FERC Updates Tolling Order Practice in Wake of D.C. Circuit Opinion
On June 30, 2020, in Allegheny Defense Project v. FERC (“Allegheny”),
In place of the tolling orders rejected in Allegheny, the FERC Secretary has begun issuing notices styled “Notice of Denial of Rehearing By Operation of Law and Providing for Further Consideration” 30 days after requests for rehearing are filed. In accordance with Allegheny and either the Federal Power Act (the “FPA”)
Misleadingly, however, the notices further explain that, “[a]s provided in 16 U.S.C. § 825l(a) (2018), rehearing request of the above-cited order filed in this proceeding will be addressed in a future order to be issued consistent with the requirements of such section. As also provided in 16 U.S.C. § 825l(a), the Commission may modify or set aside its above-cited order, in whole or in part, in such manner as it shall deem proper.”
While both the FPA and NGA permit FERC to “modify or set aside, in whole or in part,” any order or finding, FERC may only do so until the record in the proceeding has been filed in a court of appeals.
FERC’s now-standard notice neglects to mention this limitation on its ability to modify or set aside orders, which could cause unnecessary confusion to parties who file a request for rehearing. Parties that do so should be aware that they may file a petition for review in the appropriate court of appeals within 60 days of the date their request is deemed denied, and FERC can only modify its order up until the record is filed in the court of appeals. The D.C. Circuit’s opinion in Allegheny provided FERC the opportunity to establish further processes within 30 days of receiving a request for rehearing, such as a briefing schedule, which would extend FERC’s time to entertain the request. As of this time, FERC has not done so. Parties should be cognizant that FERC’s new notices do not establish additional processes and in no way hinder parties’ right to seek appeal.