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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
proceeding, the Commission will consider it.
3. Commitment To Refrain From Exercise of Eminent Domain 42. Enbridge seeks clarification that the Commission will promptly lift a stay following a certificate holders commitment that it will not exercise its right of eminent domain for any reason other than to obtain the access necessary to complete surveys while a qualifying landowner rehearing request is pending,90 or, in the alternative, rehearing.
43. In Order No. 871B, the Commission explained that a developer may file a motion seeking to preclude, or lift, a stay based on a showing of significant hardship, and expressly stated that a commitment by the pipeline developer not to begin eminent domain proceedings until the Commission issues a final order on any landowner rehearing requests will weigh in favor of granting such a motion. 91 We reiterate that conclusion, but will not pre-judge the merits of any motion along the lines contemplated in Order No. 871B. As with the other aspects of this policy, those determinations will be made in any future proceeding.
4. Claims of Burden Shifting
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44. INGAA argues that the Commission unlawfully shifted to pipeline developers the burden of proof to show that a stay is not warranted and argues that such a change in policy can only be accomplished through notice and comment rulemaking.92 INGAA
contends that the Commission failed to provide justification for its departure from past practice and failed to explain why it is permissible to shift this burden.93 Enbridge makes a similar argument, but takes it a step further arguing that the Commission failed to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. 94 INGAA requests further clarification regarding how the Commission will determine when a stay should be issued and how specifically a developer can overcome the presumption that a stay will be granted.95
45. In Order No. 871B, the Commission acknowledged that the stay 90 Enbridge
Rehearing at 2123.
91 Order No. 871B, 175 FERC 61,098 at P 51.
92 See INGAA Rehearing at 3335.
93 Id. at 3334.
94 Enbridge Rehearing at 1819.
95 INGAA Rehearing at 3435.

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policy is a departure from past practice and explained its belief that this new policy better balances the relevant considerationssuch as fairness, due process, and developer certainty thereby justifying the change in policy. 96 We disagree with the petitioners that this policy improperly shifts the burden to pipeline developers.
As we previously explained, the Commission will determine whether to impose a stay based on the circumstances presented in each particular certificate proceedingthe burden is not on the pipeline. Rather, the Commission is obligated to ensure that all of its decisions, including whether to impose a stay in individual certificate proceedings, are supported by the record and reasonably explained.97
And parties to those individual proceedings will have the opportunity to provide input to and challenge the Commissions decision to issue a stay, or not, in those proceedings.
46. We further disagree with INGAAs assertion that public notice and comment was required prior to the Commission announcing the stay policy. General statements of policy, such as the one announced in Order No.
871B, are exempted from the APAs notice and comment procedures.98
5. Consideration of Industry Concerns 47. INGAA contends that the Commission both failed to sufficiently appreciate the harm that will befall the natural gas industry and to explain what activities certificate holders can perform while a stay is in place.99 INGAA points to the length of this proceeding to cast doubt on the Commissions statement that it has increased the speed with which it resolves rehearing requests.100
It also seeks further clarity regarding the types of activities that certificate holders may undertake while a stay is in place.
48. The Commission fully considered industry concerns and ultimately concluded that the stay policy announced in Order No. 871B struck an appropriate balance between the interests of pipeline developers and landowners.101 The rehearing process in this rulemaking proceeding, involving generally applicable policy considerations, is not representative of the increased speed with which the Commission handles project-specific rehearing requests in the post-Allegheny 96 Order No. 871B, 175 FERC 61,098 at P 49, n.101.
97 See 15 U.S.C. 717rb; 5 U.S.C. 706.
98 5 U.S.C. 553bA.
99 See INGAA Rehearing at 3539.
100 Id. at 36.
101 See Order No. 871B, 175 FERC 61,098 at PP
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era. In fact, the Commission continues to strive to act on landowner rehearing requests the subset of rehearing requests that may result in a stay extending beyond the 30-day period for seeking rehearing within 30 days. The petitioners do not cite an instance of a delay in the Commissions issuance of an order on rehearing of a certificate order. While a stay is intact, certificate holders can engage only in those development activities that they were free to undertake prior to receiving a certificate order, such as negotiating easement agreements with landowners and conducting environmental surveys on private property they have permission to access.
6. Landowner Ability To Seek Judicial Stay 49. Finally, INGAA asserts that the Commission failed to explain why the policy is necessary in light of an aggrieved partys ability to seek a stay from a reviewing court after a request for rehearing is deemed denied.102
50. As the Commission explained in Order No. 871B, certificate holders can, and routinely do, initiate condemnation proceedings immediately upon receipt of a certificate order.103
Absent a stay in a particular proceeding, certificate holders have the ability to initiate condemnation actions against landowners prior to the expiration of the 30-day period for seeking rehearing, and prior to the 30-day period for the Commission to act on such a request before it may be deemed denied. This leaves a gap of approximately 60 days preceding a deemed denial and during which time landowners could be susceptible to condemnation proceedings being initiated prior to a reviewing court obtaining concurrent jurisdiction following the filing of a petition for review.104 As we explained at length in Order No. 871B, this Commission finds the fundamental unfairness that could result from that outcome untenable. Further, the stay policy is an appropriate exercise of our authority, and there is no need to leave these matters solely to the courts.
C. Commission Determination 51. In response to INGAAs, Enbridges, and Mountain Valleys requests for rehearing, Order No. 871B
is hereby modified and the result 102 INGAA

Rehearing at 39.
e.g., Allegheny, 964 F.3d at 6.
104 See, e.g., Envtl. Def. Fund v. FERC, No. 20
1016, et al., 2021 WL 2546672, at 8, 15 D.C. Cir.
June 22, 2021 citing to relevant pipelines use of eminent domain in support of courts decision to vacate certificate order.
103 See,
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