Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 43077 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Incorporation by reference, 

Safety. 

The Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA amends 14 CFR part 39 as 

follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

■ 1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

■ 2. The FAA amends § 39.13 by adding 

the following new airworthiness 

directive: 

2021–17–01 Austro Engine GmbH: 

Amendment 39–21684; Docket No. 

FAA–2021–0654; Project Identifier 

MCAI–2021–00682–E. 

(a) Effective Date 

This airworthiness directive (AD) is 

effective August 23, 2021. 

(b) Affected ADs 

None. 

(c) Applicability 

This AD applies to Austro Engine GmbH 

E4 and E4P model diesel piston engines. 

(d) Subject 

Joint Aircraft System Component (JASC) 

Code 8550, Reciprocating Engine Oil System. 

(e) Unsafe Condition 

This AD was prompted by a report of oil 

pressure loss on an E4 model diesel piston 

engine. The FAA is issuing this AD to 

prevent failure of the engine. The unsafe 

condition, if not addressed, could result in 

failure of the engine, in-flight shutdown, and 

loss of the airplane. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Required Actions 

Before further flight after the effective date 

of this AD, remove the oil pump, part 

number (P/N) E4A–50–000–BHY, with a 

serial number (S/N) listed in paragraph 1.2., 

Engines Affected, Tables 2 and 3, of Austro 

Engine GmbH Mandatory Service Bulletin 

No. MSB–E4–031/1, Revision No. 1, dated 

July 1, 2021 (the MSB), from service and 

replace with a part eligible for installation 

using the Accomplishment/Instructions, 

paragraph 2.2.1 or paragraph 2.2.2., of the 

MSB, as applicable. 

(h) No Communication or Reporting 

Requirements 

The instructions to contact the 

manufacturer and report information to the 

manufacturer in the Accomplishment/ 

Instructions, paragraph 2.2, of the MSB, are 

not required by this AD. 

(i) Installation Prohibition 

After the effective date of this AD, do not 

install onto any engine an oil pump with P/ 

N E4A–50–000–BHY and an S/N listed in 

paragraph 1.2., Engines Affected, Tables 2 

and 3, of the MSB. 

(j) Definitions 

For the purpose of this AD, a ‘‘part eligible 

for installation’’ is an oil pump that is not P/ 

N E4A–50–000–BHY or an oil pump P/N 

E4A–50–000–BHY and an S/N that is not 

listed in paragraph 1.2., Engines Affected, 

Tables 2 and 3, of the MSB. 

(k) Special Flight Permit 

Special flight permits, as described in 

Section 21.197 and Section 21.199 of the 

Federal Aviation Regulations (14 CFR 21.197 

and 21.199), are subject to the requirements 

of paragraph (k)(1) and (2) of this AD. 

(1) Operators of a twin-engine airplane that 

has one or two Model E4 engines in 

configuration ‘‘–B’’ or ‘‘–C’’ or Model E4P 

engines installed may perform a one-time 

non-revenue ferry flight to a location where 

the engine can be removed from service. This 

ferry flight must be performed with only 

essential flight crew. 

(2) All other ferry flights are prohibited. 

(l) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, ECO Branch, FAA, has 

the authority to approve AMOCs for this AD, 

if requested using the procedures found in 14 

CFR 39.19. In accordance with 14 CFR 39.19, 

send your request to your principal inspector 

or local Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the ECO Branch, send it to 

the attention of the person identified in 

Related Information. You may email your 

request to: ANE-AD-AMOC@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the local flight standards district office/ 

certificate holding district office. 

(m) Related Information 

(1) For more information about this AD, 

contact Wego Wang, Aviation Safety 

Engineer, ECO Branch, FAA, 1200 District 

Avenue, Burlington, MA 01803; phone: (781) 

238–7134; fax: (781) 238–7199; email: 

wego.wang@faa.gov. 

(2) Refer to European Union Aviation 

Safety Agency (EASA) AD 2021–0143–E, 

dated June 16, 2021, for more information. 

You may examine the EASA AD in the AD 

docket at https://www.regulations.gov by 

searching for and locating Docket No. FAA– 

2021–0654. 

(n) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless the AD specifies otherwise. 

(i) Austro Engine Mandatory Service 

Bulletin No. MSB–E4–031/1, Revision No. 1, 

dated July 1, 2021. 

(ii) [Reserved] 

(3) For Austro Engine service information 

identified in this AD, you may contact Austro 

Engine GmbH, Rudolf-Diesel-Strasse 11, 2700 

Weiner Neustadt, Austria; phone: +43 2622 

23000 2525; website: www.austroengine.at. 

