Speaker 1: Here's a riddle for you. How do you challenge a
Speaker 1: decision that hasn't actually been made. On this episode of
Speaker 1: Parts per Billion, we talk about federal approval of gas
Speaker 1: pipelines and why some people say this approval process is
Speaker 1: now nightmarishly absurd. Hello, and welcome once again to Parts Pervilion,
Speaker 1: the podcast from Bloomberg Environment. I'm your host, David Schultz. Typically,
Speaker 1: if someone calls you kafka esque, that's a bad thing,
Speaker 1: Although as a writer myself and a big fan of
Speaker 1: Franz Kofka, I would take it as a compliment. But
Speaker 1: generally kafka esque is not something you want to strive for.
Speaker 1: And that's especially the case if you were a government agency,
Speaker 1: which typically wasn't portrayed in a great light in Kafka stories.
Speaker 1: But that is the tag that's been leveled at the
Speaker 1: Federal Energy Regulatory Commission, also known as FERK, and the
Speaker 1: person leveling that tag is one of the most senior
Speaker 1: federal judges in the United States. Bloomberg Environments Ellen Gilmer
Speaker 1: has been reporting on a lawsuit that challenges the legality
Speaker 1: of the way FERK approves or doesn't approve of natural
Speaker 1: gas pipelines and she joins us today to explain the
Speaker 1: whole situation. Ellen, thank you for joining us. Before we
Speaker 1: get into this specific case, let's just sort of briefly
Speaker 1: discuss what FERK is, because I have to admit I've
Speaker 1: covered the environment for a living and I still don't
Speaker 1: totally know what FIRK does. Can you explain who they are? Sure? So,
Speaker 1: FURK is an independent agency that's made up of five commissioners,
Speaker 1: and they're in charge of deciding approvals for natural gas
Speaker 1: pipelines that cross state lines, like you said, and they're
Speaker 1: also in charge of regulating electricity and a lot of
Speaker 1: other issues. So if you want to build a natural
Speaker 1: gas pipeline that goes from let's say Pennsylvania to New York,
Speaker 1: you have to get the thumbs up from FIRK before
Speaker 1: you do that. That's right, And you know a lot
Speaker 1: of these pipeline approvals, maybe most get challenged by let's say,
Speaker 1: environmental groups who say FIRK didn't consider the ecological impacts
Speaker 1: of the project, or by landowners who are just concerned
Speaker 1: about construction in their backyard. Get the sense that FIRK
Speaker 1: has a unique process for responding to these challenges. Can
Speaker 1: you explain how they go about it when someone says
Speaker 1: you shouldn't have approved that pipeline. Sure, so, when you
Speaker 1: want to challenge a government action, usually you go to
Speaker 1: court to file a lawsuit and fight your battle in court.
Speaker 1: But for a lot of agencies, there's some process you
Speaker 1: have to go through at the agency before you can
Speaker 1: get to court in any sense. Yeah, and in FIRK,
Speaker 1: you file a petition for rehearing with the agency. So
Speaker 1: you're asking the agency, why don't you rethink this decision
Speaker 1: you just made approving this pipeline. And the reason for that,
Speaker 1: I guess is that you know, maybe this can be
Speaker 1: resolved before it goes to court, and it can save
Speaker 1: the legal judicial system a lot of money and time
Speaker 1: by not having to hear every single challenge. Sure, and
Speaker 1: maybe FIRK wants to tweak a decision to accommodate some
Speaker 1: concerns that it hadn't considered previously. So under the Natural
Speaker 1: Gas Act, that's the law that governs how FERK approves
Speaker 1: and regulates natural gas pipelines. Under the Natural Gas Act,
Speaker 1: FIRK has thirty days to act on these rehearing petitions,
Speaker 1: so thirty days, one month, thirty days. But what FIRK
Speaker 1: does is, you know, thirty days is not a lot
Speaker 1: of time to make a decision like that. Firk says, hey,
Speaker 1: we need more time on this. It issues something that's
Speaker 1: called a tolling order, tolling order. That's if a listener
Speaker 1: I would remember that phrase, because that is the key
Speaker 1: to this dispute here. What exactly is a tolling order?
Speaker 1: So a tolling order, the word tolling in the legal
Speaker 1: sense just means extending a deadline. Yeah, so when I
Speaker 1: think of tolling, I think of driving on the freeway.
Speaker 1: But this is it sounds like a different meaning of
Speaker 1: the word exactly. Yeah, So furk Issu's a tolling order
Speaker 1: that says we're going to extend that thirty day deadline.
