Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Energy, Oil & Gas Law
West v. Charter Communications, Inc.
In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation. The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.” View "West v. Charter Communications, Inc." on Justia Law
Exelon Corp. v. Commissioner of Internal Revenue
In 1999, after deregulation of the energy industry in Illinois, Exelon sold its fossil-fuel power plants to use the proceeds on its nuclear plants and infrastructure. The sales yielded $4.8 billion, $2 billion more than expected. Exelon attempted to defer tax liability on the gains by executing “like-kind exchanges,” 26 U.S.C. 1031(a)(1). Exelon identified its Collins Plant, to be sold for $930 million, with $823 of taxable gain, and its Powerton Plant, to be sold for $870 million ($683 million in taxable gain) for exchanges. Exelon identified as investment candidates a Texas coal-fired plant to replace Collins and Georgia coal-fired plants to replace Powerton. In “sale-and-leaseback” transactions, Exelon leased an out-of-state power plant from a tax-exempt entity for a period longer than the plant’s estimated useful life, then immediately leased the plant back to that entity for a shorter sublease term. and provided to the tax-exempt entity a multi-million-dollar accommodation fee with a fully-funded purchase option to terminate Exelon’s residual interest after the sublease. Exelon asserted that it had acquired a genuine ownership interest in the plants, qualifying them as like-kind exchanges. The Commissioner disallowed the benefits claimed by Exelon, characterizing the transactions as a variant of the traditional sale-in-lease-out (SILO) tax shelters, widely invalidated as abusive tax shelters. The tax court and Seventh Circuit affirmed, applying the substance over form doctrine to conclude that the Exelon transactions failed to transfer to Exelon a genuine ownership interest in the out-of-state plants. In substance Exelon’s transactions resemble loans to the tax-exempt entities. View "Exelon Corp. v. Commissioner of Internal Revenue" on Justia Law
Village of Old Mill Creek v. Star
Regional transmission organizations manage the interstate grid for electricity, conduct auctions through which many large generators of electricity sell most or all of their power, and are regulated by the Federal Energy Regulatory Commission (FERC) Illinois subsidizes nuclear generation facilities by granting “zero emission credits,” which generators that use coal or gas to produce power must purchase from the recipients at a price set by the state. Electricity producers and municipalities sued, contending that the price‐adjustment aspect of the system is preempted by the Federal Power Act because it impinges on the FERC’s regulatory authority. They acknowledge that a state may levy a tax on carbon emissions; tax the assets and incomes of power producers; tax revenues to subsidize generators; or create a cap‐and‐trade system requiring every firm that emits carbon to buy credits from firms that emit less carbon. They argued that the zero‐emission‐credit system indirectly regulates the auction by using average auction prices as a component in a formula that affects the credits' cost. The Seventh Circuit affirmed summary judgment for the defendants. Illinois has not engaged in discrimination beyond that required to regulate within its borders. All Illinois carbon‐emitting plants need to buy credits. The subsidy’s recipients are in Illinois. The price effect of the statute is felt wherever the power is used. All power (from inside and outside Illinois) goes for the same price in an interstate auction. The cross‐subsidy among producers may injure investors in carbon‐ releasing plants, but only plants in Illinois. View "Village of Old Mill Creek v. Star" on Justia Law
Zahn v. North American Power & Gas, LLC
Until 1997, Illinois residents could only purchase power from a public utility, with rates regulated by the ICC. The Electric Service Customer Choice and Rate Relief Law allows residents to buy electricity from their local public utility, another utility, or an Alternative Retail Electric Supplier (ARES). The ICC was not given rate-making authority over ARESs, but was given oversight responsibilities. The Law did not explicitly provide a mechanism for recovering damages from an ARES related to rates. Zahn purchased electricity from NAPG, after receiving an offer of a “New Customer Rate” of $.0499 per kilowatt hour in her first month, followed by a “market-based variable rate.” Zahn never received NAPG’s “New Customer Rate.” NAPG charged her $.0599 per kilowatt hour for the first two months, followed by a rate higher than Zahn’s local public utility charged. Zahn filed a class-action complaint, claiming violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. The court dismissed for lack of subject-matter jurisdiction, or for failure to state a claim. After the Illinois Supreme Court answered a certified question, stating that the ICC does not have exclusive jurisdiction to hear Zahn’s claims, the Seventh Circuit reversed. The district court had jurisdiction and Zahn alleged facts that, if true, could constitute a breach of contract or a deceptive business practice. View "Zahn v. North American Power & Gas, LLC" on Justia Law
Benton County Wind Farm LLC v. Duke Energy Indiana, Inc.
