[Federal Register Volume 86, Number 91 (Thursday, May 13, 2021)]
[Rules and Regulations]
[Pages 26150-26164]
[FR Doc No: 2021-09829]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 157

[Docket No. RM20-15-001; Order No. 871-B]

Limiting Authorizations To Proceed With Construction Activities
Pending Rehearing

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Order addressing arguments raised on rehearing and
clarification, and setting aside, in part, prior order.

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SUMMARY: The Federal Energy Regulatory Commission (Commission)
addresses requests for rehearing and clarification on Order No. 871. In
Order No. 871, the Commission issued a final rule to amend its
regulations to preclude the issuance of authorizations to proceed with
construction activities with respect to natural gas facilities approved
pursuant to section 3 or section 7 of the Natural Gas Act (NGA) until
either the time for filing a request for rehearing of such order has
passed with no rehearing request being filed or the Commission has
acted on the merits of any rehearing request. This order revises the
rule to provide that it will apply only when a request for rehearing
raises issues reflecting opposition to project construction, operation,
or need. Further, this order revises the rule to provide that the limit
on construction authorization will only apply until the earlier of the
date that a qualifying rehearing request is no longer pending before
the Commission or 90 days following the date that a qualifying request
for rehearing may be deemed denied by operation of law. In addition,
the Commission announces a general policy with respect to stays of NGA
section 7(c) certificate orders, subject to a particularized
application of the policy on a case-by-case basis, of its intent to
stay its NGA section 7(c) certificate orders during the 30-day
rehearing period and pending Commission resolution of any timely
requests for rehearing filed by landowners, subject to the same 90-day
time limitation referenced above and certain exceptions. This policy is
not intended to prevent a project developer from continuing to engage
in development related activities, as permitted consistent with the
stay of the certificate, that do not require use of landowner property
or that are voluntarily agreed to by the landowner during the stay
period.

DATES: This rule is effective June 14, 2021.

FOR FURTHER INFORMATION CONTACT: Tara DiJohn, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

                                                              Paragraph
                                                               numbers

I. Background..............................................            3
II. Discussion.............................................           11
    A. Scope and Application of Order No. 871..............           11
    B. APA and NGA Requirements............................           31
    C. Commission Policy on Exercise of Eminent Domain                43
     Pending Rehearing.....................................
III. Regulatory Requirements...............................           52
    A. Information Collection Statement....................           52
    B. Environmental Analysis..............................           53
    C. Regulatory Flexibility Act..........................           54
    D. Document Availability...............................           55
    E. Effective Date......................................           58

    1. On June 9, 2020, the Federal Energy Regulatory Commission
(Commission) issued in Order No. 871 a final rule that precludes the
issuance of authorizations to proceed with construction activities with
respect to a Natural Gas Act (NGA) section 3 \1\ authorization or
section 7(c) \2\ certificate order until the Commission acts on the
merits of any timely-filed request for rehearing or until the deadline
for filing a timely request for rehearing has passed with no such
request being filed.\3\ On July 9, 2020, the Interstate Natural Gas
Association of America (INGAA) requested clarification or, in the
alternative, rehearing, and Kinder Morgan, Inc. Natural Gas Entities
\4\ (Kinder Morgan) and TC Energy Corporation (TC Energy) requested
rehearing. On January 26, 2021, the Commission issued Order No. 871-A,
which offered interested parties an opportunity to provide further
briefing on the issues raised in INGAA's, Kinder Morgan's, and TC
Energy's requests for rehearing, and set February 16, 2021, and March
3, 2021, as the initial brief and reply brief deadlines,
respectively.\5\
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    \1\ 15 U.S.C. 717b.
    \2\ 15 U.S.C. 717f(c).
    \3\ Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871, 85 FR 40113 (July 6,
2020), 171 FERC ] 61,201 (2020) (Order No. 871 or final rule).
    \4\ The Kinder Morgan Gas Entities include: Natural Gas Pipeline
Company of America LLC; Tennessee Gas Pipeline Company, L.L.C.;
Southern Natural Gas Company, L.L.C.; Colorado Interstate Gas
Company, L.L.C.; Wyoming Interstate Company, L.L.C.; El Paso Natural
Gas Company, L.L.C.; Mojave Pipeline Company, L.L.C.; Bear Creek
Storage Company, L.L.C.; Cheyenne Plains Gas Pipeline Company, LLC;
Elba Express Company, L.L.C.; Kinder Morgan Louisiana Pipeline LLC;
Southern LNG Company, L.L.C.; and TransColorado Gas Transmission
Company LLC.
    \5\ Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871-A, 86 FR 7643 (Feb. 1,
2021), 174 FERC ] 61,050 (2021) (Order No. 871-A).
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    2. Pursuant to Allegheny Defense Project v. FERC,\6\ the rehearing
requests filed in this proceeding may be deemed denied by operation of
law. However, as permitted by section 19(a) of the NGA,\7\ we are
modifying the discussion in Order No. 871 and granting, in part,
INGAA's request for clarification, setting aside and revising Order No.
871 to resolve, in part, INGAA's, Kinder Morgan's, and TC Energy's
requests for rehearing, and otherwise continuing to reach the same
result as Order No. 871. As discussed further below, the Commission
also adopts a policy of presumptively staying its NGA section 7(c)
certificate orders during the 30-day rehearing period and pending
Commission resolution of any timely requests for rehearing filed by
landowners, subject to a time limitation and certain exceptions.\8\
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    \6\ 964 F.3d 1 (D.C. Cir. 2020) (en banc) (Allegheny).
    \7\ 15 U.S.C. 717r(a) (``Until the record in a proceeding shall
have been filed in a court of appeals, as provided in subsection
(b), the Commission may at any time, upon reasonable notice and in
such manner as it shall deem proper, modify or set aside, in whole
or in part, any finding or order made or issued by it under the
provisions of this chapter.'').
    \8\ See discussion infra Part II.C.
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I. Background

    3. In Order No. 871, the Commission explained that historically,
due to the complex nature of the matters raised on rehearing of orders
granting authorizations under NGA sections 3 and 7, the Commission had
often issued an order (known as a tolling order) by the thirtieth day
following the filing of a rehearing request, allowing itself additional
time to provide thoughtful,

well-considered attention to the issues raised on rehearing.
    4. In order to balance its commitment to expeditiously responding
to parties' concerns in comprehensive orders on rehearing and the
serious concerns posed by the possibility of construction proceeding
prior to the completion of agency review, the Commission, in Order No.
871, exercised its discretion by amending its regulations to add new
Sec.  157.23, which precludes the issuance of authorizations to proceed
with construction of projects authorized under NGA sections 3 and 7
during the period for filing requests for rehearing of the initial
orders or while rehearing is pending.\9\
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    \9\ Order No. 871 also revised Sec.  153.4 of the Commission's
regulations to incorporate a cross-reference to new Sec.  157.23.
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    5. Three weeks after the Commission issued Order No. 871, the U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
issued an en banc decision in Allegheny.\10\ The court held that the
Commission's use of tolling orders solely to allow itself additional
time to consider an application for rehearing does not preclude
operation of the NGA's deemed denial provision,\11\ which enables a
rehearing applicant to seek judicial review after thirty days of agency
inaction.\12\ The court explained that, to prevent a rehearing from
being deemed denied, the Commission must act on an application for
rehearing within thirty days of its filing by taking one of the four
NGA-enumerated actions: Grant rehearing, deny rehearing, or abrogate or
modify its order without further hearing.\13\
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    \10\ 964 F.3d 1.
    \11\ 15 U.S.C. 717r(a).
    \12\ Allegheny, 964 F.3d at 18-19.
    \13\ See id. at 13 (quoting 15 U.S.C. 717r(a)).
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    6. On July 9, 2020, INGAA filed a request for clarification or, in
the alterative, rehearing of Order No. 871.\14\ On the same day, Kinder
Morgan and TC Energy also filed requests for rehearing.\15\
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    \14\ INGAA's July 9, 2020 Motion to Intervene and Request for
Clarification or, in the Alternative, Rehearing (INGAA Rehearing).
INGAA's Rehearing included a motion to intervene in Docket No. RM20-
15-000. Intervention is not necessary in order to request rehearing
of a rulemaking. See, e.g., Generic Determination of Rate of Return
on Common Equity for Elec. Utilities, Order No. 389-A, 29 FERC ]
61,223, at 61,459 n.2 (1984) (``Rhode Island also requested leave to
intervene out of time. Intervention is not necessary in order to
request rehearing of a rulemaking.''). Accordingly, INGAA's motion
is unnecessary.
    \15\ Kinder Morgan's July 9, 2020 Request for Rehearing (Kinder
Morgan Rehearing); TC Energy's July 9, 2020 Request for Rehearing
(TC Energy Rehearing).
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    7. To facilitate our reconsideration of Order No. 871 and to ensure
a complete record for further action, on January 26, 2021, the
Commission issued an order providing interested parties an opportunity
to comment on the arguments raised in the requests for rehearing.\16\
In particular, the Commission sought comment on five central questions:
(a) Whether the final rule's application should be limited to certain
issues or arguments raised on rehearing; (b) whether the final rule
should apply to all orders pertaining to an NGA section 3 authorization
or section 7 certificate or only a subset thereof; (c) how the final
rule should apply following the Allegheny decision; (d) whether the
Commission should modify its practices or procedures to address
concerns regarding the exercise of eminent domain while rehearing is
pending; and (e) whether the Commission should set a specific time
limit after which an authorization to commence construction could
issue.\17\
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    \16\ Order No. 871-A, 174 FERC ] 61,050. Several briefs filed in
response to Order No. 871-A contained motions to intervene or were
later supplemented by separately-filed motions to intervene. As we
noted above, intervention in a rulemaking proceeding is not
required. See supra note 14.
    \17\ For the full text of the questions posed by the Commission,
see Order No. 871-A, 174 FERC ] 61,050 at P 7.
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    8. In response, the Commission received twelve initial briefs and
five reply briefs. Seven initial briefs and three reply briefs came
from various entities representing the natural gas industry, which
generally oppose what is in their view the overly broad scope of the
final rule, including: The three rehearing applicants (INGAA, Kinder
Morgan, TC Energy); \18\ BHE Pipeline Group, LLC (BHE Pipeline); \19\
the Enbridge Gas Pipelines (Enbridge); \20\ the Gas and Oil Association
of West Virginia, Inc. (Gas & Oil WV); \21\ and the Tallgrass Pipelines
(Tallgrass).\22\
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    \18\ See INGAA's February 16, 2021 Initial Brief (INGAA Initial
Brief) and March 3, 2021 Reply Brief (INGAA Reply Brief); Kinder
Morgan's February 16, 2021 Initial Brief (Kinder Morgan Initial
Brief) and March 3, 2021 Reply Brief (Kinder Morgan Reply Brief); TC
Energy's February 16, 2021 Comments (TC Energy Initial Brief).
    \19\ See BHE Pipeline's February 16, 2021 Comments (BHE Pipeline
Initial Brief).
    \20\ See Enbridge's February 16, 2021 Initial Brief (Enbridge
Initial Brief) and March 3, 2021 Reply Brief (Enbridge Reply Brief).
    \21\ See Gas & Oil WV's February 16, 2021 Initial Brief (Gas &
Oil WV Initial Brief).
    \22\ See Tallgrass's February 16, 2021 Comments (Tallgrass
Initial Brief).
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    9. We received five initial briefs and two reply briefs supporting
and, in some cases, seeking expansion of, the final rule from:
Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, and the
District of Columbia (States); \23\ a consortium of public interest
organizations (Public Interest Organizations); \24\ the Delaware
Riverkeeper Network and Maya Van Rossum (Delaware Riverkeeper); \25\
the Niskanen Center and various landowners (Niskanen Center); \26\ and
three individual landowners.\27\
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    \23\ See States' February 16, 2021 Brief (States Initial Brief).
    \24\ See Public Interest Organizations' February 16, 2021 Brief
(Public Interest Organizations Initial Brief) and March 3, 2021
Reply Brief (Public Interest Organizations Reply Brief). The Public
Interest Organizations include: Alliance for the Shenandoah Valley;
Appalachian Mountain Advocates; Appalachian Voices; Chesapeake Bay
Foundation, Inc.; Cowpasture River Preservation Association;
Earthjustice; Friends of Buckingham; Friends of Nelson; Highlanders
for Responsible Development; Natural Resources Defense Council;
Piedmont Environmental Council; Sierra Club; Sound Rivers, Inc.;
Sustainable FERC Project; Virginia Wilderness Committee; Wild
Virginia; and Winyah Rivers Alliance.
    \25\ See Delaware Riverkeeper's February 16, 2021 Brief
(Delaware Riverkeeper Initial Brief).
    \26\ See Niskanen Center's February 16, 2021 Brief (Niskanen
Center Initial Brief) and March 3, 2021 Reply Brief (Niskanen Center
Reply Brief).
    \27\ See Deborah Evans, Ron Schaaf, and Bill Glow's February 16,
2021 Comments (Landowners Initial Brief).
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    10. The Commission appreciates the additional briefing provided by
the filers, as well as the diversity of perspectives represented.
Taking those comments under consideration, the Commission addresses the
issues raised on rehearing below.\28\
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    \28\ Some briefs raised issues outside the scope of the rule,
such as the Commission's issuance of conditional certificates
pursuant to NGA section 7 and the appropriate definition of pre-
construction activities. The Commission will not address those
issues here. We note, however, that the Commission recently
solicited comments on, among other things, its use of conditional
certificates. See Certification of New Interstate Natural Gas
Facilities, 174 FERC ] 61,125, at PP 13-15 (2021).
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II. Discussion

