Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations section 7c 2 certificate authorization will not be issued until the Commission acts on the merits of any timely-filed request for rehearing or the time for filing such a request has passed.3 On July 9, 2020, the Interstate Natural Gas Association of America requested clarification or, in the alternative, rehearing, and Kinder Morgan, Inc.
Natural Gas Entities and TC Energy Corporation requested rehearing of Order No. 871. Todays order does not address any of these requests for rehearing, but instead establishes a briefing schedule for addressing several questions which touch on some, but not all, of the issues raised on rehearing, and additionally requests briefing on issues not raised on rehearing.
2. I dissent from todays order because it: 1 Falls short of the Commissions obligation under the Administrative Procedure Act APA to address the arguments raised in requests for rehearing; and 2 will delay a ruling on the merits of the rehearing requests until approximately ten months after they were submitted, an action that surely is in tension with the U.S. Court of Appeals for the District of Columbia Circuits D.C. Circuit decision in Allegheny Defense Project v. FERC
Allegheny 4 which prohibits the Commission from employing procedural means to delay judicial review of its orders.
3. Whether the Commission retains the regulation as it is currently written, modifies it, or vacates it, the Commission is required under the APA
to explain its reasoning. In doing so, it must respond to arguments raised by litigants. This requirement is fundamental to administrative decision making.5 The requests for rehearing assert that the adoption of the regulation 2 15

U.S.C. 717fc.
Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871, 85 FR 40,113 July 6, 2020, 171 FERC
61,201 2020 Order No. 871.
4 964 F.3d 1 D.C. Cir. 2020 en banc.
5 See Motor Vehicle Mfrs. Assn of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
1983 Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. emphasis added; New England Power Generators Assn, Inc. v. FERC, 881
F.3d 202, 211 D.C. Cir. 2018 finding that FERC
did not engage in the reasoned decisionmaking required by the Administrative Procedure Act because it failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent.
3 See
VerDate Sep<11>2014

16:10 Jan 29, 2021

Jkt 253001

was arbitrary and capricious due to a number of infirmities. Among them are:
A claim that the regulation could be read to prohibit issuing an authorization to proceed with construction where a request for rehearing is filed by a party in support of the project including by the project proponent itself;
an argument that the rule would not allow an authorization to proceed with construction where the party requesting rehearing is not an affected landowner;
a claim that the regulation, as drafted, might not allow the issuance of an authorization to proceed with construction when a rehearing request has been denied by operation of law due to Commission inaction;
an argument that the rule, strictly construed, might not permit the issuance of an authorization to proceed with construction when the rehearing request concerns an amendment to an existing authorization or subjects unrelated to landowner concerns, such as rates; and potential indefinite delay in the issuance of an authorization to proceed with construction.
These are legitimate arguments. They deserve a response by the Commission.
The Commission is obligated to provide those responses, but all are sidestepped in todays order.
4. An inattentive reader who does no more than glance at the title of todays order might well be lulled into believing that it accomplishes more than it really does. This order is styled Order Addressing Arguments Raised on Rehearing and Clarification, and Providing for Additional Briefing.
Despite the title, the Commission neither addresses the arguments raised on rehearing nor provides any clarification. Instead, with no explanation other than a bald declaration that we believe that the issues raised regarding this rulemaking merit further consideration, 6 todays order lists a number of questions for further briefing. Although the enumerated questions may be relevant to some points raised in the requests for rehearing, the Commission fails to explain why it agrees or disagrees with those arguments or why it believes the record insufficient for the Commission to rule on those arguments.
5. To the extent that the Commission suggests a more complete record is needed to consider the requests for rehearing, I disagree. The Commission received three requests for rehearing that detail arguments the Commission 6 Limiting
Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871A, 174 FERC 61,050, at P 7 2021.

PO 00000

Frm 00011

Fmt 4700

Sfmt 4700

7645

had not considered in issuing the final rule. These arguments are straightforwardimplicating neither complex facts nor difficult legal principles. Although I acknowledge that the Commission may well have needed more than thirty days in which to address those arguments, the six months that have elapsed surely were more than adequate, and I see no reason why the Commission needs the additional ninety-six days afforded by todays order. Regardless, even if there were good reasons for needing more time, the Commission necessarily fails in its duties by offering no justification for further delay.
6. Moreover, the questions set forth for briefing are not confined to the issues properly raised on rehearing. One question asks whether the Commission should modify its practices or procedures to address concerns regarding the exercise of eminent domain while rehearing requests are pending before the Commission. No rehearing request suggests the Commission take this step. One wonders why this is the appropriate vehicle for such an inquiry, but it is not the proper vehicle to respond to arguments raised in the normal course of litigation.
7. The inquiry regarding eminent domain appears at odds with the Commissions well-developed body of law declaring that it lacks the authority to restrict a certificate holders use of eminent domain once the certificate of public convenience and necessity is received.7 I am not convinced that an automatic stay of the exercise of eminent domain pending Commission action on the merits of a rehearing request, which todays order suggests the Commission will consider, can be reconciled with NGA section 19c.8
That section provides that the filing of an application for rehearing . . . shall not, unless specifically ordered by the Commission, operate as a stay of the Commissions order. 9 As such, the idea that the Commission may adopt practices or procedures presumably to automatically stay an authorization to restrict a certificate holders use of eminent domain would appear, at least on initial inquiry, to conflict with NGA
section 19c. At a minimum, if the Commission wants parties to address the question of whether the exercise of eminent domain should be stayed automatically during the pendency of rehearing requests, it should also have 7 See, e.g., PennEast Pipeline Co., LLC, 174 FERC
61,056, at P 10 & n.17 2021 collecting cases.
8 See 15 U.S.C. 717rc.
9 Id. emphasis added.

E:FRFM01FER1.SGM

01FER1