“As we have previously concluded in natural gas infrastructure proceedings, the environmental effects resulting from natural gas production are generally neither caused by a proposed pipeline (or other natural gas infrastructure) project nor are they reasonably foreseeable consequences of our approval of an infrastructure project, as contemplated by the CEQ regulations.29 A causal relationship sufficient to warrant Commission analysis of the non-pipeline activity as an indirect impact would only exist if the proposed pipeline would transport new production from a specified production area and that production would not occur in the absence of the proposed pipeline.”

That denial was not a surprise to either party. But it is essentially a ticket for the appellant, in this case the Allegheny Defense Project or the Clean Air Council, to take their case up to the federal appeals courts. Talbott says it’s too late.

“When the pipe is in the ground, is the court going to order a pipe to be ripped up out of the ground?” asked Talbott. “No. Their strategy is to [allow pipeline construction] nonstop to facilitate fracking. There’s no downside as far as they’re concerned.”

Talbott says FERC is abusing its power and this is in effect a denial of due process.

“The point of due process is to provide a fair hearing before a deprivation occurs, not after,” wrote Talbott in an email.  “If FERC is still “reviewing the record” during rehearing, it should not be allowing construction that impacts landowners and the environment to occur.  What possible legal or factual basis does FERC have for emphasizing the applicant’s “need” to start construction over the requirements of due process?”

But FERC says it often needs more than 30 days to assess an appeal, especially those that are very complex. And it says tolling orders are not based on the merits of the case, but insures the Commission has enough time to address the issues brought up in the appeal. FERC spokeswoman Tamara Young-Allen says decisions made after a project is completed do not deny due process.

“Due process is provided and is not precluded by the fact that a project has been constructed,” wrote Young-Allen in an email.  “FERC issues an order, then, if challenged, issues, after thoroughly reviewing the record, an Order on Rehearing.  If an Order on Rehearing or a court decision requires a change to what the company has already done, the company must make the change.”

Young-Allen says even if that change means ripping up an installed pipeline, that’s what a company would have to do should FERC reverse its decision. But environmental lawyers say that’s unlikely.

Augusta Wilson is a staff attorney with the Clean Air Council, which sought a stay of construction with FERC on the Columbia Gas Transmission project in April. FERC’s rejection of that request came 12 days after the new pipeline started transporting natural gas.

“It leaves people who want to appeal pipeline projects with limited remedies,” said Wilson. “In almost every instance, when [FERC] gets the request, instead of issuing a substantive response within 30 days, they issue a tolling order. So they think about it indefinitely.”

Wilson says despite the rejection and the completed project, she’s still considering whether or not to take the issue up to the federal court, which could provide some relief.

“It’s possible there could be some mitigation put in place,” said Wilson. “There are certain aspects of FERC’s decision where we could argue there needs to be stronger environmental protections put in place.”

In August, Wilson had sought the intervention of the 3rd circuit court of appeals to push FERC to make a decision on the Eastside Expansion case. That court has not yet responded to the Council’s request. But she says the larger issue of FERC using tolling orders to delay decisions on appeals should be brought before the federal courts.

“We anticipate we will encounter this situation again,” said Wilson. “Given the fact that the projects continue to be built and by the time FERC takes action, they are already operating. That is essentially a rejection [of the appeal].”

But several federal appeals courts have ruled that tolling orders, which FERC uses to delay decisions on appeals, are constitutional and do not deny due process.

“There’s at least four circuit courts that have said what FERC is doing is fine,” said Carolyn Elefant, an attorney who represents landowners, municipalities and other groups impacted by pipelines. “The agency can take a long time to make a decision. Then the parties will ask for a stay [of construction]. And FERC always says no, there’s no irreparable harm. Basically what the court says is that if you can fix the problem through money it’s not irreparable harm.”

Elefant says as long as there is some kind of remedy, then there is no denial of due process.

“Even if it’s not a due process violation, it is ridiculous and it is unfair,” said Elefant. “There should be some kind of limit on how much time FERC takes to resolve these cases.”

Susan Phillips / StateImpact Pennsylvania

Pipeline construction in Susquehanna county, Pa.

But she says that could only happen if Congress changes the Natural Gas Act, or FERC decides to speed up the process on its own. Elefant says in her experience FERC has been taking longer responding to appeals. And the agency does have the incentive to take a long time making sure their decisions will stand up to scrutiny by the federal courts.

“It’s hard for me to say this is intentional,” said Elefant. “I don’t think FERC is racing to put [these cases] up on the top of the pile.”

But a case challenged by the Delaware Riverkeeper did prevail in federal court last year, even after the project was built. It’s unclear what remedy, if any, FERC will pursue, but the D.C. circuit court found FERC violated the National Environmental Policy Act by not looking at the cumulative impacts of several sections of new pipeline.

“In the past, groups never had the resources and [landowners] weren’t getting involved as much,” said Elefant. “Now, environmental groups are much better organized, landowners are much more organized. And FERC wants to save their order. They want to bolster it.”

Talbott, from the Allegheny Defense Project, thinks something more sinister is at work. He says FERC is a captured agency, putting forth an agenda to get as many pipelines in the ground no matter what the cumulative impacts are to a region. And he links this to President Obama’s effort to cut carbon emissions from power plants.

“It’s all part of the Clean Power Plan that the EPA approved,” said Talbott. “Part of that involves a huge transition away from coal to natural gas. And if we’re doing that we are committing ourselves to fracking for decades. And we should have an honest conversation about that. FERC does not want to address the impacts. FERC ignores the broader cumulative effect of what happens all over the place.”