U.S. Court of Appeals for the 2nd Circuit Case Summaries: July 2,

U.S. Court of Appeals for the Second Circuit

Public Utilities

Federal Preemption

Wheelabrator Lisbon Inc. v.

Department of Public Utility Control

06-3632-cv

Appealed from the District

of Connecticut

Background: The plaintiff filed for injunctive relief from a state agency decision requiring the transfer of renewable energy credits to a utility company. The principal dispute concerns the ownership of the renewable energy attributes of the energy conveyed in an electricity purchase agreement. Wheelabrator argues that a 2004 decision of the DPUC modified the terms of the agreement and imposed utility-type regulation in conflict with Section 210(e) of the Public Utility Regulatory Policies Act. Concluding that the agency decision was not preempted by Section 210(e), the district court granted summary judgment to the state agency and its commissioners.

Ruling: The court finds the state agency decision was not preempted by federal law. The district court's ruling is affirmed.

Vincenzo Franco of Van Ness Feldman PC for the appellant, and Tatiana D. Eirmann, assistant Connecticut Attorney General, for the appellees

Death Penalty

Trifurcation

U.S. v. Fell

06-2882-cr

Appealed from the District

of Vermont

Background: The defendant was convicted of a carjacking that caused a death and was sentenced to death. In 2001, he signed a draft plea agreement that would have resolved the capital charges with a sentence of life without parole. The Attorney General rejected the plea deal. It was agreed that Fell would plead guilty in exchange for a bench trial on sentencing. The AG rejected this agreement as well. The government sought the death penalty. At the penalty phase, the verdict form indicated that 17 mitigating factors were found by at least one juror; eight were found unanimously. After considering the court's instructions to weigh the aggravating and mitigating factors, the jury decided unanimously that a sentence of death should be imposed. The appellant contends the Federal Death Penalty Act is unconstitutional because it does not allow for a separation of eligibility from the selection phases of sentencing in death penalty cases.

Ruling: The FDPA is not unconstitutional. Fell suffered no unfair prejudice resulting from the district court's implementation of the FDPA's sentencing procedures in light of the factors that weighed overwhelmingly in favor of the death penalty.

John Blume, Christopher Seeds and Sheri Lynn Johnson for the appellant, and William B. Darrow, assistant U.S. attorney, for the appellee

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