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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
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courts 15 and the Commission.16 This is not to say that the Commission can never make a certificate effective after its issuance or stay a certificate order.
Both may be warranted in certain instances. In my view, however, it is contrary to the purpose of the NGA to adopt a policy that presumptively stays certificates for the avowed purpose of delaying a pipelines Congressionallyauthorized entitlement to exercise eminent domain.17
6. In addition to NGA section 16, the majority appears to place some reliance on APA section 705, which provides when an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. 18 I presume this is the case because the majority responds to arguments raised by the Interstate Natural Gas Association of America INGAA that the phrase pending judicial review in APA section 705
means an agency stay must be tied to litigation. 19 The majority asserts that a more reasonable interpretation of the phrase pending judicial review is in anticipation of judicial review. 20 Ive found no court that supports that position and multiple courts, in fact, disagree.21
15 See Maritimes & Ne. Pipeline, L.L.C. v.
Decoulos, 146 F. Appx 495, 498 1st Cir. 2005
Once a CPCN is issued by the FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to the property owner as just compensation for the taking. emphasis added; E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818 4th Cir. 2004
Once FERC has issued a certificate, the NGA
empowers the certificate holder to exercise the right of eminent domain over any lands needed for the project. emphasis added; Bohon v. FERC, No. 206 JEB, slip op. at 2 D.D.C. May 6, 2020
FERCs issuance of a certificate, moreover, conveys the power of eminent domain to its holder. emphasis added; Paul H. Stitt & Loretta Stitt, 39 F.P.C. 323, 324 1968 While the condemnation powers granted to certificate holders by Section 7h of the Natural Gas Act operate prospectively from the date of issuance of a certificate . . . . emphasis added.
16 See 18 CFR 157.20a 2020 The certificate shall be void and without force or effect unless accepted in writing by applicant . . . ..
17 This is and separate apart from the argument that I raised in my earlier dissent that NGA section 19c, while allowing for stays, requires a specific order by the Commission. Order No. 871B, 175
FERC 61,098 Danly, Commr, dissenting at PP 8
10; see also 15 U.S.C. 717rc The filing of an application for rehearing under subsection a shall not, unless specifically ordered by the Commission, operate as a stay of the Commissions order..
Clearly, an automatically-applied presumption is not a specific order and thus violates the unambiguous terms of the statute.
18 5 U.S.C. 705.
19 Order No. 871C, 176 FERC 61, 61,062 at P
37, n.82 citing INGAA Rehearing at 33.
20 Id. P 37.
21 Nat. Res. Def. Council v. U.S. Dept of Energy, 362 F. Supp. 3d 126, 150 S.D.N.Y. 2019 A stay
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II. Presumptive Stay Is Not Based on Reasoned Decision Making 7. To the extent the majority merely argues that it can apply the three factors of the equitable standard set forth in APA section 705 to determine whether a stay is warranted, I agree. However, the majoritys application of the equitable standard is not based on reasoned decision making, and thus violates the APA.22
8. As I stated in my dissent to Order No. 871B, the majoritys assumption that the mere existence of a landowner protest automatically means a stay is required in the interest of justice isat bestquestionable.23 This represents a broad category of litigant, whose mere participation in a proceeding would temporarily extinguish a certificate holders Congressionally-established rights. Surely, the Commission should at least impose rational limits on the rule they are establishing. For example, will the Commission stay a certificate where there is a protest by a landowner with property interests that abut the proposed right-of-way but are not subject to condemnation? And the Commissions policy applies to where there is a landowner protest. Will the Commission apply the stay where a landowner protested but did not intervene and thus cannot seek rehearing or judicial review? What about in the case where the landowner joined a protest, but may not have active interests in the proceeding?
9. The majority also fails to consider the second factor whether issuing a stay may substantially harm other parties. Will the Commission stay a is supposed to be grounded on the existence or consequences of the pending litigation. ; Bauer v.
DeVos, 325 F. Supp. 3d 74, 106 D.D.C. 2018
Most significantly, the relevant equitable considerations are not free-floating but, rather, must be tied to the underlying litigation. Section 705
expressly provides that an agency may postpone the effective date of agency action . . . pending judicial review. emphasis in original; Sierra Club v. Jackson, 833 F. Supp. 2d 11, 34 D.D.C.
2012 Where, as in this case, an agency seeks to justify a stay of its rules pending judicial review, the agency must have articulated, at a minimum, a rational connection between its stay and the underlying litigation in the court of appeals..
22 Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 1983.
See also Elec. Consumers Res. Council v. FERC, 747
F.2d 1511, 151314 D.C. Cir. 1984 We defer to the agencys expertise . . . so long as its decision is supported by substantial evidence in the record and reached by reasoned decision-making, including an examination of the relevant data and a reasoned explanation supported by a stated connection between the facts found and the choice made. citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 1962; Memphis Light, Gas & Water Div. v. FPC, 504 F.2d 225, 230 D.C.
Cir. 1974; 16 U.S.C. 825l 1982.
23 Order No. 871B, 175 FERC 61,098 Danly, Commr, dissenting at P 8.

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certificate where the proposed project is delivering natural gas to municipalities that need the gas within six months of certificate issuance? Will the Commission stay a certificate if the delay caused by its stay would cause an additional years delay in construction because of seasonal restrictions? To what degree will the financial consequences for the project proponent be considered? What about the consequences to the pipelines customers? It is not inconceivable that those projects whose applications have been pending for more than a year ultimately will be canceled as a result of delay.24 How can the potential cancellation of a project that has been determined by the Commission to be in the public interest itself be in the public interest or, under the second factor, be found not to substantially harm other parties?
III. Conclusion 10. The power of eminent domain is surely profound and formidable. I
cannot fault my colleagues for the anxiety they have expressed regarding its wise and just exercise. However, the Commission, as a mere creature of statute, can only act pursuant to law by which Congress has delegated its authority.25 Congress conferred the right to certificate holders to pursue eminent domain in federal district court or state court,26 having recognized that states defeat the very objectives of the Natural Gas Act 27 by conditioning or withholding the exercise of eminent domain. Congress has made that determination. It has codified it into law. The Commission, as an executive agency, is empowered only to implement Congressional mandate, not to second-guess Congressional wisdom or attempt to do indirectly what it cannot directly.28
11. Despite this, I doubt that the Commissions arguments will be 24 See id. Danly, Commr, dissenting at P 14
noting Dominion Energy Transmission, Inc.
withdrew its application for a certificate for its Sweden Valley Project that it had filed seventeen months prior.
25 Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 D.C.
Cir. 2002 As a federal agency, FERC is a creature of statute, having no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress. quoting Michigan v. EPA, 268 F.3d 1075, 1081 D.C. Cir. 2001
emphasis in original; see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 1988 It is axiomatic that an administrative agencys power to promulgate legislative regulations is limited to the authority delegated by Congress..
26 See 15 U.S.C. 717fh.
27 S. Rep. No. 80429, at 3 1947.
28 Richmond Power & Light v. FERC, 574 F.2d 610, 620 D.C. Cir. 1978 What the Commission is prohibited from doing directly it may not achieve by indirection..

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