D.C. Circuit hears challenge to unjust FERC practice

Agency process allows construction before any challenge can be heard

A clearcut path through Virginia forests felled for the Atlantic Coast Pipeline, which lacks multiple permits for construction. (© Timothy C. Wright for The Washington Post)

Monday the full U.S. Court of Appeals for the District of Columbia heard a challenge to a systematic practice by the Federal Energy Regulatory Commission, or FERC, that prevents landowners and communities from challenging the agency’s decisions in court before energy infrastructure projects get under way—including FERC’s approval of the Atlantic Coast Pipeline.

In a rare telephonic argument before the full court, challengers to the Atlantic Sunrise gas pipeline project argued for an end to FERC’s practice of issuing “tolling orders,” which allows construction to begin—and, in some cases, allows entire pipelines to be completed—before court challenges to FERC’s approval can proceed.

 “FERC has stacked the deck for years in favor of pipeline developers, allowing them to clear-cut forests, trench through rivers, and construct polluting facilities before the communities in the pipeline’s path can even get into court,” said Senior Attorney Mark Sabath. “The Atlantic Coast Pipeline is just one example of the environmental damage done while FERC keeps the courtroom doors shut.”

In 2018, FERC used tolling orders to forestall court challenges to the Atlantic Coast Pipeline for eight months while allowing Dominion and Duke Energy to barrel forward with tree-clearing and construction that have permanently scarred land in West Virginia, Virginia, and North Carolina.

SELC submitted a friend-of-the-court brief in the Atlantic Sunrise case jointly with Earthjustice, the Natural Resources Defense Council, and the Chesapeake Bay Foundation. The brief highlights the staggering scope and regularity of FERC’s tolling practice and the significant, permanent harm that property owners, communities, and our lands suffer as a result.

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