Due process delayed
Tolling orders put pipeline opponents in ‘legal limbo’
The Federal Energy Regulatory Commission, which approves pipeline projects nationwide, routinely delays hearing requests from property owners and groups opposed to the project, often for so long that construction could be ongoing for months before a challenge is heard.
Property owners have no recourse but to wait for a hearing date, often while watching a pipeline being built in their backyards.
State attorneys general from the District of Columbia and 10 states, including Pennsylvania, as well as several environmental groups have joined in a lawsuit challenging the FERC’s use of so-called “tolling orders” — essentially action delays — claiming the practice leaves property owners in “legal limbo” for months.
The three-judge panel of the U.S. Court of Appeals that is hearing the case should rule to put an end to this practice and give pipeline opponents the opportunity for a timely hearing on any such projects.
Under the present system, those wishing to challenge an FERC-approved permit must file a petition for a hearing before they can pursue legal action. The Natural Gas Act allows the FERC 30 days to act on requests, but the commission nearly always grants itself more time by issuing a tolling order, often extending the deadline for months.
In the meantime, a pipeline company could acquire property through eminent domain and begin construction while the property owner can do nothing but wait for the hearing.
That’s what happened to two Lancaster County homeowners who are the focus of the lawsuit filed by the Allegheny Defense Project against the FERC. The attorneys general and environmental groups have filed amicus briefs in the suit.
Though it seems hard to believe property owners could be deprived of the right to due process, the same court hearing the case is the one that upheld the FERC’s procedure in August. Fortunately, the court has since voted to rehear the case and reconsider its decision.
Pennsylvania Attorney General Josh Shapiro, in announcing the state’s amicus brief filing, said the “FERC has twisted the law to leave property owners in legal limbo while pipeline operators begin construction through their backyards.”
Tolling orders are denying property owners and pipeline opponents the basic right to due process in challenging pipeline projects. The appeals court needs to put a stop to the practice.