In landowner win, court reins in 'Kafkaesque' approvals

Federal energy regulators are no longer free to indefinitely stall challenges to the projects they approve, a prominent appeals court ruled today in a victory for landowners.

The full panel of active judges on the U.S. Court of Appeals for the District of Columbia Circuit said the Federal Energy Regulatory Commission could not use "tolling orders" to avoid facing a legal challenge in court for approval of projects like natural gas pipelines.

The orders allow FERC to put off responding to requests for rehearing and block challengers from bringing their concerns to court, while simultaneously allowing project construction to move forward.

The court held that FERC had to stick to a statutorily mandated 30-day time frame to come to a decision on whether to accept a rehearing request.

"In sum, we hold that, after thirty days elapsed from the filing of a rehearing application without Commission action, the Tolling Order could neither prevent a deemed denial nor alter the jurisdictional consequences of agency inaction. To the extent our prior decisions upheld the use of tolling orders in that manner, they are overruled in relevant part," Judge Patricia Millett, an Obama appointee, wrote in the majority opinion.

Judge Thomas Griffith, a George W. Bush appointee, wrote a concurring opinion.

Judge Karen Henderson, another George W. Bush appointee, concurred in part and dissented in part in the decision this morning.

She critiqued the majority for overturning 50 years of court precedent and said the court did not give "proper regard" to the degree that tolling orders had been upheld by the court.

During oral arguments earlier this year, judges for the court were divided on how best to address concerns over FERC's handling of landowner complaints.

Millett, who last year sharply critiqued FERC's procedures as "Kafkaesque," and Judge Cornelia Pillard, an Obama appointee, suggested the court's main focus should be on addressing the use of tolling orders in cases that could lead to "irreparable harm" (Energywire, April 28).

The court repeated its critiques of FERC's "virtually automatic" use of tolling orders to delay responding to rehearing requests in the majority opinion.

Millett emphasized that FERC is not required by this ruling to decide a rehearing request within the 30-day window.

"[T]he only question we decide is that the Commission cannot use tolling orders to change the statutorily prescribed jurisdictional consequences of its inaction," she wrote.

Email: nfarah@eenews.net

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