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Court rules against energy regulator over delayed appeals

Court rules against energy regulator over delayed appeals
© Greg Nash

A federal court ruled Tuesday against delays used by the Federal Energy Regulatory Commission (FERC) during the appeals process for those seeking to overturn the body's approval for energy infrastructure projects.

The D.C. Circuit Court's decision restricts FERC’s use of so-called tolling orders, which it issued to keep appeals from being automatically denied after 30 days. After appeals are automatically denied, landowners who want to appeal FERC’s decision can take the issue to court.

“The question in this case is whether the Commission can eliminate that statutorily prescribed consequence of its inaction—and, in doing so, stave off judicial review—by issuing a tolling order that takes no action on the application other than buying the Commission more time,” said the majority opinion.

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“Such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review,” it continued.

Until recently, companies building energy infrastructure projects such as pipelines could continue with construction while the appeals process was ongoing. However, a new rule issued this month delays the start of construction until FERC makes a determination on an appeal.

The body’s one Democratic commissioner, Richard Glick, praised the court’s decision.

“Today’s ... decision from the DC Circuit Court is a resounding victory for #landowners & communities affected by @FERC’s pipeline orders,” he tweeted. “It is important that these parties can go to court before a company can take their land & build a pipeline affecting their communities.”

FERC regulates interstate transmission of natural gas, oil and electricity as well as natural gas and hydropower projects.