A federal appeals court in Washington, DC, Friday dismissed a petition filed by Williston Basin Interstate Pipeline seeking judicial review of FERC’s decision rejecting the pipeline’s proposed rate increase. The court held that Williston Basin failed to file a timely request for further rehearing of a rehearing order at FERC and a timely petition for judicial review.
The Federal Energy Regulatory Commission in July 2003 rejected the pipeline’s proposed rates and ordered Williston Basin to make a compliance filing and to make refunds once the agency ruled upon the compliance filing. Williston Basin sought rehearing of the FERC order, but the Commission rejected it in May 2004. FERC then rejected Williston Basin’s April 2005 compliance filing, established appropriate rates and ordered the pipeline to make refunds within 30 days.
Williston Basin, a subsidiary of Bismarck, ND-based MDU Resources Group, had two choices at that point. It could have sought further rehearing of the FERC rehearing order if the order had raised new issues, or it could have filed for court review of the May 2004 rehearing order. Instead, Williston Basin “filed a document labeled ‘Request for Clarification and Reconsideration of the Rehearing Order’ [RCR] 34 days after the Commission issued the rehearing order, on a day that was beyond the deadline for filing a request for further rehearing,” the U.S. Court of Appeals for the District of Columbia Circuit said. Under the Natural Gas Act (NGA), a petitioner has 30 days to seek rehearing of a FERC rehearing order, and then 60 days after FERC acts to file for judicial review.
“Petitioner argues that the RCR tolled the limitations period under [federal law], and contends that the clock did not begin to run on the time limit for seeking judicial review until FERC issued the compliance order on April 19, 2005 [as opposed to the May 2004 rehearing order]. These claims fail, however, because the agency action about which petitioner now complains is embodied in FERC’s rehearing order and petitioner did not seek timely review of that order. We, therefore, dismiss Williston’s petition for want of jurisdiction,” the three-judge panel said.
“The logical extension of Williston’s argument, which we cannot accept, is that a petitioner can file a request for reconsideration of a Commission order whenever it desires, and that such filing tolls the 60-day statute of limitations for judicial review. This would wreak havoc with the jurisdictional requirements of the NGA,” it noted.
Williston Basin provides natural gas to several midwestern and western states, including Wyoming, Montana, South Dakota and North Dakota. Its system includes about 3,700 miles of transmission, gathering and storage lines.
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