On March 23, 2017, a group of environmental advocates including the Allegheny Defense Project, Clean Air Council, and Sierra Club (“Environmental Petitioners”) filed a petition in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) to review a FERC order issuing a certificate for a pipeline proposed by Transcontinental Gas Pipe Line Company (“Order Issuing Certificate”), despite FERC Staff having issued an order granting rehearing for further consideration (“Tolling Order”)—a mechanism frequently used by FERC to allow it more time to act on a request for rehearing beyond the 30 days it is statutorily allowed.
FERC issued the Order Issuing Certificate prior to losing the three-commissioner quorum required to make determinations at the agency level (see February 21, 2017 edition of the WER). Subsequently, the Environmental Petitioners requested rehearing of the Order Issuing Certificate. Under the federal Natural Gas Act, FERC is required to issue a decision on rehearing within thirty days, or the request for rehearing is deemed denied through operation of law. However, FERC can effectively extend the deadline indefinitely by issuing a tolling order. In a departure from general practice, the Tolling Order issued in response to the Environmental Petitioners’ request for rehearing was not issued by FERC through a quorum of Commissioners, but was instead issued by FERC staff.
The Environmental Petitioners argue that FERC staff impermissibly issued the Tolling Order. In their petition for review of the Order Issuing Certificate at the D.C. Circuit, the Environmental Petitioners argue that the Tolling Order was invalid because FERC did not delegate to FERC staff the “authority to act on requests for rehearing.” The Environmental Petitioners also assert that FERC staff lacked authority to issue such an order because FERC cannot delegate such authority to FERC staff when it lacks a quorum and is unable to issue such an order outright. As a result of the Tolling Order’s purported invalidity, the Environmental Petitioners argue that the requests for rehearing were denied as a matter of law, which was the final action required prior to appellate review of FERC orders. The Environmental Petitioners argue, therefore, that the D.C. Circuit now properly has jurisdiction under the Natural Gas Act to review the Order Issuing Certificate for the Transcontinental Gas Pipe Line Company project.
The March 23, 2017 petition for review can be found in the D.C. Circuit docket for Allegheny Defense Project, et al v. FERC, Case No. 17-1098.