New York — The US Federal Energy Regulatory Commission needs 90 days to figure out how it will respond to a recent recent ruling reining in its ability to drag out decisions on rehearing orders, the commission has told the DC Circuit Court of Appeals.
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At issue is a June 30 en banc ruling by the DC Circuit that overturned decades of precedent affecting FERC's gas project procedures. The decision has implications for FERC's work load, not only under the Natural Gas Act but also for its Federal Power Act orders.
The court found the commission can no longer extend the 30-day timeframe in which to decide on rehearing in natural gas project cases solely for the purpose of keeping opposing parties out of court. Landowners and environmental groups have argued FERC's longstanding approach unfairly blocked their access to courts even as gas projects proceeded, and the appeals court largely agreed.
On July 6, FERC asked the court to stay for 90 days the issuance of the mandate that would put the ruling into effect. And the petitioners on July 8 weighed in to oppose that request.
According to FERC, a stay would allow it to assess how to implement the decision and allow the federal government to consider whether to appeal the ruling to the US Supreme Court.
In particular, the commission pointed to the flexibility it saw in the ruling for FERC to have more than 30 days to act — either by directing further hearing processes, or by reconsidering the order until FERC has filed a record of decision making with the court.
A stay would allow FERC time to consider the extent of its statutory authority to grant rehearing, develop internal agency practices, and reexamine agency priorities and staffing needs, it said.
In making its pitch that the landowners would not be harmed by such a delay, FERC recounted recent steps it has taken to ease the impact of its approach on landowners, such as adding resources to the Office of General Counsel to expedite rehearing decisions, and its new rule barring construction while rehearing requests are pending.
For more than 50 years, FERC has understood with judicial approval that the NGA allows rehearing for the purposes of further consideration, the commission said. The tolling orders have become a critical tool that allows FERC to manage its large case load and "bring its expertise to bear on complex, technical matters before they are presented to the courts of appeal," it added.
Landowner and conservation groups petitioners in the case (Allegheny Defense Project v. FERC, 17-1098) countered FERC's pitch, saying FERC presents no compelling reasons for the stay, "thereby creating further delay and allowing FERC to continue its unfair and unlawful practice."
Moreover, they argued that FERC exaggerates the consequences of issuing the mandate. They pointed to language in the ruling noting the order was "not the same as saying the commission must actually decide the rehearing application" within the act's 30-day window. For instance, they noted the finding that FERC retains authority to change its underlying order even after a petition for review is filed. And they asserted that FERC has ample time to apply its expertise during the original certificate proceeding.
By contrast, they said uncertainties would be created in multiple dockets if the court's opinion did not go into effect right away. For instance, a Sierra Cub request for rehearing related to the start of service for Phase II of the Sabal Trail Transmission project was tolled by FERC June 19.
Aggrieved parties would be uncertain whether the absence of the mandate bars them from seeking judicial relief, they wrote. It would also harm parties whose rehearing requests may be tolled in the next 90 days, such as those opposing the Mountain Valley Pipeline Southgate extension, they added.
The request for a reprieve from the court comes as Chairman Neil Chatterjee and Democratic Commissioner Richard Glick have also issued a joint statement July 2 asking Congress to consider providing FERC with a reasonable time to act on rehearing requests involving orders under both the NGA and FPA.