A. Scope and Application of Order No. 871

    11. INGAA seeks clarity regarding the scope and application of
Order No. 871. Similarly, TC Energy seeks rehearing regarding the scope
of Order No. 871. INGAA and TC Energy describe a number of
circumstances that they contend would not implicate the concerns
expressed by the Commission in promulgating Order No. 871 and ask the
Commission to clarify Order No. 871 or revise it to provide that the
rule does not apply in these circumstances. INGAA also asks the
Commission to clarify how Order No. 871 will operate in light of
certain rehearing procedures discussed in Allegheny.
1. Rehearing Requests That Do Not Oppose the Project
    12. INGAA asks the Commission to clarify that the rule precluding
issuance of construction authorizations under

NGA sections 3 and 7 would not apply in situations where only the
project developer, a shipper, or other party supporting construction of
the project files a request for rehearing on non-construction related
grounds, such as rate or tariff issues.\29\ In other words, INGAA seeks
clarification that the rule would not apply where no affected landowner
or other party that opposes the project seeks rehearing. Similarly, TC
Energy seeks ``limited rehearing with respect to the breadth of the new
regulation,'' and asserts that the Commission failed to engage in
reasoned decision making by adopting an overly-broad regulation that
would prevent an applicant from engaging in construction while a
rehearing request is pending, even where the request does not challenge
whether or how the project should be constructed.\30\
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    \29\ INGAA Rehearing at 13-16.
    \30\ TC Energy Rehearing at 4-6. TC Energy also asks the
Commission to clarify that, ``as a general matter, it intends to
continue its policy of being `less lenient in the grant of late
interventions' in pipeline certificate proceedings, Tenn. Gas
Pipeline Co., L.L.C., 162 FERC ] 61,167, at P 50 (2018), as well as
its `general policy to deny late intervention at the rehearing
stage.''' Id. (citing Tenn. Gas Pipeline Co., L.L.C., 163 FERC ]
61,190, at P 4 (2018)). The Commission's late intervention policy is
not relevant to Order No. 871. Therefore, we decline to take up TC
Energy's invitation.
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    13. In addition, INGAA asks the Commission to clarify that the rule
will not apply to any request for rehearing that only raises issues
``related to a tariff, rate, terms or conditions of service, policy, or
other matters that do not impact affected landowners.'' \31\ INGAA
suggests, in the alternative, that the Commission add clarifying
language in Sec.  157.23 specifying that the rule will apply only when
rehearing is sought by an ``affected landowner'' as that term is
defined in the Commission's regulations.\32\ This revision, INGAA
explains, would ensure that the rule would not apply to projects where
no affected landowners seek rehearing or to projects that do not
involve the use of eminent domain authority.\33\ INGAA also urges the
Commission to revise the rule to clarify that it does not apply to
natural gas export or import facilities authorized under section 3 of
the NGA because such authorizations do not confer eminent domain
authority.\34\
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    \31\ INGAA Rehearing at 17 (emphasis added).
    \32\ 18 CFR 157.6(d)(2).
    \33\ INGAA Rehearing at 17. INGAA provides the following
examples of NGA section 7 projects that would not involve the use of
eminent domain authority: Projects involving construction on
property owned or controlled by the pipeline, such as a compressor
station project; modifications of existing facilities where
construction would occur within the existing right-of-way; and
projects where all easements have already been mutually agreed and
secured. Id.
    \34\ Id. at 17-18.
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    14. As described below, we grant, in part, INGAA's request for
clarification, setting aside and revising Order No. 871 to resolve, in
part, INGAA's, Kinder Morgan's, and TC Energy's requests for rehearing
and otherwise continue to reach the same result as Order No. 871. The
Commission does not intend Order No. 871 to apply in instances where
construction of the project is unopposed. Accordingly, we are revising
the rule to clarify that the prohibition on issuing authorizations to
proceed with construction during the rehearing period will not apply in
proceedings where no party files a request for rehearing raising issues
reflecting opposition to project construction, operation, or need.\35\
For example, requests for rehearing that only raise issues related to a
tariff, rate, or terms or conditions of service would not trigger the
rule's prohibition on construction authorizations. Contrary to some
commenters' concerns about tailoring the scope of the rule to allow
certain exceptions, the Commission is confident in its ability to
administer the rule as revised.\36\
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    \35\ See infra P 30. Several commenters agree that the rule
should be narrowed to not apply to rehearing requests filed by the
project developer itself or another party that supports project
construction (e.g., a shipper). See, e.g., Enbridge Initial Brief at
10-11; Gas & Oil WV Initial Brief at 6; Niskanen Center Initial
Brief at 12; Tallgrass Initial Brief at 13; TC Energy Initial Brief
at 5-10; Enbridge Reply Brief at 7-10. Conversely, a few commenters
argue that the rule should be retained without modification and that
it should apply to all requests for rehearing regardless of the
issues raised or the identity of the rehearing applicant, citing
concerns about administering a rule with exceptions. See, e.g.,
Public Interest Organizations Initial Brief at 10 (``a rule without
carve-outs is cleaner, clearer, and easier to administer'');
Landowners Initial Brief at 2; Delaware Riverkeeper Initial Brief at
6-8; States Initial Brief at 4 n.8 (``The Commission should not
attempt to guess at the importance of certain issues and arguments,
but instead withhold authorizations to commence construction during
the pendency of all rehearing requests.'').
    \36\ We note that the Commission's administration of the rule is
facilitated by the statutory and regulatory requirements that issues
be raised on rehearing with specificity. See 15 U.S.C. 717r(a); see
also 18 CFR 385.713(c)(2) (requiring that requests for rehearing
include a ``separate section entitled `Statement of Issues,' listing
each issue in a separately enumerated paragraph that includes
representative Commission and court precedent on which the party is
relying'').
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    15. However, we disagree with INGAA's suggestion that the
Commission limit the rule's application to only those requests for
rehearing filed by affected landowners, as that term is defined in our
regulations.\37\ Adopting INGAA's suggestion would exclude from the
rule's purview rehearing requests raising environmental matters or
general opposition to a project, as well as rehearing requests filed by
members of communities that would be impacted by the construction of
new natural gas facilities.\38\ That was not our intent. In issuing
Order No. 871, preventing potential impacts on affected landowners
during the pendency of the rehearing period was a primary concern, but
it was not the Commission's sole concern. We think it appropriate to
refrain from permitting construction to proceed until the Commission
has acted upon any request for rehearing that opposes project
construction and operation or raises issues regarding project need,
regardless of the basis or whether rehearing is sought by an affected
landowner.\39\ INGAA fails to explain why these concerns are any less
important in section 3 cases, where the project authorization does not
confer eminent domain authority.\40\ We deny

