Motion To Expedite Memorandum
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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