Here's a riddle for you. How do you challenge a decision that hasn't actually been made. On this episode of Parts per Billion, we talk about federal approval of gas pipelines and why some people say this approval process is now nightmarishly absurd. Hello, and welcome once again to Parts Pervilion, the podcast from Bloomberg Environment. I'm your host, David Schultz. Typically, if someone calls you kafka esque, that's a bad thing, Although as a writer myself and a big fan of
Franz Kofka, I would take it as a compliment. But generally kafka esque is not something you want to strive for. And that's especially the case if you were a government agency, which typically wasn't portrayed in a great light in Kafka stories. But that is the tag that's been leveled at the Federal Energy Regulatory Commission, also known as FERK, and the person leveling that tag is one of the most senior
federal judges in the United States. Bloomberg Environments Ellen Gilmer has been reporting on a lawsuit that challenges the legality of the way FERK approves or doesn't approve of natural gas pipelines and she joins us today to explain the whole situation. Ellen, thank you for joining us. Before we get into this specific case, let's just sort of briefly discuss what FERK is, because I have to admit I've covered the environment for a living and I still don't
totally know what FIRK does. Can you explain who they are? Sure? So, FURK is an independent agency that's made up of five commissioners, and they're in charge of deciding approvals for natural gas pipelines that cross state lines, like you said, and they're also in charge of regulating electricity and a lot of other issues. So if you want to build a natural gas pipeline that goes from let's say Pennsylvania to New York, you have to get the thumbs up from FIRK before
you do that. That's right, And you know a lot of these pipeline approvals, maybe most get challenged by let's say, environmental groups who say FIRK didn't consider the ecological impacts of the project, or by landowners who are just concerned about construction in their backyard. Get the sense that FIRK has a unique process for responding to these challenges. Can you explain how they go about it when someone says
you shouldn't have approved that pipeline. Sure, so, when you want to challenge a government action, usually you go to court to file a lawsuit and fight your battle in court. But for a lot of agencies, there's some process you have to go through at the agency before you can get to court in any sense. Yeah, and in FIRK, you file a petition for rehearing with the agency. So you're asking the agency, why don't you rethink this decision
you just made approving this pipeline. And the reason for that, I guess is that you know, maybe this can be resolved before it goes to court, and it can save the legal judicial system a lot of money and time by not having to hear every single challenge. Sure, and maybe FIRK wants to tweak a decision to accommodate some concerns that it hadn't considered previously. So under the Natural Gas Act, that's the law that governs how FERK approves
and regulates natural gas pipelines. Under the Natural Gas Act, FIRK has thirty days to act on these rehearing petitions, so thirty days, one month, thirty days. But what FIRK does is, you know, thirty days is not a lot of time to make a decision like that. Firk says, hey, we need more time on this. It issues something that's called a tolling order, tolling order. That's if a listener I would remember that phrase, because that is the key to this dispute here. What exactly is a tolling order?
So a tolling order, the word tolling in the legal sense just means extending a deadline. Yeah, so when I think of tolling, I think of driving on the freeway. But this is it sounds like a different meaning of the word exactly. Yeah, So furk Issu's a tolling order that says we're going to extend that thirty day deadline. We need more time, so we're just going to prolong it really indefinitely until we reach a decision on whether
we should change our prior approval. And when you say indefinitely, like, what do you mean, Like, you know, an extra thirty days, an extra sixty day? How long are we talking? So it's it's undefined. They don't say we need an extra thirty days, They just say we need more time period, and it's just kind of an open process. Then and anybody who's challenging a Firk decision just sort of waits around for a matter of you know, months, usually sometimes
longer to get a final decision from the agency. So let's, yeah, let's sort of lay out the stakes for what that means. Essentially, Ferk says to a company who wants to build a gas pipeline, go ahead, sounds good. An environmental group or maybe just to you know, landowners like, well, I don't think that's the right move. I want to challenge that. So they file a complaint and then Firk says, Okay, we're going to respond to your complaint in maybe never yeah, eventually,
eventually we'll respond to it. And during that time, this is where it gets to be really complicated. During that time, the landowners, the environmental groups, whoever wants to challenge Ferk, they can't go to court because they haven't resolved the administrative process that they're required to go through usually before they go to court. They can't go to court. And then they also can't you know, and the construction on
the pipeline that they're challenging is ongoing, that's still happening. Yeah, a lot of times the pipeline construction starts and is in progress, like you said, while Furk is sitting on a decision, and so these landowners environmental groups can't get to court, and this pipeline is every day there's a little more work in somebody's yard, across some contested natural area and whatever whatever the case may be. And for those groups or individuals who are challenging the pipeline, they