In 2005, Duke Energy bought, from Benton, renewable energy at a price high enough to enable construction of wind turbines, and acquired tradeable renewable‑energy credits. The contract requires Duke to pay Benton for all power delivered during the next 20 years. When Benton's 100-megawat facility started operating in 2008 it was the only area wind farm. Duke paid for everything Benton could produce. The regional transmission organization, Midcontinent Independent System Operator (MISO), which implements a bidding system for the network, cleared the power to the regional grid. By 2015, aggregate capacity of local wind farms reached 1,745 megawatts, exceeding the local grid’s capacity. At times, would‑be producers must pay MISO to take power; buyers get free electricity. Initially, MISO allowed wind farms to deliver to the grid no matter what other producers (coal, nuclear, solar, hydro) were doing, which meant that such producers had to cut back. On March 1, 2013, the rules changed to put wind farms on a par with other producers. Under MISO’s new system, with Duke’s responsive bid, Benton has gone from delivering power 100% of the time the wind allowed to delivering only 59% of the time. The district court agreed with Duke that, when MISO tells Benton to stop delivering power, it does not owe Benton anything, rejecting Benton’s claim that Duke could put Benton’s power on the grid by bidding to displace other power, and that when Duke does not, it owes liquidated damages. The judge found that bidding $0 is “reasonable” cooperation. The Seventh Circuit reversed; the contract implies that Duke must do what is needed to make transmission capacity available. View "Benton County Wind Farm LLC v. Duke Energy Indiana, Inc." on Justia Law
Zero Zone, Inc. v. Dep’t of Energy
After the 2012 enactment of the American Energy Manufacturing Technical Corrections Act, 42 U.S.C. 6313(c)(4)), the U.S. Department of Energy (DOE) published two final rules in 2014, aimed at improving the energy efficiency of commercial refrigeration equipment (CRE). One adopted new energy efficiency standards for CRE, 79 Fed. Reg. 17,726. The second rule, issued a month later, clarified the test procedures that DOE uses to implement those standards, 79 Fed. Reg. 22,278. Trade associations of CRE manufacturers challenged the rules. The Seventh Circuit upheld the rules, rejecting challenges to DOE’s engineering analysis, economic analysis, regulatory flexibility analysis, and assessment of the cumulative regulatory burden. The court concluded that “DOE acted in a manner worthy of deference.” The first rule was premised on an analytical model that is supported by substantial evidence and was not arbitrary. DOE conducted a cost‐ benefit analysis that is within its statutory authority and is supported by substantial evidence. It gave appropriate consideration to the rule’s effect on small businesses and the role of other agency regulations. DOE similarly acted within its authority, and within reason, when it promulgated the Test Procedure Rule. View "Zero Zone, Inc. v. Dep't of Energy" on Justia Law
MISO Transmission Owners v. Fed. Energy Regulatory Comm’n
MISO, a regional association, monitors and manages the electricity transmission grid in several midwestern and southern states, plus Manitoba, Canada, balancing the load, setting competitive prices for transmission services, and planning and supervising expansion of the system. Until 2011, if MISO decided that another transmission facility was needed in the region, the MISO member that served the area in which the facility would be built had the right of first refusal to build it, pursuant to the contract among the MISO members. Federal Energy Regulatory Commission (FERC) Order No. 1000 required transmission providers to participate in regional transmission planning to identify worthwhile projects, and to allocate the costs of the projects to the parts of the region that would benefit the most from the projects. To facilitate its implementation, the order directed providers “to remove provisions from [FERC] jurisdictional tariffs and agreements that grant incumbent transmission providers a federal right of first refusal to construct transmission facilities selected in a regional transmission plan for purposes of cost allocation.” FERC believed that competition would result in lower rates to consumers of electricity. The Seventh Circuit denied petitions for review of the order. The electric companies did not show that the right of first refusal was in the public interest View "MISO Transmission Owners v. Fed. Energy Regulatory Comm'n" on Justia Law
