DC Circuit Rejects FERC’s Tolling Authority in Allegheny Suit

The Federal Power Regulatory Fee (“FERC”) can not delay judicial overview of its orders underneath the Pure Gasoline Act by issuing a tolling order that takes no motion on a rehearing request apart from granting itself extra time to deal with the deserves. On June 30, 2020, america Court docket of Appeals for the District of Columbia Circuit issued an en banc opinion on rehearing denying motions to dismiss petitions for overview filed with the court docket after FERC issued a “tolling” order extending the statutory 30-day time interval for FERC to behave on rehearing, however earlier than FERC issued a rehearing order on the deserves. Allegheny Protection Venture, et al. v. FERC, No. 17-1098 (D.C. Cir. Jun. 30, 2020).

Such tolling orders in pipeline certificates proceedings underneath Part 7(c) of the Pure Gasoline Act allow FERC to authorize pipeline builders to start development and search to sentence development rights-of-way by eminent area if vital earlier than FERC points a deserves order on rehearing and earlier than an aggrieved landowner or different occasion can lawfully search judicial overview of FERCs orders. In some circumstances, pipelines have been accomplished and positioned in service earlier than the FERC’s orders are ripe for overview.

The court docket departed from precedent relationship again to 1969 that constantly upheld FERC’s use of tolling orders underneath the Pure Gasoline Act. Nevertheless, as mentioned beneath, the court docket’s opinion solely prohibits non-substantive tolling orders and a concurring opinion supplies FERC with a possible blueprint for lawfully taking greater than the statutory 30-day interval to behave on rehearing.

For a few years, FERC’s Secretary has nearly routinely issued tolling orders purporting to “grant rehearing” as a way to present extra time for FERC to contemplate and handle points raised on rehearing past the 30-day interval the Pure Gasoline Act supplies. Beneath the statute, if FERC doesn’t act inside 30 days after a rehearing request is filed, the request could also be deemed to be denied, making FERC’s order ripe for overview. The opinion acknowledges that long-standing DC Circuit precedent affirms FERC’s use of tolling orders. Nevertheless, the bulk opinion discovered modifications in regulation and in deference to administrative companies on issues of judicial overview justifies a change in place, opposite to the precept of stare decisis. Slip Op. at 31-34. (Choose Henderson, in a separate opinion concurring partially and dissenting partially, disagreed with the bulk and argued {that a} departure from previous precedent was unwarranted and stare decisis ought to apply.)

The opinion makes it clear that the court docket believes FERC used tolling orders to deprive events, notably landowners and environmental organizations, of their proper to judicial overview of pipeline tasks. FERC’s orders granting certificates are efficient pending rehearing until stayed. Till a latest change within the laws in Order No. 871, codifying a regulation deferring development pending rehearing on the deserves, pipelines might settle for a certificates and start development.

The grant of a certificates additionally supplies the pipeline with eminent area authority pursuant to Part 7(h) of the Pure Gasoline Act, if vital, to amass property alongside the route of the pipeline undertaking. Because the court docket famous, the brand new rule doesn’t stop pipelines which are granted certificates from exercising eminent area rights. Nevertheless, the concurring opinion by Choose Griffith, joined by Judges Katsas and Rao, suggests {that a} district court docket can shield landowners by holding eminent area proceedings in abeyance whereas FERC completes its reconsideration of a certificates order. Slip Op. (Griffith, J. concurring) at 5-6.

Within the matter on overview, FERC issued a rehearing order 9 months after the statutory 30-day interval expired and 4 months after a US District Court docket granted the pipeline eminent area authority to sentence property. The pipeline additionally had began development. The court docket pointed to statistics, together with FERC’s use of tolling orders in all 39 circumstances involving landowner requests for rehearing of pipeline development certificates orders over the past 12 years wherein FERC averaged 212 days on common from the issuance of a tolling order to the date of the particular rehearing order. FERC additionally issued tolling orders in 99 % of requests for rehearing of pipeline development certificates orders from 2009-2017. As well as, FERC approved development to proceed earlier than addressing rehearing requests in 64 % of the 114 pipeline development certificates circumstances pending earlier than the FERC from October 1, 2008 to February 19, 2020. This led the court docket to conclude that FERC “has rewritten the statute to say that its failure to behave inside thirty days means nothing; it could take as a lot time because it needs; and till it chooses to behave, the applicant is trapped, unable to acquire judicial overview.” Slip Op. at 27.

The choice prevents FERC from issuing a tolling order solely to offer further time for consideration of rehearing requests, nevertheless it doesn’t essentially imply that FERC might be unable to take greater than 30 days to concern a dispositive order on rehearing. For instance, the court docket didn’t resolve how ripeness or exhaustion of administrative treatments ideas would possibly apply if FERC “have been to grant rehearing for the categorical objective of revisiting and substantively reconsidering a previous resolution, and wanted further time to permit for supplemental briefing or additional processes.” Id. at 29-30. The court docket additional famous that FERC retains authority to change or put aside its orders even after a petition for overview is filed till the executive document is filed with the court docket, which usually is 40 days from the date the petition is served on FERC. Furthermore, the concurring opinion gives FERC some further steerage. FERC is

free to grant rehearing by agreeing to contemplate the applicant’s arguments for modifying or revoking its earlier motion – i.e., by deciding to resolve. Going ahead, the Fee ought to obtain the good thing about the doubt when it points an order that says a transparent intention to rethink the deserves of the underlying order and a concrete step operationalizing that intent. For instance, the Fee might simply fulfill the Act by setting a briefing schedule or by ordering the pipeline firm to answer the claims made within the utility. Slip Op. (Griffith, J. concurring) at 3.

The concurring opinion additionally means that mandamus is offered if FERC “guarantees rehearing proceedings however in reality supplies nothing greater than undue delay.” Id. at 4.

Significantly mixed with the brand new rule deferring development, FERC seems to retain ample procedural instruments to take the time it wants to totally handle rehearing requests, even when it can not merely toll the 30-day statutory interval to behave, and it may be anticipated to check the extent of its substantive authority, in step with the court docket’s opinion, to proceed to take action. Development delays might outcome, however FERC has the staffing, procedural, and substantive instruments to attenuate delay related to deferral of development pending rehearing.