BEFORE THE UNITED STATES FEDERAL DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BOLD ALLIANCE et. al.

v. Docket No. 17-1822

FEDERAL ENERGY REGULATORY

COMMISSION et. al.

MEMORANDUM IN SUPPORT OF PLAINTIFFS BOLD ALLIANCE ET. AL. MOTION

FOR ORAL ARGUMENT AND EXPEDITED PROCEEDING

I. INTRODUCTION

Plaintiffs ask the Court to schedule an oral hearing and to expedite the proceedings in

regards to the Motions to Dismiss filed by Defendants Federal Energy Regulatory Commission

(“FERC”), Mountain Valley Pipeline, LLC (“MVP”), and Atlantic Coast Pipeline, LLC (“ACP”

or, collectively, the “Defendants”). These pending motions are fully submitted and are ripe for

adjudication here.

II. ARGUMENT

The Court has broad discretion to control its own docket. ​See ​generally​, ​Achagzai v.

Broad. Bd. of Governors​, 109 F. Supp. 3d 67, 72 (D.D.C. June 12, 2015); ​see also Florida v.

United States​, 820 F. Supp. 2d 85, 89 (D.D.C. Oct. 28, 2011). Even so, the Federal Courts Civil

Priorities Act (28 U.S.C. § 1657(a)) mandates that the district courts shall “expedite the

consideration of any action . . . if good cause therefor is shown. For purposes of this subsection,

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‘good cause’ is shown if a right under the Constitution of the United States or a Federal

Statute . . . would be maintained in a factual context that indicates that a request for expedited

consideration has merit.” ​Ferguson v. FBI​, 722 F. Supp. 1137, 1144 (S.D.N.Y. Oct. 24, 1989)

(quoting 28 U.S.C. § 1657(a)). “The Act encourages the courts to give special consideration to

actions asserting federal rights. . . . In general terms, it appears to be proper for a party to move

for expedited consideration under the Act.” ​Freedom Communications v. FDIC​, 157 F.R.D. 485,

486 (C.D. Cal. 1994). “The Text of subsection (a), notably the reference to a ‘factual context,’

suggests that Congress contemplated case-by-case decision making.” ​Id.​ at 487

“Litigants who can persuasively assert that there is a special public or private interest in

expeditious treatment of their case will be able to use the general expedition provision. . . . Thus

a motion for expedited consideration is proper procedurally.” ​Id. at 487 (quoting H. Rep. No.

98-985, at 4). The ​Ont. Forest Indus. Assoc. ​Court held that, “Congress has provided that ‘good

cause’ is found where (1) a claim of right arises “under the Constitution of the United States or a

Federal Statute . . . [and 2] in a factual context that a request for expedited consideration has

merit.” ​Ont. Forest Indus. Assoc. v. United States​, 30 C.I.T. 1117, 1127 (Court of Int’l Trade

Aug. 2, 2006). “In elucidating the ‘good cause standard,’ the legislative history of section

1657(a) provides that ‘good cause’ should be found: ‘[1] in a case in which failure to expedite

would result in mootness or deprive the relief requested of much of its value, [2] in a case in

which failure to expedite would result in extraordinary hardship to a litigant, or [3] actions where

the public interest in enforcement of the statute is particularly strong.’” ​Id. (quoting H. Rep. No.

98-985, at 6 (1984), as reprinted in 1984 U.S.C.C.A.N. 5779, 5784 (footnotes omitted)).

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 Plaintiffs’ First Amended Complaint includes causes of actions asserting constitutional

violations, such as deprivation of due process under the Fifth Amendment, as well as statutory

and other limits that Defendant Commission has exceeded. Moreover, as the Plaintiffs

emphasized in their amended complaint and in their opposition to the motions to dismiss, they

have raised facial statutory and constitutional challenges to the Commission’s program for

awarding pipeline certificates under the Natural Gas Act, 15 U.S.C. §717, rather than

case-specific challenges. Therefore, so long as the Commission’s certificate program remains in

effect, the infirmities identified in the Complaint will persist.

Given the recurring nature of the violations raised in the Complaint, good cause exists to

expedite this case: absent resolution, the violations complained of will continue to recur,

impacting not just the plaintiff landowners in this proceeding but also all landowners with

property along pending and future interstate pipeline projects. According to the Commission’s

website, there are roughly a dozen pipeline projects proposed in 2017 alone awaiting approval.

See Table of Pending Pipeline Applications, FERC Website,

https://www.ferc.gov/industries/gas/indus-act/pipelines/pending-projects.asp. If those pipeline

companies are able to acquire requisite property rights for their projects under threat of eminent

domain, then issues raised in this complaint may become moot or “the relief requested will be of

little value.”

In addition, Plaintiffs request that this Court schedule an oral hearing pursuant to Local

Civil Rule 7(f). There are significant constitutional and statutory issues that are contested by the

parties, which issues can be beleaguered by considerable paperwork filed (collectively 161 pages

of memoranda) in relation to the Defendants’ motions to dismiss. Defendants have attempted to

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mischaracterize the nature of Plaintiffs’ claims as circumventing FERC’s processes and being

merely an alternative vehicle to the administrative proceedings. Given the importance of these

questions to the determination of the case, and the complexity of this area of the law, it is

respectfully opined that oral argument will significantly aid the Court in the decisional process of

the pending motions to dismiss.

We ask the Court to grant the motion to expedite the proceedings of the pending motions

to dismiss, including by scheduling an oral hearing. Courts should be “mindful of the need to

resolve the case expeditiously.” ​McCarty​, 2013 U.S. Dist. LEXIS 139358 at *4 ; ​see also

Berenson v. Adm'rs of the Tulane Univ. Educ. Fund​, 2017 U.S. Dist. LEXIS 128655, *4 (E.D.

La. Aug. 14, 2017); ​Keeping Gov't Beholden, Inc. v. U.S. DOJ​, 2017 U.S. Dist. LEXIS 198615

(D.D.C. Dec. 1, 2017).

III. CONCLUSION

For these reasons, Plaintiffs respectfully request that this Honorable Court grant an oral

hearing on the pending motions to dismiss; to expedite the scheduling for such a hearing and

adjudication of the motions, at the discretion of the Court; and for such other and further relief as

to the Court deems just and proper.

Respectfully submitted,

By: ___________________________
Carolyn Elefant
LAW OFFICES OF CAROLYN ELEFANT PLLC
1440 G Street NW, 8th Floor
Washington D.C. 20037
Phone: 202-297-6100
carolyn@carolynelefant.com
FERC Counsel to Plaintiffs Bold Alliance ​et. al.

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