Speaker 1: We need more time, so we're just going to prolong
Speaker 1: it really indefinitely until we reach a decision on whether
Speaker 1: we should change our prior approval. And when you say indefinitely, like,
Speaker 1: what do you mean, Like, you know, an extra thirty days,
Speaker 1: an extra sixty day? How long are we talking? So
Speaker 1: it's it's undefined. They don't say we need an extra
Speaker 1: thirty days, They just say we need more time period,
Speaker 1: and it's just kind of an open process. Then and
Speaker 1: anybody who's challenging a Firk decision just sort of waits
Speaker 1: around for a matter of you know, months, usually sometimes
Speaker 1: longer to get a final decision from the agency. So let's, yeah,
Speaker 1: let's sort of lay out the stakes for what that means. Essentially,
Speaker 1: Ferk says to a company who wants to build a
Speaker 1: gas pipeline, go ahead, sounds good. An environmental group or
Speaker 1: maybe just to you know, landowners like, well, I don't
Speaker 1: think that's the right move. I want to challenge that.
Speaker 1: So they file a complaint and then Firk says, Okay,
Speaker 1: we're going to respond to your complaint in maybe never yeah, eventually,
Speaker 1: eventually we'll respond to it. And during that time, this
Speaker 1: is where it gets to be really complicated. During that time,
Speaker 1: the landowners, the environmental groups, whoever wants to challenge Ferk,
Speaker 1: they can't go to court because they haven't resolved the
Speaker 1: administrative process that they're required to go through usually before
Speaker 1: they go to court. They can't go to court. And
Speaker 1: then they also can't you know, and the construction on
Speaker 1: the pipeline that they're challenging is ongoing, that's still happening. Yeah,
Speaker 1: a lot of times the pipeline construction starts and is
Speaker 1: in progress, like you said, while Furk is sitting on
Speaker 1: a decision, and so these landowners environmental groups can't get
Speaker 1: to court, and this pipeline is every day there's a
Speaker 1: little more work in somebody's yard, across some contested natural
Speaker 1: area and whatever whatever the case may be. And for
Speaker 1: those groups or individuals who are challenging the pipeline, they
Speaker 1: feel like they have no recourse. Okay, so we're going
Speaker 1: to take a quick break now, but when we come back,
Speaker 1: we're going to talk about the lawsuit that is challenging
Speaker 1: this practice and the usual twist and turns that have transpired.
Speaker 1: But stay tuned. Okay, we're back and we're talking with
Speaker 1: Bloomberg Environments Ellen Gilmer about the gas pipeline approval process. So, Ellen,
Speaker 1: what is Furk's side of the story here, because you
Speaker 1: know there's always sort of at least two sides to
Speaker 1: these legal disputes. Why are they arguing that this sort
Speaker 1: of tolling practice, this I guess delay practice is okay? Well,
Speaker 1: two big reasons. One thirty days is not a lot
Speaker 1: of time, that's true, to make a really complicated decision
Speaker 1: taking into account all these factors. About need for natural gas,
Speaker 1: impacts on endangered species, impacts you know, on land landowner
Speaker 1: property rights and all of that taking that all into
Speaker 1: account at once, and fork has you know, needs to
Speaker 1: take some time to think about all of that. They're
Speaker 1: for you know, analysts and lawyers who are all working
Speaker 1: on those rehearing petitions and going through them, and they
Speaker 1: just need more than thirty days. So that's the first reason.
Speaker 1: The second reason is the DC Circuit has allowed for
Speaker 1: to do it. The DC Circuit, the court in Washington,
Speaker 1: d C. Yeah, has in the past repeatedly rejected challenges
Speaker 1: to tolling orders, and the court has explicitly approved them
Speaker 1: previously as lawful. I'm really glad you brought that up
Speaker 1: because that leads us to sort of the next stage
Speaker 1: of this dispute, which is that, you know, there's another
Speaker 1: challenge to this process going through the court system right
Speaker 1: now in the d C. Circuit, which, for those of
Speaker 1: you who don't know it's people call it the second
Speaker 1: highest court in the land, underneath the Supreme Court. It's
Speaker 1: one of the federal appeals courts that is arguably the
Speaker 1: most important in the country, and certainly in the environmental
Speaker 1: context because they're handling a lot of pipeline cases, clean
Speaker 1: ERICT cases and things like that. Yeah. So in August,
Speaker 1: Fork one a ruling, but there was a dissent in
Speaker 1: the case from Judge Patricia Millet, who was appointed by
Speaker 1: President Obama, where she called this tolling practice kafka ask,
Speaker 1: which is a pretty memorable line. And then something really
Speaker 1: strange happened or not strange, but I guess very unusual.
