ANALYSIS OF OCTOBER 27, 2022 SUPREME COURT OPINION
(Posted October 27, 2022) They went and did it. All it took was for me to predict, in last week’s analysis, that the Supreme Court was highly unlikely to release a decision in its last remaining undecided appeal, and thereby completely clear its argument docket for the first time in years. Years!
I’ll never know if Justice Kelsey found that prediction to be a challenge: Oh, yeah? Watch this. Today the court hands down a published opinion in Appalachian Voices v. SCC, argued just six weeks ago in the September session. That means that the court has decided all of the appeals submitted to it, nearly a week before convening the November session next Tuesday. If you ever sought confirmation that I have no inside information on Supreme Court proceedings, this morning is Exhibit A.
My records indicate only one time in my nearly 18 years of covering the court when it has released opinions in all argued cases before convening the next session. That was the infamous “Roush to judgment” on February 12, 2016. Knowing that Justice Roush’s appointment was about to expire, and not wanting any legal wrangling over her participation in cases handed down after that expiration, the court labored to decide all pending merits appeals by that date. Before that it was … never, I suppose; before late 2015, the court always held opinions until the last day of the ensuing session. That became “opinion day,” and I knew to set aside those six days for analysis. Now we have 50 or so opinion days each year.
But I digress. We have an opinion! That being said, if you’re looking for fireworks, you may be waiting a while longer. This is a case over whether the law allows VEPCO to recoup its expenses to buy cap-and-trade allowances in the Regional Greenhouse Gas Initiative.
I’m genuinely grateful to Justice Kelsey for publishing an easy-to-understand two-paragraph summary of what cap-and-trade entails. I knew of the program, but never really appreciated the framework. Utilities have to purchase allowances – skeptics might call them “pollution indulgences,” channeling Martin Luther – for the right to release carbon dioxide into the atmosphere. These allowances become rarer as time goes by, so the price will rise. This is supposed to encourage utilities to pursue greener sources of energy.
VEPCO has bought these allowances – plus a small buffer, just in case – and sought State Corporation Commission approval for a rate adjustment to recover their cost. Yes, they can do that. Appalachian Voices, an environmental nonprofit, argued before the SCC that the utility bought more allowances than necessary, so it shouldn’t get a full reimbursement from utility customers.
As today’s opinion notes, the whole appeal turns on the definition of necessary. The nonprofit had argued for a strict interpretation, one that would deny reimbursement where, for example, the utility could have gone greener sooner, and thereby bought fewer allowances. The SCC didn’t buy that, and today, by unanimous vote, the Supreme Court agrees with the commission. It notes that Appalachian Voices can raise that kind of challenge in future reviews of VEPCO’s compliance with the new Virginia Clean Economy Act, which will govern future rate challenges.
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If you’re an appellate junkie who waits with bated breath each Thursday morning hoping for new love letters from The Robes, you’re going to have to be patient. There is almost no chance (note the adverb; last week taught me a lesson) that we’ll see any opinions next Thursday or the week after that; the appeals will simply be too new. November 17 is possible, now that the court has enacted its own rocket docket. If I were forced to make a wager, American money, I’d circle December 1 as the next likely day for opinions. But I was wrong before, and I could be wrong here.