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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
this aspect of INGAAs request for clarification and continue to find that the intent of the Order No. 871 was to ensure that construction of an approved natural gas project will not commence until the Commission has acted upon the merits of a request for rehearing, regardless of land ownership. 41
2. Rehearing Requests of Non-Initial and Amendment Orders 16. INGAA asks the Commission to clarify that construction could be allowed to proceed, even where a rehearing request has been filed, where rehearing is sought not of an initial order authorizing construction but of a subsequent order that merely implements the original authorization such as orders relating to compliance with environmental conditions, requests for variances, notices to proceed with construction, or authorizations to place constructed facilities into service.42 This clarification, INGAA states, would prevent unnecessary delays or interruptions in project construction that could occur if project opponents request rehearing of subsequent orders that merely implement the terms and conditions of the initial order. For similar reasons, INGAA also seeks clarity that a bar on the commencement of construction arising from the filing of a rehearing request regarding an order amending the terms of an existing authorization would apply only to facilities approved in the amendment order, not to the facilities approved in the original order.
17. To the extent that a non-initial order merely implements the terms, conditions, or other provisions of an initial authorizing ordersuch as a delegated order issuing a notice to proceed with construction, approving a variance request, or allowing the applicant to place the project, or a portion thereof, in servicea request for rehearing of that order would not implicate the initial authorizing order and so we agree that the rule would not apply.43
18. We also agree with INGAA that, with respect to amendments, 157.23s one-half mile of proposed . . . LNG facilities. 18
CFR 157.6d2iii.
41 Order No. 871, 171 FERC 61,201 at P 11
emphasis added.
42 INGAA Rehearing at 19.
43 A challenge to a non-initial order is appropriately confined in scope to the specific agency action being challenged and may not revisit findings of the initial order itself. See, e.g., Natl Comm. for the New River, Inc. v. FERC, 433 F.3d 830, 834 D.C. Cir. 2005 finding route alternative claim raised during initial certification process barred on res judicata grounds in subsequent review of pipelines compliance with certificate conditions.

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prohibition on the issuance of construction authorizations prior to Commission action on rehearing would apply only to the facilities approved by the amendment order for which rehearing is sought. It would not relate back to any facilities previously approved by the Commission in the initial authorizing order that remain unchanged by the amendment order.
3. Post-Allegheny Rehearing Treatment 19. INGAA poses several circumstances that may unfold following Allegheny and asks the Commission to elaborate on whether and how the rule promulgated in Order No. 871 would apply in those cases. It asks the Commission to clarify that the rule would not apply once a rehearing request has been deemed denied by operation of law due to Commission inaction on the request for thirty days.44
20. As further explained below, we revise the rule to provide that the limit on construction authorization will apply until the earlier of the date that 1 a qualifying rehearing request is no longer pending before the Commission or 2
90 days following the date that a qualifying request for rehearing may be deemed denied. This revision reflects that, as permitted by NGA section 19a, rehearing may be deemed denied by operation of law in the absence of Commission action on the merits by the 30th day following receipt of a rehearing request. Order No. 871s use of the phrase until the Commission has acted upon the merits of that request, assumed, incorrectly, that such action was statutorily required. The revision clarifies that the limitation on construction will apply so long as the rehearing remains pending or until 90
days following the date that a request for rehearing may be deemed denied.
We next describe four scenarios following the filing of a rehearing request in the post-Allegheny landscape to further explain when a rehearing remains pending.
21. First, the Commission could issue an order addressing the merits of the rehearing request before the thirtieth day following the date the request is filed. Pursuant to Order No. 871, because the Commission had acted on the merits of the rehearing request, and rehearing was no longer pending, authorization to proceed with construction could be issued so long as the certificate or authorization holder 44 INGAA Rehearing at 2124. Notably, no commenters appear to argue that authorizations to proceed with construction should be allowed during the 30-day rehearing period following a Commission order issuing or amending a section 7
certificate or section 3 authorization.

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had also met the necessary conditions of the order associated with commencement of construction.
22. Second, the Commission might not act on the merits within thirty days following the filing of a rehearing request. Under NGA section 19a, such inaction by the Commission would mean that the request for rehearing may be deemed denied by operation of law.
In such situations, the Commission might issue a notice indicating that rehearing may be deemed denied by operation of law. If this notice does not state that the Commission intends to take further action on the rehearing request, then rehearing is no longer pending before the Commission, and construction could be allowed to proceed.
23. Third, the Commission might not act on a rehearing request within thirty days but might issue a notice indicating that rehearing may be deemed denied and also that the Commission intends to address the merits of the rehearing request in a future order, as provided in section 19a of the NGA.45 In such a case, rehearing is still pending before the Commission, and Order No. 871
would apply. Specifically, under Order No. 871 as issued, construction could not be allowed to proceed until the Commission issues its further order or otherwise indicates that the rehearing is no longer pending before the Commission by notice, order, or filing the record with the court of appeals which affords the court exclusive jurisdiction to affirm, modify, or set aside the Commissions orders.46
24. The States, the Public Interest Organizations, and the Niskanen Center generally support the application of the rules restriction on construction in this manner.47 Delaware Riverkeeper urges us to take this a step further, arguing that the Commission should withhold construction authorization until the deadline for judicial review passes or until the reviewing court resolves the issues raised on appeal.48 Conversely, INGAA and most natural gas industry commenters argue that construction authorizations should be permitted once 45 15

U.S.C. 717ra.
id. 717rb stating that upon the filing of a petition for judicial review, the court of appeals shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. and id. 717rc The commencement of judicial review proceedings shall not, unless specifically ordered by the court, operate as a stay of the Commissions order..
47 See Public Interest Organizations Initial Brief at 1213, 15; States Initial Brief at 11; Niskanen Center Initial Brief at 14; see also Public Interest Organizations Reply Brief at 24.
48 See Delaware Riverkeeper Initial Brief at 1012.
46 See
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