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The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity

Here is a concise report on new environmental law decisions, regulations and laws.
THE U.S. SUPREME COURT
Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
On March 22, 2021, the Supreme Court rejected a petition to review a Presidential decision to invoke the Antiquities Act of 1906 to stipulate as a monument”an area of underwater land about the size of Connecticut” in the Atlantic Ocean. This activity forbids all kinds of economic activity, which forced the filing of lawsuit in the First Circuit challenging this designation. Chief Justice Roberts supported the Court’s denial of certiorari, but commented that a stronger legal case could persuade the Court to review such liberal uses of the Antiquities Act.
THE FEDERAL APPELLATE COURTS

Air Alliance Houston v. EPA
On March16, 2021, the court ruled that it could provide a 90-day stay of lawsuit challenging EPA’s recent revisions to EPA’s Risk Management Rules pertaining to accidental chemical releases from static sources. (See the principles codified at 40 CFR Part 68.)
United States v. Shen Shi
On March 16, 2021, the court declared a transaction keys certainty. An important component of complex and exceptionally expensive offshore deep well drilling operations are”drill riser buoyancy modules,” which are used to neutralize the riser’s burden and the crushing stress of working in these prohibiting areas. The plan of successful modules is accorded trade secret protection, and the theft of such trade secrets may be prosecuted under 18 USC Section 1832.
A severe drought in the region was endangering a secure species of mussels, which a change in downstream water leaks from the dam may alleviate. Before FERC would grant a license variance, it needed to determine whether this would be consistent with the Endangered Species Act. A comprehensive examination of the administrative record resulted in the court to largely conserve the variance granted by the Commission along with also the biological opinions on the ESA issue. The matter was remanded to FERC to review its conclusion that the new dam processes do not violate a Fish and Wildlife regulation regarding purportedly”minor changes.”
The U.S. Court of Appeals for the Second Circuit — New York Department of Environmental Conservation v. Federal Energy Regulatory Commission
Under Section 401 of the Clean Water Act, states must act on petition by a pipeline applicant with a FERC permission for a state water quality certification in one year of their state’s receipt of this program. In this case, determined on March 23, 2021, the NYDEC challenged two orders of FERC that decided that the state waived its 401 certifying authority since it did not act in a timely fashion, arguing that agreements between the country and the offender set aside that statute. However, the court disagreed, and held that, under Section 401, this collapse had the impact of approving the pipeline without the state’s water quality certificate. According to the court:”Section 401 was meant to curb behavior by certifying states that disrupts the regulatory burden determined by the Congress.”
The U.S. Court of Appeals for the Fifth Circuit — Texas Education Agency v. U.S. Department of Education
On March 23, 2021, the court invalidated a whistleblower penalty assessed by the U.S. Department of Education against the Texas Education Agency. Here, a former employee of the Texas Education Agency alleged that the TEA discharged her in retaliation for a whistleblowing complaint she lodged against TEA officers. The agency challenged this allegation, and asserted that the U.S. Department of Education’s action violated the Texas state agency’s sovereign immunity. The court held that, in general, states are immune from national agency adjudication, and the TEA is a state agency which also appreciates this coverage. There is not any evidence that Texas waived its sovereign immunity, and the NDAA did not unambiguously declare that Texas, by accepting federal education funds, waived its sovereign immunity. This ruling could have ramifications in other places.
STATE COURTS

Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure
On March 19, 2021, the court, in a 5-to-4 ruling, held that it did not have jurisdiction, currently, to determine this situation. Panda Power sued ERCOT in state court, alleging that ERCOT’s energy forecasts caused it to start construction on new power production plants, but a revised forecast predicting a decline in energy utilization imperiled its investment. Panda Power alleged fraud and fiduciary breach. ERCOT’s important defense has been that it enjoys sovereign immunity from such lawsuits. From the time that the case was argued and prepared for decision, the Court noted that a number of decisions had yet to be made by the lower courts in this proceeding. This convinced that the majority in the court that it couldn’t rule on these interlocutory rulings. This conclusion was published within days of their current negative weather in Texas, where ERCOT’s sovereign immunity defense was widely discussed and debated.

On March 26, 2021, the Texas Supreme Court decided another energy power instance, reversing the Texas court of appeals in Austin, and maintained that the determination from the Public Utility Commission (PUC) who SWEPCO, an electrical power utility, would include the construction of a brand new solar-powered energy plant in its utility rates, was reasonable and in accord with the law. The new plant was built in 2012, but a panel of PUC administrative law judges decided in 2010 that the expenses of construction were so large that SWEPCO should have ceased the plant’s construction in 2010. The PUC disagreed with this panel and enabled SWEPCO to include most of the construction costs in its rate base because that internal decision was reasonable under the circumstances. The Texas Supreme Court agreed that SWEPCO needed a heavy burden to prove that it acted fairly, which it satisfied. (The court usually grants considerable deference to such rulings from the Commission.)
FEDERAL AGENCIES
EPA
On March 17, 2021, EPA published an Advance Notice of Proposed Rulemaking, inviting comments on its proposal to develop effluent guidelines under the Clean Water Act to control the discharge of PFAS chemicals. Comments are due on May 17, 2021. (See 86 FR 14625.)
Department of the Interior (DOI)
On March 19, 2021, the Principal Deputy Assistant Secretary for Land and Mineral Management spread a memo to all Bureau directors saying that qualitative inspection of many DOI leasing tasks, including NEPA analysis, drilling licenses, wildlife mitigation corridors, etc., are all subject to headquarters review.
CONGRESS
The Environmental Justice for All Act
HR 5986 has been introduced in Congress. It’s entitled this is a complex bill, which necessitates careful analysis. The Findings supply that”communities of colour, tribal and native communities and fossil fuel-dependent communities” are bombarded by environmental dangers.
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