The D.C. Circuit Court of Appeals on Thursday granted FERC’s request for a delay in responding to the court’s June 30 order barring the commission’s use of tolling orders to delay judicial review of its rulings under the Natural Gas Act.

The court ordered its clerk to withhold issuance of the mandate through Oct. 5 to give the commission time to decide whether to seek a Supreme Court review. If the commission does seek a writ of certiorari from the high court, the mandate will not be issued until the court rules on the request.

FERC’s motion said it needed time to consider its response to the order overturning “the commission’s decades-old, judicially sanctioned rehearing process.” The commission routinely issues tolling orders to buy itself more time to consider rehearing requests because both the NGA and the Federal Power Act deem such requests denied if it does not act on them within 30 days.

The D.C. Circuit’s 10-1 ruling concluded that FERC’s use of tolling orders to stop the 30-day clock for acting on rehearing requests improperly prevents litigants from appealing commission rulings even as it allows gas pipeline companies to seize property under eminent domain and begin construction (Allegheny Defense Project, et al. v. FERC, 17-1098).

The D.C. Circuit said it had erred since 1969 when it first ruled that issuing a tolling order meant that FERC had “acted upon” the request under the language of the NGA and that parties must wait until the commission’s review of the request is complete before seeking judicial relief. (See D.C. Circuit Rejects FERC on Tolling Orders.)