Notice & Comment

D. C. Circuit Reviewed: Reviewed – Two Energy Cases Decided; An Appointments Clause Issue in the Making?

The D. C. Circuit released two decisions last week, both upholding challenged agency actions. The first involved the Nuclear Regulatory Commission; the other involved FERC.

Public utilities must file with FERC all rates and charges and may not charge a rate that is not on file. Utilities must report their operational costs incurred so that FERC can determine which costs can be recovered from certain customer classes.  In its 2020 filing with FERC, Ameren mistakenly reported unrecoverable costs as recoverable costs. This error resulted in Ameren overcharging its customers and a $11.5 million windfall to Ameren. FERC concluded that Ameren failed to correctly record its costs and ordered a refund. In an opinion released on January 27 that was authored by Senior Judge Rogers and joined by Judge Pillard and Judge Katsas, the Court in Ameren Illinois Company v. FERC, No. 20-1277, rejected petitions for review seeking reversal of that order and held that FERC’s decision that Ameren’s reporting error was contrary to its filed rate and resulted in it over-collection was not arbitrary and capricious.

Don’t Waste Michigan, et al. v. U.S. Nuclear Regulatory Commission, No. 21-1048, arose out of a Texas facility’s application for a license to store spent nuclear fuel.  The petitioners—anti-nuclear and environmental groups— objected to the application and sought to intervene in the evidentiary hearing that must accompany the consideration of such a license. The NRC denied the petitioners’ request to intervene and granted the license to the Texas facility.  The petitioners sought review in the D.C. Circuit. In an unpublished per curiam order issued on January 25, the panel, consisting of Judges Katsas, Pan, and Senior Judge Tatel, held that the NRC properly denied the petitioners’ motions to intervene. Furthermore, because the petitioners were not considered “part[ies] aggrieved by” the granting of the license, the court lacked jurisdiction to review that order.

Finally, readers of this blog (as well as its authors) love Appointments Clause issues and may want to follow a case argued last week. I.M. v. United States Customs and Border Protection, No. 22-5071, asks whether an “Officer of the United States,” rather than an employee, must issue a removal order. But the court won’t pass on the merits just yet, as the present appeal concerns only whether the district court erred in dismissing the case for want of jurisdiction. Judges Rao, Walker, and Senior Judge Ginsburg heard oral argument on January 25. Their questioning focused on two issues: (1) Whether 8 U.S.C. § 1252(e)(2) contains a custodial prerequisite for habeas relief; and (2) whether its limitation of judicial review to the question of whether the government ordered removal affected the court’s ability to reach the Appointments Clause issue.

Print Friendly, PDF & Email