP of integrating Entergy Arkansas into MISO.

On October 28, 2013, the U.S. District Court for the District of Columbia (“Court”) issued its Memorandum Opinion in the Environmental Protection Agency (“EPA”) Coal Combustion Residue (“CCR”) litigation.  Under the Memorandum Opinion, the Court is directing EPA to provide a proposed schedule near the end of December for completing its CCR rulemaking.

On Monday, October 7, 2013, the Supreme Court of the United States (“Supreme Court”) denied a petition for certiorari challenging a U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) decision that upheld an April 2011 Federal Communications Commission (“FCC”) order revising the FCC’s previous interpretation of Section 224 of the Communications Act of 1934, which regulates pole attachment rates.  The FCC’s new interpretation limits the price that electric utility companies can charge telecommunications companies to hang wires and other equipment from utility poles.  The Supreme Court did not state its reasons for denying the petition.

On September 13, 2013, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) held that the Department of Interior (“Interior”) breached its 2006 precedent agreement (“Precedent Agreement”) with Rockies Express Pipeline LLC (“Rockies Express”) after the Interior refused to sign a related transportation agreement with Rockies Express.  The case involved a series of contracts between Rockies Express and a unit of the Interior – Minerals Management Service – that included Royalty-in-Kind (“RIK”) provisions, all of which allowed the Interior to ship natural gas that Rockies Express extracted from nearby federal land.