June 30, 2020: The U.S. Court of Appeals for the DC Circuit issued an opinion ruling against the Federal Energy Regulatory Commission’s (FERC) controversial practice of issuing what are commonly known as tolling orders. The decision means FERC cannot use tolling orders to keep challengers out of court while allowing polluting corporations to condemn private property and move forward with building and operating dirty, dangerous fracked gas pipelines. FERC has a longstanding practice of issuing tolling orders to allow projects to move forward while landowners and environmental advocates wait for FERC to render its final decision.
Under the Natural Gas Act, a party wishing to challenge FERC’s authorization of a pipeline must first request “rehearing” from the Commission before going to court. Congress required FERC to act on these requests within 30 days, or else the party can go straight to court. FERC, however, claimed it could indefinitely extend that 30-day deadline by issuing so-called tolling orders, which put affected landowners and environmental advocates in “administrative limbo” because FERC says court challenges are premature since it has not made a "final" decision on the request for rehearing, while at the same time maintaining that its decision is final for purposes of eminent domain and pipeline construction. The Court rightly found that the tolling orders are not among the actions Congress in the Natural Gas Act authorized FERC to take in response to rehearing requests. From now on, FERC will be required to act on rehearing requests within 30 days, which will allow for review by the courts at a meaningful time before harmful pipeline construction begins.
This victory was made possible in part through the dedicated work of ELP attorneys Elly Benson, Nathan Matthews, and Eric Huber.
Read the full press release here.