(4) You may view this service information 

at the FAA, Airworthiness Products Section, 

Operational Safety Branch, 1200 District 

Avenue, Burlington, MA 01803. For 

information on the availability of this 

material at the FAA, call (781) 238–7759. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, 

email: fr.inspection@nara.gov, or go to: 

https://www.archives.gov/federal-register/cfr/ 

ibr-locations.html. 

Issued on August 2, 2021. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2021–16895 Filed 8–4–21; 11:15 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 153 and 157 

[Docket No. RM20–15–002; Order No. 871– 

C] 

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. 

SUMMARY: The Federal Energy 

Regulatory Commission addresses 

requests for rehearing and clarification 

of Order No. 871–B. 

DATES: The effective date of the 

document published on May 13, 2021 

(86 FR 26,150), is confirmed: 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, (202) 502–8671, tara.dijohn@

ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 


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43078 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 

1 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871–B, 86 FR 26150 (May 13, 2021), 175 FERC 

¶ 61,098 (2021). 

2The Commission issued its June 9, 2020 Order 

No. 871 to preclude the issuance of authorizations 

to proceed with construction activities with respect 

to orders granting authorizations under sections 3 

and 7 of the Natural Gas Act (NGA) 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. Limiting Authorizations to 

Proceed with Construction Activities Pending 

Rehearing, Order No. 871, 85 FR 40113 (Jul. 06, 

2020), 171 FERC ¶ 61,201 (2020). 

3 15 U.S.C. 717f(c). 

4The Enbridge Gas Pipelines include Algonquin 

Gas Transmission, LLC; Big Sandy Pipeline, LLC; 

Bobcat Gas Storage; East Tennessee Natural Gas, 

LLC; Garden Banks Gas Pipeline, LLC, Market Hub 

Partners Holding, LLC; Mississippi Canyon Gas 

Pipeline, LLC; Saltville Gas Storage Company 

L.L.C.; and Texas Eastern Transmission, LP. The 

Enbridge Gas Pipelines also include natural gas 

companies in which affiliates of the Enbridge Gas 

Pipelines own a joint venture interest, including 

Alliance Pipeline L.P., Gulfstream Natural Gas 

System, L.L.C.; Maritimes & Northeast Pipeline, 

L.L.C.; Nautilus Pipeline Company, L.L.C., NEXUS 

Gas Transmission, LLC; Sabal Trail Transmission, 

LLC; Southeast Supply Header, LLC; and Steckman 

Ridge, LP. 

5 964 F.3d 1 (D.C. Cir. 2020) (en banc) 

(Allegheny). 

6 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.’’). 

7Allegheny, 964 F.3d at 16–17. The Commission 

is not changing the outcome of Order No. 871–B. 

See Smith Lake Improvement & Stakeholders Ass’n 

v. FERC, 809 F.3d 55, 56–57 (D.C. Cir. 2015). 

8Order No. 871 also revised § 153.4 (general 

requirements for NGA section 3 applications) of the 

Commission’s regulations to incorporate a crossreference to § 157.23. 

9 964 F.3d 1. 

10 15 U.S.C. 717r(a). 

11Allegheny, 964 F.3d at 18–19. 

12See id. at 13 (quoting 15 U.S.C. 717r(a)). 

Paragraph 

No. 

I. Background ....................................................................................................................................................................................... 3 

II. Discussion ....................................................................................................................................................................................... 10 

A. Rule Limiting Construction Authorizations Pending Rehearing ............................................................................................... 11 

1. Opposition to Project Need ............................................................................................................................................... 11 

2. Amendment Orders Authorizing Mid-Construction Changes ............................................................................................ 14 

3. Post-Allegheny Rehearing Treatment ............................................................................................................................... 18 

4. Additional Clarifications to Regulation Text ...................................................................................................................... 24 

5. Effective Date of Construction Authorization Issuances ................................................................................................... 28 

6. Procedural Nature of Rule ................................................................................................................................................ 30 

B. Policy of Presumptively Staying Section 7(c) Certificate Orders ............................................................................................ 33 

1. Policy Does Not Violate NGA or APA .............................................................................................................................. 34 

2. Qualifying Landowner Rehearing Requests ..................................................................................................................... 40 

3. Commitment to Refrain from Exercise of Eminent Domain ............................................................................................. 42 

4. Claims of Burden Shifting ................................................................................................................................................. 44 

5. Consideration of Industry Concerns ................................................................................................................................. 47 

6. Landowner Ability to Seek Judicial Stay ........................................................................................................................... 49 

