Press Release

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

Coalition urges FERC to maintain ban on construction before rehearings are resolved.

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 (State Impact Cen­ter) is a non-par­ti­san Cen­ter at the NYU School of Law that is ded­i­cat­ed to help­ing state attor­neys gen­er­al fight against reg­u­la­to­ry roll­backs and advo­cate for clean ener­gy, cli­mate change, and envi­ron­men­tal val­ues and pro­tec­tions. For more infor­ma­tion, vis­it our web­site.