this aspect of INGAA's request for clarification and continue to find
that the intent of the Order No. 871 was to ensure that construction of
an approved natural gas project will not commence until the Commission
has acted upon the merits of a request for rehearing, ``regardless of
land ownership.'' \41\
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    \37\ 18 CFR 157.6(d)(2). Some commenters on behalf of the
natural gas industry agreed with INGAA's request to limit the rule's
application to only rehearing requests filed by or implicating
affected landowners. See, e.g., BHE Pipeline Initial Brief at 9-10;
Enbridge Initial Brief at 6, 10; Enbridge Reply Brief at 7-9. But
see Gas & Oil WV Initial Brief at 5 (rule, if retained, should be
limited to rehearing requests raising ``clear threats of true
irreparable harm to landowners or environmental justice communities
directly in the path of a project.'') (emphasis added); BHE Pipeline
Initial Brief at 5 (rule ``should be revised to apply only in
limited circumstances requiring further review of matters raised by
affected landowners or parties who will be directly impacted by
immediate construction.'').
    \38\ The Commission has long recognized that communities
surrounding a pipeline right-of-way have interests that may be
adversely affected by approval of certificate projects. See
Certification of New Interstate Natural Gas Pipeline Facilities, 88
FERC ] 61,227, at 61,748, corrected, 89 FERC ] 61,040(1999),
clarified, 90 FERC ] 61,128, further clarified, 92 FERC ] 61,094
(2000).
    \39\ Governmental, environmental, and community interests are
also impacted by projects approved under NGA sections 3 and 7, and
the possibility of construction proceeding prior to the completion
of agency review. See States Initial Brief at 2-6 (explaining that
states, local governments, and tribes ``may oppose projects on
grounds such as the public need for a project, a project's
contribution to climate change, harm to the environment from the
construction and operation of pipeline projects, noise and traffic
impacts, effects on historical resources, and other concerns'');
Public Interest Organizations Initial Brief at 8 (deeming it
illogical to limit the rule's application to only landowner
rehearing requests because ``the construction of a Commission-
approved gas project, and the permanent changes to the environment
and cultural resources that are caused by such construction, are
cognizable injuries.'').
    \40\ That an authorization under NGA section 3 does not confer
eminent domain authority does not negate the existence of affected
landowners who may oppose nearby construction of export or import
facilities. An affected landowner, as defined in our regulations,
and a landowner whose land is at risk of being acquired through
eminent domain are not mutually exclusive. For example, an affected
landowner can be one whose property ``[i]s within one-half mile of
proposed . . . LNG facilities.'' 18 CFR 157.6(d)(2)(iii).
    \41\ Order No. 871, 171 FERC ] 61,201 at P 11 (emphasis added).
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2. Rehearing Requests of Non-Initial and Amendment Orders
    16. INGAA asks the Commission to clarify that construction could be
allowed to proceed, even where a rehearing request has been filed,
where rehearing is sought not of an initial order authorizing
construction but of a subsequent order that merely implements the
original authorization--such as orders relating to compliance with
environmental conditions, requests for variances, notices to proceed
with construction, or authorizations to place constructed facilities
into service.\42\ This clarification, INGAA states, would prevent
unnecessary delays or interruptions in project construction that could
occur if project opponents request rehearing of subsequent orders that
merely implement the terms and conditions of the initial order. For
similar reasons, INGAA also seeks clarity that a bar on the
commencement of construction arising from the filing of a rehearing
request regarding an order amending the terms of an existing
authorization would apply only to facilities approved in the amendment
order, not to the facilities approved in the original order.
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    \42\ INGAA Rehearing at 19.
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    17. To the extent that a non-initial order merely implements the
terms, conditions, or other 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--a request for
rehearing of that order would not implicate the initial authorizing
order and so we agree that the rule would not apply.\43\
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    \43\ A challenge to a non-initial order is appropriately
confined in scope to the specific agency action being challenged and
may not revisit findings of the initial order itself. See, e.g.,
Nat'l Comm. for the New River, Inc. v. FERC, 433 F.3d 830, 834 (D.C.
Cir. 2005) (finding route alternative claim raised during initial
certification process barred on res judicata grounds in subsequent
review of pipeline's compliance with certificate conditions).
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    18. We also agree with INGAA that, with respect to amendments,
Sec.  157.23's prohibition on the issuance of construction
authorizations prior to Commission action on rehearing 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 initial authorizing order that remain
unchanged by the amendment order.
3. Post-Allegheny Rehearing Treatment
    19. INGAA poses several circumstances that may unfold following
Allegheny and asks the Commission to elaborate on whether and how the
rule promulgated in Order No. 871 would apply in those cases. It asks
the Commission to clarify that the rule would not apply once a
rehearing request has been deemed denied by operation of law due to
Commission inaction on the request for thirty days.\44\
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    \44\ INGAA Rehearing at 21-24. Notably, no commenters appear to
argue that authorizations to proceed with construction should be
allowed during the 30-day rehearing period following a Commission
order issuing or amending a section 7 certificate or section 3
authorization.
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    20. As further explained below, we revise the rule to provide that
the limit on construction authorization will apply until the earlier of
the date that (1) a qualifying rehearing request is no longer pending
before the Commission or (2) 90 days following the date that a
qualifying request for rehearing may be deemed denied. This revision
reflects that, as permitted by NGA section 19(a), rehearing may be
deemed denied by operation of law in the absence of Commission action
on the merits by the 30th day following receipt of a rehearing request.
Order No. 871's use of the phrase ``until the Commission has acted upon
the merits of that request,'' assumed, incorrectly, that such action
was statutorily required. The revision clarifies that the limitation on
construction will apply so long as the rehearing remains pending or
until 90 days following the date that a request for rehearing may be
deemed denied. We next describe four scenarios following the filing of
a rehearing request in the post-Allegheny landscape to further explain
when a rehearing remains pending.
    21. First, the Commission could issue an order addressing the
merits of the rehearing request before the thirtieth day following the
date the request is filed. Pursuant to Order No. 871, because the
Commission had acted on the merits of the rehearing request, and
rehearing was no longer pending, authorization to proceed with
construction could be issued so long as the certificate or
authorization holder had also met the necessary conditions of the order
associated with commencement of construction.
    22. Second, the Commission might not act on the merits within
thirty days following the filing of a rehearing request. Under NGA
section 19(a), such inaction by the Commission would mean that the
request for rehearing may be deemed denied by operation of law. In such
situations, the Commission might issue a notice indicating that
rehearing may be deemed denied by operation of law. If this notice does
not state that the Commission intends to take further action on the
rehearing request, then rehearing is no longer pending before the
Commission, and construction could be allowed to proceed.
    23. Third, the Commission might not act on a rehearing request
within thirty days but might issue a notice indicating that rehearing
may be deemed denied and also that the Commission intends to address
the merits of the rehearing request in a future order, as provided in
section 19(a) of the NGA.\45\ In such a case, rehearing is still
pending before the Commission, and Order No. 871 would apply.
Specifically, under Order No. 871 as issued, construction could not be
allowed to proceed until the Commission issues its further order or
otherwise indicates that the rehearing is no longer pending before the
Commission by notice, order, or filing the record with the court of
appeals (which affords the court exclusive jurisdiction to affirm,
modify, or set aside the Commission's order(s)).\46\
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    \45\ 15 U.S.C. 717r(a).
    \46\ See id. 717r(b) (stating that upon the filing of a petition
for judicial review, the court of appeals ``shall have jurisdiction,
which upon the filing of the record with it shall be exclusive, to
affirm, modify, or set aside such order in whole or in part.'') and
id. 717r(c) (The commencement of judicial review proceedings ``shall
not, unless specifically ordered by the court, operate as a stay of
the Commission's order.'').
---------------------------------------------------------------------------

    24. The States, the Public Interest Organizations, and the Niskanen
Center generally support the application of the rule's restriction on
construction in this manner.\47\ Delaware Riverkeeper urges us to take
this a step further, arguing that the Commission should withhold
construction authorization until the deadline for judicial review
passes or until the reviewing court resolves the issues raised on
appeal.\48\ Conversely, INGAA and most natural gas industry commenters
argue that construction authorizations should be permitted once

a rehearing request is deemed denied by operation of law, regardless of
whether the Commission signals its intent to issue a subsequent order
addressing the arguments raised on rehearing. They assert that
authorization to proceed with construction should be allowed following
a deemed denial because at that point any party aggrieved by a
Commission order would be free to seek judicial review and, if
necessary, request injunctive relief from the court.\49\ Alternatively,
INGAA and TC Energy suggest that construction authorizations should be
allowed 30 days after a rehearing request is deemed denied (i.e.,
roughly 60 days after filing the rehearing request).\50\ According to
INGAA and TC Energy, this approach would provide the Commission time to
issue an order addressing the merits of the rehearing request,
aggrieved parties time to file a petition for review and, if necessary,
seek a judicial stay before any construction, and pipeline developers
and customers with certainty regarding construction timelines.\51\
---------------------------------------------------------------------------

    \47\ See Public Interest Organizations Initial Brief at 12-13,
15; States Initial Brief at 11; Niskanen Center Initial Brief at 14;
see also Public Interest Organizations Reply Brief at 2-4.
    \48\ See Delaware Riverkeeper Initial Brief at 10-12.
    \49\ See, e.g., INGAA Initial Brief at 12; Enbridge Initial
Brief at 14-16; BHE Pipeline Initial Brief at 11; Gas & Oil WV
Initial Brief at 7; Tallgrass Initial Brief at 10-12; see also INGAA
Reply Brief at 8-11; Enbridge Reply Brief at 14-17, 20-22.
    \50\ See INGAA Initial Brief at 28-30; TC Energy Initial Brief
at 11.
    \51\ See INGAA Initial Brief at 28-30; TC Energy Initial Brief
at 11-12.
---------------------------------------------------------------------------

    25. We clarify that construction may be permitted to proceed once
the Commission issues its further order or the reviewing court
otherwise obtains exclusive jurisdiction at the time the record is
filed with it, as this signifies the completion of agency review. While
the court may exercise ``judicial superintendence'' \52\ once rehearing
is deemed denied, the Commission retains jurisdiction to ``modify or
set aside, in whole or in part'' the certificate order for which
rehearing has been sought until the record on review is filed with the
court of appeals. Accordingly, while parties may seek injunctive relief
from the court at that stage, as the Commission explained in Order No.
871, the purpose of the rule is to preclude construction during the
period the Commission may act on rehearing.\53\ As a result, we find
that it is appropriate to generally refrain from issuing an
authorization to proceed with construction until the Commission has
completed its decisionmaking process.
---------------------------------------------------------------------------

    \52\ Allegheny, 964 F.3d at 17.
    \53\ If the Commission, in acting on rehearing of a section 3 or
section 7(c) authorization order, changes the outcome of the
underlying authorization order, such that further rehearing lies,
the Commission would continue to apply Order No. 871 to preclude
construction if a qualifying rehearing request is filed. See Smith
Lake Improvement & Stakeholders Ass'n v. FERC, 809 F.3d 55, 56-57
(D.C. Cir. 2015). However, if the Commission issues a substantive
order on rehearing that does not change the outcome of the
underlying authorization order, subsequent requests for rehearing or
clarification of the previously issued rehearing order will not re-
trigger the provisions of Order No. 871 to further preclude the
issuance of an authorization to proceed with construction. In those
rare instances in which the Commission later determines that further
procedural steps are necessary in a given case (see, e.g., Algonquin
Gas Transmission, LLC, 174 FERC ] 61,126 (2021) (order establishing
briefing)), the 90-day period following the date that a qualifying
request for rehearing may be deemed denied by operation of law would
not be altered or extended.
---------------------------------------------------------------------------

    26. However, upon consideration of the comments filed in response
to Order No. 871-A, we believe it is appropriate to provide a date
certain by which the prohibition on issuing an authorization to proceed
with construction would terminate. In particular, we modify our prior
order to provide that the rule's restriction on issuing construction
authorizations will expire 90 days following the date that a request
for rehearing may be deemed to have been denied if the request is still
pending before the Commission. We believe that this strikes an
appropriate balance that allows aggrieved parties time to access the
courts while providing project developers with a predictable time
period after which construction authorizations may be permitted in the
event a rehearing request remains pending before the Commission.
    27. Fourth, as described by the Allegheny court, 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.'' \54\ Under those circumstances, i.e., where the Commission
grants rehearing without issuing a final order, the original
authorization would no longer be in effect and the provisions of Order
No. 871 would no longer apply since there would be no final order
pursuant to which a notice to proceed could be issued.
---------------------------------------------------------------------------

    \54\ 964 F.3d at 16.
---------------------------------------------------------------------------

    28. INGAA urges the Commission to set a deadline, not to exceed 60
days from any order granting rehearing for further procedures, to issue
a final order on the merits of the rehearing request.\55\ Because
timelines associated with supplemental briefing or evidentiary
submissions may vary based on the complexity of the issues warranting
further procedures, we decline to do so and intend to continue to act
on requests for rehearing as soon as possible.
---------------------------------------------------------------------------

    \55\ INGAA Rehearing Request at 4-5, 24-26 (providing a
``predictable and transparent timetable would help project
developers, their customers, and end-users of gas plan for
construction timetables and avoid unnecessary costs and
disruption''); see also INGAA Initial Brief at 10, 28. Some
commenters advanced similar requests, and generally noted that
setting a specific timeframe for action on requests for rehearing
and/or requests for authorization to commence construction would be
beneficial as it would provide regulatory certainty and
transparency.
---------------------------------------------------------------------------

    29. Finally, INGAA also asks that we revise Sec.  157.23 to
expressly state that the Commission may waive the applicability of the
rule for ``good cause shown.'' \56\ The Commission has broad authority
to waive application of its own regulations and does not find it
necessary to revise the rule to incorporate a ``good cause'' exception.
---------------------------------------------------------------------------

    \56\ INGAA Rehearing at 5, 25-26, and 34. This request was
reiterated in some of the briefs filed by natural gas companies.
See, e.g., Enbridge Initial Brief at 11-12; Enbridge Reply Brief at
10.
---------------------------------------------------------------------------

    30. Consistent with the foregoing discussion, we revise 18 CFR
157.23 to read as follows:

    With respect to orders issued pursuant to 15 U.S.C. 717b or 15
U.S.C. 717f(c) authorizing the construction of new natural gas
transportation, export, or import facilities, no authorization to
proceed with construction activities will be issued:
    (a) until the time for the filing of a request for rehearing
under 15 U.S.C. 717r(a) has expired with no such request being
filed, or
    (b) if a timely request for rehearing raising issues reflecting
opposition to project construction, operation, or need is filed,
until: (i) The request is no longer pending before the Commission,
(ii) the record of the proceeding is filed with the court of
appeals, or (iii) 90 days has passed after the date that the request
for rehearing may be deemed to have been denied under 15 U.S.C.
717r(a).\57\
---------------------------------------------------------------------------

    \57\ The italicized text reflects the revisions to Sec.  157.23
that we are adopting herein.
---------------------------------------------------------------------------

B. APA and NGA Requirements

1. APA Notice and Comment Requirement
    31. Section 553 of the Administrative Procedure Act (APA) generally
requires federal agencies to publish in the Federal Register a notice
of proposed rulemaking and to provide interested persons an opportunity
to submit written comments on the proposed rule prior to issuing a
final rule.\58\ However, these requirements, commonly referred to as
the APA's notice and comment procedures, do not apply to
``interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice.'' \59\
---------------------------------------------------------------------------

