August 05, 2020

Lewis & Clark alums instrumental in historic gas pipeline case

Several Lewis & Clark Law alums, Ryan Talbott, Derek Teaney, and Ben Luckett, played important roles in a recent D.C. Circuit Court of Appeals case, Allegheny Defense Project v Federal Energy Regulatory Commission (FERC), overturning 50 years of precedent. Ellen Gilmer, is the journalist who wrote a Bloomberg article analyzing the court’s decision.

Several Lewis & Clark Law alums, Ryan Talbott (’12), Derek Teaney (’04), and Ben Luckett (’10), played important roles in a recent D.C. Circuit Court of Appeals case, Allegheny Defense Project v Federal Energy Regulatory Commission (FERC), where the court, sitting en banc, overturned 50 years of precedent and found that FERC “violated the law by routinely issuing ‘tolling orders’ that prevent pipeline opponents from seeking judicial review while an agency petition process drags on and industrial development moves forward (…)” ‘Kafkaesque’ FERC Pipeline Process Needs Revamp, Court Says. A fourth alum, Ellen Gilmer (’14) is the journalist who wrote the attached Bloomberg article analyzing the court’s decision.

Ryan Talbott grew up in Pennsylvania, “surrounded by the beautiful public forests that blanket the northern tier of the state. When the fracking boom hit Pennsylvania, the gas industry put those public lands in its crosshairs, threatening them with extensive new road construction, well sites, and pipelines. As the agency in charge of approving gas pipelines, FERC often ignored its obligation to meaningfully consider the environmental impacts of pipelines, including their contribution to climate change, before approving them. FERC approved one pipeline after another, often based on a cursory environmental review.”

Talbott continued: “[t]o make matters worse, anyone wanting to challenge FERC’s approval of a pipeline found the courthouse doors locked thanks to longstanding D.C. Circuit case law. Under the Natural Gas Act, anyone aggrieved by FERC’s decision to approve a pipeline may file a request for rehearing and FERC must ‘grant or deny’ the request for rehearing within 30 days. Despite the plain statutory text, decades ago FERC developed a practice of issuing so-called ‘tolling orders’ that purported to ‘grant’ rehearing but only to give the agency additional time to ‘further consider’ issues raised on rehearing. In other words, FERC claimed it could erase the statute’s 30-day clock and set its own indefinite timeframe to respond to requests for rehearing. In 1969, although it found FERC’s reading of the statute ‘far from self-evident,’ the D.C. Circuit upheld FERC’s use of tolling orders.”

These tolling orders had the effect of making FERC’s pipeline approvals allegedly “non-final,” preventing aggrieved parties from going to court. At the same time, FERC would allow the company to construct the pipeline. By the time FERC denied the request for rehearing, the pipeline was often built and in service, making judicial review meaningless. This process played out in one pipeline case after another for decades.

Talbott was the executive director of the lead petitioner, Allegheny Defense Project (ADP), for over a decade until July 2018. “After law school, I started working on natural gas issues because of the impacts of fracking and pipeline construction in Pennsylvania. After going through a few FERC proceedings and experiencing the brick wall of tolling orders, I knew that if we were ever going to have a fair shot at challenging FERC’s decisions, the D.C. Circuit would have to overturn its precedent upholding the agency’s use of tolling orders. After researching the issue, I drafted a memo explaining how the court had originally upheld tolling orders and why the court’s rationale in 1969 should no longer be considered good law.

We then explained to FERC in each request for rehearing that if the agency did not ‘grant or deny’ rehearing within 30 days (i.e., it issued a tolling order), we would consider that a denial of rehearing and reserve the right to proceed to court regardless of the existing precedent. It was just a matter of finding the right case. And when the Atlantic Sunrise Pipeline was proposed, I knew that was the case. It was a massive new 200-mile pipeline impacting numerous public lands, waterbodies, wetlands, endangered species habitat, and landowners.

A broad coalition of environmental groups and landowners organized to fight this pipeline from day one. Ben Luckett and Derek Teaney at Appalachian Mountain Advocates and Elizabeth Benson at Sierra Club represented ADP and the other environmental petitioners. Siobhan Cole of White and Williams LLP argued the case before the en banc court. It was a team effort for sure.”

In June 2020, the D.C. Circuit, sitting en banc, overturned fifty years of precedent to finally put an end to FERC’s use of tolling orders. The court explained that “through the use of tolling orders, [FERC] has eliminated entirely the jurisdictional consequences of its inaction, preventing rehearing applications from being deemed denied even after they have been pending for prolonged periods of time.” Indeed, the court noted that in this case, involving FERC’s approval of a new 200-mile pipeline, FERC “gave itself roughly ten times as long as the statute allots for it to act” on requests for rehearing. This, the Court said, “unravels Congress’s arrangement.” See Allegheny Defense Project v. FERC, 2020 WL 3525547 (D.C. Cir. 2020).

The consequences of this decision are sweeping. No longer can FERC deny environmental groups and landowners their day in court to challenge dirty energy projects like fracked gas pipelines.

Derek Teaney, Senior Attorney at Appalachian Mountain Advocates, explained the significance of the court’s decision: “FERC’s use of tolling orders to render its certificates simultaneously final and non-final was the biggest abomination of administrative law I had encountered in my career. I’m glad the Schroedinger’s cat of administrative law is officially dead.”

Ben Luckett, Senior Attorney at Appalachian Mountain Advocates summed it up: “FERC’s practice of barring the courthouse doors while at the same time allowing pipeline companies to bulldoze through forests, streams, and private property was obviously unjust. We’re glad that the Court agreed with us that it’s illegal, too. For too long, FERC’s effective immunity from judicial review has emboldened its dismissal of the public’s legitimate concerns about the major fossil fuel infrastructure projects FERC authorizes. We are thrilled that, going forward, community groups and landowners impacted by these harmful projects will get their day in court at a meaningful time.”