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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations proceedings. 33Now after merely asking, should the Commission modify its practices or procedures to address concerns regarding the exercise of eminent domain while rehearing requests are pending, 34 in an order on rehearing where the issue of eminent domain was not raised, the Commission suddenly departs from its policy favoring finality and shifts the burden to the pipeline before a rehearing is even filed. The Commission never announced that it was considering a presumptive stay policy or under what authority. In fact, many commenters did not address the presumptive stay. Those harmed by this surprise issuance should consider that agencies are not given deference when there is reason to suspect that the agencys interpretation does not reflect the agencys fair and considered judgment on the matter in question. 35
III. The Commissions Decision is Bad Policy 13. On top of being unlawful, the presumptive stay is also bad policy.
Contrary to the Commissions claims, the presumptive stay does not strike the appropriate balance between pipelines and landowners.36 There can be no balance when the Commission violates clear Congressional mandate and attempts to withhold a statutory right afforded to certificate holders, especially when applied to applications already pending before the Commission.37
14. Further, the Commissions attempt to downplay the industrys concerns Commission follows a general policy of denying motions for stay based on a need for finality in administrative proceedings.; CMS Midland, Inc., 56 FERC 61,177, at 61,63031 1991 We follow, however, a general policy of denying motions for stays, based on the need for definitiveness and finality in administrative proceedings. citations omitted; Holyoke Water Co., 30 FERC 61,283, at 61,575 1985 The Commission has followed a general policy of denying stays, unless a party has demonstrated that it will be irreparably injured in the absence of a stay. citations omitted.
34 Order 871A, 174 FERC 61,050 at P 7.
35 Christopher v. SmithKline Beecham Corp., 567
U.S. at 155 citation omitted; see also Kisor v.
Wilkie, 139 S. Ct. 2400, 2421 2019 And recall too that deference turns on whether an agencys interpretation creates unfair surprise or upsets reliance interests..
36 Order 871B, 175 FERC 61,098 at P 49.
37 See U.S. Senators Hoeven, Manchin, Barrasso, Tester, Capito, Sinema, Cassidy, Cornyn, Cramer, Crapo, Cruz, Daines, Hagerty, Hyde-Smith, Inhofe, Lankford, Marshall, Moran, Risch, Rounds, Sullivan, Tillis, Thune, Toomey, and Wicker, Letter, Docket No. PL181000, at 1 filed April 30, 2021 Delaying and moving the regulatory goalposts on projects filed in good faith is contrary to the otherwise equitable application of the Policy Statement that all stakeholders expect. At a minimum, these projects should not be subject to newly contemplated considerations that fall outside the scope of the current Policy Statement or go beyond the Commissions statutory authority..

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including delayed project timelines, increased regulatory uncertainty, and higher likelihood of project terminations because any stay will last no longer than approximately 150 days following the issuance of a certificate order 38 is, to put it mildly, unconvincing. Requiring the passage of four months before a certificate can go into effect is significant, especially since the time required for processing applications has already dramatically increased.39 Many of the proposed projects before the Commission, some pending for more than a year, are critical to addressing supply issues and strengthening our energy infrastructure. 40 It is not inconceivable that those projects whose applications have been pending for more than a year ultimately will be canceled as a result of delay. By way of example, nearly two years ago, Dominion Energy Transmission, Inc. withdrew its application for a certificate for its Sweden Valley Project that it had filed seventeen months prior.
15. Finally, in yet another unexplained deviation from its past precedent, the Commission holds that, in the event the Commission were to grant rehearing for the purposes of requesting further briefing in order to substantively reconsider a ruling, the original authorization would no longer be in effect and the provisions of Order No. 871 would no longer apply since there would be no final order pursuant to which a notice to proceed could be issued. 41 The Commission provides no citation for this holding, the consequences of which are that granting rehearing for purposes of further consideration causes the original order to be vacated. Not only does the holding find no support in NGA section 19, but it is also contrary to the decades of Commission practice wherein the issuance of tolling orders for the purposes of further consideration did not vacate the original order.
16. Further, this holding will wreak havoc on the Commissions administration of other provisions under the NGA and FPA. For example, 38 Order
871B, 175 FERC 61,098 at P 49.
e.g., Northern Natural Gas Company February 5, 2021 Motion for an Expedited Order for the Northern Lights 2021 Expansion Project under CP20503 requesting expedited action for application filed on July 31, 2020; Iroquois Gas Transmission System, L.P. January 26, 2021 Request for Prompt Issuance of Certificate of Public Convenience and Necessity under CP2048
requesting expedited action for application filed on February 3, 2020.
40 U.S. Senator Hoeven, et al., Letter, Docket No.
PL181000, at 1 filed April 30, 2021 emphasis added.
41 Order No. 871B, 175 FERC 61,098 at P 27.
39 See,
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if the Commission requests further briefing in response to a request for rehearing of an NGA section 4 or FPA
section 205 order on a proposed rate change, what rate should be charged? Or if the Commission requests further briefing on a request for rehearing of a complex order regarding market design, what rules apply to an auction that occurs before the Commission rules on the rehearing request? Would a request for further briefing vacate a Commission order under NGA section 5 or FPA
section 206 finding that a certain rate or tariff provision is not just and reasonable and reinstate the prior rate or tariff provision? Is it only orders issued pursuant to NGA section 7 that are vacated when the Commission requests further briefing and, if so, what is the statutory basis for such a distinction?
The Commission appears not to have even considered these far-reaching consequences of its holding and provides no explanation as to how these and many other difficult issues should be dealt with.
IV. Conclusion 17. In the past three months, with barely any warning or process, the Commission has called every existing certificate into question in Algonquin, reversed years of significance analysis in Northern, and written the right to seek eminent domain upon receipt of a certificate out of the Natural Gas Act. As the Commission continues issuing such unlawful and ill-conceived orders, we will see further severe curtailment of investment in and construction of critical natural gas infrastructure which will inevitably drive up prices and gravely jeopardize reliability.
For these reasons, I respectfully dissent.
lllllllllllllllllllll James P. Danly, Commissioner.

Department of Energy Federal Energy Regulatory Commission Limiting Authorizations To Proceed With Construction Activities Pending Rehearing CHRISTIE, Commissioner, concurring:
1. I write separately to add the following.
2. Last year the Commission issued Order No. 871.1 Just a few weeks later, the D.C. Circuit issued its ruling in Allegheny.2
3. The combination created deep uncertainty, as well as the threat under 1 Order
No. 871, 171 FERC 61,2012020.
Defense Project v. FERC, 964 F.3d 1
D.C. Cir. 2020 en banc Allegheny.
2 Allegheny
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