[USA] Lawfirm files lawsuit alleging HECO powerlines started Hawaii wildfires

On August 14, 2023, Singleton Schreiber, a fire litigation firm, filed a lawsuit on behalf of an individual against Hawaiian Electric Industries (HECO), Hawai’i Electric Light Company, and Maui Electric Company, alleging that the utilities’ powerlines started wildfires in Maui, Hawaii.[1] The wildfires broke out in Lahaina in West Maui on August 8, 2023; as of August 17, at least 110 people have passed away due to the fires. Over 2,200 structures have been damaged or destroyed. The Maui Emergency Management Agency estimates rebuilding will cost $5.52 billion.

The lawsuit alleges multiple instances of negligence, trespass, and nuisance as contributing factors to the fires. According to the lawsuit, the utilities were warned of the threat of wildfires as early as August 6 but either left their powerlines energized or, after deenergizing them, re-energized them too soon. The complaint points to several factors contributing to the utilities’ “poorly made decisions,” including failure to maintain proper tension on power lines and failure to implement proper vegetation management.

[1] https://singletonschreiber.com/first-individual-maui-wildfire-lawsuit-against-utilities-filed-by-singleton-schreiber/

[USA] Federal appeals court strikes down FERC approval of SEEM market

On July 14, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Federal Energy Regulatory Commission (FERC) had unlawfully approved the Southeast Energy Exchange Market (SEEM)[1].[2] SEEM is a proposed trading platform for utilities in the Southeast covering 12 states that allows utilities in the region to make automated bilateral trades every 15 minutes using available transmission capacity. The trades are enabled by non-firm energy exchange transmission service (NFEETS).

In a split decision, the court ruled that FERC’s November 2021 decision approving SEEM’s transmission rules went against its open access requirements in Order 888, which aim to ensure transmission owners offer non-discriminatory access to their networks. The appeals court said that FERC failed to explain why the market should be allowed to exclude participants outside the region. The court remanded FERC’s 2021 decision approving the SEEM market. The court also directed FERC to revisit its decision approving SEEM and told the commission to consider an earlier appeal from clean energy companies and environmental groups that it had previously dismissed as untimely.

[1] SEEM members include Associated Electric Cooperative, Dalton Utilities, Dominion Energy South Carolina, Duke Energy Carolinas, Duke Energy Florida, Duke Energy Progress, Georgia System Operations Corporation, Georgia Transmission Corporation, JEA, LG&E and KU Energy, MEAG Power, N.C. Municipal Power Agency No. 1, NCEMC, Oglethorpe Power Corp., PowerSouth, Santee Cooper, Seminole Electric Corporation, Southern Company, Tampa Electric Company and TVA.

[2] https://www.cadc.uscourts.gov/internet/opinions.nsf/0D7A85E32E0291DF852589EC0050747A/$file/22-1018-2007875.pdf

[USA] Environmental groups sue for oil and gas leasing phaseout on federal lands

On April 25, 2023, environmental groups[1] sued the U.S. Department of the Interior for failure to respond to a January 2022 rulemaking petition to phase out oil and gas development on federal lands[2]. More than 360 groups signed the initial petition, which asked the Biden administration to enact a policy framework to phase out nearly all oil and gas development on federal lands by 2035.[3] According to the press release announcing the lawsuit, research published since this petition shows that developed countries must end oil and gas extraction by 2031 to avoid the negative effects of warming 1.5 degrees Celsius, the target the United Nations has set to prevent some of the worst potential climate impacts. In the two years since coming to office, the Biden administration has approved 6,430 permits for oil and gas drilling on public lands, outpacing the Trump administration.

Under the Administrative Procedure Act, federal agencies are required to initiate rulemaking or provide a substantive response to rulemaking petitions within a reasonable timeframe. The lawsuit alleges that the Biden administration’s failure to respond to the petition is an unreasonable delay, citing the urgency of the climate crisis.

