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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations Commission today need not go any further than has the court. Nor do I see any real risk that a pipeline will commence construction before a party has the opportunity to petition for review. As the Commission itself states, on average, natural gas companies should not have expected to receive authorization to proceed with construction sooner than three months after order issuance. 6 Accordingly, I
see no reason why this rule promulgated in the face of litigation and in light of legitimate, unresolved concerns for the competing rights of the parties before the Commissionis still required by law or prudence. I would repeal it in full and instead rely wholly upon the rehearing and appeal provisions ordained by Congress to balance our litigants various interests.
3. I also write separately in order to highlight a handful of self-evident legal infirmities that might form the basis of an aggrieved partys appeal. With this order, the Commission has, for the third time in as many months, dramatically increased the uncertainty faced by the natural gas industry by changing its policies so as to make it harder to rationally deploy capital, accurately assess risk, or predict Commission action.7 Worse yet, the Commission fails in this order to satisfy its obligations under the Administrative Procedure Act APA and implements policies that conflict with the plain text of the Natural Gas Act NGA, the most obvious of which is our new, unnecessary, and unjustifiable presumption to stay certificate orders.
I. The Commission Fails To Respond to Arguments Raised in Briefing 4. Turning first to the most basic of APA violations, the Commission declines to even acknowledge, let alone respond to, the arguments raised by the Interstate Natural Gas Association of America INGAA that the issuance of Order No. 871A was improper.8
INGAA argues:
1 Order No. 871 was promulgated in violation of the notice-and-comment requirements of the Administrative Procedure Act, and that procedural deficiency cannot be cured by Order No.
871A or other after-the-fact processes; 2
Order No. 871A appears to invite comments on issues that were not raised in Order No.
6 Limiting Authorization to Proceed with Construction Activities Pending Rehearing, 175
FERC 61,098, at P 37 2021 Order No. 871B.
7 See N. Nat. Gas Co., 174 FERC 61,189 2021
Danly, Commr, dissenting at P 2 Northern;
Algonquin Gas Transmission, LLC, 174 FERC
61,126 2021 Danly, Commr, dissenting at P 32
Algonquin.
8 See, e.g., INGAA February 16, 2021 Initial Brief at 78.

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871 or in the requests for rehearing of that Order, while ignoring other issues that were raised in requests for rehearing of that Order;
3 Order No. 871A does not address the merits of the requests for rehearing of Order No. 871 or modify Order No. 871 in any respect, and likewise fails to explain why the Commission views the existing record as insufficient to rule on the prior requests for rehearing; and 4 Order No. 871A
contemplates a schedule that effectively delays a Commission ruling on the merits of the requests for rehearing of Order No. 871
until ten months after they were submitted, which violates the text and spirit of the D.C.
Circuits recent en banc decision in Allegheny Defense. 9

5. I for one would be interested to hear the Commissions response.10
Whether the Commissions refusal was intentional or a consequence of hasty action, the Commissions decision to ignore arguments properly raised runs contrary to the APA and stands as an obvious failure to engage in reasoned decision making.11 In addition to the APA violation I describe above, there are a number of other legal infirmities that require attention.
II. The Commissions New Policy Presumptively Staying NGA Section 7c Certificate Orders Is Contrary to Law 6. The Commissions new policy establishing a presumptive stay in section 7c certificate proceedings is simply beyond the Commissions authority. The power of eminent domain is surely profound and formidable. I cannot fault my colleagues for the anxiety they have expressed over its wise and just exercise. However, the Commission, as a mere creature of statute, can only act pursuant to law by which Congress had delegated its authority.12 Congress conferred the right 9 Id.

emphasis in original.
Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871A, 86 FR 7643 Feb. 1, 2021, 174 FERC
61,050 2021 Danly, Commr, dissenting Order No. 871A.
11 See New England Power Generators Assn, Inc.
v. FERC, 881 F.3d 202, 211 D.C. Cir. 2018 finding that FERC did not engage in the reasoned decisionmaking required by the Administrative Procedure Act because it failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent; Canadian Assn of Petroleum Producers v. FERC, 254 F.3d 289, 299 D.C. Cir.
2001 Unless the Commission answers objections that on their face seem legitimate, its decision can hardly be classified as reasoned. citations omitted; Tesoro Alaska Petroleum Co. v. FERC, 234
F.3d 1286, 1294 D.C. Cir. 2000 The Commissions failure to respond meaningfully to the evidence renders its decisions arbitrary and capricious..
12 Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 D.C.
Cir. 2002 As a federal agency, FERC is a creature of statute, having no constitutional or common law existence or authority, but only those authorities 10 See
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to certificate holders to pursue eminent domain in federal district court or state court,13 having recognized that states defeat the very objectives of the Natural Gas Act 14 by conditioning or withholding the exercise of eminent domain. Congress has made that determination. It has codified it into law. The Commission, as an executive agency, is empowered only to implement Congressional mandate, not to second-guess Congressional wisdom.
7. It is true that while the Commission lacks the authority to deny or restrict the power of eminent domain in a section 7 certificate, 15 the Commission unquestionably may . . .
stay its own orders. 16 The Commission, however, has no authority to presumptively stay section 7
certificate orders.
8. The Commission appears to rely on APA section 705 to issue its presumptive stay, but that section does not grant such power.17 APA section 705, titled Relief pending review, provides when an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review, 18 meaning the stay must be tied to litigation.19 The Commissions presumptive stay is not even tied to an application for rehearing let alone any litigation. Further, given the lack of discussion on how the Commission will implement this new policy, the assumption that the mere existence of a landowner protest automatically means that a stay is required in the interest of justice is conferred upon it by Congress. quoting Michigan v. EPA, 268 F.3d 1075, 1081 D.C. Cir.
2001; see Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208 1988 It is axiomatic that an administrative agencys power to promulgate legislative regulations is limited to the authority delegated by Congress..
13 See 15 U.S.C. 717fh.
14 S. Rep. No. 80429, at 3 1947.
15 Order No. 871B, 175 FERC 61,098 at P 45.
It should be recognized that the Commission again preemptively answers a question that it directly posed in the pending Notice of Inquiry NOI for which comments are due May 26, 2021: Under the NGA, does the Commission have authority to condition a certificate holders exercise of eminent domain? See Question B6 in Certification of New Interstate Nat. Gas Facilities, 174 FERC 61,125, at P 15 2021. The Commission continues to lull people into believing that the answers to the questions appearing in the NOI have yet to be resolved.
16 Order No. 871B, 175 FERC 61,098 at P 46.
17 See id. P 46 n.91 citing 5 U.S.C. 705. I am unaware of Commission precedent that relies on APA section 705 as authority to stay Commission orders other than a handful of hydropower cases granting the stay of the commencement of construction deadline.
18 5 U.S.C. 705 emphasis added.
19 See Bauer v. DeVos, 325 F. Supp. 3d 74, 106
D.D.C. 2018 Most significantly, the relevant equitable considerations are not free-floating but, rather, must be tied to the underlying litigation..

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