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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations Commissions certificate proceeding.97
There is no question that eminent domain is among the most significant actions that a government may take with regard to an individuals private property.98 And the harm to an individual from having their land condemned is one that may never be fully remedied, even in the event they receive their constitutionally-required compensation.99
48. Nevertheless, many, if not all, of the briefs filed by representatives of the natural gas industry were strongly opposed to the Commissions consideration of changes in policy or practice regarding a pipeline developers exercise of eminent domain, including the general policy we adopt today. They described a range of consequences that would flow from such a decision, such as delayed project timelines, increased regulatory uncertainty, interference with the orderly development of natural gas, higher likelihood of project terminations, and purported environmental harm caused by producers flaring extra gas.100
49. We have thoroughly reviewed those comments and we recognize the industrys concerns. We believe this order appropriately balances those concerns with the benefits that come from addressing the significant fairness and due process concerns that arise when a pipeline developer can begin the process of condemning private land before the Commission has completed its certificate proceeding, and the 97 Allegheny, 964 F.3d at 10 n.2; see also id. at 22 Griffith, J., concurring Those proceedings are the final piece of the puzzle.; Niskanen Center Initial Brief at 811 describing the burden on landowners from eminent domain as continuing after Allegheny.
98 Dolan v. City of Tigard, 512 U.S. 374, 384
1994 observing that government action that provides for public access to private property would deprive the owner of the right to exclude others, one of the most essential sticks in the bundle of rights that are commonly characterized as property. quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 1979; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 1982
We have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause.; Hendler v. United States, 952
F.2d 1364, 1374 Fed. Cir. 1991 In the bundle of rights we call property, one of the most valued is the right to sole and exclusive possessionthe right to exclude strangers, or for that matter friends, but especially the Government. emphasis in the original.
99 See United Church of the Med. Ctr. v. Med. Ctr.
Commn, 689 F.2d 693, 701 7th Cir. 1982 It is settled beyond the need for citation . . . that a given piece of property is considered to be unique, and its loss is always an irreparable injury..
100 See, e.g., INGAA Initial Brief at 1827; Kinder Morgan Initial Brief at 79; Tallgrass Initial Brief at 9; see also Enbridge Reply Brief at 19; INGAA Reply Brief at 17.

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owners of that land can go to court to challenge the Commissions ultimate decision, following rehearing, regarding the certificate that is the basis for that condemnation action.101 Further, as described above, the presumptive stay reflects important limits designed to balance the interests of developers and landowners in light of the Commissions finding, in any given certificate order, that the proposed project is consistent with the public interest. At most, any stay will last no longer than approximately 150 days following the issuance of a certificate order.102
Moreover, a pipeline developer may avoid a stay entirely by obtaining all necessary property interests prior to issuance of the certificate, a stay will only extend beyond the initial 30-day period for seeking rehearing where a landowner files a request for rehearing of the certificate order, and during the period in which a stay is in place and as permitted consistent with the stay of the certificate, the project developer can continue to engage in development related activities that do not require use of landowner property or that are voluntarily agreed to by the landowner.
50. In addition, as noted above, particularly post-Allegheny, the Commission has significantly increased the speed with which it resolves rehearing requests, whether by addressing the merits of rehearing requests as expeditiously as possible or by issuing a notice within 30 days providing that rehearing may be deemed denied by operation of law, without also indicating the Commissions intent to take further action. We believe that the Commissions post-Allegheny practice should significantly reduce any burden on pipeline developers. In any case, we 101 Contrary to the dissents arguments, we recognize that this new policy is a departure from our past practice. But the dissent errs in suggesting that this departure is unexplained. Limiting Authorization to Proceed with Construction Activities Pending Rehearing, 175 FERC 61,098
2021 Danly, Commr, dissenting at P 12 Order No. 871B. As discussed throughout todays order, including in the text accompanying this footnote, we believe that this new policy better balances the relevant considerationssuch as fairness, due process, and developer certaintythereby justifying the change in policy. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 2009 Of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a courts satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates..
102 Approximately 150 days is the sum of the initial 30-day period for seeking rehearing, the next 30-day period before rehearing may be deemed denied by operation of law, and a final 90-day period, following the deemed denial.

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find that any burden imposed on pipeline developers by this new policy will be relatively minor and ultimately outweighed by the significant benefits it affords to landowners.
51. Finally, we reiterate that this new policy is only presumptive and that the question of whether to impose a stay will be decided on the circumstances presented in each particular certificate proceeding.103 A pipeline developer may move to preclude, or lift, a stay based on a showing of significant hardship,104 and the Commission may, in its discretion, grant such a motion upon finding that it is necessary or appropriate to commence condemnation proceedings prior to Commission action on rehearing or the date that is 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19a.
Although, as noted, we will evaluate any motion on the specific facts and circumstances presented therein, we note that a commitment by the pipeline developer not to begin eminent domain proceedings until the Commission issues a final order on any landowner rehearing requests will weigh in favor of granting such a motion.
III. Regulatory Requirements A. Information Collection Statement 52. The Paperwork Reduction Act 105
requires each federal agency to seek and obtain the Office of Management and Budgets OMB approval before undertaking a collection of information i.e., reporting, recordkeeping, or public disclosure requirements directed to ten or more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection requirements contained in final rules published in the Federal Register.106 The rule promulgated by Order No. 871, and revised herein, does not contain any 103 Contrary to the dissents arguments, Order No.
871B, 175 FERC 61,098 Danly, Commr, dissenting at PP 612, we are announcing only a general policy with respect to stays. We will make a particularized application of that policy in individual certificate orders, applying the criteria for granting a stay on a case-by-case basis. Parties to those individual proceedings will have the opportunity to challenge the Commissions determination on whether to issue a stay in those proceedings.
104 See, e.g., INGAA Initial Brief at 2021 noting that state-law mechanisms allowing pipeline developers to obtain physical access to the pipeline route to conduct environmental and other information gathering surveys, often necessary for other federal and state permits, vary from state to state, with some states authorizing physical access only by a party that otherwise has the power of eminent domain.
105 44 U.S.C. 35013521.
106 See 5 CFR pt. 1320.

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