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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations NGA sections 3 and 7 would not apply in situations where only the project developer, a shipper, or other party supporting construction of the project files a request for rehearing on nonconstruction related grounds, such as rate or tariff issues.29 In other words, INGAA seeks clarification that the rule would not apply where no affected landowner or other party that opposes the project seeks rehearing. Similarly, TC Energy seeks limited rehearing with respect to the breadth of the new regulation, and asserts that the Commission failed to engage in reasoned decision making by adopting an overly-broad regulation that would prevent an applicant from engaging in construction while a rehearing request is pending, even where the request does not challenge whether or how the project should be constructed.30
13. In addition, INGAA asks the Commission to clarify that the rule will not apply to any request for rehearing that only raises issues related to a tariff, rate, terms or conditions of service, policy, or other matters that do not impact affected landowners. 31
INGAA suggests, in the alternative, that the Commission add clarifying language in 157.23 specifying that the rule will apply only when rehearing is sought by an affected landowner as that term is defined in the Commissions regulations.32 This revision, INGAA
explains, would ensure that the rule would not apply to projects where no affected landowners seek rehearing or to projects that do not involve the use of eminent domain authority.33 INGAA
also urges the Commission to revise the rule to clarify that it does not apply to natural gas export or import facilities authorized under section 3 of the NGA
29 INGAA

Rehearing at 1316.
Energy Rehearing at 46. TC Energy also asks the Commission to clarify that, as a general matter, it intends to continue its policy of being less lenient in the grant of late interventions in pipeline certificate proceedings, Tenn. Gas Pipeline Co., L.L.C., 162 FERC 61,167, at P 50 2018, as well as its general policy to deny late intervention at the rehearing stage. Id. citing Tenn. Gas Pipeline Co., L.L.C., 163 FERC 61,190, at P 4
2018. The Commissions late intervention policy is not relevant to Order No. 871. Therefore, we decline to take up TC Energys invitation.
31 INGAA Rehearing at 17 emphasis added.
32 18 CFR 157.6d2.
33 INGAA Rehearing at 17. INGAA provides the following examples of NGA section 7 projects that would not involve the use of eminent domain authority: Projects involving construction on property owned or controlled by the pipeline, such as a compressor station project; modifications of existing facilities where construction would occur within the existing right-of-way; and projects where all easements have already been mutually agreed and secured. Id.
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because such authorizations do not confer eminent domain authority.34
14. As described below, we grant, in part, INGAAs request for clarification, setting aside and revising Order No. 871
to resolve, in part, INGAAs, Kinder Morgans, and TC Energys requests for rehearing and otherwise continue to reach the same result as Order No. 871.
The Commission does not intend Order No. 871 to apply in instances where construction of the project is unopposed. Accordingly, we are revising the rule to clarify that the prohibition on issuing authorizations to proceed with construction during the rehearing period will not apply in proceedings where no party files a request for rehearing raising issues reflecting opposition to project construction, operation, or need.35 For example, requests for rehearing that only raise issues related to a tariff, rate, or terms or conditions of service would not trigger the rules prohibition on construction authorizations. Contrary to some commenters concerns about tailoring the scope of the rule to allow certain exceptions, the Commission is confident in its ability to administer the rule as revised.36
15. However, we disagree with INGAAs suggestion that the Commission limit the rules application to only those requests for rehearing filed by affected landowners, as that term is defined in our regulations.37 Adopting 34 Id.

at 1718.
infra P 30. Several commenters agree that the rule should be narrowed to not apply to rehearing requests filed by the project developer itself or another party that supports project construction e.g., a shipper. See, e.g., Enbridge Initial Brief at 1011; Gas & Oil WV Initial Brief at 6; Niskanen Center Initial Brief at 12; Tallgrass Initial Brief at 13; TC Energy Initial Brief at 510;
Enbridge Reply Brief at 710. Conversely, a few commenters argue that the rule should be retained without modification and that it should apply to all requests for rehearing regardless of the issues raised or the identity of the rehearing applicant, citing concerns about administering a rule with exceptions. See, e.g., Public Interest Organizations Initial Brief at 10 a rule without carve-outs is cleaner, clearer, and easier to administer;
Landowners Initial Brief at 2; Delaware Riverkeeper Initial Brief at 68; States Initial Brief at 4 n.8 The Commission should not attempt to guess at the importance of certain issues and arguments, but instead withhold authorizations to commence construction during the pendency of all rehearing requests..
36 We note that the Commissions administration of the rule is facilitated by the statutory and regulatory requirements that issues be raised on rehearing with specificity. See 15 U.S.C. 717ra; see also 18 CFR 385.713c2 requiring that requests for rehearing include a separate section entitled Statement of Issues, listing each issue in a separately enumerated paragraph that includes representative Commission and court precedent on which the party is relying.
37 18 CFR 157.6d2. Some commenters on behalf of the natural gas industry agreed with INGAAs request to limit the rules application to 35 See
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INGAAs suggestion would exclude from the rules purview rehearing requests raising environmental matters or general opposition to a project, as well as rehearing requests filed by members of communities that would be impacted by the construction of new natural gas facilities.38 That was not our intent. In issuing Order No. 871, preventing potential impacts on affected landowners during the pendency of the rehearing period was a primary concern, but it was not the Commissions sole concern. We think it appropriate to refrain from permitting construction to proceed until the Commission has acted upon any request for rehearing that opposes project construction and operation or raises issues regarding project need, regardless of the basis or whether rehearing is sought by an affected landowner.39 INGAA fails to explain why these concerns are any less important in section 3 cases, where the project authorization does not confer eminent domain authority.40 We deny only rehearing requests filed by or implicating affected landowners. See, e.g., BHE Pipeline Initial Brief at 910; Enbridge Initial Brief at 6, 10;
Enbridge Reply Brief at 79. But see Gas & Oil WV
Initial Brief at 5 rule, if retained, should be limited to rehearing requests raising clear threats of true irreparable harm to landowners or environmental justice communities directly in the path of a project. emphasis added; BHE Pipeline Initial Brief at 5 rule should be revised to apply only in limited circumstances requiring further review of matters raised by affected landowners or parties who will be directly impacted by immediate construction..
38 The Commission has long recognized that communities surrounding a pipeline right-of-way have interests that may be adversely affected by approval of certificate projects. See Certification of New Interstate Natural Gas Pipeline Facilities, 88
FERC 61,227, at 61,748, corrected, 89 FERC
61,0401999, clarified, 90 FERC 61,128, further clarified, 92 FERC 61,094 2000.
39 Governmental, environmental, and community interests are also impacted by projects approved under NGA sections 3 and 7, and the possibility of construction proceeding prior to the completion of agency review. See States Initial Brief at 26
explaining that states, local governments, and tribes may oppose projects on grounds such as the public need for a project, a projects contribution to climate change, harm to the environment from the construction and operation of pipeline projects, noise and traffic impacts, effects on historical resources, and other concerns; Public Interest Organizations Initial Brief at 8 deeming it illogical to limit the rules application to only landowner rehearing requests because the construction of a Commission-approved gas project, and the permanent changes to the environment and cultural resources that are caused by such construction, are cognizable injuries..
40 That an authorization under NGA section 3
does not confer eminent domain authority does not negate the existence of affected landowners who may oppose nearby construction of export or import facilities. An affected landowner, as defined in our regulations, and a landowner whose land is at risk of being acquired through eminent domain are not mutually exclusive. For example, an affected landowner can be one whose property is within
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