In its May 26, 2023 opinion in Sierra Club v. Federal Energy Regulatory Commission (an article on the rest of the opinion regarding FERC’s environmental review of the Mountain Valley Pipeline can be found here), the United States Court of Appeals for the District of Columbia Circuit addressed challenges to its jurisdiction to hear appeals of Commission rehearing orders when they are denied by operation of law and the Commission subsequently modifies the underlying order after said denial.

The Court addressed arguments from Mountain Valley Pipeline (“MVP”) that the Court did not have jurisdiction to consider the appeals before it, either because the orders denying rehearing by operation of law were not final agency action or because petitioners did not include the Commission’s orders modifying those orders in their petition for review. The Court rejected both arguments.

First, the Court explained that its holding in Allegheny Defense Project—that the Commission’s failure to act on a rehearing application within 30 days deems the rehearing final agency action that is appealable—foreclosed MVP’s arguments. The Court stated that language in the notice of denial of rehearing by operation of law indicating that the Commission intended to modify the original order at some future time did not countermand this holding.

Second, the Court held that petitioners were not required to file a new petition for review of FERC’s orders issued after the denial by operation of law. The Court held that because FERC failed to act on petitioners’ rehearing request within 30 days, rehearing was denied as a matter of law and the Commission’s subsequent actions were therefore limited to modifying the underlying order, rather than granting rehearing of it. Nonetheless, the Court stated that “inexact specification of the order to be reviewed will not be fatal to the petition . . . if the petitioner’s intent to seek review of a specific order can be fairly inferred from the petition for review or from other contemporaneous filings, and the respondent is not misled by the mistake.”

The Court held that it could infer that petitioners intended to seek review of the original order and any subsequent modifying orders and, therefore, the Court had jurisdiction over the contested orders.

The opinion, issued in Case No. 20-1512, can be found here.