An appeals court called out Trump regulators for perverting our nation’s checks and balances to shunt landowners and environmentalists into legal limbo and allow energy companies to seize their land and build pipelines while their legal actions were pending.
The U.S. Court of Appeals for the D.C. Circuit said in a 10-1 decision quietly released last week that the “plain and unambiguous statutory language” of the law meant energy regulators can’t stall court action by homeowners and others who don’t like decisions of the Federal Energy Regulatory Commission.
“The Commission has rewritten the statute to say that its failure to act within 30 days means nothing; it can take as much time as it wants; and until it chooses to act, the applicant is trapped, unable to obtain judicial review,” wrote Judge Patricia Millett.
The Commission has rewritten the statute to say it can take as much time as it wants; and until it chooses to act, the applicant is trapped.
The commission used this maneuver for years to benefit oil companies based on a 1969 court ruling to allow pipeline companies to legally seize land and start construction. Millett, who was nominated by former President Barack Obama and has been mentioned as a potential nominee to the Supreme Court, called attention to the practice, and the full court decided to review it.
The case involves the Atlantic Sunrise pipeline, which went into service in October 2018 and runs from northern Pennsylvania to Alabama. Pennsylvania homeowners Gary and Michelle Erb and Stephen and Dorothea Hoffman tried to keep Transco from building the pipeline through their property.
A 1938 Law
In February 2017, the commission approved the project, giving it a certificate required under the Natural Gas Act, the law passed by Congress in 1938 and signed by President Franklin Roosevelt to regulate interstate natural gas sales. A section of that law provided for asking the commission to reconsider its decisions.
The homeowners and an environmental association asked for rehearings. The commission used what’s known as a “tolling order” to effectively put their cases on hold while the condemnation of the property went through the courts.
In the last 12 years, the commission issued a tolling order in all 39 cases in which a landowner asked for a rehearing about building a natural gas pipeline. Another case involved a pipeline built through the land once occupied by the Narragansett Indian tribe, damaging ancient ceremonial stones.
No Day in Court
“A regulatory construct that allows a pipeline developer to build its entire project while simultaneously preventing opponents of that pipeline from having their day in court ensures that irreparable harm will occur before any party has access to judicial relief,” said Richard Glick. “That ought to keep every member of this commission up at night.”
Millett compared the commission’s use of the order to Schrödinger's cat, the imaginary conundrum in which at a cat is said to be both alive and dead while it is in a box with radioactive material. Millett wrote the commission’s orders were not final enough for landowners and others to seek relief in court but were final enough for private pipeline companies to go to court to seize property, for the commission to approve construction and even operation of the pipelines.
After oral arguments in the case, the commission rewrote its regulations to prevent authorizing pipeline companies to start construction in such cases. But the new rules would not have prevented companies from going to court to seize land.
Judge Karen LeCraft Henderson, who was appointed by President George H.W. Bush, dissented in part, writing that the decision showed little regard for precedent.