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Two Recent Court Rulings Bring Wins for the Green Economy

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Springtime in the U.S. courts brought two pieces of good news for the green economy. A district court in Washington, DC ordered the Trump administration to more closely analyze the impacts of the Dakota Access pipeline, while the Kansas Supreme Court rejected utility efforts to charge high rates to ratepayers with home solar equipment.

Critical in the Dakota Access ruling was the judge’s reasoning that the impacts of the pipeline were “‘highly controversial’ under the National Environmental Policy Act and required closer analysis,” writes [1] Bloomberg Law. This standard, “enshrined in NEPA regulations for decades, focuses not on public controversy over a project but on scientific or technical disputes about its impacts.”

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The decision draws on a precedent established last year, when the DC Circuit Court ruled the Army Corps of Engineers erred in failing to provide an environmental impact statement when a number of experts criticized the route for a transmission line it intended to build across the James River in Virginia.

“Legal experts expect the two decisions to fuel an uptick in environmental cases that take the same approach,” says Bloomberg.

“It really is a game-changer,” said Colorado-based environmental lawyer William S. Eubanks II, who argued last year’s case on behalf of the National Parks Conservation Association. “It’s going to pay dividends for years and years, and decades to come.” While the James River decision “set the standard for cases that feature disagreement among government agencies,” he explained, “the Dakota Access ruling showed that the same standard applies when the criticism comes from outside the federal government—in that case, from American Indian tribes.”

While the Trump administration’s efforts to update NEPA regulations could change things, Eubanks adds, “for now, this is the law in the DC Circuit, which is where a lot of these types of cases are brought. And until and unless something major changes, this is still going to be binding law.”

But there are complications that may temper some of the enthusiasm, Bloomberg writes. “The new legal landscape won’t necessarily lead to more environmental impact statements,” cautioned University of Minnesota law professor Alexandra Klass, since “agencies can guard against court rebukes by responding more robustly to technical critiques of their analyses.”

In Kansas, meanwhile, a state Supreme Court ruling reversed the Kansas Corporation Commission’s approval of higher residential rates for customers with home solar, reports [3] Utility Drive. The reversal “could have an impact in other states where environmental advocates oppose utilities’ assertion that owners of large arrays become ‘free riders,’ whose monthly bills do not pay for the cost of the distribution lines.”

The court suggested that Topeka-based Evergy find other, non-discriminatory ways to deal with such “free riders,” including “restructuring rates with a flat monthly fee on every bill to cover the fixed costs of maintaining the distribution system,” the industry newsletter notes.