Justices reject Ore. fuel program appeal, other energy cases

Source: Pamela King, E&E News reporter • Posted: Monday, May 13, 2019

A coalition of trade groups lost its bid to fight Oregon’s low-carbon fuel program before the nation’s highest bench, as the Supreme Court today rejected the groups’ petition and declined to review two other energy-related cases.

In American Fuel & Petrochemical Manufacturers v. O’Keeffe, industry associations argued that the Beaver State’s low-carbon fuel standard violates the commerce clause of the U.S. Constitution, which grants Congress power over interstate and foreign trade (Greenwire, Jan. 9).

Oregon’s program limits imports of transportation fuels based on a life-cycle emissions analysis and determination of a fuel’s carbon intensity values.

Judges for the 9th U.S. Circuit Court of Appeals previously rejected industry’s arguments against the Oregon program, citing its 2013 decision to uphold a similar program in California.

“It was such a high hurdle for them to win in the 9th Circuit,” said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative.

“The whole thing was a Hail Mary by industry,” he said.

The Supreme Court in 2014 denied industry groups’ challenge to the California standard. American Fuel & Petrochemical Manufacturers declined to comment on today’s denial.

Fracking, FERC cases

The Supreme Court today also scrapped cases related to electricity rates in Michigan and hydraulic fracturing in Ohio.

Michigan municipalities, tribes and utilities this year asked the court to hear their challenge of retroactive rate increases by the federal government in City of Mackinac Island v. Federal Energy Regulatory Commission.

FERC took an “extraordinary and unprecedented” step in 2014 to impose a retroactive increase on ratepayers who had “paid too little” under a methodology approved by the commission in 2004, the petitioners wrote in their Supreme Court filing.

They argued that the U.S. Court of Appeals for the District of Columbia Circuit improperly interpreted the Federal Power Act in its decision affirming FERC’s move.

In Kerns v. Chesapeake Exploration LLC, Ohio landowners argued that a well-known natural gas producer’s fracking operations constituted a “permanent physical intrusion” on their property.

After losing in the 6th U.S. Circuit Court of Appeals, the landowners last month asked the Supreme Court to consider whether the Ohio Department of Natural Resources and Chesapeake abused due process and takings powers under the Fifth Amendment of the Constitution.

The court declined to hear their plea.

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