C. Commission Determination ...................................................................................................................................................... 51 

III. Document Availability ..................................................................................................................................................................... 52 

IV. Dates .............................................................................................................................................................................................. 55 

1. On May 4, 2021, the Federal Energy 

Regulatory Commission (Commission) 

issued an order addressing arguments 

raised on rehearing and clarification, 

and setting aside, in part, its prior Order 

No. 871.1 Order No. 871–B revised the 

rule previously adopted by the 

Commission in Order No. 871 2 to 

narrow the scope of its application and 

to incorporate a time limitation for the 

Commission to preclude issuances of 

authorizations to proceed with 

construction activities. Order No. 871– 

B also announced a new general policy 

of presumptively staying certificate 

orders issued pursuant to section 7(c) of 

the Natural Gas Act (NGA) 3 during the 

30-day rehearing period and pending 

Commission resolution of any timely 

requests for rehearing filed by 

landowners. On June 3, 2021, the 

Interstate Natural Gas Association of 

America (INGAA), the Enbridge Gas 

Pipelines (Enbridge),4 and Mountain 

Valley Pipeline, LLC (Mountain Valley) 

requested clarification and rehearing of 

Order No. 871–B. 

2. Pursuant to Allegheny Defense 

Project v. FERC,5 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,6

we are modifying the discussion in 

Order No. 871–B and continue to reach 

the same result in this proceeding, as 

discussed below.7

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 

§ 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.8

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.9 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,10

which enables a rehearing applicant to 

seek judicial review after thirty days of 

agency inaction.11 The court explained 

that, to prevent an application for 

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.12

6. Shortly thereafter, on July 9, 2020, 

the Commission received three timely 


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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 43079 

13 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871–A, 86 FR 7643 (Feb. 1, 2021), 174 FERC 

¶ 61,050 (2021). 

14See Order No. 871–B, 175 FERC ¶ 61,098 at PP 

8–9 (describing briefs received). 

15Order No. 871–B, 175 FERC ¶ 61,098 at PP 14, 

30. 

16 Id. PP 26, 30. 

17 Id. PP 43–51. 

18See id. PP 46, 51. 

19 INGAA’s June 3, 2021 Request for Clarification 

and Rehearing (INGAA Rehearing); Enbridge’s June 

3, 2021 Request for Clarification and Rehearing 

(Enbridge Rehearing). 

20Mountain Valley’s June 3, 2021 Request for 

Clarification or, in the Alternative, Rehearing 

(Mountain Valley Rehearing). 

21Order No. 871–B, 175 FERC ¶ 61,098 at P 30 

(emphasis in the original reflecting adopted 

revisions to § 157.23). 

22See INGAA Rehearing at 9; Enbridge Rehearing 

at 13–14. 

23 INGAA Rehearing at 10, 11. 

24Enbridge Rehearing at 13. 

25Order No. 871–B, 175 FERC ¶ 61,098 at P 15. 

26 Id. 

27 Id. (emphasis added). 

28See INGAA Rehearing at 11–20; Mountain 

Valley Rehearing at 5–9. 

29See INGAA Rehearing at 13–15 (providing 

examples of prior variance approvals allowing: 

temporary modification to location of temporary 

access road to accommodate imminent longwall 

mining activities in vicinity of construction area, a 

minor pipeline route shift to avoid an obstruction 

placed on approved pipeline route, modifications to 

pipeline route and road crossing method due to 

unanticipated subsurface conditions). 

requests for clarification and rehearing 

of Order No. 871. To facilitate 

reconsideration of Order No. 871 and 

ensure a complete record for further 

action, the Commission in Order No. 

871–A subsequently provided interested 

parties an opportunity to comment on 

the arguments raised on rehearing and 

specific questions posed by the 

Commission.13 In response, the 

Commission received twelve initial 

briefs and five reply briefs from a 

variety of stakeholders, including states, 

landowners, natural gas companies, and 

a consortium of public interest 

organizations.14

7. In consideration of the arguments 

raised on rehearing and in the briefs, the 

Commission in Order No. 871–B revised 

§ 157.23 of its regulations to provide 

that the rule prohibiting the issuance of 

construction authorizations pending 

rehearing will apply only when a 

request for rehearing raises issues 

reflecting opposition to project 

construction, operation, or need.15

Order No. 871–B further revised the rule 

to provide that the rule’s restriction on 

issuing construction authorizations 

while a qualifying rehearing request 

remains pending will expire 90 days 

following the date that such request may 

be deemed denied by operation of law 

under NGA section 19(a).16

8. In addition, the Commission in 

Order No. 871–B announced 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.17 We 

