Derek Teaney ’04, Ben Luckett ’10, and Ryan Talbott ’12 all played critical roles in overturning 50 years of harmful precedent that prevented landowners and environmental groups from obtaining meaningful judicial review in natural gas pipeline cases. Ellen Gilmer ’14 wrote an article analyzing the court’s decision for Bloomburg Law, “Kafkaesque’ FERC Pipeline Process Needs Revamp, Court Says.”
On June 30, 2020, the D.C. Circuit Court of Appeals issued a landmark decision in Allegheny Defense Project v. FERC that will fundamentally change how the Federal Energy Regulatory Commission (FERC) conducts its natural gas pipeline proceedings. At issue was FERC’s use of “tolling orders” to indefinitely extend the Natural Gas Act’s 30-day deadline for the agency to “grant or deny” rehearing requests of its gas pipeline approvals. Parties are required to seek rehearing before challenging FERC’s orders in court. Despite the clear statutory text, 50 years of circuit precedent allowed FERC to indefinitely extend the deadline, preventing landowners and others harmed by pipeline construction from seeking judicial review while simultaneously allowing pipeline construction to move forward.
In Allegheny Defense Project, the D.C. Circuit, sitting en banc, overturned that precedent stating that FERC “has no authority to erase and replace the statutorily prescribed jurisdictional consequences of its inaction.” The court said that FERC and pipeline companies “split the atom of finality” because tolling orders “are not final enough for aggrieved parties to seek relief in court, but they are final enough for private pipeline companies to go to court and take private property be eminent domain.” In other words, the court said, tolling orders render FERC decisions “akin to Schrodinger’s cat: both final and not final at the same time.”
The court’s decision will now allow aggrieved parties “to seek temporary injunctive relief if needed under the ordinary standards for a stay” rather than having the courthouse doors barred shut. The decision is expected to have similar implications in the electric and hydropower sectors as well, where FERC’s authority is governed by nearly identical rehearing and judicial review provisions of the Federal Power Act. Talbott was the executive director of the lead petitioner, Allegheny Defense Project (ADP), for over a decade until July 2018. Derek Teaney and Ben Luckett are senior attorneys at Appalachian Mountain Advocates, which represented Allegheny Defense Project and the other environmental petitioners in the case.
