On July 6, 2020, FERC moved for a ninety-day stay of the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit’s”) mandate in Allegheny Defense Project v. FERC. That decision upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing tolling orders (see July 1, 2020 issue of the WER). Although the decision was issued in the context of a pipeline proceeding under the Natural Gas Act (“NGA”), FERC’s motion noted that the impact of the D.C. Circuit’s decision extends to all requests for rehearing under the NGA, and presumably to those under the Federal Power Act as well. In support of its motion, FERC explained that over the past fifty years, tolling orders have been a critical tool to help manage its large case load and bring its expertise to bear on complex technical matters before they are presented to the courts of appeals. FERC stated that a stay of the court’s mandate would afford it time to consider how to revise its processes and allocate its resources in the absence of tolling orders. FERC also argued that a stay would give it and the Solicitor General additional time to consider whether to petition the Supreme Court for a writ of certiorari, though it noted that the ultimate decision of whether to petition the Supreme Court lies with the Solicitor General and the Department of Justice.
FERC’s motion is available here.