explained that this policy will be 

applied on a particularized basis, 

subject to certain exceptions and, if 

imposed, any stay would be lifted no 

later than 90 days following the date 

that a qualifying request for rehearing 

may be deemed denied by operation of 

law.18

9. On June 3, 2021, INGAA and 

Enbridge filed requests for clarification 

and rehearing of Order No. 871–B.19 On 

the same day, Mountain Valley filed a 

request for clarification, or, in the 

alternative, rehearing.20

II. Discussion 

10. INGAA’s and Enbridge’s petitions 

include several requests for 

clarification, or, in the alternative, 

rehearing of the rule, as revised in Order 

No. 871–B, and of the Commission’s 

announcement that it would 

prospectively stay certain section 7(c) 

certificate orders pending rehearing. 

Mountain Valley’s petition is focused on 

a single issue regarding the rule’s 

application: whether the rule would 

apply if rehearing is sought of an 

amendment order approving a minor 

mid-construction change that would 

typically be submitted as a variance 

request. Below, we first respond to the 

various requests for clarification or 

rehearing of the revised rule and then to 

requests for clarification or rehearing of 

the Commission’s policy of staying 

section 7(c) certificate orders pending 

rehearing. 

A. Rule Limiting Construction 

Authorizations Pending Rehearing 

1. Opposition to Project Need 

11. In Order No. 871–B, the 

Commission revised § 157.23(b) of its 

regulations 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).21

12. INGAA and Enbridge request that 

the Commission clarify the meaning of 

‘‘opposition to project . . . need.’’ 

Specifically, INGAA and Enbridge urge 

the Commission to clarify that this 

phrase refers only to situations in which 

a project opponent claims that there is 

insufficient evidence of market need for 

a project under the NGA section 7 

economic balancing test.22 INGAA 

maintains that ‘‘virtually any generic 

opposition to a project’’ could be 

viewed as an argument that the new 

facilities are not ‘‘needed,’’ and that if 

not clarified, this phrasing could 

prohibit the issuance of construction 

authorization whenever any rehearing 

request is filed by a party generally 

opposed to development.23 Similarly, 

Enbridge posits that parties could delay 

construction for months by claiming on 

rehearing that a project is not needed 

because of ‘‘broad climate change 

concerns.’’ 24

13. We deny INGAA’s and Enbridge’s 

requests for clarification on this issue. 

The petitioners’ interpretation construes 

the language of the rule too narrowly. 

Adopting this 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.’’ 25 The Commission has 

already stated that we did not intend 

such a result.26 We continue to find 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.’’ 27

2. Amendment Orders Authorizing MidConstruction Changes 

14. INGAA and Mountain Valley seek 

clarification that the rule does not apply 

to amendment orders that authorize 

limited changes while project 

construction is ongoing, which the they 

refer to as ‘‘mid-construction changes,’’ 

or, in the alternative, rehearing.28

INGAA explains that mid-construction 

changes—such as construction method 

changes, temporary workspaces 

changes, and minor route realignments 

that do not involve new facilities or new 

landowners—are traditionally filed by 

project developers as variance 

requests.29 However, INGAA notes that 


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43080 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 

30See, e.g., Mountain Valley Rehearing at 5 

(describing its amendment application submitted in 

Docket No. CP21–57–000 requesting Commission 

authorization to change the crossing method for 

specific wetlands and waterbodies to be crossed by 

the Mountain Valley Pipeline Project from open-cut 

crossings to one of several trenchless methods). 

Nothing in this order prejudges action on the 

amendment application. 

31 INGAA Rehearing at 15–16 (noting that the 

term ‘‘facilities’’ refers to the physical plant 

approved by the Commission in the original 

certificate order); Mountain Valley Rehearing at 5. 

32 INGAA Rehearing at 18–20. 

33Order No. 871–B, 175 FERC ¶ 61,098 at P 17. 

34 Id. P 18. 

35See, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 

(1983) (‘‘It is true that a rulemaking ‘cannot be 

found wanting simply because the agency failed to 

include every alternative device and thought 

conceivable by the mind of man . . . regardless of 

how uncommon or unknown that alternative may 

have been[.]’’) (quoting Vt. Yankee Nuclear Power 

Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 

551 (1978)). 

36Enbridge Rehearing at 9–10. 

37 Id. at 9. 

38 Id. at 10. 

39 Id. at 10–11. 

40 INGAA Rehearing at 20–23. 

41See id. at 20–22. 

