Federal court hands FERC more time to use delay tactic

Source: By Arianna Skibell, E&E News reporter • Posted: Sunday, July 26, 2020

A federal court yesterday granted the Federal Energy Regulatory Commission extra time to comply with a recent ruling barring the commission from using a procedural stalling tactic in legal challenges. FERC now has until Oct. 5 to comply.

Last month, the U.S. Court of Appeals for the District of Columbia Circuit ruled that FERC could no longer use “tolling orders” to delay legal challenges to projects like natural gas pipelines, restoring a 30-day deadline for the agency to respond to landowners who object to its decisions (Greenwire, June 30).

The court ordered FERC to begin complying with its ruling by July 14, but the commission requested an extra 90 days to use tolling orders, saying it needed more time to assess how best to implement the court’s order. This request angered the Allegheny Defense Project and other groups that originally brought the case against FERC’s use of the procedure. They had asked the court to deny FERC’s request for an extension (Energywire, July 10).

While the D.C. Circuit’s decision will give FERC more time to comply with the ruling, it does not alleviate agency leaders’ concern that 30 days is not enough time to weigh landowner complaints. FERC Chairman Neil Chatterjee (R) along with the commission’s lone Democrat, Richard Glick, have said that the 30-day window is not long enough. They have asked Congress to amend the Natural Gas Act to provide the agency with a “reasonable amount of additional time to act on rehearing requests” (Energywire, July 6).

The commission’s use of tolling orders allowed for an indefinite delay, which spurred intense backlash from critics who said it prevented them from seeking legal recourse while pipeline construction began. According to its records, FERC has issued a tolling order for every rehearing request filed over the past 12 years. Every case was then eventually denied. On average, 212 days — about seven months — passed between the time a landowner made a request for rehearing and when FERC ultimately denied it (Energywire, May 27).

The commission had previously taken steps to address the issue, but the D.C. Circuit’s order codifies those changes and is likely to significantly change operations at the independent agency (Energywire, July 1).