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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations construction sooner than three months after order issuance.
38. For the reasons discussed above, there has been no showing that Order No. 871 will substantially impact the natural gas industry. Similarly, Kinder Morgan and INGAA have not established that the natural gas industry had a legitimate reliance interest in prior instances where Commission staff issued authorizations to proceed with construction while requests for rehearing were pending. Though the natural gas industry may have relied on past Commission practice, any such reliance does not establish a legal right to Commission action on a particular timetable, especially where the relevant Commission process was not established by regulation, policy statement, or spelled out in any detail in case law.
39. In any event, even assuming the Commission was required to solicit comments on the new rule, the Commission has fully satisfied this requirement by soliciting further briefing on rehearing in this proceeding, including the opportunity for both initial and reply briefs.70 Moreover, in light of the Commissions announced goal of acting on landowners rehearing requests within 30 days,71 the significantly increased speed with which the Commission resolves rehearing requests following the recent Allegheny decision, and the tailoring of the rule to apply only where a rehearing request reflects opposition to a project, we do not anticipate that the rule will impose any significant burden on the natural gas industry.
3. NGA Section 19c Stay Provision 40. Section 19c of the NGA states, in relevant part, that the filing of an application for rehearing . . . shall not, unless specifically ordered by the Commission, operate as a stay of the Commissions order. 72 Kinder Morgan asserts that the Commission violated section 19c by broadly staying construction pending rehearing without a specific finding that a stay is warranted.73 Order No. 871, Kinder Morgan contends, issued a blanket stay of construction of all projects authorized under NGA Sections 3 and 7, pending rehearing, regardless of whether any 70 In this regard, we note that the industry commenters have not identified an instance of delay resulting from application of Order No. 871.
71 In January 2020, the Commission formally reorganized the rehearings group within the Office of General Counsel, adding a landowner group that gives first priority to landowner rehearing requests of NGA section 7 certificate orders, with the aim of resolving such requests within 30 days.
72 15 U.S.C. 717rc.
73 Kinder Morgan Rehearing at 1315.

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party requests or demonstrates a stay is required. 74 This outcome, Kinder Morgan claims, is inconsistent with case law that explains Congress intended to allow construction to proceed while an application for rehearing is pending.75
41. The case law Kinder Morgan offers to support its claim that Order No. 871
is inconsistent with Congresss intent when enacting NGA section 19c is unavailing. In affirming the district courts dismissal for lack of subject matter jurisdiction of a complaint challenging the constitutionality of various NGA provisions in Berkley,76
the U.S. Court of Appeals for the Fourth Circuit stated that Congress contemplated construction would be allowed to continue while FERC
reviews a petition for rehearing. This statement without more does nothing to counter the fact that it is entirely within the Commissions discretion to decide whether, when, and how to allow construction of projects authorized under NGA sections 3 and 7 to proceed.
The Commission can require compliance with conditions in its orders before allowing construction to begin.77
And, as noted above, section 19c on its face contemplates the Commissions issuance of stays of its orders.78
42. Kinder Morgan misconstrues the effect of the Commissions pronouncement in Order No. 871. As we explained above, even prior to the rules enactment, it is rarely the case that construction can begin immediately upon issuance of an order authorizing new natural gas facilities under NGA
section 3 or 7.79 The authorization or certificate holder must first file documentation demonstrating that it has received all applicable authorizations required under federal law or that such authorizations have been waived, and that it has satisfied all preconstruction requirements. Accordingly, we do not anticipate the time period during which 74 Id.

at 14.
Morgan Rehearing at 15 citing Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 631
4th Cir. 2018 Berkley, cert. denied sub nom.
Berkley v. FERC, 139 S. Ct. 941 2019.
76 896 F.3d at 631.
77 The Commission has broad authority to condition certificates for interstate pipelines on such reasonable terms and conditions as the public convenience and necessity may require. 15
U.S.C. 717fe; see also, e.g., ANR Pipeline Co. v.
FERC, 876 F.2d 124, 129 D.C. Cir. 1989 noting the Commissions extremely broad conditioning authority.
78 Even if Order No. 871 were construed to be a blanket stay, such an action would be supported by the Commissions articulated desire 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.
79 See supra P 37.
75 Kinder
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authorization to begin construction may not be permittedi.e., during 30-day rehearing period and, if a qualifying rehearing request is filed, until that request is no longer pending before the Commission, the record of the proceeding is filed with the court of appeals, or 90 days has elapsed since the rehearing request was deemed denied by operation of lawto be unduly long or a significant departure from the Commissions prior practice.
C. Commission Policy on Exercise of Eminent Domain Pending Rehearing 43. In Order No. 871A, in addition to the issues raised on rehearing, we also sought comment on whether, and if so, how, 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.80 As further discussed below, in light of the balance of interests at stake, we will adopt a policy of presumptively staying an NGA section 7c certificate order during the 30-day period for seeking rehearing, and pending Commission resolution of any timely requests for rehearing filed by a landowner, until the earlier of the date on which the Commission 1 issues a substantive order on rehearing or otherwise indicates that the Commission will not take further action, or 2 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19a. This policy will not apply where the pipeline developer has already, at the time of the certificate order, acquired all necessary property interests or where no landowner protested the section 7 application. In addition, where no landowner files a timely request for rehearing of the certificate order, the stay will automatically lift following the close of the 30-day period for seeking rehearing.
44. As explained in Order No. 871,81
when the Commission grants a certificate of public convenience and necessity, NGA section 7h authorizes the certificate holder to exercise eminent domain authority if it cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain the authorized facilities.82 This statutory framework 80 Order
No. 871A, 174 FERC 61,050 at P 7.
No. 871, 171 FERC 61,201 at P 4.
82 15 U.S.C. 717fh. The NGA specifies that any such condemnation proceedings shall take place in the federal court for the district in which the property is located or in the relevant state court.
81 Order
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