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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
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the Commission can convert midconstruction changes submitted as a variance request into certificate amendment proceedings. In addition, a project developer may on its own accord decide to seek approval of certain midconstruction changes by filing an amendment application rather than a variance request.30 INGAA and Mountain Valley seek assurance that the rule would not apply to amendment orders authorizing mid-construction changes that would traditionally be approved through the variance process.
To support this request, INGAA and Mountain Valley point to the language of 157.23s introductory text, which references orders authorizing the construction of new natural gas transportation, export, or import facilities, and explain that the type of mid-construction amendment proceedings for which it seeks clarification do not involve new facilities.31
15. If the Commission declines to grant clarification, INGAA and Mountain Valley request rehearing of this issue. If the Commission agrees that the rule does not apply to orders authorizing limited mid-construction changes, INGAA further asks the Commission to clarify that it retains discretion to issue an authorization to proceed with construction during the 30-day rehearing period following such an order.32
16. In Order No. 871B, we explained that the rule limiting construction authorizations would not apply to a request for rehearing of an non-initial order that merely implements the terms, conditions, or provisions of an initial authorizing order, such as a delegated order issuing a notice to proceed with construction, approving a variance request, or allowing the applicant to place the project, or a portion thereof, in service. 33 With respect to amendment orders, the Commission stated that the rule would apply only to the facilities approved by the amendment order for which rehearing is sought: it would not relate back to any facilities previously approved by the Commission in the 30 See, e.g., Mountain Valley Rehearing at 5
describing its amendment application submitted in Docket No. CP2157000 requesting Commission authorization to change the crossing method for specific wetlands and waterbodies to be crossed by the Mountain Valley Pipeline Project from open-cut crossings to one of several trenchless methods.
Nothing in this order prejudges action on the amendment application.
31 INGAA Rehearing at 1516 noting that the term facilities refers to the physical plant approved by the Commission in the original certificate order; Mountain Valley Rehearing at 5.
32 INGAA Rehearing at 1820.
33 Order No. 871B, 175 FERC 61,098 at P 17.

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initial authorizing order that remain unchanged by the amendment order.34
17. The Commission has already provided substantial guidance in response to INGAAs previous requests for clarification regarding the rules application to non-initial and amendment orders. The scenario now posed by INGAA and Mountain Valley on rehearing of Order No. 871B is a slightly different factual scenario. But the Commission is not required to identify and address every conceivable permutation of facts under which questions about the rules application may arise.35 Therefore, it is premature to address the possible range of future mid-construction changes. As a general matter, we think it likely that the rule would not apply if rehearing is sought of an amendment order approving a mid-construction change that is generally consistent with the terms and conditions of the original authorization order and does not involve new facilities or new landowners. However, we will consider the circumstances of each request on a case-by-case basis, and will indicate in the Commissions order in each case whether the rule applies.
3. Post-Allegheny Rehearing Treatment 18. Enbridge contends that the Commission erred by determining that an order granting rehearing for further proceedings would vacate the certificate authorization,36 arguing that the Commission cannot revoke certificate authority merely by issuing an interlocutory order granting rehearing or establishing a hearing, briefing schedule, investigation or other similar proceeding, but rather, must make a specific finding on the issues with the requisite support.37 According to Enbridge, an interlocutory order revoking a certificate would improperly place the certificate holder in legal limbo as an aggrieved party unable to seek rehearing and appeal of the interlocutory action.38 Enbridge urges the Commission to establish a specific timeframe for issuance of a substantive order following a grant of rehearing subject to further proceedings or to set 34 Id.

P 18.
e.g., Motor Vehicle Mfrs. Assn of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51
1983 It is true that a rulemaking cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man . . . regardless of how uncommon or unknown that alternative may have been. quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 551 1978.
36 Enbridge Rehearing at 910.
37 Id. at 9.
38 Id. at 10.
35 See,
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a deadline after which a construction authorization may issue.39
19. INGAA takes a different tack, suggesting that the Commission adopt a case-by-case approach to determining whether an initial order will be vacated when rehearing is granted.40
Specifically, INGAA asks the Commission to clarify that it did not adopt a blanket rule that a grant of rehearing for further procedures means the entire underlying order is vacated,41
that it will instead employ a case-bycase approach for determining whether grant of rehearing would result in vacatur,42 and that the entire certificate authorization will not be vacated if the Commission seeks additional briefing or information on one or more targeted issues.43
20. Both INGAA and Enbridge note that the Commissions prior practice of issuing tolling orders did not result in vacatur of underlying order.44 Thus, despite changing its procedures for handling requests for rehearing following Allegheny, INGAA and Enbridge argue that the Commission has departed from longstanding practice and failed to acknowledge such departure.45
21. In response to INGAAs request, Order No. 871B posited four postAllegheny scenarios that could arise following the filing of a request for rehearing to explain when such a request would remain pending before the Commission and, thus, preclude the issuance of a construction authorization.46 The fourth scenario addressed a situation contemplated by the Allegheny court, where the Commission could grant rehearing for the express purpose of revisiting and substantively reconsidering a prior decision, where it needed additional time to allow for supplemental briefing or further hearing processes. 47 In Order No. 871B, the Commission stated that under those circumstances, i.e., where the Commission grants rehearing without issuing a final order, the original 39 Id.

at 1011.
Rehearing at 2023.
41 See id. at 2022.
42 Id. at 22.
43 Id.
44 See INGAA Rehearing at 23; Enbridge Rehearing at 10.
45 See INGAA Rehearing at 23 citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 2009
agencies must provide reasoned explanation and show good reasons for a change in position, but need not demonstrate to a courts satisfaction that the reasons for the new policy are better than the reasons for the old one emphasis in the original;
Enbridge Rehearing at 10 same.
46 See Order No. 871B, 175 FERC 61,098 at PP
1929.
47 Id. P 27 citing 964 F.3d at 16.
40 INGAA

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