FERC’s use of tolling orders, which can indefinitely postpone regulatory action on some projects, should be reviewed by Congress, according to Commissioner Richard Glick.
“I think it would make our process more efficient,“ Glick said during the Federal Energy Regulatory Commission’s monthly open meeting Thursday in Washington, DC. “At the same time, it would be an improvement certainly for parties that are seeking to take their concerns to the appellate court after going through the FERC process.”
Last month, the U.S. Court of Appeals for the District of Columbia (DC) Circuit agreed to rehear a case challenging FERC’s review of the Atlantic Sunrise Project, a move that could have implications for the Commission’s rehearing process. The DC court agreed to an en banc rehearing of the case, vacating an Aug. 2 order that denied the petitioners’ challenge and scheduling oral arguments for March 31.
Among the issues raised in their original challenge, the petitioners argued that FERC violated the due process rights of landowners along the project route by issuing “tolling orders” while simultaneously allowing construction to move forward. A tolling order effectively allows FERC to delay judicial review of a decision by extending the 30-day statutory deadline for action on a rehearing request. A challenger traditionally must wait for a final rehearing decision from FERC before taking their case to court.
FERC Chairman Neil Chatterjee subsequently said that in cases effecting landowners, the Commission would take action within 30 days and step away from the use of tolling orders. FERC should act on all rehearing requests related to pipelines within 30 days, whether or not landowners are involved, Glick said.
“I would think at the very least that this is something Congress should also take a look at,” Glick said. “I would suggest that Congress take a look at this particular issue and maybe amend the Natural Gas Act and also amend the Federal Power Act, because we have similar concerns – the same 30-day period exists with a whole bunch of issues under the Federal Power Act.
“It strikes me that it would make some sense for them to take a look at this issue, maybe modify both statutes and say that FERC can’t use tolling orders anymore. Maybe if 30 days isn’t a good amount of time, maybe 45 days or 60 days, whatever congress would choose as the right period. It strikes me that it would make some sense.”
Glick’s comments came as FERC voted to deny a rehearing order requested for its Nov. 22 order authorizing the Rio Grande LNG Terminal and Rio Bravo Pipeline projects [CP16-454, CP16-455]. The motion was the first to be taken up since Chatterjee’s 30-day announcement, Glick said, and was passed by a 2-1 vote, with Glick dissenting.