42 Id. at 22. 

43 Id. 

44See INGAA Rehearing at 23; Enbridge 

Rehearing at 10. 

45See INGAA Rehearing at 23 (citing FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 515 (2009) 

(agencies must ‘‘provide reasoned explanation’’ and 

show good reasons for a change in position, but 

‘‘need not demonstrate to a court’s satisfaction that 

the reasons for the new policy are better than the 

reasons for the old one’’) (emphasis in the original)); 

Enbridge Rehearing at 10 (same). 

46See Order No. 871–B, 175 FERC ¶ 61,098 at PP 

19–29. 

47 Id. P 27 (citing 964 F.3d at 16). 

the Commission can convert midconstruction changes submitted as a 

variance request into certificate 

amendment proceedings. In addition, a 

project developer may on its own accord 

decide to seek approval of certain midconstruction changes by filing an 

amendment application rather than a 

variance request.30 INGAA and 

Mountain Valley seek assurance that the 

rule would not apply to amendment 

orders authorizing mid-construction 

changes that would traditionally be 

approved through the variance process. 

To support this request, INGAA and 

Mountain Valley point to the language 

of § 157.23’s introductory text, which 

references orders authorizing ‘‘the 

construction of new natural gas 

transportation, export, or import 

facilities,’’ and explain that the type of 

mid-construction amendment 

proceedings for which it seeks 

clarification do not involve new 

facilities.31

15. If the Commission declines to 

grant clarification, INGAA and 

Mountain Valley request rehearing of 

this issue. If the Commission agrees that 

the rule does not apply to orders 

authorizing limited mid-construction 

changes, INGAA further asks the 

Commission to clarify that it retains 

discretion to issue an authorization to 

proceed with construction during the 

30-day rehearing period following such 

an order.32

16. In Order No. 871–B, we explained 

that the rule limiting construction 

authorizations would not apply to a 

request for rehearing of an non-initial 

order that merely implements the terms, 

conditions, or 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.’’ 33 With respect to amendment 

orders, the Commission stated that the 

rule 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.34

17. The Commission has already 

provided substantial guidance in 

response to INGAA’s previous requests 

for clarification regarding the rule’s 

application to non-initial and 

amendment orders. The scenario now 

posed by INGAA and Mountain Valley 

on rehearing of Order No. 871–B is a 

slightly different factual scenario. But 

the Commission is not required to 

identify and address every conceivable 

permutation of facts under which 

questions about the rule’s application 

may arise.35 Therefore, it is premature to 

address the possible range of future 

mid-construction changes. As a general 

matter, we think it likely that the rule 

would not apply if rehearing is sought 

of an amendment order approving a 

mid-construction change that is 

generally consistent with the terms and 

conditions of the original authorization 

order and does not involve new 

facilities or new landowners. However, 

we will consider the circumstances of 

each request on a case-by-case basis, 

and will indicate in the Commission’s 

order in each case whether the rule 

applies. 

3. Post-Allegheny Rehearing Treatment 

18. Enbridge contends that the 

Commission erred by determining that 

an order granting rehearing for further 

proceedings would vacate the certificate 

authorization,36 arguing that the 

Commission cannot revoke certificate 

authority merely by issuing an 

interlocutory order granting rehearing or 

establishing a hearing, briefing 

schedule, investigation or other similar 

proceeding, but rather, must make a 

specific finding on the issues with the 

requisite support.37 According to 

Enbridge, an interlocutory order 

revoking a certificate would improperly 

place the certificate holder in ‘‘legal 

limbo’’ as an aggrieved party unable to 

seek rehearing and appeal of the 

interlocutory action.38 Enbridge urges 

the Commission to establish a specific 

timeframe for issuance of a substantive 

order following a grant of rehearing 

subject to further proceedings or to set 

a deadline after which a construction 

authorization may issue.39

19. INGAA takes a different tack, 

suggesting that the Commission adopt a 

case-by-case approach to determining 

whether an initial order will be vacated 

when rehearing is granted.40

Specifically, INGAA asks the 

Commission to clarify that it did not 

adopt a blanket rule that a grant of 

rehearing for further procedures means 

the entire underlying order is vacated,41

that it will instead employ a case-bycase approach for determining whether 

grant of rehearing would result in 

vacatur,42 and that the entire certificate 

authorization will not be vacated if the 

Commission seeks additional briefing or 

information on one or more targeted 

issues.43

20. Both INGAA and Enbridge note 

that the Commission’s prior practice of 

issuing tolling orders did not result in 

vacatur of underlying order.44 Thus, 

despite changing its procedures for 

handling requests for rehearing 

following Allegheny, INGAA and 

Enbridge argue that the Commission has 

departed from longstanding practice and 

failed to acknowledge such departure.45

21. In response to INGAA’s request, 

Order No. 871–B posited four postAllegheny scenarios that could arise 

following the filing of a request for 

rehearing to explain when such a 

request would remain pending before 

the Commission and, thus, preclude the 

issuance of a construction 

authorization.46 The fourth scenario 

addressed a situation contemplated by 

the Allegheny court, where 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.’’ 47 In 

