Allegheny Defense Project v. Federal Energy Regulatory Commission

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After granting a petition for rehearing en banc in proceedings challenging Federal Energy Regulatory Commission (FERC) authorization of the Atlantic Sunrise natural gas pipeline project, the D.C. Circuit Court of Appeals concluded that the Natural Gas Act did not allow FERC “to issue tolling orders for the sole purposes of preventing rehearing from being denied by its inaction and the statutory right to judicial review attaching.” (The panel was interpreting a provision of the Natural Gas Act that provides that an application to FERC for rehearing will be deemed denied if FERC does not act on it within 30 days.) The D.C. Circuit therefore denied motions to dismiss the initial petitions for review that had been filed 30 days after applications for rehearing. On the merits, however, the en banc court agreed with the original panel that FERC reasonably found market need for the Atlantic Sunrise Project. The en banc court did not revisit the panel’s conclusions that the National Environmental Policy Act review of the project was sufficient. In a concurring opinion, Judge Griffith wrote that tolling orders were “just one part of the legal web that can ensnare landowners in pipeline cases” and that courts should use other tools to protect landowners from inalterably losing their property before judicial review of a pipeline’s authorization is complete. Judge Henderson concurred in the judgment and dissented in part, writing that there was no special justification for departing from the court’s consistent holding that tolling orders were permissible.

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The D.C. Circuit granted a petition for rehearing en banc of its decision upholding authorizations for the Atlantic Sunrise Project, a natural gas pipeline expansion extending from Pennsylvania to Alabama. The court directed the parties to address due process issues addressed in the opinion, including whether the Natural Gas Act authorizes the Federal Energy Regulatory Commission (FERC) to issue tolling orders that extend the statutory 30-day period for FERC action on an application for rehearing. The court’s rehearing order did not mention the National Environmental Policy Act claims on which the court ruled in FERC’s favor, including claims regarding inadequate consideration of downstream greenhouse gas emissions.

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The D.C. Circuit Court of Appeals dismissed challenges to the Federal Energy Regulatory Commission’s (FERC’s) authorization of the Atlantic Sunrise Project, a natural gas pipeline expansion extending from Pennsylvania to Alabama. With respect to climate change, the court rejected the argument that FERC had not factored downstream greenhouse gas emissions into its environmental review. Although the court agreed with the petitioners that FERC was obligated to consider both the direct and indirect effects of the project and that downstream greenhouse gas emissions are “just such an indirect effect,” the court found that FERC had already taken the required steps by estimating the amount of carbon dioxide emissions resulting from the gas that the project would transport and predicting that those emissions would be partially offset by reductions in higher carbon-emitting fuel that the project’s natural gas would replace. The court said the petitioners failed to identify “what more [FERC] should have said.” The court also rejected a claim that FERC improperly segmented its review of the Atlantic Sunrise Project by failing to consider the project’s “synergistic effect” on emissions associated with the Southeast Market Pipeline.

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On November 8, 2017, the D.C. Circuit denied the motion for an emergency stay filed by environmental groups in late October.

On October 30, 2017, the petitioners challenging FERC’s authorization of the Atlantic Sunrise pipeline project asked the D.C. Circuit Court of Appeals for an emergency stay. The petitioners contended that they had a high likelihood of success on their claims that FERC had not adequately analyzed the climate impacts of the end use of the natural gas transported by the project and had not considered indirect impacts of shale gas drilling that that the project would induce. The petitioners also argued that irreparable environmental injury would occur in the absence of a stay, that a stay would not substantially harm other parties, and that a stay was in the public interest.

While requests for rehearing regarding the Atlantic Sunrise natural gas pipeline expansion project were still pending with FERC, the D.C. Circuit Court of Appeals referred motions to dismiss petitions challenging FERC’s February 2017 authorization of the pipeline project to the merits panel. The parallel proceedings resulted at least in part from FERC’s lacking a quorum earlier in 2017 to rule on the rehearing requests within the required 30-day timeframe. The petitioners contended that FERC’s failure to act on the rehearing requests operated as a denial of the requests and gave them the ability to challenge FERC’s authorization in the D.C. Circuit. FERC and the pipeline project’s developer argued that the D.C. Circuit did not have jurisdiction to hear the challenges.

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