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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations sustained, as discussed in the body of this order.
III. Document Availability 52. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commissions Home Page http
www.ferc.gov. At this time, the Commission has suspended access to the Commissions Public Reference Room due to the Presidents March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease COVID19.
53. From the Commissions Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading.
To access this document in eLibrary, type the docket number excluding the last three digits in the docket number field.
54. User assistance is available for eLibrary and the Commissions website during normal business hours from FERC Online Support at 202 5026652
toll free at 18662083676 or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 202 502
8371, TTY 202 5028659. Email the Public Reference Room at public.referenceroom@ferc.gov.
IV. Dates 55. The effective date of the document published on May 13, 2021 86 FR
26,150, is confirmed: June 14, 2021.
By the Commission. Commissioner Chatterjee is not participating. Commissioner Danly is dissenting with a separate statement attached.
Issued: August 2, 2021.
Debbie-Anne A. Reese, Deputy Secretary.

DEPARTMENT OF ENERGY

write separately today to further explain how the Commissions new, unnecessary, and unjustifiable presumption to stay certificate orders conflicts with the plain text of the Natural Gas Act NGA and is beyond the Commissions authority.3 I also write to explain how the majoritys presumptive stay is not based on reasoned decision making and therefore runs afoul of the Administrative Procedure Act APA.
I. The Presumptive Stay Is Beyond the Commissions Authority and Contrary to the Plain Text of the Natural Gas Act 2. In todays order, the majority states the Commissions underlying authority derives from NGA section 16. 4
Specifically, the majority relies on the provisions providing the Commission authority to perform any and all acts . . . necessary or appropriate to carry out the provisions of this Act and to determine the effective date of its orders.5 Like many before it, the majority has turned to NGA section 16
when all else has failed, placing more weight upon this section than it can reasonably bear. NGA section 16 does not confer independent authority to act. 6 It is of an implementary rather than substantive character and can only be implemented consistently with the provisions and purposes of the legislation.7 The majority, however, fails to confront this limitation on section 16s reach and employs this provision in a manner that contravenes the NGA in three respects.
3. First, the majoritys policy denies pipelines holding certificates the ability to exercise eminent domain for up to 150 daysdoing exactly what the majority explicitly concedes it cannot do: restrict the power of eminent domain in a section 7 certificate. 8
NGA section 7h authorizes any holder of a certificate to exercise eminent domain authority.9 Other than the issuance of a certificate, Congress ordained no other condition be met in
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Federal Energy Regulatory Commission Limiting Authorizations To Proceed With Construction Activities Pending Rehearing DANLY, Commissioner, dissenting:
1. I dissent in full from todays order affirming the majoritys modification and expansion of Order No. 871.1 As I
stated in my dissent in Order No. 871
B, I would repeal the rule as it is no longer required by law or prudence.2 I
1 See Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, 176
FERC 61,062 2021 Order No. 871C.
2 See Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, 175

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FERC 61,098 2021 Danly, Commr, dissenting at P 2 Order No. 871B.
3 See id. Danly, Commr, dissenting at PP 3, 6
14.
4 Order No. 871C, 176 FERC 61,062 at P 36.
5 Id. quoting 15 U.S.C. 717o.
6 New England Power Co. v. Fed. Power Commn, 467 F.2d 425, 431 D.C. Cir. 1972, affd, 415 U.S.
345 1974.
7 Id. at 430 citation omitted.
8 Order No. 871B, 175 FERC 61,098 at P 45
citation omitted. Indeed, Order No. 871B quotes the Berkley v. Mountain Valley Pipeline, LLC, as stating, FERC does not have discretion to withhold eminent domain once it grants a Certificate. Id. P
45 n.86 quoting Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 628 4th Cir. 2018
emphasis added.
9 15 U.S.C. 717fh emphasis added.

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advance of a pipeline pursuing eminent domain. The Commission can only employ NGA section 16 in a manner consistent with the other provisions of the act. Here, the use of section 16 is in direct in conflict with the statuteand the majority does not see fit to argue otherwise.
4. Second, presumptively staying a pipelines ability to pursue eminent domain is not appropriate under section 16 because such a delay is not a necessary or appropriate adjunct to the Commissions effectuation of its responsibilities under section 7 of the NGA. That section requires the Commission to issue certificates to applicants whose proposed natural gas facilities are found to be in the public convenience and necessity. The timing of a pipelines use of eminent domain does not weigh into the Commissions determination of whether proposed pipeline facilities are in the public convenience and necessity. If it did, the majority would rely on the Commissions authority under NGA
section 7e to attach to the issuance of the certificate . . . such reasonable terms and conditions as the public convenience and necessity may require. 10 The majority, however, does not.11 Nor does the majority cite any other provision of the NGA for which the Commissions action would be necessary or appropriate under section 16.
5. Third, the only reasonable reading of NGA section 7 leads to the conclusion that Congress intended for certificates to be effective upon issuance and acceptance, and for the right to exercise eminent domain to attach thereupon. NGA section 7e provides, a certificate shall be issued so long as the applicant is able and willing properly to do the acts . . . . 12
Further, NGA section 7h authorizes any holder of a certificate of public convenience and necessity to acquire by eminent domain the land necessary for the construction, operation, and maintenance of its pipeline facilities.13
Blacks Law Dictionary defines holder as a person with legal possession of a document of title or an investment security, meaning that the title was issued and accepted by that person.14
This view has been shared by the 10 15

U.S.C. 717fe.
Order No. 871B, 175 FERC 61,098 at P
45 In other words, the Commission lacks the authority to deny or restrict the power of eminent domain in a section 7 certificate. citation omitted.
12 15 U.S.C. 717fe emphasis added.
13 Id. 717fh emphasis added.
14 Holder, Blacks Law Dictionary 11th ed. 2019.
11 See
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