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Halting Pipelines During FERC Appeals Will Be Tough Sell

Law360

Landowners who lost a bid to keep a pipeline project off their properties are hoping the full D.C. Circuit will heed a judge’s strong criticism of the Federal Energy Regulatory Commission for letting pipelines be built while administrative appeals are pending, but actually getting the practice changed may be a tall order.

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But convincing a majority of D.C. Circuit judges to take up the matter may prove difficult, Brett A. Snyder, a partner at Blank Rome LLP, said Monday.

 “Getting review en banc is kind of rare,” Snyder said. “And since this precedent has been in place for decades, it’s unlikely that the D.C. Circuit will take it up.”

The Natural Gas Act gives FERC 30 days to act on a petition for rehearing, and it usually issues tolling orders to meet that requirement, something the courts have consistently supported. Tolling orders are basically placeholder actions, an official move by the commission signaling it intends to act. Snyder said there’s an understanding that FERC rehearings are often very complex and can be very time- and labor-intensive, and that 30 days just isn’t a realistic time frame for a final determination.

“Halting Pipelines During FERC Appeals Will Be Tough Sell,” by Juan Carlos Rodriguez was published in Law360 on August 5, 2019.