The Federal Energy Regulatory Commission will not seek US Supreme Court review of a recent appeals court ruling that upended FERC's practice of giving itself months to decide on rehearing of natural gas and power orders, Chairman Neil Chatterjee said Sept. 17.
His comments came on a day when FERC staff explained the recent approach the commission has put in place in the aftermath of the important US Circuit Court of Appeals for the District of Columbia Circuit decision (Allegheny Defense Fund v. FERC; 17-1098). The court ruling, which had implications for gas project timelines, ended FERC's use of tolling orders that delayed rehearing decisions under the Natural Gas Act but also was widely interpreted as affecting Federal Power Act rehearings as well.
Despite FERC's explanation of its new approach Sept. 17, Chatterjee and Democratic Commissioner Richard Glick nonetheless continued to call for congressional action to spell out a reasonable time frame in which FERC should act on rehearing requests involving orders under the NGA and FPA.
Chatterjee take
"Staff is working incredibly hard to manage the new circumstances, but I still do believe and call for Congress to weigh in," Chatterjee said during a call with reporters. "I'm optimistic that we've had some positive conversations on a bipartisan and bicameral basis and hopefully can see some movement."
For now, Chatterjee said FERC's focus is on acting as quickly as it can on rehearing and on being responsive to parties' concerns. "We're going to continue to focus on that goal, and the commission will not be pursuing Supreme Court review of the DC Circuit's decision," he said.
The Allegheny decision has had workload implications for FERC, particularly in complex cases. The decision responded to landowner complaints that they were unfairly blocked from appealing gas project approvals while FERC sat on rehearing decisions, and the pipelines were built.
Glick said during the open meeting that while he thought the court ruling was correct, "it does create a difficult situation for the commission." Those rehearing requests that do necessitate a response "could very well take more than 30 days to complete," he said. While the new approach can allow FERC to buy more time, he suggested that is partly dependent on how quickly aggrieved parties file an appeal.
New FERC approach
During the virtual commissioners meeting, FERC Office of General Counsel staff member Holly Cafer spelled out the two approaches FERC is taking in cases following the court ruling when it is does not act upon rehearing by the NGA or FPA 30-day deadline. OGC will issue one of two types of notices: a notice of denial of rehearing by operation of law, or a notice of such a denial that also states FERC's intent issue a another order addressing matters raised on rehearing.
FERC is viewing its notices on rehearing as starting the 60-day time period in which parties may seek review of its orders under the NGA and FPA.
FERC also said it is making a change to rehearing orders issued after the 30-day mark: those will now reflect FERC authority to "modify or set aside in whole or in part" a prior order until the time when the record on appeal is filed in a reviewing court. Standardizing that terminology is meant to help parties tell whether FERC's order is final and aggrieved parties can head to court, Cafer said.
The court of appeals' mandate is set to take effect Oct. 5, the commission noted.
The impact of the new practices FERC has adopted may be most salient to gas projects, ClearView Energy partners said in a research note. The new sequencing following the court ruling allows landowners or environmental advocates to head to court sooner. While there is therefore increased risk of court rulings that could slow projects, "FERC has a good record of defending its certificate orders on appeal," ClearView said in a note to clients.
