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 Practice
In Significant Order on FERC Procedure, En Banc D.C. Circuit Rejects FERC’s Use of Tolling Orders under the Natural Gas Act, Raising Significant Implementation Questions for All Pending and Future Proceedings
By Troutman Pepper Locke on
Posted in FERC Practice
On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), sitting en banc, upset FERC’s long-used practice of granting itself more time to consider requests for rehearing of its orders by issuing “tolling orders.” FERC’s prior use of tolling orders prevented parties from seeking judicial review of a Commission order, but did not stay the effect of that order. The crux of the court’s decision is that the Natural Gas Act (“NGA”) gives FERC four express options to address a request for rehearing, all of which must be taken within thirty days, but deciding only to grant itself more time is not one of those options. The decision marks a sea change in FERC procedure, and raises a host of questions for pending and future proceedings under both the NGA and its companion statute, the Federal Power Act (“FPA”).
On July 2, 2020, FERC Chairman Neil Chatterjee and Commissioner Richard Glick issued a joint statement requesting that Congress pass legislation “providing FERC with a reasonable amount of additional time to act on rehearing requests involving orders under both the Natural Gas Act and the Federal Power Act.” The statement goes on to say that “any such legislation should make clear that, while rehearing requests are pending, the Commission should be prohibited from issuing a notice to proceed with construction and no entity should be able to begin eminent domain proceedings involving the projects addressed in the orders subject to those rehearing requests.”