Voglio sapere a riguardo di…

26162

Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
rather questionable. Will the Commission stay a certificate where there is a protest by a landowner with property interests that abut the proposed right-of-way but are not subject to condemnation? And the Commissions policy applies to where there is a landowner protest. Will the Commission apply the stay where a landowner protested but did not intervene? What about in the case where the landowner joined a protest, but may not have active interests in the proceeding? Some commenters have suggested that NGA section 19c grants the Commission such power.20 The Commission does not acknowledge or adopt these arguments. Even so, NGA
section 19c does not grant the Commission the power to stay its orders before a rehearing application is even filed.21 Section 19c sets forth the rulethat the filing of an application for rehearing under subsection a shall not . . . operate as a stay of the Commissions orderand the exception to that ruleunless specifically ordered by the Commission. 22 In order for the exception to apply, the general rule must first apply: That is, someone must have filed a request for rehearing.
Further, the Commissions new policy elevates the stay from being the exception to being the rule itself, assuming the legislative power to amend section 19c to read: An order is stayed unless specifically ordered by the Commission. Only Congress can amend a statute.
9. Let us also not forget that identical phrases in the same statute are normally given the same meaning.23 NGA section 19c provides that the commencement of proceedings under subsection b of this section shall not, unless specifically ordered by the court, operate as a stay. 24 Imagine a scenario in which, in the course of a one-off proceeding, a court of appeals announced that, going forward, it would begin presumptively staying an entire category of Commission orders before a petition is filed. Article III courts, of course, have their own procedures, 20 See Public Interest Organizations February 16, 2021 Brief at 1314 arguing the Commission has discretion under NGA section 19c to stay a certificate order; Niskanen Center, et al. March 3, 2021 Reply Brief at 4 The NGAs only mention of an agency stay is in Section 19c. . . . The NGA
also does not constrain the Commissions authority as to when it can specifically order a stay . . . ..
21 See 15 U.S.C. 717rc.
22 Id.
23 Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 2007 identical words and phrases within the same statute should normally be given the same meaning citation omitted.
24 15 U.S.C. 717rc emphasis added.

VerDate Sep<11>2014

16:06 May 12, 2021

Jkt 253001

traditions, and powers. Still, such reading of the statute is absurd.
10. Many are quick to turn to NGA
section 16 when all else has failed.
However, the Commission likewise cannot rely on NGA section 16 in support of a presumptive stay. Section 16 of the NGA does not represent an independent grant of authority: the Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter. 25 This does not create new powers under the NGA or supersede section 19c, which sets forth the conditions for granting a stay.
Moreover, like its counterpart in Federal Power Act section 309,26 the use of NGA
section 16 must be consistent with the authority delegated to it by Congress. 27
11. I am aware of no other grant of authority that the majority may be relying upon in support of its new presumptive stay policy.28 At its root, the Commissions presumptive stay policy impermissibly does what the Commission says it cannot do: The stay is designed to restrict the use of eminent domain.29 It impedes a certificate holders right to exercise eminent domain immediately upon the issuance of the certificate, while claiming to allow the pipeline to continue to engage in development related activities that do not require use of landowner property or that are voluntarily agreed to by the landowner. 30 It effectively permits the stay to be lifted so long as there is a commitment by the pipeline developer not to begin eminent domain proceedings until the Commission issues a final order on any landowner rehearing requests. 31 How a pipeline can conduct any activity authorized by a stayed certificate or why a pipeline would request to lift a stay other than 25 Id.

717o.
U.S.C. 825h.
27 Verso Corp. v. FERC, 898 F.3d 1, 7 D.C. Cir.
2018 quoting Xcel Energy Servs. Inc. v. FERC, 815
F.3d 947, 952 D.C. Cir. 2016; see id. at 10
Section 309 accordingly permits FERC to advance remedies not expressly provided by the FPA, as long as they are consistent with the Act.
emphasis added citing TNA Merch. Projects, Inc.
v. FERC, 857 F.3d 354, 359 D.C. Cir. 2017 citing Niagara Mohawk Power Corp. v. Fed. Power Commn, 379 F.2d 153, 158 D.C. Cir. 1967.
28 To the extent that the Commission believes that by applying the criteria for granting a stay on a case-by-case basis cures any legal infirmity, it is wrong. Order No. 871B, 175 FERC 61,098 at P
51 n.103. It is illogical to have a presumption in advance of a rehearing request and is contrary to the plain text in the NGA.
29 See id. P 45.
30 Id. P 49.
31 Id. P 51 emphasis added.
26 16

