The US Federal Energy Regulatory Commission (FERC) can no longer use a process that has prevented landowners from going to court while a company is starting eminent domain proceedings to build a natural gas pipeline across the landowners’ property, a court ruled June 30.
The Natural Gas Act says aggrieved parties can go to court to fight a FERC-approved interstate pipeline, but only after rehearing has been denied by FERC. If the regulator takes no action within 30 days of a rehearing request, the request is deemed denied and the parties can seek judicial review.
FERC has delayed judicial reviews by issuing “tolling orders” to buy more time, month after month, without otherwise acting on the rehearing request. Meanwhile, a company could proceed with use of eminent domain to obtain a right of way despite landowners’ objections.
An 11-judge panel of the US Court of Appeals for the District of Columbia Circuit ruled the process illegitimate.
“We hold that, under the plain statutory language and context, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review,” the circuit court said.
The ruling came in Allegheny Defense Project v. FERC, a case stemming from the Transcontinental Gas Pipe Line Co. (Transco) Atlantic Sunrise project, which included nearly 200 miles of new pipeline in Pennsylvania. The project was completed and placed into operation in 2018 by Transco, a Williams Cos. Inc. system.
FERC Commissioner Richard Glick, a sharp critic of the delaying process, hailed the court decision. He tweeted, “Today’s Allegheny decision from the DC Circuit Court is a resounding victory for landowners & communities affected by @FERC’s pipeline orders.”
Other commissioners also had begun to have misgivings about the process. FERC issued an order June 9 saying companies could not start construction on a pipeline until after FERC has acted on a rehearing request. But that order did not prevent companies from beginning the legal proceedings to use eminent domain before action on a rehearing request (OGJ Online, June 11, 2020).