Representative Malinowski Reintroduces Legislation to Protect Landowners from Egregious Tolling Orders

July 28, 2021
Press Release

(Washington, DC) Today, Representative Malinowski reintroduced the Landowners’ Right to Due Process in Rehearings at FERC Act to ensure that landowners are able to exercise their legal right to challenge natural gas pipeline projects that disrupt their property prior to construction. The bill was introduced alongside the Right to Timely Rehearings at FERC Act of 2021 authored by Representative Sean Casten (IL-06), which accomplishes the identical priority with energy projects managed by the Federal Power Act.

The Landowners’ Right to Due Process in Rehearings at FERC Act grants due process rights to petitioners who request a rehearing on a pipeline project by amending the Natural Gas Act to require the Federal Energy Regulatory Commission (FERC) to respond to a rehearing request within a fixed timeline of 60 days. During this time, FERC is prohibited from authorizing construction and pipelines cannot exercise eminent domain.

“Landowners should have the right to challenge pipelines in court before construction permanently alters their land,” said Representative Malinowski. “This legislation gives power back to landowners in my district who have been denied a voice in the fight over their own property.”

Under the Natural Gas Act, FERC issues “tolling orders” in response to a rehearing request from a petitioner. These tolling orders are used to buy FERC additional time to examine the request while preventing the petitioner, often a landowner, from engaging in any further litigation. Because of this, tolling orders have allowed FERC to delay judgement indefinitely, all while developers are allowed to proceed with taking property through eminent domain and begin construction activities, such as cutting down trees, that permanently alter petitioners’ private land.

Last summer, the United States Court of Appeals for the D.C. Circuit ruled in favor of landowners who challenged FERC’s use of tolling orders. Tom applauded this decision, standing with landowners and their right to due process.