ELR Citation: 50 ELR 20166
No(s). 17-1098 (D.C. Cir. Jun 30, 2020)

The D.C. Circuit invalidated FERC's longstanding practice of issuing tolling orders to extend the statutory period for acting on requests for rehearing of its orders, in a lawsuit concerning the Commission's granting of a certificate of public convenience and necessity to a natural gas pipeline in Pennsylvania. Landowners and environmental groups sought rehearing of FERC's issuance of the certificate and moved to stay it pending the rehearing. The Commission issued a tolling order within 30 days of the rehearing request and denied the rehearing nine months later, during which time construction for the pipeline had begun on the landowners' property. Plaintiffs then petitioned the court for review, arguing, among other things, that FERC denied them due process by allowing construction to begin before any court could review the certificate. The court found that the Commission issued the tolling order for the sole purposes of preventing plaintiffs' rehearing from being deemed denied by its inaction and circumventing their right to judicial review, and that the Natural Gas Act unambiguously foreclosed such an order. It therefore held that after 30 days elapsed from the filing of a rehearing request without FERC substantively addressing the request or establishing additional processes, a tolling order could neither prevent a deemed denial nor alter the jurisdictional consequences of agency inaction; and it overruled any prior decisions to the extent they upheld use of tolling orders in such a manner.