On January 22, Attorney General Josh Shapiro announced he was joining 10 other Attorneys General and plaintiffs from Lancaster County, in filing an amicus brief supporting a challenge to the Federal Energy Regulatory Commission practice that routinely allows construction to proceed on FERC-approved pipelines by the use of “tolling orders” before challengers can appeal these decisions in court.
The Attorney General signed on to an amicus brief with a coalition of 11 Attorneys General in Allegheny Defense Project v. Federal Energy Regulatory Commission.
On January 17, the Delaware Riverkeeper Network, PennFuture and other environmental organizations, represented by Earthjustice, filed an amicus brief with the United States Court of Appeals for the District of Columbia Circuit to challenge the Federal Energy Regulatory Commission’s use of tolling orders. Click Here for more.
In the brief, Shapiro and the Attorneys General argue that denying landowners and others their day in court before pipeline construction commences is a violation of the Due Process Clause of the U.S. Constitution.
Once FERC approves a pipeline, the pipeline company can immediately exercise eminent domain and take land for construction while the pipeline’s opponents must file a request for rehearing with FERC before appealing to a federal court.
In the Lancaster County case, two homeowners protested a pipeline company’s (Transco) application to construct a pipeline in the middle of their land. After FERC issued a certificate to Transco, the company began eminent domain proceedings and was soon granted court permission to proceed.
“FERC has twisted the law to leave property owners in legal limbo while pipeline operators begin construction through their backyards,” AG Shapiro said. “I’m glad a court is finally willing to examine this inherently unfair practice.”
FERC is supposed to act on requests within 30 days, but in almost every case, it grants itself additional time with a “tolling order” on the rehearing request, and then takes many months to rule.
As a result, construction often proceeds for months before any challenges are heard in court. The amicus argues FERC’s practice also hampers states’ efforts to appeal FERC orders that affect state clean energy policies or state decisions to allow pipeline crossings.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld FERC’s procedure in an August decision, holding that it was bound by the full court’s precedents. However, the court since voted to rehear the case en banc and reconsider its prior decisions.
In addition to AG Shapiro, the Attorneys General from Maryland, Delaware, Illinois, Massachusetts, Minnesota, New Jersey, New York, Oregon, Washington, and the District of Columbia have signed the amicus
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[Posted: January 22, 2020] PA Environment Digest
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