Pipeline construction has been allowed to continue, while a federal agency put landowners’ appeals of pipeline approvals on hold indefinitely. Photo: Photo: Reid Frazier / The Allegheny Front
A federal appeals court has ruled that the agency in charge of interstate pipelines cannot indefinitely delay landowners who want to appeal a project. In Allegheny Defense Project v. FERC, the court ruled that the Federal Energy Regulatory Commission (FERC) could not use tolling orders to delay a decision on a landowner’s request for a rehearing. The ruling is being called a win for landowners and communities in the pathway of pipelines.
The cause involves the Atlantic Sunrise Pipeline. In 2015, the Transcontinental Gas Pipe Line Company applied to FERC for approval of its natural gas pipeline, which included construction of nearly 200 miles of new pipeline in Pennsylvania.
When FERC approved the project, two families in southeastern PA with properties in the pipeline’s path appealed the decision, by requesting a rehearing. Under the Natural Gas Act, the commission has 30 days to respond to requests like this. Instead, FERC issued a tolling order, putting off the deadline indefinitely.
With the tolling order delaying FERC’s decision on the rehearing, the landowners were unable to fight the pipeline project in court, according to Abby Jones, vice president of legal affairs at PennFuture. The advocacy group signed a Friend of the Court brief in support of the landowners.
“What FERC is doing is they are indefinitely delaying their time to rehear, so that 30 days goes away and they can just basically sit on their rehearing request, thereby precluding the plaintiff in this case from having their day in court,” Jones said.
In its June 30 ruling, the U.S. Court of Appeals for the District of Columbia found that FERC issued tolling orders in response to 99 percent of all the requests for rehearing of pipeline decisions between 2009 and 2017, and 100 percent since then. In oral arguments, the commission admitted the use of these stall tactics was “almost as a matter of routine.”
According to the ruling, FERC can no longer issue tolling orders. “Simply delaying it indefinitely is not actually taking an action on a request,” said Jones. “That’s what the court said, and that is in violation of the statutory requirements under the Natural Gas Act.”
A Win for Landowners
While tolling orders force landowners to wait for FERC’s review before they can challenge pipelines in court, pipeline construction has been allowed to move forward.
“The pipeline companies are able to actually go and condemn private property,” said Jones. ”They can construct the pipelines. They can decimate our environment. When FERC finally gets around to issuing a decision on that rehearing request, the pipeline’s already in.”
Essentially, Jones said, the landowner or the environmental organization has no recourse because the pipeline has already been completed.
That’s what happened with the Atlantic Sunrise pipeline. FERC did not respond to the landowners until nine months after their appeal. By then, the pipeline was already under construction on their property.
In response to the ruling, FERC Chairman Neil Chatterjee and Commissioner Richard Glick issued a joint statement asking Congress to change the law to give FERC more time to act on rehearing requests and to prohibit pipeline companies from moving forward on eminent domain proceedings and construction during the rehearing process.
On Twitter, Glick called the ruling a resounding victory for landowners and communities affected by these pipeline decisions.
Today’s Allegheny decision from the DC Circuit Court is a resounding victory for #landowners & communities affected by @FERC’s pipeline orders. It is important that these parties can go to court before a company can take their land & build a pipeline affecting their communities.
— Rich Glick (@RichGlickFERC) June 30, 2020