    \58\ 5 U.S.C. 553.
    \59\ Id. 553(b)(3)(A).
---------------------------------------------------------------------------

    32. Kinder Morgan and INGAA, (the latter in the alternative to its
request for clarification), argue that, by issuing a final rule without
providing the public notice and opportunity to comment, the Commission
violated section 553 of the

APA.\60\ Specifically, Kinder Morgan argues that the Commission erred
by relying on the APA's exception to notice-and-comment rulemaking for
``rules of agency organization, procedure, or practice'' to promulgate
the rule because, it contends, the rule substantially affects the
rights and interests of project proponents and their customers.\61\
INGAA advances a similar argument, stating that the changes adopted in
Order No. 871 are not ``technical matters of procedure,'' but rather
entail ``substantive alterations of substantial rights subject to the
APA's notice-and-comment procedures.'' \62\
---------------------------------------------------------------------------

    \60\ Kinder Morgan Rehearing at 6-12; INGAA Rehearing at 27-32.
    \61\ Kinder Morgan Rehearing at 8.
    \62\ INGAA Rehearing at 28.
---------------------------------------------------------------------------

    33. Even if the rule appears procedural on its face, Kinder Morgan
and INGAA argue, the rule's substantive effect on the natural gas
pipeline industry is significant and ``sufficiently grave so that
notice and comment are needed to safeguard the policies underlying the
APA.'' \63\ In so positing, INGAA and Kinder Morgan note that of the
1,000 certificates of public convenience and necessity issued by the
Commission since 1999, parties sought rehearing in 240 cases
(approximately 24 percent).\64\
---------------------------------------------------------------------------

    \63\ See Kinder Morgan Rehearing at 11-12 (quoting Mendoza v.
Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (citations omitted));
INGAA Rehearing at 30-31 (same).
    \64\ Kinder Morgan Rehearing at 12; INGAA Rehearing at 31.
---------------------------------------------------------------------------

    34. Kinder Morgan and INGAA also contend that the Commission failed
to consider the rule's impact on the natural gas pipeline industry's
business models, which developed in reliance on the Commission's prior
practice of authorizing construction prior to acting on applications
for rehearing.\65\ INGAA stresses that the ``timing of approvals,
construction initiation, and placement of projects into natural gas
service are among a pipeline company's most important practical and
commercial considerations.'' \66\ Kinder Morgan and INGAA argue 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.'' \67\
---------------------------------------------------------------------------

    \65\ Kinder Morgan Rehearing at 10 (citing Dep't of Homeland
Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913-1915
(2020) (in rescinding the Deferred Action for Childhood Arrivals
program, the Department of Homeland Security should have assessed
whether there were reliance interests, determined the significance
of any such interests, and weighed those interests against competing
policy concerns)); INGAA Rehearing at 32-34 (same).
    \66\ INGAA Rehearing at 33.
    \67\ Kinder Morgan Rehearing at 10 (quoting Regents of the Univ.
of Cal., 140 S. Ct. at 1915); INGAA Rehearing at 34 (same).
---------------------------------------------------------------------------

2. Order No. 871 Was Properly Issued as a Final Rule
    35. Because the rule neither substantially ``alters the rights or
interests'' of regulated natural gas companies nor changes the agency's
substantive outcomes, the APA's notice and comment procedures were not
required.\68\ Nothing in Order No. 871, as revised here, changes the
standards the Commission applies, or the ultimate result, on rehearing
of NGA section 7 certificate orders. Moreover, the timing of when to
permit construction to begin is a matter entirely within the
Commission's existing discretion and not a matter of right. Nothing in
the NGA or the Commission's regulations, prior to Order No. 871,
addresses the timing of authorizations to commence construction. And
nothing in the NGA or the Commission's regulations prevents the
Commission from acting on rehearing prior to issuing an authorization
to proceed with construction. Staff, or the Commission itself, could
validly have established the same policy, either generally or on a
case-by-case adjudicatory basis, without any announcement at all. Given
the absence of a right to obtain authorization to proceed with
construction at any particular time, Kinder Morgan and INGAA have not
demonstrated that Order No. 871 is anything more than a procedural
rule. In addition, an otherwise procedural rule, such as this, ``does
not becomes a substantive one, for notice-and-comment purposes, simply
because it imposes a burden on regulated parties.'' \69\
---------------------------------------------------------------------------

    \68\ See Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1047 (D.C.
Cir. 1987) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C.
Cir. 1980)); id. at 1048. ``In determining whether a rule is
substantive, we must look at its effect on those interests
ultimately at stake in the agency proceeding.'' Neighborhood TV Co.
v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984) (holding that a decision
to freeze applications for television licenses on some frequencies
affected an applicant's interest ``only incidentally'' and was
therefore procedural) (citing Pickus v. U.S. Board of Parole, 507
F.2d 1107 (D.C. Cir. 1974) (holding that parole board guidelines
were substantive because they ``were the kind calculated to have a
substantial effect on the ultimate parole decisions'')).
    \69\ James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277,
281 (D.C. Cir. 2000) (``Appellant has cited no case in which this
Court has required notice-and-comment rulemaking for an especially
burdensome procedural rule. Nor could it . . . .'').
---------------------------------------------------------------------------

    36. Neither Kinder Morgan nor INGAA sets forth with any specificity
the significant and ``sufficiently grave'' impacts they contend will
befall the natural gas pipeline industry as a result of Order No. 871.
They merely note that of the over 1,000 certificates of public
convenience and necessity issued since 1999, parties sought rehearing
24 percent of the time. But both entities fail to mention that the
timing of an initial Commission decision on a project proposed under
NGA sections 7 or 3 has always been undefined. While a project
proponent may identify in its application a requested approval and/or
in-service date, these dates are requests that do not control the
timing of the Commission's decision. Rather, the Commission's timeline
for processing project applications is dictated by factors such as the
complexity of proposed projects, the quality of information provided by
the applicant and the applicant's timeliness in responding to staff
information requests, changes made by the applicant to its proposal,
and the nature of the issues in each case. Neither the public nor the
project proponent is privy to the date on which the Commission may act
on a project application filed under NGA section 3 or 7. This means
that, even prior to Order No. 871, project development timelines had to
account for some uncertainty in when the Commission might issue its
decision on an NGA section 7 or 3 application and, if appropriate,
subsequently authorize commencement of construction. Any incremental
delay or uncertainty created by Order No. 871 is acceptable given the
benefits that the rule provides.
    37. Further, in many, if not most, instances, construction cannot
begin immediately upon issuance of an initial order under NGA sections
3 or 7. Typically, construction of natural gas facilities cannot
commence without the certificate or authorization holder first filing
documentation demonstrating either that it has received all applicable
authorizations required under federal law or that such authorizations
have been waived. Often this involves finalizing the pipeline route,
completing Endangered Species Act or National Historic Preservation Act
consultation, and/or obtaining state certifications under the Clean
Water Act or the Coastal Zone Management Act. Based on data maintained
by Commission staff for the five calendar years preceding Order No. 871
(i.e., 2015-2019), an average of 85 days elapsed between issuance of an
initial order and issuance of an authorization to proceed with
construction. Put another way, prior to Order No. 871, on average,
natural gas companies should not have expected to receive authorization
to proceed with

construction sooner than three months after order issuance.
    38. For the reasons discussed above, there has been no showing that
Order No. 871 will substantially impact the natural gas industry.
Similarly, Kinder Morgan and INGAA have not established that the
natural gas industry had a legitimate reliance interest in prior
instances where Commission staff issued authorizations to proceed with
construction while requests for rehearing were pending. Though the
natural gas industry may have relied on past Commission practice, any
such reliance does not establish a legal right to Commission action on
a particular timetable, especially where the relevant Commission
process was not established by regulation, policy statement, or spelled
out in any detail in case law.
    39. In any event, even assuming the Commission was required to
solicit comments on the new rule, the Commission has fully satisfied
this requirement by soliciting further briefing on rehearing in this
proceeding, including the opportunity for both initial and reply
briefs.\70\ Moreover, in light of the Commission's announced goal of
acting on landowners' rehearing requests within 30 days,\71\ the
significantly increased speed with which the Commission resolves
rehearing requests following the recent Allegheny decision, and the
tailoring of the rule to apply only where a rehearing request reflects
opposition to a project, we do not anticipate that the rule will impose
any significant burden on the natural gas industry.
---------------------------------------------------------------------------

    \70\ In this regard, we note that the industry commenters have
not identified an instance of delay resulting from application of
Order No. 871.
    \71\ In January 2020, the Commission formally reorganized the
rehearings group within the Office of General Counsel, adding a
landowner group that gives first priority to landowner rehearing
requests of NGA section 7 certificate orders, with the aim of
resolving such requests within 30 days.
---------------------------------------------------------------------------

3. NGA Section 19(c) Stay Provision
    40. Section 19(c) of the NGA states, in relevant part, that ``[t]he
filing of an application for rehearing . . . shall not, unless
specifically ordered by the Commission, operate as a stay of the
Commission's order.'' \72\ Kinder Morgan asserts that the Commission
violated section 19(c) by broadly staying construction pending
rehearing without a specific finding that a stay is warranted.\73\
Order No. 871, Kinder Morgan contends, issued a ``blanket stay of
construction of all projects authorized under [NGA] Sections 3 and 7,
pending rehearing, regardless of whether any party requests or
demonstrates a stay is required.'' \74\ This outcome, Kinder Morgan
claims, is inconsistent with case law that explains Congress intended
to allow construction to proceed while an application for rehearing is
pending.\75\
---------------------------------------------------------------------------

    \72\ 15 U.S.C. 717r(c).
    \73\ Kinder Morgan Rehearing at 13-15.
    \74\ Id. at 14.
    \75\ Kinder Morgan Rehearing at 15 (citing Berkley v. Mountain
Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 2018) (Berkley),
cert. denied sub nom. Berkley v. FERC, 139 S. Ct. 941 (2019)).
---------------------------------------------------------------------------

    41. The case law Kinder Morgan offers to support its claim that
Order No. 871 is inconsistent with Congress's intent when enacting NGA
section 19(c) is unavailing. In affirming the district court's
dismissal for lack of subject matter jurisdiction of a complaint
challenging the constitutionality of various NGA provisions in
Berkley,\76\ the U.S. Court of Appeals for the Fourth Circuit stated
that ``Congress contemplated construction would be allowed to continue
while FERC reviews a petition for rehearing.'' This statement without
more does nothing to counter the fact that it is entirely within the
Commission's discretion to decide whether, when, and how to allow
construction of projects authorized under NGA sections 3 and 7 to
proceed. The Commission can require compliance with conditions in its
orders before allowing construction to begin.\77\ And, as noted above,
section 19(c) on its face contemplates the Commission's issuance of
stays of its orders.\78\
---------------------------------------------------------------------------

    \76\ 896 F.3d at 631.
    \77\ The Commission has broad authority to condition
certificates for interstate pipelines on ``such reasonable terms and
conditions as the public convenience and necessity may require.'' 15
U.S.C. 717f(e); see also, e.g., ANR Pipeline Co. v. FERC, 876 F.2d
124, 129 (D.C. Cir. 1989) (noting the Commission's ``extremely
broad'' conditioning authority).
    \78\ Even if Order No. 871 were construed to be a blanket stay,
such an action would be supported by the Commission's articulated
desire to balance its commitment to expeditiously responding to
parties' concerns in comprehensive orders on rehearing and the
serious concerns posed by the possibility of construction proceeding
prior to the completion of agency review.
---------------------------------------------------------------------------

