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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
well-considered attention to the issues raised on rehearing.
4. In order to balance its commitment to expeditiously responding to parties concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of agency review, the Commission, in Order No. 871, exercised its discretion by amending its regulations to add new 157.23, which precludes the issuance of authorizations to proceed with construction of projects authorized under NGA sections 3 and 7 during the period for filing requests for rehearing of the initial orders or while rehearing is pending.9
5. Three weeks after the Commission issued Order No. 871, the U.S. Court of Appeals for the District of Columbia Circuit D.C. Circuit issued an en banc decision in Allegheny.10 The court held that the Commissions use of tolling orders solely to allow itself additional time to consider an application for rehearing does not preclude operation of the NGAs deemed denial provision,11
which enables a rehearing applicant to seek judicial review after thirty days of agency inaction.12 The court explained that, to prevent a rehearing from being deemed denied, the Commission must act on an application for rehearing within thirty days of its filing by taking one of the four NGA-enumerated actions: Grant rehearing, deny rehearing, or abrogate or modify its order without further hearing.13
6. On July 9, 2020, INGAA filed a request for clarification or, in the alterative, rehearing of Order No. 871.14
On the same day, Kinder Morgan and TC Energy also filed requests for rehearing.15
7. To facilitate our reconsideration of Order No. 871 and to ensure a complete record for further action, on January 26, 9 Order No. 871 also revised 153.4 of the Commissions regulations to incorporate a crossreference to new 157.23.
10 964 F.3d 1.
11 15 U.S.C. 717ra.
12 Allegheny, 964 F.3d at 1819.
13 See id. at 13 quoting 15 U.S.C. 717ra.
14 INGAAs July 9, 2020 Motion to Intervene and Request for Clarification or, in the Alternative, Rehearing INGAA Rehearing. INGAAs Rehearing included a motion to intervene in Docket No.
RM2015000. Intervention is not necessary in order to request rehearing of a rulemaking. See, e.g., Generic Determination of Rate of Return on Common Equity for Elec. Utilities, Order No. 389
A, 29 FERC 61,223, at 61,459 n.2 1984 Rhode Island also requested leave to intervene out of time.
Intervention is not necessary in order to request rehearing of a rulemaking.. Accordingly, INGAAs motion is unnecessary.
15 Kinder Morgans July 9, 2020 Request for Rehearing Kinder Morgan Rehearing; TC Energys July 9, 2020 Request for Rehearing TC Energy Rehearing.

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2021, the Commission issued an order providing interested parties an opportunity to comment on the arguments raised in the requests for rehearing.16 In particular, the Commission sought comment on five central questions: a Whether the final rules application should be limited to certain issues or arguments raised on rehearing; b whether the final rule should apply to all orders pertaining to an NGA section 3 authorization or section 7 certificate or only a subset thereof; c how the final rule should apply following the Allegheny decision;
d whether the Commission should modify its practices or procedures to address concerns regarding the exercise of eminent domain while rehearing is pending; and e whether the Commission should set a specific time limit after which an authorization to commence construction could issue.17
8. In response, the Commission received twelve initial briefs and five reply briefs. Seven initial briefs and three reply briefs came from various entities representing the natural gas industry, which generally oppose what is in their view the overly broad scope of the final rule, including: The three rehearing applicants INGAA, Kinder Morgan, TC Energy; 18 BHE Pipeline Group, LLC BHE Pipeline; 19 the Enbridge Gas Pipelines Enbridge; 20
the Gas and Oil Association of West Virginia, Inc. Gas & Oil WV; 21 and the Tallgrass Pipelines Tallgrass.22
9. We received five initial briefs and two reply briefs supporting and, in some cases, seeking expansion of, the final rule from: Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, and the District of Columbia States; 23 a consortium of public interest 16 Order No. 871A, 174 FERC 61,050. Several briefs filed in response to Order No. 871A
contained motions to intervene or were later supplemented by separately-filed motions to intervene. As we noted above, intervention in a rulemaking proceeding is not required. See supra note 14.
17 For the full text of the questions posed by the Commission, see Order No. 871A, 174 FERC
61,050 at P 7.
18 See INGAAs February 16, 2021 Initial Brief INGAA Initial Brief and March 3, 2021 Reply Brief INGAA Reply Brief; Kinder Morgans February 16, 2021 Initial Brief Kinder Morgan Initial Brief and March 3, 2021 Reply Brief Kinder Morgan Reply Brief; TC Energys February 16, 2021 Comments TC Energy Initial Brief.
19 See BHE Pipelines February 16, 2021
Comments BHE Pipeline Initial Brief.
20 See Enbridges February 16, 2021 Initial Brief Enbridge Initial Brief and March 3, 2021 Reply Brief Enbridge Reply Brief.
21 See Gas & Oil WVs February 16, 2021 Initial Brief Gas & Oil WV Initial Brief.
22 See Tallgrasss February 16, 2021 Comments Tallgrass Initial Brief.
23 See States February 16, 2021 Brief States Initial Brief.

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organizations Public Interest Organizations; 24 the Delaware Riverkeeper Network and Maya Van Rossum Delaware Riverkeeper; 25 the Niskanen Center and various landowners Niskanen Center; 26 and three individual landowners.27
10. The Commission appreciates the additional briefing provided by the filers, as well as the diversity of perspectives represented. Taking those comments under consideration, the Commission addresses the issues raised on rehearing below.28
II. Discussion A. Scope and Application of Order No.
871
11. INGAA seeks clarity regarding the scope and application of Order No. 871.
Similarly, TC Energy seeks rehearing regarding the scope of Order No. 871.
INGAA and TC Energy describe a number of circumstances that they contend would not implicate the concerns expressed by the Commission in promulgating Order No. 871 and ask the Commission to clarify Order No. 871
or revise it to provide that the rule does not apply in these circumstances.
INGAA also asks the Commission to clarify how Order No. 871 will operate in light of certain rehearing procedures discussed in Allegheny.
1. Rehearing Requests That Do Not Oppose the Project 12. INGAA asks the Commission to clarify that the rule precluding issuance of construction authorizations under 24 See Public Interest Organizations February 16, 2021 Brief Public Interest Organizations Initial Brief and March 3, 2021 Reply Brief Public Interest Organizations Reply Brief. The Public Interest Organizations include: Alliance for the Shenandoah Valley; Appalachian Mountain Advocates; Appalachian Voices; Chesapeake Bay Foundation, Inc.; Cowpasture River Preservation Association; Earthjustice; Friends of Buckingham;
Friends of Nelson; Highlanders for Responsible Development; Natural Resources Defense Council;
Piedmont Environmental Council; Sierra Club;
Sound Rivers, Inc.; Sustainable FERC Project;
Virginia Wilderness Committee; Wild Virginia; and Winyah Rivers Alliance.
25 See Delaware Riverkeepers February 16, 2021
Brief Delaware Riverkeeper Initial Brief.
26 See Niskanen Centers February 16, 2021 Brief Niskanen Center Initial Brief and March 3, 2021
Reply Brief Niskanen Center Reply Brief.
27 See Deborah Evans, Ron Schaaf, and Bill Glows February 16, 2021 Comments Landowners Initial Brief.
28 Some briefs raised issues outside the scope of the rule, such as the Commissions issuance of conditional certificates pursuant to NGA section 7
and the appropriate definition of pre-construction activities. The Commission will not address those issues here. We note, however, that the Commission recently solicited comments on, among other things, its use of conditional certificates. See Certification of New Interstate Natural Gas Facilities, 174 FERC 61,125, at PP 1315 2021.

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