If you were not able to listen to the oral arguments before the D.C. Circuit Court of Appeals on Monday, April 27, 2020, on “tolling orders,” the long-standing practice of the Federal Energy Regulatory Commission (FERC) to delay making decisions on appeals of its rulings, the audio is available here[all 3.5 hours of it!]. In a first for the court, the arguments were presented via telephone before all of the 11 active judges on the D.C. Circuit. The case, Allegheny Defense project v. FERC, had initially been decided 2-1 last August in FERC’s favor by a three-judge panel of the court, but a stinging dissent by Judge Patricia Millet led to the full court to hear the case.
According to Allegheny-Blue Ridge Alliance’s ABRA Update 274, “During the course of Monday’s session, several judges expressed skepticism about FERC’s tolling order policy, which effectively permits a project to proceed in taking property through eminent domain and completing a pipeline before affected parties, including landowners, receive a decision on their appeal of the project’s certificate and, if denied, proceed to appeal it in court. It was not clear, though, what decision the DC Circuit might make in the case. In an amicus brief filed by the Southern Environmental Law Center, Earthjustice, Natural Resources Defense Council and the Chesapeake Bay Foundation on behalf of several ABRA members and numerous affected landowners argued that FERC habitually tolls requests for rehearing in such a way that a timely judicial review is precluded. The brief goes on to note that the practice is inconsistent with the Supreme Court’s evaluation of Access-to-Justice Principles.”
From Allegheny-Blue Ridge Alliance’s ABRA Update 274, April 30, 2020:
Chief Judge Brian Morris for the U.S. District Court for the District of Montana said on April 28 that he would not issue an administrative stay to his April 15 order blocking the Army Corps’ Nationwide Permit 12 (NWP12) program, pending consultation with other federal agencies under the Endangered Species Act. The judge’s earlier decision effectively halted the authority of the U.S. Corps of Engineers from issuing any permits for any project subject to NWP12. This includes the Atlantic Coast Pipeline, which at this date does not have a valid NWP12 permit in any of the four Corps districts in which the project’s route runs. Last week, the Corps suspended issuing any NWP12 permits. Judge Morris in his April 28 ruling establish a briefing schedule for the April 15 decision to be appealed.
On Monday April 27, 2020, the D.C. Circuit Court of Appeals will hold the oral argument in the case challenging FERC’s approval of the Atlantic Sunrise Project (Allegheny Defense Project v. FERC). The case considers the pervasiveness of FERC’s unjust tolling practice and how it has real effects on individuals and groups who are kept out of court while construction is allowed to proceed. The full D.C. Circuit will take up the issue of whether to put an end to this practice.
Monday’s argument will begin at 9:30 am, and each side will have 30 minutes. The argument will be held by phone, and the public can listen to the live-stream through the D.C. Circuit’s website by clicking on the arrow under Daily Calendar with Live Audio (on the left sidebar).
Click here for a brief review of the case in a National Law Review article on January 17, 2020.
According to an AP story on April 15, 2020, “A U.S. judge canceled a key permit Wednesday for the Keystone XL oil pipeline that’s expected to stretch from Canada to Nebraska, another setback for the disputed project that got underway less than two weeks ago following years of delays.” The article notes that, “The cancellation could have broader implications because it appears to invalidate dredging work for any project authorized under the 2017 permit, said attorney Jared Margolis with the Center for Biological Diversity, another plaintiff in the case. It’s unclear what projects would be included.”
The press release from the Center for Biological Diversity is here.
Bloomberg’s article, Keystone XL Ruling Has ‘Sweeping’ Impacts for Other Projects, says “ClearView Energy Partners analyst Christine Tezak said the ruling could delay the Atlantic Coast and Mountain Valley natural gas pipelines on the East Coast because developers planned to rely on the NWP 12 program, though they don’t have any authorizations in place.”
From Allegheny-Blue Ridge Alliance ABRA Update #272, April 16, 2020: A federal district judge in Montana on April 15 ruled that the U.S. Army Corps of Engineers violated the law when it approved National Permit 12 (NWP12) to permit the Keystone XL Pipeline to cross streams and rivers under the Corps’ jurisdiction. The ruling invalidates Nationwide Permit 12, prohibiting the Corps from using this fast-tracked approval process for any pipelines nationwide.
The Corps begin issuing NWP12 in 1977 for categories of activities that it deems to be similar in nature and “will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effect on the environment.” The Atlantic Coast Pipeline (ACP) is currently without an authorized NWP12. Until the district court decision is reversed on appeal, a new NWP12 for any pipeline project, including the ACP, cannot be issued.
The case had been brought by the Northern Plains Resource Council in 2019. The judge ruled that the “Corps failed to consider relevant expert analysis and failed to articulate a rational connection between the facts it found and the choice it made” regarding endangered species that were in the path of the project. Click here for a copy of the plaintiff’s statement commenting upon the decision (which also includes a link to the court decision).
These are unprecedented times and Southern Environmental Law Center is working their way through them. They pulled together a short message from staff across their offices that we hope you’ll enjoy. We thank SELC for all their hard work to protect our environment from damaging and unnecessary pipelines.
From Allegheny-Blue Ridge Alliance ABRA Update #268, March 19, 2020:
The COVID-19 pandemic is having a decisive impact on the activities of regulatory agencies and courts who have jurisdiction over pipeline issues. Within the last few days, the following has occurred:
The DC Circuit Court of Appeals indefinitely suspended in-person oral arguments. The Court was scheduled to hear on March 31 for a major case challenging the tolling order policy of the Federal Energy Regulatory Commission (FERC’s policy of delaying the consideration of appeals of its decisions). The Court will decide on a case-by-case basis whether to hear cases by teleconference, postpone arguments or decide cases based on briefs alone.
The Federal Energy Regulatory Commission has cancelled its scheduled March 19 meeting and FERC staff began working from home, effective March 16. FERC offices are closed to outside visitors. The next scheduled Commission meeting is April 16. It is uncertain at this time whether that meeting will occur.
The Virginia Department of Environmental Quality announced this week it is suspending routine field activities, including inspections and monitoring, for the next two weeks, though it will continue to “investigate significant pipeline concerns” during that period.
The Virginia State Air Pollution Control Board will not hold a Spring meeting. The Board had not yet scheduled the meeting. Whenever the Board next meets a primary agenda item will likely be what to do about the air permit for the Buckingham compressor station for the Atlantic Coast Pipeline, which was vacated in January by the Fourth Circuit Court of Appeals