[1] Center for Biological Diversity, Wildearth Guardians, and Friends of the Earth

[2] https://biologicaldiversity.org/w/news/press-releases/lawsuit-targets-us-delay-on-petition-to-phase-out-public-lands-oil-drilling-2023-04-25/

[3] https://biologicaldiversity.org/programs/public_lands/energy/dirty_energy_development/pdfs/Petition-to-Phase-Down-Fossil-Fuel-Production-on-Public-Lands-and-Water-19-Jan-2022.pdf

[USA] Environmental groups file lawsuit against Biden administration over Willow project in Alaska

On March 14, 2023, Trustees for Alaska filed a lawsuit against the Biden administration’s approval of ConocoPhillips’ Willow project in Alaska.[1] The $8 billion project, approved on March 13, opens three new drilling areas in Alaska’s North Slope and is expected to produce about 600 million barrels of oil over the next 30 years. The lawsuit, filed on behalf of a coalition of environmental and Indigenous groups, requested that the U.S. District Court for the District of Alaska reverse the administration’s approval because the federal government had not considered the project’s climate risks and harm to wildlife. The lawsuit claims that the Bureau of Land Management's (BLM) approval of the Willow project did not take the required "hard look" under the National Environmental Policy Act. They also claimed that BLM violated provisions of the Naval Petroleum Reserves Production Act, the Alaska National Interest Lands Conservation Act, procedural law, and other federal statutes. It also alleges that the Biden administration’s environmental review did not address all concerns raised by Judge Sharon Gleason when she blocked the project in 2021.

A similar lawsuit was filed by Earthjustice and the Natural Resources Defense Council on March 14, 2023, claiming that National Oceanic and Atmospheric Administration (NOAA) Fisheries had failed to consider the impact of greenhouse gas emissions on two different species of seal.[2]

[1] https://trustees.org/wp-content/uploads/2023/03/2023-03-Groups-take-Biden-administration-to-court-over-illegal-approval-of-massive-ConocoPhillips-Willow-proposal.pdf

[2] https://earthjustice.org/press/2023/conservation-groups-sue-to-stop-the-willow-oil-project-in-alaskas-western-arctic

[USA] Maine Supreme Court rules in favor of Avangrid’s transmission project

In a unanimous decision, the Maine Supreme Court ruled on August 30, 2022, that the November 2021 Maine referendum blocking the New England Clean Energy Connect (NECEC) is likely unconstitutional.[1] The NECEC is a $1 billion, 145-mile electric transmission line project that will carry Canadian hydropower through Maine to Massachusetts. Project developer Central Maine Power Co. (CMP), a subsidiary of Avangrid, had to stop construction of the transmission line project after 59% of Maine voters approved a referendum blocking the project in November 2021. The law bans major transmission lines from the area where the project would be built and requires two-thirds legislative approval for projects on state land retroactive to 2014.

In its decision in NECEC Transmission LLC, et al., v. Bureau of Parks and Lands, et al., the court said the ballot violated the developers’ constitutional rights by retroactively imposing new requirements on a permit previously issued by the Maine Public Utilities Commission. If Avangrid can show that it engaged in substantial construction on NECEC before voters approved the ballot, it can move ahead with the project. The Maine Supreme Court remanded the case back to a lower court to decide whether Avangrid meets the conditions for having the right to build the project.

[1] https://law.justia.com/cases/maine/supreme-court/2022/2022-me-48.html

[USA] Federal judge blocks largest-ever U.S. offshore oil lease

On January 27, 2022, Judge Rudolph Contreras for the U.S. District Court for the District of Columbia blocked the Bureau of Ocean Management’s (BOEM) approval for Lease 257 in the Gulf of Mexico.[1] The lease sale was held in November 2021 and included 80.8 million acres on the outer continental shelf. It was the largest offshore lease sale in U.S. history. Initially, the Biden administration blocked the lease sale, which was approved under the Trump administration, as part of the president’s executive order pausing new oil and gas leasing on public lands and federal waters. However, in June 2021, the U.S. District Court for the Western District of Louisiana found that the Biden administration’s pause violated requirements under the Outer Continental Shelf Lands Act (OCSLA) to offer areas up for oil and gas development. BOEM then proceeded with the lease sale in the Gulf of Mexico.

