Academic journal article Energy Law Journal

Report of the Ferc Practice Committee

Academic journal article Energy Law Journal

Report of the Ferc Practice Committee

Article excerpt

This report covers significant Federal Energy Regulatory Commission (FERC or Commission) practice and procedural issues, including appellate court decisions, major FERC orders and rulemakings, and administrative actions, from July 1, 2018 through June 30, 2019.·

I. Procedural Holdings from the Federal Courts

Pursuant to the Federal Power Act (FPA) and the Natural Gas Act (NGA), parties to a FERC proceeding may appeal an order issued by the Commission in the "United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia."1 Parties must file their appeal within sixty days after the FERC order, and "upon the application for rehearing, a written petition praying that the order of the [FERC] be modified or set aside in whole or in part."2 "The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the [FERC], shall be final, subject to review by the Supreme Court of the United States. . . ."3 The case summaries below address appellate decisions involving notable procedural issues (e.g., standing, failure to raise issue on rehearing) that resulted in the court dispensing with one or more issues without reaching the merits.

A.U.S. Court of Appeals for the District of Columbia Circuit

1. Delaware Riverkeeper Network v. FERC

On July 10, 2018, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an order upholding FERC's recovery of operating costs through industry fees and charges, and finding FERC's use of tolling orders generally permissible under the Due Process Clause of the Fifth Amendment.4 This ruling stems from an appeal by the Delaware Riverkeeper Network (Riverkeeper) to the United States District Court for the District of Columbia related to a natural gas pipeline certificate proceeding for a pipeline running through Pennsylvania and New Jersey.5 Specifically, the court addressed claims brought by Riverkeeper that (1) FERC's collection of fees and assessments under the Om nibus Budget Reconciliation Act of 1986 creates structural bias in favor of granting natural gas pipeline certificates; and (2) that FERC's practice of issuing tolling orders on rehearing in pipeline certificate proceedings while simultaneously allowing pipeline construction frustrates judicial review.6 Riverkeeper argued that both practices violate the Due Process Clause.7

The D.C. Circuit disagreed.8 With regard to the collection of fees and assessments, the court first found that Riverkeeper failed to establish a protected liberty interest under the Due Process Clause.9 Explaining the underlying premise of the Due Process Clause, the court established that a threshold question necessary to establish a due process claim is whether a liberty or property interest has been deprived.10 Despite Riverkeeper's arguments that the Pennsylvania Constitution creates a protected interest in a clean environment, the D.C. Circuit found this sort of interest unlike the sorts of rights to contract, work, learn, marry, worship, and be free of bodily restraint that typically characterize protected liberties.11 The court further rationalized that Pennsylvania's constitutional rights to a clean environment have no ascertainable monetary value, do not convey a right to exclude, are too vague in terms of specific environmental quality, and otherwise are not sufficiently binding on the federal government to create a due process right.12 In response to Riverkeeper's additional argument that its members own real property that may be affected by the relevant pipeline development, the D.C. Circuit held that eminent domain proceedings provide adequate due process.13

Despite the findings above, the D.C. Circuit further considered the creation of bias related to FERC's collection of fees and assessments, finding that FERC's limited interests in the costs recovered do not create undue prejudice. …

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