Zahn v. N. Am. Power & Gas, LLC
Until 1997, Illinois residents could only purchase power from the local public utility, whose rates were regulated by the Commerce Commission (ICC). The 1997 Electric Service Customer Choice and Rate Relief Law allows residents to buy electricity from their local public utility, another utility, or an Alternative Retail Electric Supplier (ARES). The ICC was not given rate-making authority over ARESs, but was given certain oversight responsibilities, 220 ILCS 5/16-115. The Law did not explicitly provide a mechanism for recovering damages from an ARES related to the rates. In 2012, Zahn began purchasing electricity from NAPG, after receiving an offer of a “New Customer Rate” of $.0499 per kilowatt hour in her first month of service, followed by a “market-based variable rate.” Zahn never received NAPG’s “New Customer Rate.” NAPG charged her $.0599 per kilowatt hour for the first two months, followed by a rate higher than Zahn’s local public utility charged. Zahn filed a class-action complaint, claiming violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. The court dismissed for lack of subject-matter jurisdiction, or for failure to state a claim. The Seventh Circuit certified, to the Illinois Supreme Court, the question of whether the ICC has exclusive jurisdiction to hear Zahn’s claims, noting that Illinois appellate courts are in conflict. View "Zahn v. N. Am. Power & Gas, LLC" on Justia Law
Pioneer Trail Wind Farm, LLC v. Fed. Energy Regulatory Comm’n
MISO, an organization of independent transmission-owning utilities, has linked the transmission lines of its members into a single interconnected grid across 11 states. The Generators, which operate 150-megawatt wind-powered electric generation facilities in Illinois, wish to connect to the system run by MISO. The Federal Energy Regulatory Commission (FERC), acting under 16 U.S.C. 824(a), has standardized the process: the Generators submitted requests to MISO, which then produced studies (paid for by the Generators) to assess potential impact on the grid and calculate the cost of necessary upgrades. After the studies were complete and agreements signed, MISO notified the Generators of a “significant error” that failed to include certain upgrades and that the Generators would either have to agree to fewer megawatts or pay for additional upgrades estimated to cost $11.5 million. MISO presented superseding Agreements to both Generators. The companies refused to sign. FERC found that the Generators should pay for the additional network upgrades. The Seventh Circuit denied a petition for review. The record failed to show that the Generators relied on the original, mistaken studies or that reducing the output would have made their farms economically unsustainable. They also had an exit option. The court noted that the Generators apparently built their wind farms despite the dispute. View "Pioneer Trail Wind Farm, LLC v. Fed. Energy Regulatory Comm'n" on Justia Law
Sec. & Exch. Comm’n v. First Choice Mgmt. Servs., Inc.
In 2000 the SEC charged First Choice and others with fraud. The district court appointed a receiver to take charge of the defendants’ assets for victims of the $31 million fraud. The receiver found that some assets had been used to acquire oil and gas leases in Texas and Oklahoma and attempted to sell them and use the proceeds to compensate the victims. Over the next 14 years, third parties sought to establish ownership interests in the leases. In this case, CRM sought to contest the receiver’s proposed sale of oil leases in Osage, Oklahoma, which it claims to have operated since 2002. The district court denied CRM’s motion to intervene and approved the sale. The Seventh Circuit affirmed, noting that CRM knew as early as 2004 that the receiver was claiming the leases, but waited until the protracted and expensive receivership was finally moving toward an end and the receiver’s assets were dwindling to take action.View "Sec. & Exch. Comm'n v. First Choice Mgmt. Servs., Inc." on Justia Law