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On January 19, 2016, the U.S. Department of Justice (DOJ) dropped its Ninth Circuit appeal of U.S. District Judge Lucy Koh’s ruling that set aside the U.S. Fish and Wildlife Service’s (“Service”) rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) to 30 years for failure to comply with the National Environmental Policy Act (“NEPA”).

As we discussed in our previous post,  in August 2015 the court set aside the 30-year rule on NEPA grounds, concluding that the Service had “failed to show an adequate basis in the record for deciding not to prepare an EIS–much less an EA–prior to increasing the maximum duration for programmatic eagle take permits by sixfold.” The Court found the Service’s reliance on certain U.S. Department of Interior categorical exclusions misplaced. According to the Court, the Service failed to establish that the decision was “administrative” or “procedural” in nature and failed to address concerns by its own experts that the rule revisions might have highly controversial environmental effects.  Importantly, however,  the court’s decision to set aside the 30-year rule only applied to the 30-year permit tenure provision of the 2013 rule amendments. Other components of the 2013 rule amendments were left intact, including the 5 year permit renewal and assignment provisions.
Continue Reading U.S Fish and Wildlife Service Opts Not to Appeal 30-Year Eagle Rule Decision, Focuses on Development of Eagle Permitting Program

The U.S. Supreme Court heard oral argument this morning in FERC v. Energy Power Supply Association. At issue is the validity of FERC’s Order 745, the so-called “demand response” compensation rule. Full text of the rule (PDF). As some of our readers may recall, I was FERC Chairman when Order 745 was issued.

While…

As we discussed in this post from May 2014, the American Bird Conservancy (“ABC”) in 2014 filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (“USFWS”) 2013 revisions to its eagle permit rule, alleging violations of the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). ABC’s challenge related to the revised eagle permit rule that was issued in December 2013 and that extended the maximum term for programmatic Eagle Take Permits under the Eagle Act to 30 years (the “Final 30-Year Rule”), subject to a recurring five-year review process throughout the permit life. Under the previous rule, the maximum term for programmatic permits for incidental “take” of bald and golden eagles was five years.
Continue Reading Court Invalidates 30-Year Permit Provisions of U.S. Fish and Wildlife Service’s Eagle Permit Rule on NEPA Grounds

This post was written by our colleague Tami Boeck for the Ahead of Schedule construction law blog.

The Idaho Supreme Court recently determined in Idaho Power Company v. New Energy Two, LLC, No. 40882-2013 (Idaho June 17, 2014), that the Idaho Public Utilities Commission has jurisdiction to interpret or enforce contracts when given the authority by the parties. In May 2010, IPC and the defendants entered into two energy contracts that were to be completed by a date certain. In advance of the operational dates, the defendants notified IPC of events they claimed were force majeure. Markedly, the defendants’ claim was that the decision-making process of the PUC itself, or the alleged lack thereof, was the force majeure event causing lenders to be “unwilling to lend in Idaho pending the outcome” of the PUC proceedings. IPC filed petitions with the PUC seeking a ruling that there was no force majeure event(s), and that IPC could terminate the contracts. The defendants filed a motion to dismiss that was denied, and the Idaho Supreme Court heard the issue on a permissive appeal.Continue Reading Freedom to Contract: PUC Has Jurisdiction to Evaluate Force Majeure Clause Under Idaho Law

The U.S. Supreme Court has delivered a stunner with its decision this morning in Utility Air Regulatory Group v. Environmental Protection Agency. The Supreme Court has curtailed the U.S. Environmental Protection Agency’s (EPA) regulation of stationary source greenhouse gas (GHG) emissions under two Clean Air Act permitting programs – New Source Review Prevention of Significant …

On April 30, 2014, the American Bird Conservancy (“ABC”) sent a Notice of Intent to Sue (“Notice”) to Secretary of the Interior Sally Jewell and Director of the U.S. Fish and Wildlife Service (“Service’) Dan Ashe, alleging violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Bald and Golden…

Ralls Corp., a privately-held company owned by executives of the China-based heavy machinery manufacturing conglomerate Sany Group, recently filed an appeal in its ongoing effort to avoid President Obama’s order requiring the company to divest itself of its interest in four wind farms in Oregon. We have previously reported on the order, which was issued…

A tentative ruling was issued yesterday in the related cases California Chamber of Commerce v. California Air Resources Board (ARB)  and  Morning Star Packing Co. v. ARB, pending before the Sacramento County Superior Court.  The cases challenge the legality of ARB’s cap and trade auctions under two theories:  (1) the cap and trade auctions…

There has been a new development in the effort by Ralls Corporation, a company owned by two Chinese nationals, to challenge President Obama’s September 2012 order requiring it to divest its interests in four wind projects in Oregon and to remove any equipment and infrastructure it had placed on the sites of the proposed projects. …