    42. Kinder Morgan misconstrues the effect of the Commission's
pronouncement in Order No. 871. As we explained above, even prior to
the rule's enactment, it is rarely the case that construction can begin
immediately upon issuance of an order authorizing new natural gas
facilities under NGA section 3 or 7.\79\ The authorization or
certificate holder must first file documentation demonstrating that it
has received all applicable authorizations required under federal law
or that such authorizations have been waived, and that it has satisfied
all preconstruction requirements. Accordingly, we do not anticipate the
time period during which authorization to begin construction may not be
permitted--i.e., during 30-day rehearing period and, if a qualifying
rehearing request is filed, until that request is no longer pending
before the Commission, the record of the proceeding is filed with the
court of appeals, or 90 days has elapsed since the rehearing request
was deemed denied by operation of law--to be unduly long or a
significant departure from the Commission's prior practice.
---------------------------------------------------------------------------

    \79\ See supra P 37.
---------------------------------------------------------------------------

C. Commission Policy on Exercise of Eminent Domain Pending Rehearing

    43. In Order No. 871-A, in addition to the issues raised on
rehearing, we also sought comment on whether, and if so, how, the
Commission should modify its practices or procedures to address
concerns regarding the exercise of eminent domain while rehearing
requests are pending before the Commission.\80\ As further discussed
below, in light of the balance of interests at stake, we will adopt a
policy of presumptively staying an NGA section 7(c) certificate order
during the 30-day period for seeking rehearing, and pending Commission
resolution of any timely requests for rehearing filed by a landowner,
until the earlier of the date on which the Commission (1) issues a
substantive order on rehearing or otherwise indicates that the
Commission will not take further action, or (2) 90 days following the
date that a request for rehearing may be deemed to have been denied
under NGA section 19(a). This policy will not apply where the pipeline
developer has already, at the time of the certificate order, acquired
all necessary property interests or where no landowner protested the
section 7 application. In addition, where no landowner files a timely
request for rehearing of the certificate order, the stay will
automatically lift following the close of the 30-day period for seeking
rehearing.
---------------------------------------------------------------------------

    \80\ Order No. 871-A, 174 FERC ] 61,050 at P 7.
---------------------------------------------------------------------------

    44. As explained in Order No. 871,\81\ when the Commission grants a
certificate of public convenience and necessity, NGA section 7(h)
authorizes the certificate holder to exercise eminent domain authority
if it ``cannot acquire by contract, or is unable to agree with the
owner of property to the compensation to be paid for, the necessary
right-of-way to construct, operate, and maintain'' the authorized
facilities.\82\ This statutory framework

permits pipeline developers, absent a Commission- or court-ordered
stay, to start the process of condemning an individual's land before
the Commission completes the certificate proceeding, including
consideration of the merits of any timely filed requests for
rehearing.\83\ While natural gas industry commenters note that
developers make efforts to avoid the use of eminent domain,\84\
landowners describe ``having to face the trauma, expense, and permanent
consequences of condemnation suits that begin on the heels of a
Commission Certificate Order.'' \85\
---------------------------------------------------------------------------

    \81\ Order No. 871, 171 FERC ] 61,201 at P 4.
    \82\ 15 U.S.C. 717f(h). The NGA specifies that any such
condemnation proceedings shall take place in the federal court for
the district in which the property is located or in the relevant
state court.
    \83\ See Allegheny Def. Project v. FERC, 932 F.3d 940, 948, 950,
952-53, 956 (D.C. Cir. 2019) (Millett, J., concurring) (detailing
the harm to landowners' constitutionally protected property interest
in their homes as ``a private interest of historic and continuing
importance'') (quoting United States v. James Daniel Good Real
Property, 510 U.S. 43, 53-54 (1993)).
    \84\ INGAA Initial Brief at 22.
    \85\ Niskanen Center Reply Brief at 10, 16 (noting a 2017 press
report of 300 condemnation actions commenced in Virginia by the
developers of the Mountain Valley Pipeline) (citing The Roanoke
Times, Mountain Valley sues landowners to gain pipeline easements,
(Oct. 27, 2017), https://roanoke.com/business/news/mountain-valley-sues-landowners-to-gain-pipeline-easements-through-eminent/article_abff5d87-1aee-5a50-b3c2-b3ee0c812e44.html); see also id. at
9 (stating that the burden on landowners from allowing eminent
domain proceedings to commence upon issuance of a certificate
continues after Allegheny); Landowners Initial Brief at 1-3, 5
(explaining that the commenters had faced three different iterations
of a proposed projects over 15 years in Oregon, and urging the
Commission to disallow the use of eminent domain pending Commission
certificate proceedings, including on rehearing).
---------------------------------------------------------------------------

    45. The courts, however, have held that the issuance of a valid
certificate is all that is required from the Commission for a pipeline
developer to begin eminent domain proceedings when it cannot otherwise
acquire the property covered by the certificate.\86\ In other words,
the Commission lacks the authority to deny or restrict the power of
eminent domain in a section 7 certificate.\87\ Nor does the Commission
have the authority to oversee the acquisition of property rights
through eminent domain, including issues regarding the timing of and
just compensation for the acquisition of property rights,\88\ which are
matters reserved for the courts.\89\
---------------------------------------------------------------------------

    \86\ Twp. of Bordentown, N.J. v. FERC, 903 F.3d 234, 265 (3d
Cir. 2018) (stating that NGA section 7(h) ``contains no condition
precedent'' to the right of eminent domain other than issuance of
the certificate when a certificate holder is unable to acquire a
right-of-way by contract); Berkley, 896 F.3d at 628 (``Issuing such
a Certificate conveys and automatically transfers the power of
eminent domain to the Certificate holder . . . . Thus, FERC does not
have discretion to withhold eminent domain once it grants a
Certificate.'' (citation omitted)).
    \87\ See Midcoast Interstate Transmission, Inc. v. FERC, 198
F.3d 960, 973 (D.C. Cir. 2000) (``The Commission does not have the
discretion to deny a certificate holder the power of eminent
domain.'' (citation omitted)).
    \88\ PennEast Pipeline Co., LLC, 174 FERC ] 61,056, at P 10
(2021).
    \89\ Id. (citing Atl. Coast Pipeline, LLC, 164 FERC ] 61,100, at
P 88 (2018); Mountain Valley Pipeline, LLC, 163 FERC ] 61,197, at P
76 (2018); PennEast Pipeline Co., LLC, 164 FERC ] 61,098 at P 33
n.82 (2018)).
---------------------------------------------------------------------------

    46. On the other hand, the Commission unquestionably may determine
the effective date of \90\ and stay its own orders,\91\ and courts have
specifically contemplated that a stay would be operative to withhold
the eminent domain authority otherwise afforded by NGA section
7(h).\92\ The Commission also has the ``power to . . . issue . . . such
orders . . . as it may find necessary or appropriate to carry out the
provisions of this Act.'' \93\ Accordingly, in light of the balance of
interests identified in the record, the Commission will, in future
proceedings,\94\ adopt a policy of presumptively staying an NGA section
7(c) certificate order \95\ during the 30-day rehearing period and
pending Commission resolution of any timely requests for rehearing
filed by landowners, up until 90 days following the date that a request
for rehearing may be deemed to have been denied under NGA section
19(a). We think 90 days is appropriate because it balances the
competing interests at stake including the project developer's interest
in proceeding with construction when it has obtained all necessary
permits, and a project opponent's interest in being able to challenge
the Commission's ultimate decision before irreparable harm may occur.
This policy will not apply where the pipeline developer has already, at
the time of the certificate order, acquired all necessary property
interests or where no landowner protested the section 7 application. In
addition, where no landowner files a timely request for rehearing of
the certificate order, the stay will automatically lift following the
close of the 30-day period for seeking rehearing. This new policy is
intended to indicate our belief that, as Judge Griffith put it in his
concurrence in Allegheny, during the rehearing period ``a district
court . . . should not plow ahead'' with condemnation, instead
``holding an eminent-domain action in abeyance until the Commission
completes its reconsideration of the underlying certificate order.''
\96\
---------------------------------------------------------------------------

    \90\ See 15 U.S.C. 717o (``Orders of the Commission shall be
effective on the date and in the manner which the Commission shall
prescribe.'').
    \91\ 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., LLC, 141 FERC ]
61,022, at P 13 (2012); Ruby Pipeline, LLC, 134 FERC ] 61,103, at P
17 (2011).
    \92\ See, e.g., Allegheny, 964 F.3d at 8 (citing Transcon. Gas
Pipe Line Co. v. Permanent Easements for 2.14 Acres, 907 F.3d 725,
740 (3d Cir. 2018) (affirming district court action allowing
condemnation action to proceed absent a Commission-ordered stay));
see also Mountain Valley Pipeline, LLC v. An Easement to Construct,
Operate & Maintain a 42-inch Gas Transmission Line, No. 2:17-CV-
04214, 2018 WL 1004745, at *5 (S.D.W. Va. Feb. 21, 2018) (``The
landowners insist that the various challenges that Mountain Valley
faces before FERC and the courts of appeals counsel against the
granting of partial summary judgment. As explained earlier, a FERC
order remains in effect unless FERC or a court of appeals issues a
stay and no such stay has been issued here.'' (internal citations
omitted)); In re Algonquin Nat. Gas Pipeline Eminent Domain Cases,
No. 15-CV-5076, 2015 WL 10793423, at *7 (S.D.N.Y. Sept. 18, 2015)
(``Here, various interested parties have filed Requests for
Rehearing with FERC but, absent a stay by FERC, those Requests for
Rehearing neither prohibit these proceedings from going forward nor
affect Algonquin's substantive right to condemn or the need for
immediate possession.''); Tenn. Gas Pipeline Co. v. 104 Acres of
Land More or Less, in Providence Cty. of State of R.I., 749 F. Supp.
427, 431 (D.R.I. 1990) (``Because in this case the Commission's
order has not been stayed, condemnation pursuant to that order may
proceed.'').
    \93\ 15 U.S.C. 717o.
    \94\ Specifically, in NGA section 7(c) certificate orders issued
after the effective date of this order.
    \95\ Unlike section 7 of the NGA, section 3 does not convey
eminent domain authority, see Order No. 871, 171 FERC ] 61,201 at P
5, and, therefore, section 3 authorizations will not be subject to
this policy.
    \96\ Allegheny, 964 F.3d at 22 (Griffith, J., concurring); see
also id. (noting Judge Katsas's suggestion ``that once the
Commission grants rehearing of a certificate order, that order
should be regarded as nonfinal . . . and a nonfinal order is
presumably an invalid basis for transferring property by eminent
domain'' and suggesting ``[t]hat suggestion merits a closer look'')
(citations omitted).
---------------------------------------------------------------------------

    47. Given the grave consequences that eminent domain has for
landowners, we believe that it is fundamentally unfair for a pipeline
developer to use a section 7 certificate to begin the exercise of
eminent domain before the Commission has completed its review of the
underlying certificate order, through consideration of the merits of
any timely filed requests for rehearing, either by issuance of an order
on rehearing or a notice indicating that the Commission will not take
further action. As the en banc D.C. Circuit recognized in Allegheny,
reforming the Commission's rehearing practice--alone--does not prevent
the harm to landowners that can arise when developers initiating
eminent domain proceedings upon issuance of a certificate order,
without awaiting the completion of the

Commission's certificate proceeding.\97\ There is no question that
eminent domain is among the most significant actions that a government
may take with regard to an individual's private property.\98\ And the
harm to an individual from having their land condemned is one that may
never be fully remedied, even in the event they receive their
constitutionally-required compensation.\99\
---------------------------------------------------------------------------

    \97\ Allegheny, 964 F.3d at 10 n.2; see also id. at 22
(Griffith, J., concurring) (``Those proceedings are the final piece
of the puzzle.''); Niskanen Center Initial Brief at 8-11 (describing
the burden on landowners from eminent domain as continuing after
Allegheny).
    \98\ Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)
(observing that government action that provides for ``public access
[to private property] would deprive [the owner] of the right to
exclude others, `one of the most essential sticks in the bundle of
rights that are commonly characterized as property.' '') (quoting
Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)); Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (``[W]e
have long considered a physical intrusion by government to be a
property restriction of an unusually serious character for purposes
of the Takings Clause.''); Hendler v. United States, 952 F.2d 1364,
1374 (Fed. Cir. 1991) (``In the bundle of rights we call property,
one of the most valued is the right to sole and exclusive
possession--the right to exclude strangers, or for that matter
friends, but especially the Government.'' (emphasis in the
original)).
    \99\ See United Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689
F.2d 693, 701 (7th Cir. 1982) (``It is settled beyond the need for
citation . . . that a given piece of property is considered to be
unique, and its loss is always an irreparable injury.'').
---------------------------------------------------------------------------