In August 2021, Earthjustice filed a lawsuit on behalf of Healthy Gulf, Center for Biological Diversity, Sierra Club, and Friends of the Earth to prevent BOEM from authorizing development on the leases sold in 2021. The conservation groups claimed that the 2017 environmental analysis that the Biden administration used to hold the lease sale was faulty. They claim that BOEM failed to look at new information about the emissions impact of leasing when it reissued its record of decision for Lease 257. They also argued that leasing has negative impacts on threatened marine life. The judge ruled in the conservation groups’ favor, stating that BOEM’s failure to calculate potential emissions from foreign oil consumption had violated the National Environmental Policy Act.

[1] https://int.nyt.com/data/documenttools/78-memorandum-opinion-1-27/b0903c94e57b0cb5/full.pdf

[USA] Federal judge halts construction on Dixie Meadows geothermal plant in Nevada

On January 4, 2022, Judge Robert Jones of the U.S. District Court for the District of Nevada issued a preliminary injunction blocking construction on the Dixie Meadows Geothermal Utilization Project for 90 days.[1] The order came two days before the developer, Ormat Technologies, planned to begin construction on the project. The Dixie Meadows geothermal project includes the development of up to two 30 MWe geothermal power plants, the drilling of up to 18 production and injection well sites and eight core hole sites, and the construction of pipelines for geothermal fluids and other associated structures. The project will be located in northern Nevada. The Bureau of Land Management (BLM) approved the project in November 2021.[2] Prior to the approval, Ormat completed an environmental assessment in 2017 and worked with the BLM and other partner agencies to create an Aquatic Resource Monitoring and Mitigation Plan. According to the BLM, the Dixie Meadows project will help the state meet its renewable energy portfolio requirement of 25% total capacity.

The federal judge’s order is part of a lawsuit filed on December 15, 2021, by the Center for Biological Diversity and the Fallon Paiute-Shoshone Tribe. The plaintiffs cited concerns about the environmental impact of the project. The lawsuit alleges that the BLM illegally approved the Dixie Meadows project without the necessary environmental analysis. The lawsuit argues that the geothermal project could affect religious practices that depend on nearby springs and could harm the vulnerable Dixie Valley toad. For its part, Ormat’s lawyer said the company could lose $7 million in revenue if the project’s first phase is delayed. Judge Jones, however, said that the imminent risk to the area outweighed the potential financial consequences of a short-term delay for the developer. In addition, he noted that without a more in-depth National Environmental Policy Act analysis, the federal government might not have all the information necessary for its mitigation plan for the project. The 90-day restraining order will give the tribe and environmental challengers the opportunity to appeal the decision to the 9th US Circuit Court of Appeals.

[1] https://subscriber.politicopro.com/article/eenews/2022/01/05/judge-pauses-major-geothermal-project-cites-nepa-284812

[2] https://www.blm.gov/press-release/bureau-land-management-approves-dixie-meadows-geothermal-project

[USA] U.S. Court of International Trade reinstates bifacial solar tariff exclusion

On November 16, 2021, the U.S. Court of International Trade (CIT) reinstated the exclusion of bifacial solar modules from the Section 201 tariffs.[1] As the name suggests, bifacial modules can produce solar power from both sides of the panel, and while they make up a modest percentage of the overall market, they are becoming more popular with developers due to their efficiency. In June 2019, former President Trump decided to exclude bifacial modules from import tariffs on solar panels due to their limited role in the market. However, in October 2020, Trump reversed this decision in Proclamation 10101, subjecting bifacial panels to the same tariff as other solar panels. The proclamation also raised the Section 201 tariff rate on solar panels from 15% to 18%. The Solar Energy Industries Association (SEIA) and three solar developers subsequently filed a lawsuit, which argued that President Trump’s actions were against trade laws. In its decision, the CIT agreed with the solar groups, writing that the president had acted “outside of the President’s delegated authority” in Proclamation 10101.[2] The court stated that the proclamation was a “misconstruction” of Section 204 of the Trade Act of 1974, which allows a sitting president to lift tariffs, but not enact new restrictions.  In addition to the exclusion, the CIT reduced the Section 201 tariff rate back down to 15%. Both actions will result in refunds of the tariffs collected under Proclamation 10101.

