Van Ness Feldman lawyers played an integral role in three high visibility matters decided recently by the U.S. Court of Appeals for the D.C. Circuit, which have important implications for the natural gas and hydropower industries. Demonstrating the firm’s depth of experience and sophisticated capabilities in specialized areas of energy law including appellate litigation, each case involved review of a Federal Energy Regulatory Commission (FERC) order, and each case represents an important victory for firm clients:
Murray Energy, et al. v. FERC (Decided 1/7/11)
The VNF team, led by Curt Moffatt, Bob Christin, Amy Beizer and Shippen Howe, successfully represented the Rockies Express Pipeline as an intervenor in the U.S. Court of Appeals for the D.C. Circuit in support of FERC’s decision to authorize Rockies Express to commence construction over coal mining properties in Ohio. The order affirms FERC’s ability to manage the safe development of natural gas infrastructure with the competing property interests of coal producers, and clarifies the respective roles of FERC and the Department of Transportation’s Hazardous Materials Safety Administration (PHMSA) in ensuring safe construction in such circumstances.
The D.C. Circuit’s opinion is significant for natural gas companies that seek to construct new pipeline infrastructure in mining areas.
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City of Idaho Falls, Idaho, et al. v. FERC (Decided 1/4/11)
Led by VNF member Chuck Sensiba, the firm successfully represented a large group of FERC hydroelectric licensees in their challenge of a 2009 FERC final rule establishing a new rental fee methodology for hydropower projects operating on federal lands. The D.C. Circuit vacated FERC’s 2009 rule, holding that FERC erred in issuing the rule without prior notice and public comment and failed to meet its Federal Power Act obligation to set reasonable annual charges for the use of federal lands. The court’s decision could result in millions of dollars in cost savings and/or reimbursements to hydroelectric licensees, and is likely to lead to a public rulemaking process before FERC.
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Hoopa Valley Tribe v. FERC (Decided 12/28/10)
Led by VNF member, Mike Swiger, the firm successfully represented PacifiCorp, licensee of the Klamath Hydroelectric Project, in the Hoopa Valley Tribe’s challenge to FERC orders denying interim conditions at the project. The Tribe requested that FERC impose interim conditions on PacifiCorp’s annual license, but FERC found that interim conditions were not justified by the record in the proceeding. The Tribe challenged FERC’s orders, and PacifiCorp intervened in the case. On review, the D.C. Circuit denied the Tribe’s petition for review, holding that FERC’s decision was based on substantial evidence and that FERC’s standard for reopening an annual license based on “serious, unanticipated impacts” was reasonable.
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Read the D.C. Circuit Opinion