FERC Staff Clarifies Changes to Rehearing Practices Following Allegheny Decision

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On September 17, 2020, at FERC’s Virtual Open Meeting, FERC Staff presented an overview of changes to its rehearing practices following the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) recent decision in Allegheny Defense Project v. FERC, 963 F.3d 1 (D.C. Cir. 2020) (en banc) (“Allegheny”), which rejected FERC’s practice of issuing “tolling orders” to grant itself more time to consider requests for rehearing (see July 1, 2020 issue of the WER). Staff explained that the changes to FERC’s rehearing practices are intended to allow appeals of FERC orders to proceed in a timely manner and on a complete administrative record. While the D.C. Circuit granted FERC’s motion to stay the court’s mandate in July (see July 29, 2020 edition of the WER), Staff explained in response to questions from FERC Chairman Neil Chatterjee that Staff expects the D.C. Circuit to issue its mandate in early October.

FERC Staff explained that, beginning the day after the court’s decision, the Commission began implementing the following changes to its rehearing practices in both Natural Gas Act (“NGA”) and Federal Power Act (“FPA”) proceedings to expedite consideration of rehearing requests and to keep the public apprised as to the status of its proceedings.

First, Staff stated that FERC will no longer issue tolling orders in cases arising under the FPA or NGA. Instead, when FERC is not acting on the merits of a rehearing request by the 30-day statutory deadline, the Office of the Secretary will issue either: 1) a Notice of Denial of Rehearing by Operation of law to announce that FERC does not intend to issue a merits order in response to the rehearing request; or 2) a Notice of Denial of Rehearing by Operation of Law and Providing for Further Consideration to state FERC’s intention to issue a further order to modify or set aside the underlying order. Staff added that, for cases arising under the Interstate Commerce Act, FERC may issue an order extending the 30-day regulatory deadline to allow additional time for consideration of matters raised on rehearing.

Second, turning back to FPA and NGA matters, Staff explained that orders issued prior to the 30-day deadline will continue to grant or deny rehearing and sometimes grant clarification of the underlying order. Orders issued after the 30-day mark will use the phrase “modifying the discussion” where FERC is providing further discussion or explanation but is not changing the outcome of the underlying order, and “set aside” when FERC is changing the outcome.

Third, Staff stated that in all cases, aggrieved parties continue to have 60 days after the denial of rehearing by operation of law to file a petition for review in court.

Responding to questions from Chairman Chatterjee, Staff explained that in order to respond to rehearing requests on the timelines required by the Allegheny decision, FERC will rely more on the language in the underlying order rather than addressing each argument again on rehearing. Staff stated that parties should work with FERC’s Solicitor’s Office to manage appeals in a way that allows adequate time for FERC to consider complex issues.

FERC Staff’s presentation is available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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