Landowners and Environmental Advocates Tell FERC: Stop Kicking the Can on Fracked Gas Pipelines

WASHINGTON, D.C. -- Today, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in a case that has major implications for how fracked gas pipelines get approved and built in the United States. Held via teleconference due to coronavirus pandemic precautions, 11 judges heard why the Federal Energy Regulatory Commission (FERC) must stop allowing polluting corporations to build and operate dirty, dangerous fracked gas pipelines before relevant challenges have been resolved. Currently, FERC issues what are commonly known as tolling orders to allow projects to move forward while landowners and environmental advocates wait for FERC to render its final decision. This results in an unfair process that one judge called “Kafkaesque.”

The crux of the case is that in the Natural Gas Act, Congress required FERC to respond to challenges to its pipeline approvals within 30 days. FERC, however, claims it can indefinitely extend that 30-day deadline by issuing so-called tolling orders. These orders put affected landowners and environmental advocates in “administrative limbo” because FERC says court challenges are premature because it has not made a "final" decision, while at the same time maintaining that its decision is final for purposes of eminent domain and pipeline construction.

In today’s arguments, several judges questioned FERC's practice of treating its orders as final for purposes of pipeline construction, while simultaneously arguing that the same orders are not final for purposes of judicial review.

In response, Patrick Grenter, Associate Director of the Sierra Club’s Beyond Dirty Fuels Campaign said:

“Allowing polluting corporations to build and operate dirty pipelines before people can access the courts violates the Natural Gas Act, as well as basic standards of fairness. We are hopeful that the court will agree. FERC must stop allowing corporations to move forward with their dangerous pipelines while keeping the courthouse doors closed to those who will be affected by the projects. Our climate and communities depend on it.”

Ann Pinca, president of Lebanon Pipeline Awareness said:

"A system that permits pipeline construction prior to allowing citizens to have their day in court is seriously flawed. It is disgraceful that the Atlantic Sunrise pipeline has been operating for over a year and a half while legal cases are still pending and before some property owners have received compensation. We welcome this important day in court on behalf of all citizens unjustly impacted by pipeline construction."

Joseph Otis Minott, Executive Director and Chief Counsel of Clean Air Council said:

"The U.S. Constitution promises Americans harmed by government action their day in court. FERC must end its practice of encouraging destructive pipelines to forge ahead while residents are stuck in a nightmarish bureaucratic limbo."

Bill Belitskus, board president for the Allegheny Defense Project said:

"For years, FERC has allowed the gas industry to construct pipelines all over Pennsylvania, causing significant harm to landowners and long-term damage to our public forests, watersheds, and wildlife habitat. FERC did this by claiming it has authority to block people from going to court to challenge its decisions until after the pipelines are constructed. This is a denial of due process and the court needs to put a stop to it."

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