Read our recent LawFlash discussing a June 30 decision by the US Court of Appeals for the DC Circuit regarding the recent use of tolling orders by FERC as a way to prevent rehearing requests from being denied by operation of law.
As discussed in the LawFlash, a near unanimous DC Circuit held that the Natural Gas Act does not permit tolling orders on rehearing applications regarding pipeline construction requests that serve only to buy FERC time to act upon the rehearing request. Accordingly, for cases brought within the DC Circuit, FERC must act on a rehearing request within 30 days of receipt. FERC need not, however, decide the merits within 30 days, as it may act by granting the request and then allowing additional time for further substantive briefings.
While the decision related to orders under the Natural Gas Act, the Federal Power Act has similar provisions regarding rehearing orders, and FERC will likely apply the decision to its rules related to rehearings on the electric side as well. In fact, FERC Chairman Chatterjee and Commissioner Glick responded with a joint statement asking Congress to provide a reasonable amount of time in which FERC can act on a rehearing of orders involving Natural Gas Act and the Federal Power Act matters and, during the pendency of a rehearing request, both prohibit the Commission from issuing a notice to proceed with construction and prohibit the construction applicant from commencing eminent domain proceedings.