CHARLESTON – An emergency petition has been filed in the U.S. Court of Appeals for the District of Columbia seeking to stop the Federal Energy Regulatory Commission from blocking challenges to its approval of new natural gas pipelines.
Sierra Club filed the emergency petition on Nov. 13 regarding NEXUS, the 255-mile pipeline that extends from eastern Ohio to southeastern Michigan.
The pipeline will transport emerging Appalachian shale gas supplies directly to consumers in Ohio, Michigan and Ontario, Canada.
Sierra Club’s petition argues that FERC prevents federal appeals courts from hearing challenges to the pipeline approvals by delaying decisions on requests for it to reconsider said approvals.
FERC allows pipeline construction to begin before it decides rehearing requests, Sierra Club claims.
FERC developed a pattern in prior cases of preventing parties from seeking direct appeals from FERC’s orders until much—if not all—of the pipeline project is complete, which effectively deprives the parties of any meaningful remedy, according to the petition.
“Once private property is taken and disturbed, mature trees are cut, slopes graded, wetland converted, and trenches dug, a high pressure large pipeline laid and filled with gas, no remedial order from FERC or this court can restore the status quo,” the petition states.
Before they can be built, companies need to obtain certificates of public convenience and necessity. Under the Natural Gas Act, FERC decisions on the certificates can be challenged in federal appeals courts.
The problem is, before the appeals to federal courts can be filed, FERC has to first decision on a request for a hearing of the decision.
According to the NGA, unless FERC acts within 30 days on a request for rehearing, that request is deemed to have been denied.
However, Sierra claims FERC regularly issues orders postponing the action on the rehearing indefinitely.
Sierra claims in the NEXUS case, FERC approved its certificate for the pipeline on Aug. 25. Sierra then filed a petition for rehearing on Sept. 22. On Oct. 11, FERC issued a notice to proceed, which allows the pipeline construction to begin.
On Oct. 23, which would be the deadline for FERC to act on the rehearing request, it issued a order postponing the action on the rehearing indefinitely.
Sierra is seeking for the appeals court to block the pipeline construction until at least 10 days after FERC acts on the rehearing request and to give it time to have its appeal of FERC action heard by the appeals court.
Sierra is represented by Benjamin A. Luckett of Appalachian Mountain Advocates.