Vol. 5, No. 37
Topics discussed in this week’s Report include:
- Federal agencies block construction of Dakota Access pipeline pending further agency review, despite federal court order authorizing work to proceed.
- Federal court holds that BLM violated NEPA in allowing hydraulic fracturing on federal lands in California.
- EPA and state regulators adjust restrictions on wastewater disposal wells in Oklahoma in response to earthquake.
- Projections for U.S. oil production overall improve, while oil and gas production in Ohio trend in opposite directions.
On August 29, FERC filed a response to Silkman’s filing of supplemental authorities (the recent decisions in the Maxim Power and City Power cases on de novo review) before the U.S. district court in Maine. FERC’s response repeats many of the arguments it made in opposing Silkman’s request for discovery. According to FERC, Judge Woodlock has already decided the threshold issue that was before the Maxim Power and City Power courts: whether FERC conducted an adjudication subject to judicial review or whether a plenary trial is required. Based on Judge Woodlock’s decision denying the motion to dismiss and transferring the case to Maine, FERC argues that it is the law of this case that FERC conducted an adjudication subject to judicial review. According to FERC, “The Court should focus instead on the question left open by Judge Woodlock’s ruling: how the Court will perform its review; that is, whether the Court will rule immediately after its review of the administrative record or whether its review requires supplementation of the administrative record through discovery, a hearing, or both.” Arguing that Judge Woodlock’s prior decision is not “clearly erroneous,” FERC asserts that the decision by the Maxim Power and City Power courts to proceed in a different manner should not affect how this case proceeds.
On September 2, Maxim Power filed its answer to FERC’s complaint in the U.S. District Court for the District of Massachusetts. As we previously reported, Judge Mastroianni issued an order denying Maxim Power’s motion to dismiss FERC’s case on July 21. Maxim Power’s answer denies many of the allegations in FERC’s complaint. Maxim Power also asserts a number of defenses, including that FERC’s complaint fails to state a claim for which relief can be granted, Maxim Power made no false statements or material omissions, the alleged misstatements are non-actionable statements containing expressions of opinion, and lack of fair notice.