Order No. 871–B, the Commission 

stated that ‘‘[u]nder those 

circumstances, i.e., where the 

Commission grants rehearing without 

issuing a final order, the original 


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48 Id. 

49 Id. 

50 Id. P 28. 

51 Id. 

52Allegheny, 964 F.3d at 16. 

53 INGAA Rehearing at 24. 

54 Id. at 24–25. 

55 Id. at 25. 

56 Id. at 28–29. 

57 Id. at 28 (citing Reuters Ltd. v. FCC, 781 F.2d 

946, 950 (D.C. Cir. 1986) (finding that FCC failed 

to follow its rules and regulations in resolving 

dispute between competing applicants for 

microwave radio station licenses); Erie Boulevard 

Hydropower, LP v. FERC, 878 F.3d 258, 269 (D.C. 

Cir. 2017) (stating that ‘‘an agency action fails to 

comply with its regulations, that action may be set 

aside as arbitrary and capricious’’ and that ‘‘[a]n 

agency decision that departs from agency precedent 

without explanation is similarly arbitrary and 

capricious.’’) (citations omitted); Kisor v. Wilkie, 

139 S. Ct. 2400, 2415 (2019) (explaining that when 

there is ‘‘only one reasonable construction of a 

regulation,’’ Auer deference is not appropriate and 

a court must not defer to any other reading of the 

regulation); 5 U.S.C. 706(2)). 

58Order No. 871–B, 175 FERC ¶ 61,098 at P 29. 

59Enbridge Rehearing at 11–12. 

60 Id. at 12. 

61See INGAA Rehearing at 25–28. 

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.’’ 48

22. As an initial matter, Enbridge and 

INGAA err to the extent that they 

suggest the Commission determined that 

original authorization orders necessarily 

would be vacated or revoked by an 

interlocutory order granting rehearing 

for further procedures, as described by 

the Allegheny court. We merely stated, 

in response to a prior request for 

clarification from INGAA, that under 

the specified circumstances 

contemplated by the Allegheny court, 

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.’’ 49 We agree 

with INGAA that a case-by-case 

approach is necessary for the 

Commission to determine the effect that 

a grant of rehearing for further 

procedures would have on the 

underlying authorization. In the order 

granting rehearing for further 

procedures, we will indicate the order’s 

effect on the underlying authorization. 

23. The Commission previously 

declined a request to establish a 

deadline for issuing a final merits order 

following a grant of rehearing for further 

procedures.50 As we stated at the time, 

timelines associated with supplemental 

briefing or evidentiary submissions may 

vary based on the complexity of the 

issues warranting further procedures.51

Thus, we continue to find that a caseby-case approach is warranted in the 

event that the Commission grants 

rehearing because it ‘‘need[s] additional 

time to allow for supplemental briefing 

or further hearing processes.’’ 52

4. Additional Clarifications to 

Regulation Text 

24. INGAA argues that § 157.23(b) 

should be revised to add the phrase ‘‘the 

earliest of the time at which,’’ as 

italicized below: 

If a timely request for rehearing raising issues 

reflecting opposition to project construction, 

operation, or need is filed, until the earliest 

of the time at which: (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).53

INGAA contends that this addition 

would clarify and better reflect what it 

understands to be the Commission’s 

intent, as reflected by the Commission’s 

use of the conjunction ‘‘or’’ and 

references throughout Order No. 871–B 

that suggest that the restriction on 

issuance of construction authorizations 

will apply until the earliest of the three 

‘‘triggering events’’ contemplated by the 

rule.54 If the suggested change is not 

adopted, INGAA fears that project 

opponents may argue that no 

authorization to proceed with 

construction should be issued until the 

occurrence of the later of the three 

‘‘triggering events’’ comes to pass.55

25. INGAA is correct in its 

interpretation that a construction 

authorization may be issued upon the 

earliest occurrence of the three 

triggering events enumerated in the 

regulation. However, we decline to 

further revise the regulatory language. 

