(WASHINGTON, D.C.)— Today, Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, applauded the D.C. Circuit’s en banc decision in Allegheny Defense Project v. Federal Energy Regulatory Commission (FERC):
“I commend the Court’s decision to put an end to FERC’s indiscriminate use of tolling orders in natural gas pipeline permitting decisions. Now, private landowners can promptly seek judicial review and no longer will be forced to watch silently as their property is taken from them. FERC’s practice of responding to requests for rehearing from landowners with these tolling orders created an agonizing limbo in which the landowners were unable to challenge FERC decisions while pipeline companies could proceed to move forward with construction on their property. I am grateful that this indefensible arrangement is no longer the case and that the information and data that came out of our Subcommittee’s investigation proved useful to the Court. I have already heard from many landowners thrilled about this breakthrough.”
The Natural Gas Act allows landowners whose land would be affected by natural gas pipeline projects to file a request for rehearing on FERC pipeline authorizations. It requires that FERC respond to these requests for rehearing within 30 days. FERC routinely responded to these requests with “tolling orders,” indefinitely extending their review and effectively barring property owners from appealing to federal courts to protect their land.
Chairman Raskin launched an investigation into FERC’s use of tolling orders, among other related issues, on February 10, 2020. The Subcommittee issued a video report with its initial findings on April 28, 2020. The Subcommittee found that it took an average of 212 days, or approximately seven months, for FERC to make final decisions on requests for rehearing, all of which ultimately were denied. During that time, the pipeline companies could file lawsuits to seize private land through the power of eminent domain and establish irreversible facts on the ground.
The D.C. Circuit’s opinion emphasized the irreparable harms that can occur to landowners’ property while they are stuck in limbo between FERC’s lack of a final decision and their inability to seek judicial review. In writing the opinion, Judge Patricia Millet cited to the Subcommittee’s video report and preliminary findings. She specifically referred to the Subcommittee’s data that showed that out of 114 natural gas pipeline cases in the last twelve years in which requests for rehearing were filed, FERC authorized construction in 64% of those cases before deciding the merits of requests for rehearing.