PO 00000

Frm 00014

Fmt 4700

Sfmt 4700

to exercise eminent domain are questions that beg clarification.
12. Even if it were not ultra vires, the Commissions interpretation results in unfair surprise. Since at least 1965, the Commission and the Federal Power Commission have placed the burden on movants for stays to show that they will be irreparably injured in the absence of a stay.32 The Commissions policy has been to refrain from granting stays in order to assure definitiveness and finality in Commission 32 See, e.g., Consol. Edison Co. of N.Y., 33 F.P.C.
965, at 969 1965 Four tests have been prescribed by the Court of Appeals, each of which an applicant for stay must satisfy in order to justify the extraordinary relief represented by a stay of an administrative order. citations omitted; see also Midcontinent Indep. Sys. Operator, 151 FERC
61,220, at P 27 2015 Otter Tail has not met the burden to show that it will suffer irreparable injury without a stay and that a stay is in the public interest., vacated and remanded for reasons not applicable, Ameren Servs. Co. v. FERC, 880 F.3d 571 D.C. Cir. 2018; Bradwood Landing LLC, 128
FERC 61,216, at P 10 2009 We find that Oregon has not met its burden to demonstrate that it will suffer irreparable harm absent the granting of a stay.; Acadia Power Partners, LLC, 108 FERC
61,076, at P 5 2004 We will deny El Pasos request for a stay, as we find that El Paso has failed to meet its burden of demonstrating that it will suffer irreparable harm absent a stay.; Se. HydroPower, Inc., 74 FERC 61,241, at 61,825 n.12 1996
the burden is on the movant . . . to demonstrate why its request for a stay is justified; Constr. Work in Progress for Pub. Utils., 24 FERC 61,071, at 61,190 1983 the burden is upon petitioners for such extraordinary action to show that significant harm will be incurred and that the equities favor granting the stay.; Exemption from the Licensing Requirements of Part I of the Fed. Power Act of Certain Categories of Small Hydroelectric Power Projects with an Installed Capacity of 5 Megawatts or Less, 20 FERC 61,061, at 61,134 1982 In the context of their request for a stay . . . the burden is upon the petitioners for such extraordinary action to show that significant harm will be incurred and that the equities favor granting the stay.; Cities Serv. Oil Co., 53 F.P.C. 8, at 89 1975 The applicant for a stay has the burden of establishing, absent the grant of such relief, it would be irreparably harmed.; Columbia Gulf Transmission Co., 37 F.P.C. 310, at 310 1967 It is settled that in order to establish a case for a grant of extraordinary relief in the nature of a stay the applicant has the burden of establishing that absent the grant of such relief it would be irreparably injured. citation omitted.
33 SFPP, L.P., 166 FERC 61,211, at P 7 2019
When considering requests for a stay of Commission action, the Commissions general policy is to refrain from granting stays in order to assure definitiveness and finality in Commission proceedings.; see also Millennium Pipeline Co., L.L.C., 141 FERC 61,022, at P 13 2012 Our general policy is to refrain from granting stays in order to assure definiteness and finality in our proceedings. citation omitted; Midwestern Gas Transmission Co., 116 FERC 61,182, at P 158
2006 The Commissions general policy is to refrain from granting stays of its orders, in order to assure definiteness and finality in Commission proceedings. citation omitted; Guardian Pipeline, L.L.C., 96 FERC 61,204, at 61,869 2001
The Commissions general policy is to refrain from granting stays of its orders, in order to assure definiteness and finality in Commission proceedings. citations omitted; Bos. Edison Co., 81 FERC 61,102, at 61,377 1997 However, the
E:FRFM13MYR1.SGM

13MYR1