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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations requests for clarification and rehearing of Order No. 871. To facilitate reconsideration of Order No. 871 and ensure a complete record for further action, the Commission in Order No.
871A subsequently provided interested parties an opportunity to comment on the arguments raised on rehearing and specific questions posed by the Commission.13 In response, the Commission received twelve initial briefs and five reply briefs from a variety of stakeholders, including states, landowners, natural gas companies, and a consortium of public interest organizations.14
7. In consideration of the arguments raised on rehearing and in the briefs, the Commission in Order No. 871B revised 157.23 of its regulations to provide that the rule prohibiting the issuance of construction authorizations pending rehearing will apply only when a request for rehearing raises issues reflecting opposition to project construction, operation, or need.15
Order No. 871B further revised the rule to provide that the rules restriction on issuing construction authorizations while a qualifying rehearing request remains pending will expire 90 days following the date that such request may be deemed denied by operation of law under NGA section 19a.16
8. In addition, the Commission in Order No. 871B announced its intent to stay its NGA section 7c certificate orders during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners.17 We explained that this policy will be applied on a particularized basis, subject to certain exceptions and, if imposed, any stay would be lifted no later than 90 days following the date that a qualifying request for rehearing may be deemed denied by operation of law.18
9. On June 3, 2021, INGAA and Enbridge filed requests for clarification and rehearing of Order No. 871B.19 On the same day, Mountain Valley filed a
jbell on DSKJLSW7X2PROD with RULES

13 Limiting
Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871A, 86 FR 7643 Feb. 1, 2021, 174 FERC
61,050 2021.
14 See Order No. 871B, 175 FERC 61,098 at PP
89 describing briefs received.
15 Order No. 871B, 175 FERC 61,098 at PP 14, 30.
16 Id. PP 26, 30.
17 Id. PP 4351.
18 See id. PP 46, 51.
19 INGAAs June 3, 2021 Request for Clarification and Rehearing INGAA Rehearing; Enbridges June 3, 2021 Request for Clarification and Rehearing Enbridge Rehearing.

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request for clarification, or, in the alternative, rehearing.20
II. Discussion 10. INGAAs and Enbridges petitions include several requests for clarification, or, in the alternative, rehearing of the rule, as revised in Order No. 871B, and of the Commissions announcement that it would prospectively stay certain section 7c certificate orders pending rehearing.
Mountain Valleys petition is focused on a single issue regarding the rules application: whether the rule would apply if rehearing is sought of an amendment order approving a minor mid-construction change that would typically be submitted as a variance request. Below, we first respond to the various requests for clarification or rehearing of the revised rule and then to requests for clarification or rehearing of the Commissions policy of staying section 7c certificate orders pending rehearing.
A. Rule Limiting Construction Authorizations Pending Rehearing 1. Opposition to Project Need 11. In Order No. 871B, the Commission revised 157.23b of its regulations as follows:
With respect to orders issued pursuant to 15 U.S.C. 717b or 15 U.S.C. 717fc authorizing the construction of new natural gas transportation, export, or import facilities, no authorization to proceed with construction activities will be issued:
a until the time for the filing of a request for rehearing under 15 U.S.C. 717ra has expired with no such request being filed, or b if a timely request for rehearing raising issues reflecting opposition to project construction, operation, or need is filed, until: i The request is no longer pending before the Commission, ii the record of the proceeding is filed with the court of appeals, or iii 90 days has passed after the date that the request for rehearing may be deemed to have been denied under 15 U.S.C. 717ra.21

12. INGAA and Enbridge request that the Commission clarify the meaning of opposition to project . . . need.
Specifically, INGAA and Enbridge urge the Commission to clarify that this phrase refers only to situations in which a project opponent claims that there is insufficient evidence of market need for a project under the NGA section 7
economic balancing test.22 INGAA
maintains that virtually any generic 20 Mountain Valleys June 3, 2021 Request for Clarification or, in the Alternative, Rehearing Mountain Valley Rehearing.
21 Order No. 871B, 175 FERC 61,098 at P 30
emphasis in the original reflecting adopted revisions to 157.23.
22 See INGAA Rehearing at 9; Enbridge Rehearing at 1314.

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opposition to a project could be viewed as an argument that the new facilities are not needed, and that if not clarified, this phrasing could prohibit the issuance of construction authorization whenever any rehearing request is filed by a party generally opposed to development.23 Similarly, Enbridge posits that parties could delay construction for months by claiming on rehearing that a project is not needed because of broad climate change concerns. 24
13. We deny INGAAs and Enbridges requests for clarification on this issue.
The petitioners interpretation construes the language of the rule too narrowly.
Adopting this suggestion would exclude from the rules purview rehearing requests raising environmental matters or general opposition to a project, as well as rehearing requests filed by members of communities that would be impacted by the construction of new natural gas facilities. 25 The Commission has already stated that we did not intend such a result.26 We continue to find it appropriate to refrain from permitting construction to proceed until the Commission has acted upon any request for rehearing that opposes project construction and operation or raises issues regarding project need, regardless of the basis or whether rehearing is sought by an affected landowner. 27
2. Amendment Orders Authorizing MidConstruction Changes 14. INGAA and Mountain Valley seek clarification that the rule does not apply to amendment orders that authorize limited changes while project construction is ongoing, which the they refer to as mid-construction changes, or, in the alternative, rehearing.28
INGAA explains that mid-construction changessuch as construction method changes, temporary workspaces changes, and minor route realignments that do not involve new facilities or new landownersare traditionally filed by project developers as variance requests.29 However, INGAA notes that 23 INGAA

Rehearing at 10, 11.
Rehearing at 13.
25 Order No. 871B, 175 FERC 61,098 at P 15.
26 Id.
27 Id. emphasis added.
28 See INGAA Rehearing at 1120; Mountain Valley Rehearing at 59.
29 See INGAA Rehearing at 1315 providing examples of prior variance approvals allowing:
temporary modification to location of temporary access road to accommodate imminent longwall mining activities in vicinity of construction area, a minor pipeline route shift to avoid an obstruction placed on approved pipeline route, modifications to pipeline route and road crossing method due to unanticipated subsurface conditions.
24 Enbridge
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