[1] https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf

[2] Under the Constitution, Congress has the legal authority to set tariffs. However, in the last century, Congress has shifted some authority to the president, especially during wartime.

[USA] Maine voters reject planned $1 billion transmission line, developer files lawsuit

On November 2, 2021, 59% of Maine voters approved an initiative, known as Question 1, to prohibit the construction of the New England Clean Energy Connect (NECEC) project.[1] The NECEC is a proposed transmission line developed by Avangrid to bring 9.45 million MWh of hydroelectric power from Hydro-Québec in Canada through Maine and into Massachusetts, helping both states meet their clean energy targets. The line would account for about 8% of the electricity used in New England. While the NECEC has support from clean energy advocates and the Biden administration, it has received backlash from many stakeholders. Competing energy companies argue that the transmission line will reduce energy and capacity prices in ISO-NE. Conservation groups, Canadian First Nations, and some state legislators say it could harm wildlife, tourism, and views in Maine.

In response to the vote, NECEC Transmission and Avangrid Networks, subsidiaries of Avangrid, filed a lawsuit in the Maine Superior Court on November 3, 2021, challenging the ballot initiative.[2] The lawsuit argues that the measure was unconstitutional and violates state and federal laws because NECEC has already received all necessary permits, and construction began earlier in 2021. The lawsuit asks the Superior Court to declare that the initiative was unlawful and unenforceable. In addition to Avangrid’s lawsuit, a spokesperson from Hydro-Québec said it is also exploring legal options in response to the ballot initiative.[3]

[1] https://www.pressherald.com/2021/11/02/statewide-and-town-by-town-maine-results-for-election-2021/

[2] https://www.necleanenergyconnect.org/necec-milestones/2021/11/3/necec-files-suit-challenging-constitutionality-of-question-1

[3] https://subscriber.politicopro.com/article/eenews/2021/11/04/1b-northeast-transmission-line-isnt-dead-developers-say-282803

[USA] Spire asks Supreme Court to pause Missouri pipeline shut down

On October 4, 2021, Spire STL Pipeline LLC requested the Supreme Court stay an order from the U.S. Court of Appeals for the District of Columbia Circuit shutting down the Spire STL pipeline.[1] The 65-mile pipeline runs from Illinois to the St. Louis, Missouri area to serve Spire Missouri customers. The pipeline has been operational since 2019 and is a rare case of federal courts vacating a pipeline’s service after it is operational. In June 2021, the D.C. Circuit vacated the pipeline’s certificate of public convenience and necessity, which was issued by the Federal Energy Regulatory Commission (FERC) in 2018. The court ruled that FERC had failed to adequately assess the need for the Spire pipeline. Following this, Spire obtained a temporary certificate from FERC in September 2021 to operate the pipeline until December 13, 2021, while regulators consider the next steps for the pipeline. On October 1, 2021, the D.C. Circuit declined Spire's request to delay its issue of a formal shutdown mandate on Oct. 8.

In its application for an emergency stay from the Supreme Court, Spire warned that shutting off the pipeline will lead to 400,000 St. Louis area customers experiencing extended loss of service when FERC's temporary permission expires this winter. Spire argued that there is no guarantee that FERC will keep the temporary certificate in place or offer an extension. The company’s application comes as it prepares for a broader Supreme Court challenge of the D.C. Circuit’s decision.

[1] https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C21a56.html