Trump energy regulators are using an obscure bureaucratic maneuver to allow pipeline companies to legally seize land and start construction while opponents to the pipelines are in legal limbo.
The Federal Energy Regulatory Commission has used this ploy, upheld in a 1969 case, to stall opposition for decades. Under Trump, the commission, whose general counsel is James Danly, the relatively inexperienced attorney Trump nominated for a commission seat, has stalled every timely request for a rehearing in the past two years. That means pipeline challengers can’t go to court until the commission decides to stop stalling them.
“The commission can keep homeowners in seemingly endless administrative limbo while energy companies plow ahead seizing land and constructing the very pipeline that the procedurally handcuffed homeowners seek to stop,” wrote federal Judge Patricia Millett.
FERC can keep homeowners in seemingly endless administrative limbo while energy companies plow ahead seizing land and constructing the very pipeline that the homeowners seek to stop.
[caption id="attachment_18525" align="aligncenter" width="750"] Lancaster Pipeline Awareness members joined the Walk Against the Pipeline in Conestoga Township, Lancaster County, Penn. (Photo by Lancaster Pipeline Awareness on Facebook)[/caption]
The U.S. Court of Appeals is scheduled to hear arguments about the stalling tactic, known as “tolling orders,” in oral arguments on March 31. The orders are decisions by the commission that neither grant nor deny rehearing requests, placing challengers in legal limbo, sometimes for years.
The case the D.C. Circuit is hearing involves the Atlantic Sunrise pipeline. Catholic nuns and others sued after FERC stalled rehearing the case long enough to let Transco start construction. The pipeline, which went into service in October 2018, runs from northern Pennsylvania to Alabama.
Danly and other attorneys for the commission said in court records that the Natural Gas Act doesn’t require a final decision in 30 days.
Dominion Energy, the politically powerful company whose board members have included William Barr, now Trump’s attorney general, got a nine-month reprieve from pipeline challengers with this maneuver. Dominion used this time to cut down trees and start building a compressor station in Northampton County, North Carolina where more than half the residents are African American and the median household income is nearly $15,000 below the state average.
The 600-mile Atlantic Coast Pipeline that Dominion and Duke Energy hope to build would run from West Virginia to North Carolina through two national forests and the Appalachian Trail. Court challenges and problems getting permits have halted construction for now.
Dominion told investors in November that it expected to receive a new opinion from the Fish and Wildlife Service about the pipeline’s impact on endangered species that would allow it to resume work on the pipeline.