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

This is a brief report on new environmental law decisions, regulations and legislation.

Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
About March 22, 2021, the Supreme Court rejected a request to review that an Presidential decision to invoke the Antiquities Act of 1906 to redefine as a monument”that an area of underwater land about the size of Connecticut” from the Atlantic Ocean. This action forbids all kinds of financial activity, which forced the filing of litigation in the First Circuit hard that this designation. Chief Justice Roberts affirmed the Court’s denial of certiorari, but remarked that a stronger legal case may persuade the Court to review such liberal uses of the Antiquities Act.

The U.S. Court of Appeals for the District of Columbia Circuit
Air Alliance Houston v. EPA
About March16, 2021, the court ruled that it could give a 90-day remain of litigation challenging EPA’s recent revisions to EPA’s Risk Management Rules pertaining to accidental chemical releases by stationary sources. (See the principles codified at 40 CFR Part 68.)
United States v. Shen Shi
About March 16, 2021, the court upheld a transaction secrets conviction. An important part of complex and exceptionally costly overseas deep well drilling operations are”drill riser buoyancy modules,” that are used to neutralize the riser’s burden and the crushing pressure of functioning in those prohibiting areas. The design of successful modules is accorded trade secret security, and also the theft of such trade secrets can be prosecuted under 18 USC Section 1832.
A severe drought in the area has been endangering a secure species of mussels, that an alteration in downstream water flows from the dam could alleviate. Before FERC might grant a permit variance, it had to ascertain whether doing so would be consistent with the Endangered Species Act. A comprehensive examination of the administrative record resulted in the court to largely conserve the variance given by the Commission and the biological opinions on the ESA dilemma. The issue has been remanded to FERC to examine its conclusion that the new dam processes do not violate a Fish and Wildlife regulation seeing supposedly”minor alterations “
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 should act on petition by a pipeline candidate using a FERC authority for a state water quality certification in one year of the state’s receipt of the application. In cases like this, determined on March 23, 2021, the NYDEC contested two orders of FERC that decided that the state waived its 401 certifying authority since it didn’t behave in a timely manner, asserting that arrangements between the state and the applicant set aside that statutory deadline. On the other hand, the court disagreed, and held that, under Section 401, this failure had the effect of approving the pipeline with no state’s water quality certification. As stated by the court”Section 401 has been meant to curb conduct by certifying countries that upsets the regulatory burden set by the Congress.”
The U.S. Court of Appeals for the Fifth Circuit — Texas Education Agency v. U.S. Department of Education
About March 23, 2021, the court invalidated a whistleblower punishment evaluated by the U.S. Department of Education from the Texas Education Agency. The Nation Defense Authorization Act of 2013 (NDAA) prohibits any recipient of federal dollars from retaliating against whistleblowers. Herea former employee of the Texas Education Agency declared that the TEA discharged her in retaliation for a whistleblowing complaint she awakens against TEA officials. The agency contested that this allegation, and asserted that the U.S. Department of Education’s action violated the Texas state agency’s sovereign immunity. The court explained that, generally speaking, countries are immune from national agency adjudication, and the TEA is a state agency that also appreciates this protection. There’s no evidence that Texas waived its sovereign immunity, and the NDAA didn’t unambiguously declare that Texas, by accepting federal education funds, waived its sovereign immunity. This judgment may have ramifications in other areas.
STATE COURTS
The Texas Supreme Court
Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure
About March 19, 2021, the courtroom, at a 5-to-4 judgment, held that it didn’t have jurisdiction, right now, to decide this situation. Panda Power sued ERCOT in court, alleging that ERCOT’s energy predictions made it to begin construction on new electricity production plants, but then a revised prediction forecasting a decrease in energy usage imperiled its investment. ERCOT’s important defense has been that it enjoys sovereign immunity from such lawsuits. By the time that the case has been argued and ready for decision, the Court noted that a number of decisions had to be made by the lower courts in this proceeding. This convinced that the majority in the court that it could not rule on those interlocutory rulings. This conclusion has been published within days of the recent adverse weather in Texas, in which ERCOT’s sovereign immunity defense has been 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 by the Public Utility Commission (PUC) the SWEPCO, an electric power utility, might include the construction of a new coal-fired power plant in its own usefulness prices, was fair and in accord with regulations. The plant has been constructed in 2012, but a board of PUC administrative law judges decided in 2010 that the costs of construction were so high that SWEPCO must have stopped the plant’s structure in 2010. The PUC disagreed on this panel and allowed SWEPCO to add the majority of the construction costs in its rate base because that internal decision was fair under the circumstances. The Texas Supreme Court agreed that SWEPCO had a heavy burden to prove that it acted reasonably, which it fulfilled. (The court usually grants considerable deference to such rulings by the Commission.)
FEDERAL AGENCIES
EPA
About March 17, 2021, EPA published an Advance Notice of Proposed Rulemaking, encouraging comments on its proposal to develop effluent guidelines under the Clean Water Act to control the release of PFAS compounds. Comments are due on May 17, 2021. (See 86 FR 14625.)
Department of the Interior (DOI)
About March 19, 2021, the Principal Deputy Assistant Secretary for Land and Mineral Management spread a memo to all of Bureau managers stating that departmental inspection of numerous DOI leasing activities, including NEPA analysis, drilling permits, wildlife mitigation corridors, etc., are subject to headquarters inspection.
CONGRESS
The Environmental Justice for All Act
HR 5986 has been introduced in Congress. It’s entitled the This is a intricate bill, which demands careful analysis. The Findings provide that”communities of color, tribal and indigenous lands and fossil fuels fuel-dependent communities” are disproportionately burdened by environmental hazards.
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