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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations Paragraph No.

I. Background
II. Discussion
A. Rule Limiting Construction Authorizations Pending Rehearing
1. Opposition to Project Need
2. Amendment Orders Authorizing Mid-Construction Changes
3. Post-Allegheny Rehearing Treatment
4. Additional Clarifications to Regulation Text
5. Effective Date of Construction Authorization Issuances
6. Procedural Nature of Rule
B. Policy of Presumptively Staying Section 7c Certificate Orders
1. Policy Does Not Violate NGA or APA
2. Qualifying Landowner Rehearing Requests
3. Commitment to Refrain from Exercise of Eminent Domain
4. Claims of Burden Shifting
5. Consideration of Industry Concerns
6. Landowner Ability to Seek Judicial Stay
C. Commission Determination
III. Document Availability
IV. Dates

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1. On May 4, 2021, the Federal Energy Regulatory Commission Commission issued an order addressing arguments raised on rehearing and clarification, and setting aside, in part, its prior Order No. 871.1 Order No. 871B revised the rule previously adopted by the Commission in Order No. 871 2 to narrow the scope of its application and to incorporate a time limitation for the Commission to preclude issuances of authorizations to proceed with construction activities. Order No. 871
B also announced a new general policy of presumptively staying certificate orders issued pursuant to section 7c of the Natural Gas Act NGA 3 during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners. On June 3, 2021, the Interstate Natural Gas Association of America INGAA, the Enbridge Gas Pipelines Enbridge,4 and Mountain 1 Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871B, 86 FR 26150 May 13, 2021, 175 FERC
61,098 2021.
2 The Commission issued its June 9, 2020 Order No. 871 to preclude the issuance of authorizations to proceed with construction activities with respect to orders granting authorizations under sections 3
and 7 of the Natural Gas Act NGA until the Commission acts on the merits of any timely-filed request for rehearing or until the deadline for filing a timely request for rehearing has passed with no such request being filed. Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871, 85 FR 40113 Jul. 06, 2020, 171 FERC 61,201 2020.
3 15 U.S.C. 717fc.
4 The Enbridge Gas Pipelines include Algonquin Gas Transmission, LLC; Big Sandy Pipeline, LLC;
Bobcat Gas Storage; East Tennessee Natural Gas, LLC; Garden Banks Gas Pipeline, LLC, Market Hub Partners Holding, LLC; Mississippi Canyon Gas Pipeline, LLC; Saltville Gas Storage Company L.L.C.; and Texas Eastern Transmission, LP. The Enbridge Gas Pipelines also include natural gas companies in which affiliates of the Enbridge Gas
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Valley Pipeline, LLC Mountain Valley requested clarification and rehearing of Order No. 871B.
2. Pursuant to Allegheny Defense Project v. FERC,5 the rehearing requests filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 19a of the NGA,6
we are modifying the discussion in Order No. 871B and continue to reach the same result in this proceeding, as discussed below.7
I. Background 3. In Order No. 871, the Commission explained that historically, due to the complex nature of the matters raised on rehearing of orders granting authorizations under NGA sections 3
and 7, the Commission had often issued an order known as a tolling order by the thirtieth day following the filing of a rehearing request, allowing itself additional time to provide thoughtful, well-considered attention to the issues raised on rehearing.
4. In order to balance its commitment to expeditiously responding to parties Pipelines own a joint venture interest, including Alliance Pipeline L.P., Gulfstream Natural Gas System, L.L.C.; Maritimes & Northeast Pipeline, L.L.C.; Nautilus Pipeline Company, L.L.C., NEXUS
Gas Transmission, LLC; Sabal Trail Transmission, LLC; Southeast Supply Header, LLC; and Steckman Ridge, LP.
5 964 F.3d 1 D.C. Cir. 2020 en banc Allegheny.
6 15 U.S.C. 717ra Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection b, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter..
7 Allegheny, 964 F.3d at 1617. The Commission is not changing the outcome of Order No. 871B.
See Smith Lake Improvement & Stakeholders Assn v. FERC, 809 F.3d 55, 5657 D.C. Cir. 2015.

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concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of agency review, the Commission, in Order No. 871, exercised its discretion by amending its regulations to add new 157.23, which precludes the issuance of authorizations to proceed with construction of projects authorized under NGA sections 3 and 7 during the period for filing requests for rehearing of the initial orders or while rehearing is pending.8
5. Three weeks after the Commission issued Order No. 871, the U.S. Court of Appeals for the District of Columbia Circuit D.C. Circuit issued an en banc decision in Allegheny.9 The court held that the Commissions use of tolling orders solely to allow itself additional time to consider an application for rehearing does not preclude operation of the NGAs deemed denial provision,10
which enables a rehearing applicant to seek judicial review after thirty days of agency inaction.11 The court explained that, to prevent an application for rehearing from being deemed denied, the Commission must act on an application for rehearing within thirty days of its filing by taking one of the four NGA-enumerated actions: grant rehearing, deny rehearing, or abrogate or modify its order without further hearing.12
6. Shortly thereafter, on July 9, 2020, the Commission received three timely 8 Order No. 871 also revised 153.4 general requirements for NGA section 3 applications of the Commissions regulations to incorporate a crossreference to 157.23.
9 964 F.3d 1.
10 15 U.S.C. 717ra.
11 Allegheny, 964 F.3d at 1819.
12 See id. at 13 quoting 15 U.S.C. 717ra.

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