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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations of this Act. 78 Section 16 also mandates that Commission orders shall be effective on the date and in the manner which the Commission shall prescribe. 79 Thus, the NGA provides the Commission with broad authority to take actions necessary to carry out the act, and we find that, given the significant consequences that eminent domain has for landowners, issuance of a stay of a certificate order under certain narrowly prescribed circumstances is well within this authority. Because NGA
section 16 is broadly applicable, the Commission utilizes the standard set forth in APA section 705 to determine whether a stay is justified.80 But the Commissions underlying authority derives from NGA section 16.
37. In any event, we disagree with INGAAs argument that APA section 705, which authorizes an agency to postpone the effective date of its actions pending judicial review, 81 means that a stay issued pursuant to this authority must be connected to ongoing judicial review proceedings and is thus inapplicable to any proceedings before the Commission that precede judicial review e.g., the time for filing and considering requests for rehearing.82
INGAA construes the statute too narrowly. The clause pending judicial review in section 705 could reasonably be construed as in anticipation of in which case all that is required is that the Commission reasonably anticipate because rehearing has been sought or a 78 15

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79 Id.
80 Under the APA, an agency may issue a stay of its order where the agency finds that justice so requires. 5 U.S.C. 705. In determining whether this standard has been met, we consider several factors, including: 1 Whether a stay is necessary to prevent irreparable injury; 2 whether issuing a stay may substantially harm other parties; and 3
whether a stay is in the public interest. See, e.g., Millennium Pipeline Co., L.L.C., 141 FERC 61,022, at P 13 2012; Ruby Pipeline, L.L.C., 134 FERC
61,103, at P 17 2011. But see Okanogan PUD, 162 FERC 61,040 at P 13, n.21 explaining, in the hydroelectric licensing context, that previously, the Commission has applied different standards than the one set forth in section 705 of the APA.
citing Monongahela Power Co., 7 FERC 61,054
1979 we considered the motions for stay under the standards of Virginia Jobbers Association v.
FPC, 259 F.2d 291 D.C. Cir. 1958 and Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 D.C. Cir. 1977;
Nantahala Power & Light Co., 20 FERC 61,026
1982 finding that a stay pending rehearing is in the public interest ; Kings River Conservation Dist., 27 FERC 61,098 1984 it is appropriate and in the public interest to stay the license issued in Project No. 2890 until completion of judicial review..
81 5 U.S.C. 705.
82 See INGAA Rehearing at 33. Indeed, a request for rehearing does not simply precede, but is a mandatory prerequisite to, judicial review. 15
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proposal has been strongly protested that a party will seek judicial review.
38. Further, in Order No. 871B, the Commission announced only a general policy with respect to stays.83
Accordingly, although contained in a final rule, the Commissions discussion of that general policy did nothing more than explain how the Commission intends to approach a particular set of questions in the future without conclusively resolving those questions or otherwise fixing any rights or responsibilities.84 Indeed, as explained in Order No. 871B, the Commission intends to make a particularized application of the policy in individual certificate orders and parties to those individual proceedings will have the opportunity to challenge the Commissions determination on whether to issue a stay in those proceedings. Notably, the Commission has issued five certificate orders since adopting the policy reflected in Order No. 871B, with none of those orders containing a stay along the lines contemplated in Order No. 871B.85
83 General statements of policy are not be subject to pre-enforcement judicial review. Natl Min. Assn v. McCarthy, 758 F.3d 243, 251 D.C. Cir. 2014
citing Natl Park Hosp. Assn v. Dept of Interior, 538 U.S. 803, 80911 2003.
84 See, e.g., INGAA v. FERC, 285 F.3d 18, 5961
D.C. Cir. 2002 finding Commissions discussion of seasonal rates within a final rule represents only a policy statement and therefore is neither binding on any party nor ripe for judicial review; Am. Gas Assn v. FERC, 888 F.2d 136, 15152 D.C. Cir.
1989 finding challenges to substantive aspects of Commissions cost recovery policy statement not ripe for review; Pac. Gas & Elec. Co. v. FPC, 506
F.2d 33, 35 D.C. Cir. 1974 finding Order No. 467, a policy proposal on delivery priorities by natural gas companies during curtailment periods, to be a general statement of policy that was not reviewable under NGA section 19b because it lacked sufficiently immediate and significant impact upon petitioners. That is consistent with the Commissions long-standing approach of articulating its policies with respect to NGA section 7 certificate applications, while leaving all actual findings and determinations for future proceedings.
See, e.g., Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC 61,227, corrected, 89
FERC 61,040 1999, clarified, 90 FERC 61,128, further clarified, 92 FERC 61,094, at 61,375 2000
explaining that the purpose of the Certificate Policy Statement is to provide the natural gas industry with guidance by stating the analytical framework the Commission will use to evaluate proposals for certificating new construction and that generally objections to such a statement are not directly reviewable. Rather, such review must await implementation of the policy in a specific case.. In line with that interpretation, the discussion in Order No. 871B regarding how the Commission will approach those future cases was not accompanied by any revisions to the Commissions rules or regulations.
85 See Tuscarora Gas Transmission Co., 175 FERC
61,147 2021; N. Natural Gas Co., 175 FERC
61,146 2021; Enable Gas Transmission, LLC, 175
FERC 61,183 2021; WBI Energy Transmission, Inc., 175 FERC 61,182 2021; N. Natural Gas Co., 175 FERC 61,238 2021. There were no landowner protests in any of these cases.

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39. Contrary to INGAAs and Enbridges assertions, nothing in NGA
section 19c, which on its face contemplates that the Commission may stay its own orders, precludes the Commission from determining that a stay of an individual certificate order during the 30-day period for seeking rehearing. Section 19c provides that a request for rehearing does not automatically stay a Commission order.86 That section does not speak to, or otherwise limit, the Commissions authority to issue a stay of its own accord. As described above, NGA
section 16 provides the Commission with broad authority to issue a stay where warranted by the facts and circumstances in a particular proceeding.
2. Qualifying Landowner Rehearing Requests 40. Enbridge seeks clarification that, for the purpose of the policy, the term landowner means directly affected landowner, as defined by the Commissions regulations, or, in the alternative, rehearing.87 This clarification, Enbridge maintains, would align with the Commissions justification for the policy as it would ensure that a stay is applied only when a protest or request for rehearing is submitted by the owner of property that would be subject to an eminent domain proceeding i.e., to directly affected landowners, and not owners of property that merely abuts the construction right-of-way or falls within a certain radius of compressor station construction or storage facilities. 88
41. As a general matter, we agree with Enbridges suggestion that the policy is intended to protect those whose property would be crossed or used by the proposed pipeline project as these are the landowners whose property rights could be acquired by the eminent domain authority that NGA section 7h confers upon certificate holders.89
Should the issue of a landowners specific property interests arise in a 86 See 15 U.S.C. 717rc The filing of an application for rehearing . . . shall not, unless specifically ordered by the Commission, operate as a stay of the Commissions order..
87 Enbridge Rehearing at 1416 citing 18 CFR
157.6d2i 2020.
88 Id. at 15 citing 18 CFR 157.6d2i.
89 See 15 U.S.C 717fh authorizing certificate holders to acquire by eminent domain the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines; see also 18 CFR 157.6d2i defining directly affected landowners.

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