DC Circuit Rules Against FERC’s “Kafkaesque” Tolling Order Use

On Tuesday June 30, 2020, the DC Circuit Court of Appeals ruled that 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 decision came in the case involving the Atlantic Sunrise Pipeline, Allegheny Defense Project, et. al. v. Federal Energy Regulatory Commission. Several ABRA members (including Friends of Nelson) filed a brief in the case.

The majority opinion, written by Judge Patricia Millett on behalf of all the active judges on the DC Circuit, said: “…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.”

Tolling orders allow FERC to put off responding to requests for a rehearing, thus blocking challengers from bringing their concerns to court, while still allowing construction on pipeline projects to move forward. The ruling means that although FERC is not required by the decision to decide a rehearing request within the 30 days it must stick to the mandated 30-day time frame to decide on whether to accept a request for rehearing.  If FERC does not act on a rehearing application within thirty days, it means the request for a rehearing can be deemed denied and the applicant may then go straight to court to obtain judicial review of FERC’s action.

Read the court’s decision here.