January 14, 2020

For Whom the Toll Tolls

Scott Grover

The U.S. Circuit Court of Appeals for the District of Columbia (D.C. Circuit) recently ruled on a petition for review of orders from the Federal Energy Regulatory Commission (FERC) relating to the approval of a new interstate natural gas pipeline expansion project called the Atlantic Sunrise Project. Allegheny Defense Project v. FERC, 932 F.3d 940 (D.C. Cir. 2019) (Allegheny). In the per curiam opinion, the D.C. Circuit denied the petitions and upheld FERC’s decision to issue a certificate of public convenience and necessity for the project. While the decision is notable for, among other things, its attention to FERC’s consideration of downstream greenhouse gas emissions associated with the project, the concurring opinion issued by Judge Patricia Millett warrants a more careful examination. In that opinion, Judge Millett tackles a common practice of FERC to issue “tolling orders” on requests for rehearing of agency orders and challenges the ongoing legality (from both a statutory and constitutional perspective) of that practice. Not surprisingly, Judge Millet’s concurrence has prompted a petition to the D.C. Circuit for rehearing en banc.

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