Speaker 1: Can you get into that. Yeah, so the first thing
Speaker 1: that happened was pretty routine. Parties get an unfavorable decision
Speaker 1: in court, they asked the court to reconsider it. That's
Speaker 1: almost like a knee jerk reaction. You get a bad decision,
Speaker 1: you file a petition for rehearing and just just to clarify.
Speaker 1: So this is what you know. When you lose at
Speaker 1: the appeals court level. You can you then go to
Speaker 1: the Supreme Court. But before you do that, then you
Speaker 1: ask the whole court to hear the case, not just
Speaker 1: the three judges you heard the case, right, So your
Speaker 1: first decision from an appeals court is from a three
Speaker 1: judge panel. If you have a problem with it, you
Speaker 1: can ask the panel to reconsider it, or you can
Speaker 1: ask the entire court to reconsider it, and that's called
Speaker 1: en banc review. And so the parties in this case,
Speaker 1: the landowners involved in this case, it's a set of
Speaker 1: Pennsylvania landowners who live along the path of the Atlantic
Speaker 1: Sunrise Pipeline, which is a natural gas pipeline. The landowners
Speaker 1: who lived along that, they filed a petition asking the
Speaker 1: DC Circuit to rethink its decision. Everyone does and everyone
Speaker 1: always loses. So let's say maybe once a year, the
Speaker 1: DC Circuit grants rehearing on bank in a case, so
Speaker 1: it's you know, it's not unheard of, but the court
Speaker 1: is hearing dozens and dozens of cases every year, so
Speaker 1: it's rare. So these landowners filed their petition and just
Speaker 1: last week the d C Circuit did that unusual thing
Speaker 1: of granting the petition for rehearing on bank that so
Speaker 1: that was very surprising, probably to a lot of people.
Speaker 1: What do you think this means for the future of
Speaker 1: this case? You know, does this mean that the earlier
Speaker 1: decision is going to be reversed and that the landowners
Speaker 1: are have a better chance, Like, I don't know, really
Speaker 1: know what this means for predictions. So it doesn't mean
Speaker 1: a lot for the landowners involved in this case. They're
Speaker 1: excited to have another chance to make their appeal, But
Speaker 1: the pipeline is already built, so it's probably not going
Speaker 1: to be made to be torn up. However, it's a
Speaker 1: really big deal for how you know, future landowners, environmental groups,
Speaker 1: et cetera challenge other pipelines. So the DC Circuit said
Speaker 1: last week when it said we're going to rehear this
Speaker 1: case on bank, they said, we're specifically interested in this
Speaker 1: tolling order issue, and this seems like something that we
Speaker 1: need to take a closer look at. So I guess
Speaker 1: for the individual you know, plaintiffs in this case, there's
Speaker 1: not a lot that could be done because of all
Speaker 1: these delays. The pipeline is in place and their land
Speaker 1: is already affected. But this could have major, major impacts
Speaker 1: on the future of this practice. It sounds like, right,
Speaker 1: it could force Frick to make quicker decisions, it could
Speaker 1: allow groups landowners to get in court faster, and it
Speaker 1: could really, you know, present legitimate legal challenges to pipelines
Speaker 1: before companies are able to build them, which hasn't always
Speaker 1: been the case before. All Right, that was Bloomberg Environments
Speaker 1: Ellen Gilmer talking about a lawsuit against the Federal Energy
Speaker 1: Regulatory Commission. If you want to see more of a
Speaker 1: reporting on the litigate and working its way through the
Speaker 1: judicial system, visit our website at news dot Bloomberg Environment
Speaker 1: dot com. That's news dot Bloomberg Environment dot com. And
Speaker 1: if you want to chat with us on social media,
Speaker 1: use the hashtag parts per B. That hashtag, once again
Speaker 1: is parts per b. Today's episode of Parts Rebellion was
Speaker 1: produced by myself along with Marissa Horn, Jessica Coombs and Rjjewel.
Speaker 1: The music for this episode is a message by Jazar.
Speaker 1: It was used under a Creative Commons license and thank
Speaker 1: you for listening. Hey, I'm Adam Allington. I'm the host
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