Federal Court Dismisses Challenges to FERC Decision on ACP

From the ABRA Update for March 22, 2018:

Legal challenges to the October 13, 2017 the approval and permits for the Atlantic Coast Pipeline (ACP) by the Federal Energy Regulatory Commission (FERC) were dismissed on March 21 by the U.S. District Court of Appeals for the 4th Circuit.

On January 29, Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC) sued FERC on behalf of 11 groups (most of them ABRA members) challenging the agency’s decision to approve the ACP. On March 8, a second lawsuit was filed by SELC and Appalmad against FERC under the All Writs Act to stop pipeline construction. The All Writs petition was filed as an alternative basis on which the Court could stop the project, if it determined that the direct challenge to the FERC approval was premature.

The panel rejected the All Writs argument and apparently accepted FERC’s position that it could indefinitely postpone a decision on the merits of our rehearing request to the agency even though the pipeline goes forward (known as a “tolling order”). Thus, in the Court’s view, it does not have jurisdiction to hear the case now, and the plaintiffs must wait until FERC issues an order on the rehearing request. It is unclear when the agency will act. The FERC certificate can still be challenged once the agency makes its final decision. Until then, other pipeline permits will be subjected to litigation.