Is the bell tolling [thanks to Carolyn Elefant for the literary allusion to John Donn an English cleric and poet, 1572-1631*], for the Federal Energy Regulatory Commission’s fait accompli use of tolling orders? The D.C. Circuit Court of Appeals took up a challenge, in an unusual en banc hearing this week, to FERC’s long-standing practice of issuing tolling orders. The order essentially reset the clock in order to avoid a legally-required 30-day decision window on orders in natural gas and electric cases.
The issue before the court was the Transco Atlantic Sunrise Pipeline expansion project, a 183-mile interstate pipeline in Pennsylvania, connecting to four other states. FERC issued a series of tolling orders, delaying agency action of the pipeline’s certificate under the Natural Gas Act. As those tolling orders serially delayed a 30-day FERC decision, the pipeline construction went ahead. By the time FERC eventually approved the project, it was complete.
Local opponents of the project, represented by the Natural Resources Defense Council, told the 11-member court hearing that the FERC habitual tolling practice denied them the ability to litigate the issue because of the tolling order. The provisions of the NGA are also in the Federal Power Act, governing FERC’s powers for electricity projects, The consequences for gas pipelines are more serious, as FERC has the ability to give pipeline developers federal eminent domain authority to condemn private land.
Former FERC staff attorney Elefant, who now often represents land-owned opponents, wrote in a special issue of her newsletter PowerUpdateLegal, outlining how her views have changed since she was a beginning lawyer at FERC, writing draft tolling orders for the commission. “At the time,” she said, “I never questioned the practice.”
But over many years she began to understand the due process problems with the FERC practice as she worked with local landowners, and took the opportunity of the 2017 loss of a FERC quorum to push the issue at the D.C. Circuit. That effort failed.
Eventually, Elefant said, lawyer Sioban Cole of White Williams raised “the full blown due process challenges to FERC’s tolling order that are now before the court.” Cole’s arguments caught the attention of circuit court judge Patricia Ann Millett. Millett’s attack on FERC’s practice in a concurrence in a 2018 Transco case, Allegheny Defense Project v. FERC, set the stage for the full court hearing. She wrote that FERC “can toll until the cows come home and thereby forestall judicial review while people’s homesteads are being destroyed. And the Commission knows exactly what it is doing with its repeated issuance of cookie-cutter tolling orders.”
Based on her assessment of the en banc hearing, the appeals court “appears poised to order FERC to change its ways,” Elefant wrote. But the question, she added, is “how”? FERC Chairman Neil Chatterjee in January said he will establish an office to expedite responses to landowner complaints, which Elefant described as “opportunistic.”
Another approach raised by the judges includes giving landowners the opportunity to challenge the tolling orders to “seek immediate review at and a stay at the court order, or allowing FRREC to retain jurisdiction over rehearing requests provided it stayed the certificate while challenges were pending.”
The tolling order controversy has also drawn congressional attention. The House Oversight Committee’s civil rights and civil liberties subcommittee on April 28 issued investigative findings that FERC practice is questionable. Subcommittee chairman Jamie Raskin (D-Md.), said, “The Due Process Clause of the Fifth Amendment states: ‘No person shall be deprived of life, liberty, or property without due process of law. The subcommittee is concerned that FERC’s process for handling challenges to pipeline construction, and its allowance of some construction-related activity before all state requirements have been met, denies individual landowners a meaningful opportunity to be heard before irrevocable harm is done to their property.”
— Kennedy Maize
*”Therefore, send not to know
For whom the bell tolls,
It tolls for thee.”