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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.


FERC Adopts New Civil Penalty Guidelines

FERC has issued a Policy Statement on penalty guidelines associated with its enforcement program that, according to FERC’s press release, will “add fairness, consistency and transparency to all FERC civil penalty determinations.” The penalty guidelines are modeled after the U.S. Sentencing Guidelines:

The Commission’s approach to determine penalties has evolved during the almost four-and-a-half years since EPAct 2005 first went into effect in August 2005… . We now believe that it is in the public interest to advance our past use of the Sentencing Guidelines’ principles by implementing a guidelines approach patterned after the Sentencing Guidelines, which apply factors in a focused manner to promote fairness and consistency, while still allowing for the discretion to depart from the indicated penalty where necessary.

The penalty guidelines are intended to change how FERC will determine civil penalties, but will use many factors that were previously considered by FERC, such as the seriousness of or remediation of a violation.

Although the guidelines calculate penalties based on a set of uniform factors, FERC retains discretion to impose a penalty that is not based on the guidelines.

The penalty guidelines also credit companies for self-reporting violations and for implementing robust compliance programs. The guidelines will apply to all future violations and any pending investigation where FERC’s enforcement staff has not entered into settlement negotiations.


FERC Directs NERC to Modify Standards Development Procedures

In a recent press release, FERC annouced that it was taking “action to protect the reliability of the nation’s transmission grid … by directing NERC to modify the procedures that it uses to develop mandatory bulk electric system reliability standards.” 

FERC’s concern grew out on the “balloting down” procedure, which allowed NERC stakeholders to veto a FERC directive by refusing to approve a new or modified reliability standard intended to comply with FERC’s directive.  In 2007, FERC issued a directive to NERC to require transmission and generation owners to determine the ratings of they bulk power systems.  Recently, when NERC attempted to develop a standard that would implement this requirement, it was vetoed by stakeholders. 

Concerned that NERC’s process does not ensure FERC compliance, FERC has directed NERC to file a proposal for modifying the process and to outline its compliance with FERC’s requirement that transmission and generation owners determine the ratings of their bulk power facilities.  FERC also set deadlines for NERC to comply with other outstanding FERC directives.


Board of Environmental Protection Rejects Abutters’ Appeal of Record Hill Wind Permit

The Maine Board of Environmental Protection voted unanimously on Thursday, March 18, to deny the appeal of Record Hill Wind LLC’s permit to build a 22-turbine wind energy project on a ridgeline in Roxbury, Maine.

In upholding the project’s DEP permit, the Board rejected the appellants’ claims related to noise, health, scenic, wildlife and other alleged impacts.

During the hearing, Board members questioned sound engineers regarding the accuracy of the computer modeling used to predict the project’s sound emissions.  The Board ultimately found that the project’s sound model was reliable and that the project would comply with state noise limits.  The Board likewise rejected allegations that the DEP and the Maine Center for Disease Control ignored potential health impacts.

Former Maine Governor Angus King, one of the principals of Record Hill Wind, testified at the hearing that the project would comply with the state’s sound limits.  Verrill Dana attorneys Juliet Browne and Gordon Smith represented Record Hill Wind in the appeal.   

The appellants have indicated that they plan to appeal the Board’s decision to the Maine Supreme Court.  Any appeal must be filed by April 19. 


Maine Supreme Court Dismisses Appeal of Rollins Wind Power Project

In the first case of its kind to reach the Maine Supreme Judicial Court, a lawsuit challenging a permit issued by the Maine Department of Environmental Protection for the construction of the Rollins Wind Power Project was dismissed on all counts on March 11, 2010.

The order affirmed a decision by the Board of Environmental Protection to deny an appeal filed by the Friends of Lincoln Lakes (“FOLL”) and several individuals challenging the Rollins Project permit.  The Board of Environmental Protection had unanimously rejected the FOLL appeal on the basis that the DEP had found that the Project would not have an undue adverse impact on the environment, specifically with respect to sound, health and wildlife. 

The Court noted that “FOLL essentially conceded at oral argument that the Board’s findings were supported by substantial evidence in the record.”

The Law Court also found that FOLL’s right to equal protection was not infringed by wind development laws that prevent the BEP from assuming original jurisdiction over applications for expedited wind energy projects and that allow for direct appeal of Department and Board decisions to the Maine Supreme Court.

The ruling was a victory for First Wind, which is developing the 60-megawatt Rollins Project in Lincoln, Maine, and surrounding towns.  Verrill Dana attorneys Juliet Browne, Scott Anderson, and Gordon Smith represented First Wind in the appeal. 

A copy of the decision, Friends of Lincoln Lakes v. Board of Environmental Protection, 2010 ME 18, — A.2d —, may be found here.


Energy Attorneys Honored as New England Super Lawyers, Rising Stars

Thirty-two lawyers from Verrill Dana, LLP have been selected by their peers for inclusion in the 2009 edition of New England Super Lawyers® & Rising Stars.

Several attorneys with Verrill Dana’s Energy Practice Group were commended, including:

  • Bill Harwood, Utilities.  Bill was also named a Super Lawyer in 2007 and 2008.
  • Mark Googins, Business and Corporate. Mark was also named a Super Lawyer in 2007 and 2008.
  • Jamie Kilbreth, Business Litigation.  Jamie was also named a Super Lawyer in 2007 and 2008.
  • Jeff Selser, Rising Star in Real Estate.  This is Jeff’s first Rising Star commendation.
  • Nora Healy, Rising Star in Utilities Law.  This is Nora’s second consecutive year as a Rising Star.
  • Kelly Boden, Rising Star in Environmental.  This is Kelly’s second consecutive year as a Rising Star.

The annual guide recognizes the top 5% of lawyers in Maine, Massachusetts, Vermont, New Hampshire, Rhode Island, and Connecticut as Super Lawyers.  Only the top 2.5% in each state are selected for the list of Rising Stars, which identifies top up-and-coming attorneys who are 40 years old or younger, or who have been practicing for 10 years or less.


Fifth Circuit: Oil Companies Subject to Legal Claim for Contributing to Global Warming

The Fifth Circuit Court of Appeals ruled yesterday that private plaintiffs have standing to sue oil companies under the nuisance, trespass, and negligence doctrines.  The claims were justiciable and did not constitute political questions, according to the court.

The plaintiffs in this putative class action are victims of Hurricane Katrina.  They allege that the companies’ actions encouraging greenhouse gas emissions has contributed to global warming, which led to conditions that are at least a partial cause of the ferocity of the 2005 hurricane that devastated the Gulf Coast.  The plaintiffs seek damages.

The court did dismiss other claims—including fraudulent misrepresentation, unjust enrichment, and civil conspiracy—on standing grounds.

The case is Comer v. Murphy Oil USA, and a PDF version of the decision is available here.


Kibby Wind Power Project Goes On-Line Today

The Kibby Wind Power Project, located along the western ridges of Kibby Mountain in Franklin County, Maine, goes on-line today. TransCanada’s Kibby Project is a 44-turbine, 132-megawatt wind development.

Under Juliet Browne’s direction, Verrill Dana’s Energy Practice Group obtained the licenses for the Kibby wind development from Maine’s Land Use Regulation Commission. The development was supported by several nonprofits, including Maine Audubon, the Natural Resources Council of Maine, and the Appalachian Mountain Club.

Juliet Browne, chair of the firm’s environmental law department, has managed the legal work for the first several wind projects in Maine, including Mars Hill, Stetson II, and Rollins.