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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
permits pipeline developers, absent a Commissionor court-ordered stay, to start the process of condemning an individuals land before the Commission completes the certificate proceeding, including consideration of the merits of any timely filed requests for rehearing.83 While natural gas industry commenters note that developers make efforts to avoid the use of eminent domain,84 landowners describe having to face the trauma, expense, and permanent consequences of condemnation suits that begin on the heels of a Commission Certificate Order. 85
45. The courts, however, have held that the issuance of a valid certificate is all that is required from the Commission for a pipeline developer to begin eminent domain proceedings when it cannot otherwise acquire the property covered by the certificate.86 In other words, the Commission lacks the authority to deny or restrict the power of eminent domain in a section 7
certificate.87 Nor does the Commission have the authority to oversee the acquisition of property rights through eminent domain, including issues regarding the timing of and just 83 See Allegheny Def. Project v. FERC, 932 F.3d 940, 948, 950, 95253, 956 D.C. Cir. 2019 Millett, J., concurring detailing the harm to landowners constitutionally protected property interest in their homes as a private interest of historic and continuing importance quoting United States v.
James Daniel Good Real Property, 510 U.S. 43, 53
54 1993.
84 INGAA Initial Brief at 22.
85 Niskanen Center Reply Brief at 10, 16 noting a 2017 press report of 300 condemnation actions commenced in Virginia by the developers of the Mountain Valley Pipeline citing The Roanoke Times, Mountain Valley sues landowners to gain pipeline easements, Oct. 27, 2017, https
roanoke.com/business/news/mountain-valley-sueslandowners-to-gain-pipeline-easements-througheminent/article_abff5d87-1aee-5a50-b3c2b3ee0c812e44.html; see also id. at 9 stating that the burden on landowners from allowing eminent domain proceedings to commence upon issuance of a certificate continues after Allegheny; Landowners Initial Brief at 13, 5 explaining that the commenters had faced three different iterations of a proposed projects over 15 years in Oregon, and urging the Commission to disallow the use of eminent domain pending Commission certificate proceedings, including on rehearing.
86 Twp. of Bordentown, N.J. v. FERC, 903 F.3d 234, 265 3d Cir. 2018 stating that NGA section 7h contains no condition precedent to the right of eminent domain other than issuance of the certificate when a certificate holder is unable to acquire a right-of-way by contract; Berkley, 896
F.3d at 628 Issuing such a Certificate conveys and automatically transfers the power of eminent domain to the Certificate holder . . . . Thus, FERC
does not have discretion to withhold eminent domain once it grants a Certificate. citation omitted.
87 See Midcoast Interstate Transmission, Inc. v.
FERC, 198 F.3d 960, 973 D.C. Cir. 2000 The Commission does not have the discretion to deny a certificate holder the power of eminent domain.
citation omitted.

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compensation for the acquisition of property rights,88 which are matters reserved for the courts.89
46. On the other hand, the Commission unquestionably may determine the effective date of 90 and stay its own orders,91 and courts have specifically contemplated that a stay would be operative to withhold the eminent domain authority otherwise afforded by NGA section 7h.92 The Commission also has the power to . . .
issue . . . such orders . . . as it may find necessary or appropriate to carry out the provisions of this Act. 93
Accordingly, in light of the balance of interests identified in the record, the Commission will, in future proceedings,94 adopt a policy of presumptively staying an NGA section 7c certificate order 95 during the 3088 PennEast Pipeline Co., LLC, 174 FERC 61,056, at P 10 2021.
89 Id. citing Atl. Coast Pipeline, LLC, 164 FERC
61,100, at P 88 2018; Mountain Valley Pipeline, LLC, 163 FERC 61,197, at P 76 2018; PennEast Pipeline Co., LLC, 164 FERC 61,098 at P 33 n.82
2018.
90 See 15 U.S.C. 717o Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe..
91 Under the APA, an agency may issue a stay of its order where the agency finds that justice so requires. 5 U.S.C. 705. In determining whether this standard has been met, we consider several factors, including: 1 Whether a stay is necessary to prevent irreparable injury; 2 whether issuing a stay may substantially harm other parties; and 3
whether a stay is in the public interest. See, e.g., Millennium Pipeline Co., LLC, 141 FERC 61,022, at P 13 2012; Ruby Pipeline, LLC, 134 FERC
61,103, at P 17 2011.
92 See, e.g., Allegheny, 964 F.3d at 8 citing Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres, 907 F.3d 725, 740 3d Cir.
2018 affirming district court action allowing condemnation action to proceed absent a Commission-ordered stay; see also Mountain Valley Pipeline, LLC v. An Easement to Construct, Operate & Maintain a 42-inch Gas Transmission Line, No. 2:17CV04214, 2018 WL 1004745, at 5
S.D.W. Va. Feb. 21, 2018 The landowners insist that the various challenges that Mountain Valley faces before FERC and the courts of appeals counsel against the granting of partial summary judgment.
As explained earlier, a FERC order remains in effect unless FERC or a court of appeals issues a stay and no such stay has been issued here. internal citations omitted; In re Algonquin Nat. Gas Pipeline Eminent Domain Cases, No. 15CV5076, 2015 WL 10793423, at 7 S.D.N.Y. Sept. 18, 2015
Here, various interested parties have filed Requests for Rehearing with FERC but, absent a stay by FERC, those Requests for Rehearing neither prohibit these proceedings from going forward nor affect Algonquins substantive right to condemn or the need for immediate possession.; Tenn. Gas Pipeline Co. v. 104 Acres of Land More or Less, in Providence Cty. of State of R.I., 749 F. Supp. 427, 431 D.R.I. 1990 Because in this case the Commissions order has not been stayed, condemnation pursuant to that order may proceed..
93 15 U.S.C. 717o.
94 Specifically, in NGA section 7c certificate orders issued after the effective date of this order.
95 Unlike section 7 of the NGA, section 3 does not convey eminent domain authority, see Order No.

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day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners, up until 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19a. We think 90 days is appropriate because it balances the competing interests at stake including the project developers interest in proceeding with construction when it has obtained all necessary permits, and a project opponents interest in being able to challenge the Commissions ultimate decision before irreparable harm may occur. 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.
This new policy is intended to indicate our belief that, as Judge Griffith put it in his concurrence in Allegheny, during the rehearing period a district court . . . should not plow ahead with condemnation, instead holding an eminent-domain action in abeyance until the Commission completes its reconsideration of the underlying certificate order. 96
47. Given the grave consequences that eminent domain has for landowners, we believe that it is fundamentally unfair for a pipeline developer to use a section 7 certificate to begin the exercise of eminent domain before the Commission has completed its review of the underlying certificate order, through consideration of the merits of any timely filed requests for rehearing, either by issuance of an order on rehearing or a notice indicating that the Commission will not take further action. As the en banc D.C. Circuit recognized in Allegheny, reforming the Commissions rehearing practicealonedoes not prevent the harm to landowners that can arise when developers initiating eminent domain proceedings upon issuance of a certificate order, without awaiting the completion of the 871, 171 FERC 61,201 at P 5, and, therefore, section 3 authorizations will not be subject to this policy.
96 Allegheny, 964 F.3d at 22 Griffith, J., concurring; see also id. noting Judge Katsass suggestion that once the Commission grants rehearing of a certificate order, that order should be regarded as nonfinal . . . and a nonfinal order is presumably an invalid basis for transferring property by eminent domain and suggesting that suggestion merits a closer look citations omitted.

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