    48. Nevertheless, many, if not all, of the briefs filed by
representatives of the natural gas industry were strongly opposed to
the Commission's consideration of changes in policy or practice
regarding a pipeline developer's exercise of eminent domain, including
the general policy we adopt today. They described a range of
consequences that would flow from such a decision, such as delayed
project timelines, increased regulatory uncertainty, interference with
the orderly development of natural gas, higher likelihood of project
terminations, and purported environmental harm caused by producers
flaring extra gas.\100\
---------------------------------------------------------------------------

    \100\ See, e.g., INGAA Initial Brief at 18-27; Kinder Morgan
Initial Brief at 7-9; Tallgrass Initial Brief at 9; see also
Enbridge Reply Brief at 19; INGAA Reply Brief at 17.
---------------------------------------------------------------------------

    49. We have thoroughly reviewed those comments and we recognize the
industry's concerns. We believe this order appropriately balances those
concerns with the benefits that come from addressing the significant
fairness and due process concerns that arise when a pipeline developer
can begin the process of condemning private land before the Commission
has completed its certificate proceeding, and the owners of that land
can go to court to challenge the Commission's ultimate decision,
following rehearing, regarding the certificate that is the basis for
that condemnation action.\101\ Further, as described above, the
presumptive stay reflects important limits designed to balance the
interests of developers and landowners in light of the Commission's
finding, in any given certificate order, that the proposed project is
consistent with the public interest. At most, any stay will last no
longer than approximately 150 days following the issuance of a
certificate order.\102\ Moreover, a pipeline developer may avoid a stay
entirely by obtaining all necessary property interests prior to
issuance of the certificate, a stay will only extend beyond the initial
30-day period for seeking rehearing where a landowner files a request
for rehearing of the certificate order, and during the period in which
a stay is in place and as permitted consistent with the stay of the
certificate, the project developer can continue to engage in
development related activities that do not require use of landowner
property or that are voluntarily agreed to by the landowner.
---------------------------------------------------------------------------

    \101\ Contrary to the dissent's arguments, we recognize that
this new policy is a departure from our past practice. But the
dissent errs in suggesting that this departure is unexplained.
Limiting Authorization to Proceed with Construction Activities
Pending Rehearing, 175 FERC ] 61,098 (2021) (Danly, Comm'r,
dissenting at P 12) (Order No. 871-B). As discussed throughout
today's order, including in the text accompanying this footnote, we
believe that this new policy better balances the relevant
considerations--such as fairness, due process, and developer
certainty--thereby justifying the change in policy. See FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (``[O]f course
the agency must show that there are good reasons for the new policy.
But it need not demonstrate to a court's satisfaction that the
reasons for the new policy are better than the reasons for the old
one; it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates.'').
    \102\ Approximately 150 days is the sum of the initial 30-day
period for seeking rehearing, the next 30-day period before
rehearing may be deemed denied by operation of law, and a final 90-
day period, following the deemed denial.
---------------------------------------------------------------------------

    50. In addition, as noted above, particularly post-Allegheny, the
Commission has significantly increased the speed with which it resolves
rehearing requests, whether by addressing the merits of rehearing
requests as expeditiously as possible or by issuing a notice within 30
days providing that rehearing may be deemed denied by operation of law,
without also indicating the Commission's intent to take further action.
We believe that the Commission's post-Allegheny practice should
significantly reduce any burden on pipeline developers. In any case, we
find that any burden imposed on pipeline developers by this new policy
will be relatively minor and ultimately outweighed by the significant
benefits it affords to landowners.
    51. Finally, we reiterate that this new policy is only presumptive
and that the question of whether to impose a stay will be decided on
the circumstances presented in each particular certificate
proceeding.\103\ A pipeline developer may move to preclude, or lift, a
stay based on a showing of significant hardship,\104\ and the
Commission may, in its discretion, grant such a motion upon finding
that it is necessary or appropriate to commence condemnation
proceedings prior to Commission action on rehearing or the date that is
90 days following the date that a request for rehearing may be deemed
to have been denied under NGA section 19(a). Although, as noted, we
will evaluate any motion on the specific facts and circumstances
presented therein, we note 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.
---------------------------------------------------------------------------

    \103\ Contrary to the dissent's arguments, Order No. 871-B, 175
FERC ] 61,098 (Danly, Comm'r, dissenting at PP 6-12), we are
announcing only a general policy with respect to stays. We will make
a particularized application of that policy in individual
certificate orders, applying the criteria for granting a stay on a
case-by-case basis. Parties to those individual proceedings will
have the opportunity to challenge the Commission's determination on
whether to issue a stay in those proceedings.
    \104\ See, e.g., INGAA Initial Brief at 20-21 (noting that
state-law mechanisms allowing pipeline developers to obtain physical
access to the pipeline route to conduct environmental and other
information gathering surveys, often necessary for other federal and
state permits, vary from state to state, with some states
authorizing physical access ``only by a party that otherwise has the
power of eminent domain'').
---------------------------------------------------------------------------

III. Regulatory Requirements

A. Information Collection Statement

    52. The Paperwork Reduction Act \105\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information (i.e., reporting,
recordkeeping, or public disclosure requirements) directed to ten or
more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contained in final rules published in the Federal
Register.\106\ The rule promulgated by Order No. 871, and revised
herein, does not contain any

information collection requirements. The Commission is therefore not
required to submit to OMB for review this order addressing arguments
raised on rehearing and clarification, and setting aside, in part,
prior order.
---------------------------------------------------------------------------

    \105\ 44 U.S.C. 3501-3521.
    \106\ See 5 CFR pt. 1320.
---------------------------------------------------------------------------

B. Environmental Analysis

    53. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant effect on the human environment.\107\ The Commission
has categorically excluded certain actions from this requirement as not
having a significant effect on the human environment, including the
promulgation of rules that are clarifying, corrective, or procedural,
or that do not substantially change the effect of legislation or the
regulations being amended.\108\ Because the rule promulgated by Order
No. 871, and revised herein, is procedural in nature, preparation of an
Environmental Assessment or an Environmental Impact Statement is not
required.
---------------------------------------------------------------------------

    \107\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897, 41 FERC ] 61,284 (1987).
    \108\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    54. The Regulatory Flexibility Act of 1980 (RFA) \109\ generally
requires a description and analysis of rules that will have significant
economic impact on a substantial number of small entities. The
Commission determined that Order No. 871 was exempt from the
requirements of the RFA.\110\ This order addressing arguments raised on
rehearing and clarification, and setting aside, in part, prior order
does not disturb the Commission's finding.
---------------------------------------------------------------------------

    \109\ 5 U.S.C. 601-612.
    \110\ Order No. 871, 171 FERC ] 61,201 at P 16.
---------------------------------------------------------------------------

D. Document Availability

    55. 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 Commission's Home Page (http://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
    56. From the Commission's 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.
    57. User assistance is available for eLibrary and the Commission's
website during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
E. Effective Date

    58. This rule addressing arguments raised on rehearing and
clarification, and setting aside, in part, prior order is effective
June 14, 2021.

List of Subjects in 18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.

    By the Commission.
    Commissioner Chatterjee is not participating.
    Commissioner Danly is dissenting with a separate statement
attached.
    Commissioner Christie is concurring with a separate statement
attached.

    Issued: May 4, 2021.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission is amending part
157, chapter I, title 18, Code of Federal Regulations, as follows:

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT

0
1. The authority citation for Part 157 continues to read as follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.

0
2. Amend Sec.  157.23 by revising paragraph (b) to read as follows:

Sec.  157.23   Authorizations to Proceed with Construction Activities.

* * * * *
    (b) If a timely request for rehearing raising issues reflecting
opposition to project construction, operation, or need is filed, until:
    (1) The request is no longer pending before the Commission;
    (2) The record of the proceeding is filed with the court of
appeals; or
    (3) 90 days has passed after the date that the request for
rehearing may be deemed to have been denied under 15 U.S.C. 717r(a).

The Following Will Not Appear in the Code of Federal Regulations

Department of Energy

Federal Energy Regulatory Commission

Limiting Authorizations To Proceed With Construction Activities Pending
Rehearing

DANLY, Commissioner, dissenting:

    1. I dissent in full from today's order modifying and expanding
Order No. 871.\1\ As an initial matter, I write to state that I would
grant rehearing on all matters and repeal the rule.
---------------------------------------------------------------------------

    \1\ See Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871, 85 FR 40,113 (July 6,
2020), 171 FERC ] 61,201 (2020) (Order No. 871).
---------------------------------------------------------------------------

    2. The Commission promulgated Order No. 871 on June 9, 2020, in
advance of the decision in Allegheny Defense Project v. FERC,\2\ the en
banc proceeding before the U.S Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) that addressed longstanding objections
to the Commission's practice of relying upon tolling orders to delay
answering requests for rehearing.\3\ In recognition of the injustice of
the Commission's practice of tolling rehearing requests indefinitely,
and that practice's consequent denial of an opportunity for litigants
to perfect their appeals, the Commission issued Order No. 871 in an
attempt to balance the interests of potential appellants with those of
pipelines by delaying the issuance of notices to proceed with
construction.\4\ On June 30, 2020, the D.C. Circuit issued its en banc
opinion in Allegheny in which it found that the Commission was
prohibited from indefinitely tolling requests for rehearing and finding
that parties were entitled to petition for review once a rehearing
request had been denied by operation of law.\5\ The D.C. Circuit,
having rightly imposed the discipline the Commission was unwilling or
unable to impose upon itself, obviated the pressing need animating the
Commission's decision to delay the issuance of notices to proceed. In
light of the D.C. Circuit's re-enforcement of the statutory scheme
governing rehearing and appeal, the

Commission today need not go any further than has the court. Nor do I
see any real risk that a pipeline will commence construction before a
party has the opportunity to petition for review. As the Commission
itself states, ``on average, natural gas companies should not have
expected to receive authorization to proceed with construction sooner
than three months after order issuance.'' \6\ Accordingly, I see no
reason why this rule--promulgated in the face of litigation and in
light of legitimate, unresolved concerns for the competing rights of
the parties before the Commission--is still required by law or
prudence. I would repeal it in full and instead rely wholly upon the
rehearing and appeal provisions ordained by Congress to balance our
litigants' various interests.
---------------------------------------------------------------------------

    \2\ 964 F.3d 1 (D.C. Cir. 2020) (en banc) (Allegheny).
    \3\ See Order No. 871, 171 FERC ] 61,201 (Glick, Comm'r,
concurring in part and dissenting in part at P 1) (``It is readily
apparent that today's final rule attempts to address some of the
concerns raised in the Allegheny Defense Project v. FERC proceeding
before the U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit).'').
    \4\ See id. P 11.
    \5\ See Allegheny, 964 F.3d at 18-19.
    \6\ Limiting Authorization to Proceed with Construction
Activities Pending Rehearing, 175 FERC ] 61,098, at P 37 (2021)
(Order No. 871-B).
---------------------------------------------------------------------------

    3. I also write separately in order to highlight a handful of self-
evident legal infirmities that might form the basis of an aggrieved
party's appeal. With this order, the Commission has, for the third time
in as many months, dramatically increased the uncertainty faced by the
natural gas industry by changing its policies so as to make it harder
to rationally deploy capital, accurately assess risk, or predict
Commission action.\7\ Worse yet, the Commission fails in this order to
satisfy its obligations under the Administrative Procedure Act (APA)
and implements policies that conflict with the plain text of the
Natural Gas Act (NGA), the most obvious of which is our new,
unnecessary, and unjustifiable presumption to stay certificate orders.
---------------------------------------------------------------------------

    \7\ See N. Nat. Gas Co., 174 FERC ] 61,189 (2021) (Danly,
Comm'r, dissenting at P 2) (Northern); Algonquin Gas Transmission,
LLC, 174 FERC ] 61,126 (2021) (Danly, Comm'r, dissenting at P 32)
(Algonquin).
---------------------------------------------------------------------------

I. The Commission Fails To Respond to Arguments Raised in Briefing

    4. Turning first to the most basic of APA violations, the
Commission declines to even acknowledge, let alone respond to, the
arguments raised by the Interstate Natural Gas Association of America
(INGAA) that the issuance of Order No. 871-A was improper.\8\ INGAA
argues:
---------------------------------------------------------------------------

    \8\ See, e.g., INGAA February 16, 2021 Initial Brief at 7-8.

