State AGs Urge FERC to Protect the Rights of Landowners, States and Other Challengers to Natural Gas Infrastructure Authorizations

Washington, D.C. — A coalition of six state attorneys general led by Maryland Attorney General Brian Frosh filed a brief yesterday arguing that the Federal Energy Regulatory Commission (FERC) should not allow construction to begin on pipelines or allow eminent domain actions to be taken until rehearings are resolved.

The AGs wrote that FERC was correct in Order No. 871 to not allow construction of pipelines while all rehearing requests are pending, not just rehearing requests from landowners. They also argued that FERC should strengthen protections for landowners by preventing eminent domain actions while a rehearing is underway.

“Because Order 871 does nothing to halt a certificate holder’s efforts to move forward with acquiring private property through eminent domain proceedings during the pendency of rehearing requests, it does not go far enough,” wrote the six state AGs.

The comments are in response to FERC’s Order No. 871-A seeking additional input on procedures finalized in June 2020 that prevent construction of a natural gas project before project opponents are allowed to take their objections to court.

“Until FERC allows a full airing of all parties’ objections, it must not allow pipeline construction to go forward, and it must protect landowners from having their property taken during this time,” said Attorney General Frosh.

“Individuals and groups concerned about the merits of building a pipeline should not be stuck in ‘administrative limbo’ while land is taken and construction begins,” said Jessica Bell, Deputy Director of the State Energy & Environmental Impact Center. “Providing more opportunity before construction begins is an important step for robust review.”

FERC Order No. 871 — FERC is currently soliciting comments on Order No. 871-A, its order on rehearing of Order No. 871, a rule preventing construction on an approved natural gas project until any rehearing requests of the original approval are resolved. Among other things, FERC wants to know whether the rule should only apply when landowners seek rehearing and if FERC should set additional deadlines for the process.

FERC had historically used “tolling orders” to indefinitely extend the 30-day window FERC had to review a rehearing request. Because the law requires project opponents to seek rehearing before challenging a FERC order in court, the practice delayed judicial review while construction proceeded. In June 2020, the D.C. Circuit held in Allegheny Defense Project v. FERC that FERC could no longer use its “tolling orders” practice. Attorneys general filed an amicus brief in that case. With the new Order No. 871-A, FERC is considering how a bar on construction activities during that shorter timeframe should work.

The attorneys general of Massachusetts, New Jersey, Oregon, Rhode Island and Washington, D.C., joined Attorney General Frosh in filing the brief.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.