As currently drafted, the rule uses the 

conjunction ‘‘or’’ which serves to 

distinguish the three scenarios as 

alternatives and signals that a 

construction authorization may issue 

once the earliest of the three events 

occurs. 

26. In addition, INGAA renews its 

request that the Commission revise 

§ 157.23 to expressly state that the rule 

may be waived for good cause shown.56

INGAA urges the Commission to 

consider cases finding in other contexts 

that agencies’ authority to waive their 

own rules is not unlimited and that 

agencies are bound by, and courts must 

enforce, the unambiguous terms of 

regulations.57

27. The Commission previously 

declined to adopt INGAA’s suggestion 

to incorporate into the rule an explicit 

waiver provision, finding it retains 

authority to waive its own regulations.58

INGAA raises no new arguments that 

cause us to reconsider that decision. 

5. Effective Date of Construction 

Authorization Issuances 

28. Enbridge urges the Commission to 

clarify that its staff may issue 

authorizations to proceed with 

construction prior to the deadline 

established by the rule so long as the 

authorization does not become effective 

until the occurrence of the earliest of the 

three triggering events enumerated in 

the rule (i.e., the rehearing request is no 

longer pending before the Commission, 

the record of the proceeding is filed 

with the court of appeals, or 90 days 

after the date that the request may be 

deemed denied).59 Allowing project 

developers to obtain advance 

confirmation from Commission staff that 

all preconstruction conditions have 

been satisfied would, according to 

Enbridge, help project developers set 

and meet construction milestones, 

lessen the chance of additional 

regulatory delays, and would reflect the 

Commission’s articulated goal of 

achieving an appropriate balance of 

interests.60

29. The Commission denies the 

requested clarification. We believe that, 

in practice, a conditional construction 

authorization of the nature Enbridge 

suggests has the potential to create 

uncertainty for project developers, 

stakeholders, and Commission staff 

alike as to the effective date of the 

authorization, which outweighs the 

purported benefits that Enbridge 

identifies. Moreover, the advance notice 

contemplated by Enbridge fails to 

account for a change in status of a 

project developer’s compliance with the 

terms of its section 7 certificate or 

section 3 authorization that could arise 

in the interim. We believe that a cleaner 

approach is for the Commission to issue 

authorizations to proceed with 

construction once all requisite 

conditions have been satisfied and the 

rule’s prohibition on such issuance has 

elapsed. 

6. Procedural Nature of Rule 

30. INGAA urges the Commission to 

reconsider its determination that Order 

No. 871–B is a procedural rule not 

subject to the Administrative Procedure 

Act’s (APA) notice and comment 

procedures.61 Where a project developer 

has already fulfilled the necessary 

prerequisites for beginning construction, 

INGAA argues that the Commission 

failed to explain how it has ‘‘unfettered 

discretion’’ to refuse to allow 

construction of facilities it has already 

found required by the public 


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62 Id. at 26. 63See id. at 26–27; Order No. 871–B, 175 FERC 

¶ 61,098 at P 37. 

64 INGAA Rehearing at 27. 

65See Order No. 871–B, 175 FERC ¶ 61,098 at PP 

35–39. 

66 Id. at P 35 (citing See Am. Hosp. Ass’n v. 

Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987)). 

67 Id. (explaining that nothing in the NGA or the 

Commission’s regulations, other than the rule 

adopted in Order No. 871, addresses the timing of 

authorizations to commence construction or 

prevents the Commission from acting on rehearing 

prior to issuing an authorization to proceed with 

construction). 

68See, e.g., Batterton v. Marshall, 648 F.2d 694, 

707 (D.C. Cir. 1980) (‘‘A useful articulation of the 

[rule of agency organization, procedure, or practice] 

exemption’s critical feature is that it covers agency 

actions that do not themselves alter the rights or 

interests of parties, although it may alter the 

manner in which the parties present themselves or 

their viewpoints to the agency.’’). 

69Order No. 871, 171 FERC ¶ 61,201 at P 11. 

70See Order No. 871–B, 175 FERC ¶ 61,098 at P 

37. 

71 INGAA Rehearing at 29–31; Enbridge 

Rehearing at 19–21. 

72See INGAA Rehearing at 29–30 (citing Civil 

Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 

316, 328 (1961); Cont’l Air Lines, Inc. v. CAB, 522 

F.2d 107, 115 (D.C. Cir. 1974)); Enbridge Rehearing 

at 19–21. 

73 INGAA Rehearing at 31 (quoting 15 U.S.C. 

717r(c)); see Enbridge Rehearing at 16–19. 