    (1) Order No. 871 was promulgated in violation of the notice-
and-comment requirements of the Administrative Procedure Act, and
that procedural deficiency cannot be cured by Order No. 871-A or
other after-the-fact processes; (2) Order No. 871-A appears to
invite comments on issues that were not raised in Order No. 871 or
in the requests for rehearing of that Order, while ignoring other
issues that were raised in requests for rehearing of that Order; (3)
Order No. 871-A does not address the merits of the requests for
rehearing of Order No. 871 or modify Order No. 871 in any respect,
and likewise fails to explain why the Commission views the existing
record as insufficient to rule on the prior requests for rehearing;
and (4) Order No. 871-A contemplates a schedule that effectively
delays a Commission ruling on the merits of the requests for
rehearing of Order No. 871 until ten months after they were
submitted, which violates the text and spirit of the D.C. Circuit's
recent en banc decision in Allegheny Defense.'' \9\
---------------------------------------------------------------------------

    \9\ Id. (emphasis in original).

    5. I for one would be interested to hear the Commission's
response.\10\ Whether the Commission's refusal was intentional or a
consequence of hasty action, the Commission's decision to ignore
arguments properly raised runs contrary to the APA and stands as an
obvious failure to engage in reasoned decision making.\11\ In addition
to the APA violation I describe above, there are a number of other
legal infirmities that require attention.
---------------------------------------------------------------------------

    \10\ See Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871-A, 86 FR 7643 (Feb. 1,
2021), 174 FERC ] 61,050 (2021) (Danly, Comm'r, dissenting) (Order
No. 871-A).
    \11\ See New England Power Generators Ass'n, Inc. v. FERC, 881
F.3d 202, 211 (D.C. Cir. 2018) (finding ``that FERC did not engage
in the reasoned decisionmaking required by the Administrative
Procedure Act'' because it ``failed to respond to the substantial
arguments put forward by Petitioners and failed to square its
decision with its past precedent''); Canadian Ass'n of Petroleum
Producers v. FERC, 254 F.3d 289, 299 (D.C. Cir. 2001) (``Unless the
Commission answers objections that on their face seem legitimate,
its decision can hardly be classified as reasoned.'') (citations
omitted); Tesoro Alaska Petroleum Co. v. FERC, 234 F.3d 1286, 1294
(D.C. Cir. 2000) (``The Commission's failure to respond meaningfully
to the evidence renders its decisions arbitrary and capricious.'').
---------------------------------------------------------------------------

II. The Commission's New Policy Presumptively Staying NGA Section 7(c)
Certificate Orders Is Contrary to Law

    6. The Commission's new policy establishing a presumptive stay in
section 7(c) certificate proceedings is simply beyond the Commission's
authority. The power of eminent domain is surely profound and
formidable. I cannot fault my colleagues for the anxiety they have
expressed over its wise and just exercise. However, the Commission, as
a mere ``creature of statute,'' can only act pursuant to law by which
Congress had delegated its authority.\12\ Congress conferred the right
to certificate holders to pursue eminent domain in federal district
court or state court,\13\ having recognized that states ``defeat[ ] the
very objectives of the Natural Gas Act'' \14\ 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.
---------------------------------------------------------------------------

    \12\ 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)); see Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988) (``It is axiomatic that an
administrative agency's power to promulgate legislative regulations
is limited to the authority delegated by Congress.'').
    \13\ See 15 U.S.C. 717f(h).
    \14\ S. Rep. No. 80-429, at 3 (1947).
---------------------------------------------------------------------------

    7. It is true that while ``the Commission lacks the authority to
deny or restrict the power of eminent domain in a section 7
certificate,'' \15\ ``the Commission unquestionably may . . . stay its
own orders.'' \16\ The Commission, however, has no authority to
presumptively stay section 7 certificate orders.
---------------------------------------------------------------------------

    \15\ Order No. 871-B, 175 FERC ] 61,098 at P 45. It should be
recognized that the Commission again preemptively answers a question
that it directly posed in the pending Notice of Inquiry (NOI) for
which comments are due May 26, 2021: ``Under the NGA, does the
Commission have authority to condition a certificate holder's
exercise of eminent domain?'' See Question B6 in Certification of
New Interstate Nat. Gas Facilities, 174 FERC ] 61,125, at P 15
(2021). The Commission continues to lull people into believing that
the answers to the questions appearing in the NOI have yet to be
resolved.
    \16\ Order No. 871-B, 175 FERC ] 61,098 at P 46.
---------------------------------------------------------------------------

    8. The Commission appears to rely on APA section 705 to issue its
presumptive stay, but that section does not grant such power.\17\ APA
section 705, titled ``Relief pending review,'' provides ``[w]hen an
agency finds that justice so requires, it may postpone the effective
date of action taken by it, pending judicial review,'' \18\ meaning the
stay must be tied to litigation.\19\ The Commission's presumptive stay
is not even tied to an application for rehearing let alone any
litigation. Further, given the lack of discussion on how the Commission
will implement this new policy, the assumption that the mere existence
of a ``landowner protest'' automatically means that a stay is required
in the interest of justice is

rather questionable. 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
Commission's policy applies to where there is a ``landowner protest.''
Will the Commission apply the stay where a landowner protested but did
not intervene? What about in the case where the landowner joined a
protest, but may not have active interests in the proceeding? Some
commenters have suggested that NGA section 19(c) grants the Commission
such power.\20\ The Commission does not acknowledge or adopt these
arguments. Even so, NGA section 19(c) does not grant the Commission the
power to stay its orders before a rehearing application is even
filed.\21\ Section 19(c) sets forth the rule--that ``[t]he filing of an
application for rehearing under subsection (a) shall not . . . operate
as a stay of the Commission's order''--and the exception to that rule--
``unless specifically ordered by the Commission.'' \22\ In order for
the exception to apply, the general rule must first apply: That is,
someone must have filed a request for rehearing. Further, the
Commission's new policy elevates the stay from being the exception to
being the rule itself, assuming the legislative power to amend section
19(c) to read: An order is stayed unless specifically ordered by the
Commission. Only Congress can amend a statute.
---------------------------------------------------------------------------

    \17\ See id. P 46 n.91 (citing 5 U.S.C. 705). I am unaware of
Commission precedent that relies on APA section 705 as authority to
stay Commission orders (other than a handful of hydropower cases
granting the stay of the commencement of construction deadline).
    \18\ 5 U.S.C. 705 (emphasis added).
    \19\ See 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.'').
    \20\ See Public Interest Organizations February 16, 2021 Brief
at 13-14 (arguing the Commission has discretion under NGA section
19(c) to stay a certificate order); Niskanen Center, et al. March 3,
2021 Reply Brief at 4 (``[T]he NGA's only mention of an agency stay
is in Section 19(c). . . . The NGA also does not constrain the
Commission's authority as to when it can `specifically order' a stay
. . . .'').
    \21\ See 15 U.S.C. 717r(c).
    \22\ Id.
---------------------------------------------------------------------------

    9. Let us also not forget that identical phrases in the same
statute are normally given the same meaning.\23\ NGA section 19(c)
provides that ``[t]he commencement of proceedings under subsection (b)
of this section shall not, unless specifically ordered by the court,
operate as a stay.'' \24\ Imagine a scenario in which, in the course of
a one-off proceeding, a court of appeals announced that, going forward,
it would begin presumptively staying an entire category of Commission
orders before a petition is filed. Article III courts, of course, have
their own procedures, traditions, and powers. Still, such reading of
the statute is absurd.
---------------------------------------------------------------------------

    \23\ Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007) (``identical words and phrases within the same statute
should normally be given the same meaning'') (citation omitted).
    \24\ 15 U.S.C. 717r(c) (emphasis added).
---------------------------------------------------------------------------

    10. Many are quick to turn to NGA section 16 when all else has
failed. However, the Commission likewise cannot rely on NGA section 16
in support of a presumptive stay. Section 16 of the NGA does not
represent an independent grant of authority: ``[t]he Commission shall
have power to perform any and all acts, and to prescribe, issue, make,
amend, and rescind such orders, rules, and regulations as it may find
necessary or appropriate to carry out the provisions of this chapter.''
\25\ This does not create new powers under the NGA or supersede section
19(c), which sets forth the conditions for granting a stay. Moreover,
like its counterpart in Federal Power Act section 309,\26\ the use of
NGA section 16 must be ``consistent with the authority delegated to it
by Congress.'' \27\
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    \25\ Id. Sec.  717o.
    \26\ 16 U.S.C. 825h.
    \27\ Verso Corp. v. FERC, 898 F.3d 1, 7 (D.C. Cir. 2018)
(quoting Xcel Energy Servs. Inc. v. FERC, 815 F.3d 947, 952 (D.C.
Cir. 2016)); see id. at 10 (``Section 309 accordingly permits FERC
to advance remedies not expressly provided by the FPA, as long as
they are consistent with the Act.'') (emphasis added) (citing TNA
Merch. Projects, Inc. v. FERC, 857 F.3d 354, 359 (D.C. Cir. 2017)
(citing Niagara Mohawk Power Corp. v. Fed. Power Comm'n, 379 F.2d
153, 158 (D.C. Cir. 1967))).
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    11. I am aware of no other grant of authority that the majority may
be relying upon in support of its new presumptive stay policy.\28\ At
its root, the Commission's presumptive stay policy impermissibly does
what the Commission says it cannot do: The stay is designed to restrict
the use of eminent domain.\29\ It impedes a certificate holder's right
to exercise eminent domain immediately upon the issuance of the
certificate, while claiming to allow the pipeline to ``continue to
engage in development related activities that do not require use of
landowner property or that are voluntarily agreed to by the
landowner.'' \30\ It effectively permits the stay to be lifted so long
as there is ``a commitment by the pipeline developer not to begin
eminent domain proceedings until the Commission issues a final order on
any landowner rehearing requests.'' \31\ How a pipeline can conduct any
activity authorized by a stayed certificate or why a pipeline would
request to lift a stay other than to exercise eminent domain are
questions that beg clarification.
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    \28\ To the extent that the Commission believes that by
``applying the criteria for granting a stay on a case-by-case
basis'' cures any legal infirmity, it is wrong. Order No. 871-B, 175
FERC ] 61,098 at P 51 n.103. It is illogical to have a presumption
in advance of a rehearing request and is contrary to the plain text
in the NGA.
    \29\ See id. P 45.
    \30\ Id. P 49.
    \31\ Id. P 51 (emphasis added).
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    12. Even if it were not ultra vires, the Commission's
interpretation results in unfair surprise. Since at least 1965, the
Commission (and the Federal Power Commission) have placed the burden on
movants for stays to show that they will be irreparably injured in the
absence of a stay.\32\ The Commission's policy has been to ``refrain
from granting stays in order to assure definitiveness and finality in
Commission