feel like they have no recourse. Okay, so we're going to take a quick break now, but when we come back, we're going to talk about the lawsuit that is challenging this practice and the usual twist and turns that have transpired. But stay tuned. Okay, we're back and we're talking with Bloomberg Environments Ellen Gilmer about the gas pipeline approval process. So, Ellen, what is Furk's side of the story here, because you know there's always sort of at least two sides to
these legal disputes. Why are they arguing that this sort of tolling practice, this I guess delay practice is okay? Well, two big reasons. One thirty days is not a lot of time, that's true, to make a really complicated decision taking into account all these factors. About need for natural gas, impacts on endangered species, impacts you know, on land landowner property rights and all of that taking that all into account at once, and fork has you know, needs to
take some time to think about all of that. They're for you know, analysts and lawyers who are all working on those rehearing petitions and going through them, and they just need more than thirty days. So that's the first reason. The second reason is the DC Circuit has allowed for to do it. The DC Circuit, the court in Washington, d C. Yeah, has in the past repeatedly rejected challenges to tolling orders, and the court has explicitly approved them
previously as lawful. I'm really glad you brought that up because that leads us to sort of the next stage of this dispute, which is that, you know, there's another challenge to this process going through the court system right now in the d C. Circuit, which, for those of you who don't know it's people call it the second
highest court in the land, underneath the Supreme Court. It's one of the federal appeals courts that is arguably the most important in the country, and certainly in the environmental context because they're handling a lot of pipeline cases, clean ERICT cases and things like that. Yeah. So in August, Fork one a ruling, but there was a dissent in the case from Judge Patricia Millet, who was appointed by President Obama, where she called this tolling practice kafka ask,
which is a pretty memorable line. And then something really strange happened or not strange, but I guess very unusual. Can you get into that. Yeah, so the first thing that happened was pretty routine. Parties get an unfavorable decision in court, they asked the court to reconsider it. That's almost like a knee jerk reaction. You get a bad decision, you file a petition for rehearing and just just to clarify. So this is what you know. When you lose at
the appeals court level. You can you then go to the Supreme Court. But before you do that, then you ask the whole court to hear the case, not just the three judges you heard the case, right, So your first decision from an appeals court is from a three judge panel. If you have a problem with it, you can ask the panel to reconsider it, or you can ask the entire court to reconsider it, and that's called
en banc review. And so the parties in this case, the landowners involved in this case, it's a set of Pennsylvania landowners who live along the path of the Atlantic Sunrise Pipeline, which is a natural gas pipeline. The landowners who lived along that, they filed a petition asking the DC Circuit to rethink its decision. Everyone does and everyone
always loses. So let's say maybe once a year, the DC Circuit grants rehearing on bank in a case, so it's you know, it's not unheard of, but the court is hearing dozens and dozens of cases every year, so it's rare. So these landowners filed their petition and just last week the d C Circuit did that unusual thing of granting the petition for rehearing on bank that so that was very surprising, probably to a lot of people. What do you think this means for the future of
this case? You know, does this mean that the earlier decision is going to be reversed and that the landowners are have a better chance, Like, I don't know, really know what this means for predictions. So it doesn't mean a lot for the landowners involved in this case. They're excited to have another chance to make their appeal, But the pipeline is already built, so it's probably not going
to be made to be torn up. However, it's a really big deal for how you know, future landowners, environmental groups, et cetera challenge other pipelines. So the DC Circuit said last week when it said we're going to rehear this case on bank, they said, we're specifically interested in this tolling order issue, and this seems like something that we need to take a closer look at. So I guess for the individual you know, plaintiffs in this case, there's not a lot that could be done because of all
these delays. The pipeline is in place and their land is already affected. But this could have major, major impacts on the future of this practice. It sounds like, right, it could force Frick to make quicker decisions, it could allow groups landowners to get in court faster, and it could really, you know, present legitimate legal challenges to pipelines before companies are able to build them, which hasn't always
been the case before. All Right, that was Bloomberg Environments Ellen Gilmer talking about a lawsuit against the Federal Energy Regulatory Commission. If you want to see more of a reporting on the litigate and working its way through the judicial system, visit our website at news dot Bloomberg Environment
dot com. That's news dot Bloomberg Environment dot com. And if you want to chat with us on social media, use the hashtag parts per B. That hashtag, once again is parts per b. Today's episode of Parts Rebellion was produced by myself along with Marissa Horn, Jessica Coombs and Rjjewel. The music for this episode is a message by Jazar. It was used under a Creative Commons license and thank
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