proceedings.'' \33\Now after merely asking, ``[s]hould the Commission
modify its practices or procedures to address concerns regarding the
exercise of eminent domain while rehearing requests are pending,'' \34\
in an order on rehearing where the issue of eminent domain was not
raised, the Commission suddenly departs from its policy favoring
finality and shifts the burden to the pipeline before a rehearing is
even filed. The Commission never announced that it was considering a
presumptive stay policy or under what authority. In fact, many
commenters did not address the presumptive stay. Those harmed by this
surprise issuance should consider that agencies are not given deference
``when there is reason to suspect that the agency's interpretation
`does not reflect the agency's fair and considered judgment on the
matter in question.' '' \35\
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    \32\ See, e.g., Consol. Edison Co. of N.Y., 33 F.P.C. 965, at
969 (1965) (``Four tests have been prescribed by the Court of
Appeals, each of which an applicant for stay must satisfy in order
to justify the extraordinary relief represented by a stay of an
administrative order.'') (citations omitted); see also Midcontinent
Indep. Sys. Operator, 151 FERC ] 61,220, at P 27 (2015) (``Otter
Tail has not met the burden to show that it will suffer irreparable
injury without a stay and that a stay is in the public interest.''),
vacated and remanded for reasons not applicable, Ameren Servs. Co.
v. FERC, 880 F.3d 571 (D.C. Cir. 2018); Bradwood Landing LLC, 128
FERC ] 61,216, at P 10 (2009) (``We find that Oregon has not met its
burden to demonstrate that it will suffer irreparable harm absent
the granting of a stay.''); Acadia Power Partners, LLC, 108 FERC ]
61,076, at P 5 (2004) (``We will deny El Paso's request for a stay,
as we find that El Paso has failed to meet its burden of
demonstrating that it will suffer irreparable harm absent a
stay.''); Se. Hydro-Power, Inc., 74 FERC ] 61,241, at 61,825 n.12
(1996) (``the burden is on the movant . . . to demonstrate why its
request for a stay is justified''); Constr. Work in Progress for
Pub. Utils., 24 FERC ] 61,071, at 61,190 (1983) (``the burden is
upon petitioners for such extraordinary action to show that
significant harm will be incurred and that the equities favor
granting the stay.''); Exemption from the Licensing Requirements of
Part I of the Fed. Power Act of Certain Categories of Small
Hydroelectric Power Projects with an Installed Capacity of 5
Megawatts or Less, 20 FERC ] 61,061, at 61,134 (1982) (``In the
context of their request for a stay . . . the burden is upon the
petitioners for such extraordinary action to show that significant
harm will be incurred and that the equities favor granting the
stay.''); Cities Serv. Oil Co., 53 F.P.C. 8, at 8-9 (1975) (``The
applicant for a stay has the burden of establishing, absent the
grant of such relief, it would be irreparably harmed.''); Columbia
Gulf Transmission Co., 37 F.P.C. 310, at 310 (1967) (``It is settled
that in order to establish a case for a grant of extraordinary
relief in the nature of a stay the applicant has the burden of
establishing that absent the grant of such relief it would be
irreparably injured.'') (citation omitted).
    \33\ SFPP, L.P., 166 FERC ] 61,211, at P 7 (2019) (``When
considering requests for a stay of Commission action, the
Commission's general policy is to refrain from granting stays in
order to assure definitiveness and finality in Commission
proceedings.''); see also Millennium Pipeline Co., L.L.C., 141 FERC
] 61,022, at P 13 (2012) (``Our general policy is to refrain from
granting stays in order to assure definiteness and finality in our
proceedings.'') (citation omitted); Midwestern Gas Transmission Co.,
116 FERC ] 61,182, at P 158 (2006) (``The Commission's general
policy is to refrain from granting stays of its orders, in order to
assure definiteness and finality in Commission proceedings.'')
(citation omitted); Guardian Pipeline, L.L.C., 96 FERC ] 61,204, at
61,869 (2001) (``The Commission's general policy is to refrain from
granting stays of its orders, in order to assure definiteness and
finality in Commission proceedings.'') (citations omitted); Bos.
Edison Co., 81 FERC ] 61,102, at 61,377 (1997) (``However, the
Commission follows a general policy of denying motions for stay
based on a need for finality in administrative proceedings.''); CMS
Midland, Inc., 56 FERC ] 61,177, at 61,630-31 (1991) (``We follow,
however, a general policy of denying motions for stays, based on the
need for definitiveness and finality in administrative
proceedings.'') (citations omitted); Holyoke Water Co., 30 FERC ]
61,283, at 61,575 (1985) (``The Commission has followed a general
policy of denying stays, unless a party has demonstrated that it
will be irreparably injured in the absence of a stay.'') (citations
omitted).
    \34\ Order 871-A, 174 FERC ] 61,050 at P 7.
    \35\ Christopher v. SmithKline Beecham Corp., 567 U.S. at 155
(citation omitted); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2421
(2019) (``And recall too that deference turns on whether an agency's
interpretation creates unfair surprise or upsets reliance
interests.'').
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III. The Commission's Decision is Bad Policy

    13. On top of being unlawful, the presumptive stay is also bad
policy. Contrary to the Commission's claims, the presumptive stay does
not strike the appropriate balance between pipelines and
landowners.\36\ There can be no ``balance'' when the Commission
violates clear Congressional mandate and attempts to withhold a
statutory right afforded to certificate holders, especially when
applied to applications already pending before the Commission.\37\
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    \36\ Order 871-B, 175 FERC ] 61,098 at P 49.
    \37\ See U.S. Senators Hoeven, Manchin, Barrasso, Tester,
Capito, Sinema, Cassidy, Cornyn, Cramer, Crapo, Cruz, Daines,
Hagerty, Hyde-Smith, Inhofe, Lankford, Marshall, Moran, Risch,
Rounds, Sullivan, Tillis, Thune, Toomey, and Wicker, Letter, Docket
No. PL18-1-000, at 1 (filed April 30, 2021) (``Delaying and moving
the regulatory goalposts on projects filed in good faith is contrary
to the otherwise equitable application of the Policy Statement that
all stakeholders expect. At a minimum, these projects should not be
subject to newly contemplated considerations that fall outside the
scope of the current Policy Statement or go beyond the Commission's
statutory authority.'').
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    14. Further, the Commission's attempt to downplay the industry's
concerns (including delayed project timelines, increased regulatory
uncertainty, and higher likelihood of project terminations) because
``any stay will last no longer than approximately 150 days following
the issuance of a certificate order'' \38\ is, to put it mildly,
unconvincing. Requiring the passage of four months before a certificate
can go into effect is significant, especially since the time required
for processing applications has already dramatically increased.\39\
``Many of the proposed projects before the Commission, some pending for
more than a year, are critical to addressing supply issues and
strengthening our energy infrastructure.'' \40\ 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. By way of
example, nearly two years ago, Dominion Energy Transmission, Inc.
withdrew its application for a certificate for its Sweden Valley
Project that it had filed seventeen months prior.
---------------------------------------------------------------------------

    \38\ Order 871-B, 175 FERC ] 61,098 at P 49.
    \39\ See, e.g., Northern Natural Gas Company February 5, 2021
Motion for an Expedited Order for the Northern Lights 2021 Expansion
Project under CP20-503 (requesting expedited action for application
filed on July 31, 2020); Iroquois Gas Transmission System, L.P.
January 26, 2021 Request for Prompt Issuance of Certificate of
Public Convenience and Necessity under CP20-48 (requesting expedited
action for application filed on February 3, 2020).
    \40\ U.S. Senator Hoeven, et al., Letter, Docket No. PL18-1-000,
at 1 (filed April 30, 2021) (emphasis added).
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    15. Finally, in yet another unexplained deviation from its past
precedent, the Commission holds that, in the event the Commission were
to grant rehearing for the purposes of requesting further briefing in
order to substantively reconsider a ruling, ``the original
authorization would no longer be in effect and the provisions of Order
No. 871 would no longer apply since there would be no final order
pursuant to which a notice to proceed could be issued.'' \41\ The
Commission provides no citation for this holding, the consequences of
which are that granting rehearing for purposes of further consideration
causes the original order to be vacated. Not only does the holding find
no support in NGA section 19, but it is also contrary to the decades of
Commission practice wherein the issuance of tolling orders for the
purposes of further consideration did not vacate the original order.
---------------------------------------------------------------------------

    \41\ Order No. 871-B, 175 FERC ] 61,098 at P 27.
---------------------------------------------------------------------------

    16. Further, this holding will wreak havoc on the Commission's
administration of other provisions under the NGA and FPA. For example,
if the Commission requests further briefing in response to a request
for rehearing of an NGA section 4 or FPA section 205 order on a
proposed rate change, what rate should be charged? Or if the Commission
requests further briefing on a request for rehearing of a complex order
regarding market design, what rules apply to an auction that occurs
before the Commission rules on the rehearing request? Would a request
for further briefing vacate a Commission order under NGA section 5 or
FPA section 206 finding that a certain rate or tariff provision is not
just and reasonable and reinstate the prior rate or tariff provision?
Is it only orders issued pursuant to NGA section 7 that are vacated
when the Commission requests further briefing and, if so, what is the
statutory basis for such a distinction? The Commission appears not to
have even considered these far-reaching consequences of its holding and
provides no explanation as to how these and many other difficult issues
should be dealt with.

IV. Conclusion

    17. In the past three months, with barely any warning or process,
the Commission has called every existing certificate into question in
Algonquin, reversed years of significance analysis in Northern, and
written the right to seek eminent domain upon receipt of a certificate
out of the Natural Gas Act. As the Commission continues issuing such
unlawful and ill-conceived orders, we will see further severe
curtailment of investment in and construction of critical natural gas
infrastructure which will inevitably drive up prices and gravely
jeopardize reliability.
    For these reasons, I respectfully dissent.

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James P. Danly,

Commissioner.

Department of Energy

Federal Energy Regulatory Commission

Limiting Authorizations To Proceed With Construction Activities Pending
Rehearing

CHRISTIE, Commissioner, concurring:

    1. I write separately to add the following.
    2. Last year the Commission issued Order No. 871.\1\ Just a few
weeks later, the D.C. Circuit issued its ruling in Allegheny.\2\
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    \1\ Order No. 871, 171 FERC ] 61,201(2020).
    \2\ Allegheny Defense Project v. FERC, 964 F.3d 1 (D.C. Cir.
2020) (en banc) (Allegheny).
---------------------------------------------------------------------------

    3. The combination created deep uncertainty, as well as the threat
under

Order No. 871, that a certificated facility could have its notice to
proceed with construction withheld potentially for an unlimited period
of time while requests for rehearing remained pending before the
Commission.
    4. Today's order is necessary to address the present unsustainable
situation. While it may not be perfect nor exactly how I alone would
resolve the uncertainties and threats created by Order No. 871, it does
represent an acceptable compromise, consistent with the applicable law.
    5. Notably, it puts clear time limits--where there are none now
under Order No. 871--on how long the Commission is required to withhold
a notice to proceed with construction while the Commission considers a
request for rehearing.
    6. Second, it sets forth a policy for future cases--not mandatory,
but subject to the facts and circumstances of each case--that a
property owner opposing the involuntary use of eminent domain should be
protected from a seizure of his or her property during a reasonable
period of time while the Commission is still considering requests for
rehearing; however, this period will also be subject to the same time
limits as the withholding of the notice to proceed with construction.
    7. Third, nothing in today's order will prevent the developer from
continuing expeditiously with all development activities that do not
involve construction or the use of eminent domain against unwilling
property owners. Voluntary land acquisition is unaffected by this
order.
    8. I understand the desire of the dissent simply to repeal Order
No. 871 with nothing more,\3\ but that is not a realistic prospect; put
bluntly, it is not going to happen. Rather than allow the current
unsustainable status quo to continue, under present circumstances I
believe this order represents a realistic path forward. If it is not
administered fairly or does not bring the clarity and certainty needed,
it can be revisited.
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    \3\ Danly Dissent at PP 1-2.
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    Accordingly, I respectfully concur.

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Mark C. Christie,
Commissioner.

[FR Doc. 2021-09829 Filed 5-12-21; 8:45 am]
BILLING CODE 6717-01-P