74 INGAA Rehearing at 31. INGAA notes that the 

word specific means ‘‘[o]f, relating to, or 

designating a particular . . . thing’’ and that if the 

Commission wants to grant a stay, it must do so 

based on the particular facts of a particular case. Id. 

at 32. 

75 Id. 

76 Id. at 33 (citing 5 U.S.C. 705). 

77 15 U.S.C. 717o; see Pub. Util. Dist. No. 1 of 

Okanogan Cty., Wash., 162 FERC ¶ 61,040, at P 13 

(2018) (Okanogan PUD) (addressing analogous 

provision of the Federal Power Act (FPA)) (citing 

16 U.S.C. 825h; Kings River Conservation Dist., 30 

FERC ¶ 61,151, at 61,320 (1985) (‘‘The 

Commission’s authority to issue a stay of a license 

order is derived primarily from Section 309 of the 

[FPA]’’); Keating v. FERC, 569 F.3d 427, 429 (D.C. 

Cir. 2009) (noting that FERC has stayed the 

commencement of construction deadline pursuant 

to section 309 of the FPA)). The courts have held 

that the NGA and FPA should be interpreted 

consistently. See Env’tl Action v. FERC, 996 F.2d 

401, 410 (D.C. Cir. 1993); Tenn. Gas Pipeline Co. 

v. FERC, 860 F.2d 446, 454 (D.C. Cir. 1988); see also 

Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 

(1981). 

convenience and necessity.62 INGAA 

also characterizes as misleading the ‘‘85- 

day’’ figure—cited in Order No. 871–B 

to illustrate that over a five year period, 

on average, 85 days elapsed between 

issuance of an initial order and issuance 

of an authorization to proceed with 

construction—for it fails to account for 

project differences and assumes that 

developers rely on average figures when 

planning project construction and inservice deadlines.63 According to 

INGAA, the rule ‘‘dramatically changes’’ 

the timeline for when a project can be 

placed in service and ‘‘implicate[s] the 

investment-backed expectations of all 

project developers.’’ 64

31. The Commission previously 

responded to concerns that the rule 

adopted in Order No. 871 was not a 

procedural rule and thus should have 

been issued following the APA’s notice 

and comment requirements.65 As we 

explained, the APA’s notice and 

comment procedures were not required 

because the rule neither substantially 

‘‘alters the rights or interests’’ of 

regulated natural gas companies nor 

changes the agency’s substantive 

outcomes.66 We also explained that 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.67 INGAA’s 

arguments on rehearing do not 

demonstrate an error in the 

Commission’s analysis.68

32. Order No. 871 is premised on the 

Commission’s desire to balance its 

commitment to expeditiously respond 

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.69 In Order 

No. 871–B, we cited the average 85-day 

span between an initial authorizing 

order and issuance of a construction 

authorization only to illustrate that in 

many cases construction cannot begin 

immediately upon issuance of an order 

authorizing new facilities under NGA 

sections 3 or 7.70

B. Policy of Presumptively Staying 

Section 7(c) Certificate Orders 

33. In Order No. 871–B, the 

Commission announced a new 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). We explained that this policy will 

not apply where the pipeline developer 

has, at the time of the certificate order, 

already acquired all necessary property 

interests or where no landowner 

protested the section 7 application. In 

addition, we explained that the stay will 

automatically lift following the close of 

the 30-day period for seeking rehearing 

if no landowner files a timely request 

for rehearing of the certificate order. As 

we explained, this policy 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 in a timely manner. 

1. Policy Does Not Violate NGA or APA 

34. INGAA and Enbridge argue that 

the stay policy is unlawful, under the 

NGA and the APA, because it seeks to 

achieve an objective—conditioning a 

certificate holder’s eminent domain 

authority—that is directly prohibited by 

statute through indirect means.71

INGAA and Enbridge contend that 

because the Commission has no 

authority to deny or restrict certificate 

holders from exercising the power of 

eminent domain, the Commission’s new 

policy of presumptively staying its 

section 7 certificate orders is an 

unlawful workaround of a statutory 

prohibition and improperly limits a 

certificate holder’s statutorily conferred 

eminent domain authority.72

35. INGAA and Enbridge further 

contend that the stay policy violates 

section 19(c) of the NGA, which states 

that the filing of a rehearing request 

‘‘shall not, unless specifically ordered 

by the Commission, operate as a stay of 

the Commission’s order.’’ 73 INGAA 

maintains that the Commission, by 

announcing in Order No. 871–B a 

general policy of presumptively staying 

certificate orders pending rehearing, 

acted in general, rather than with the 

specificity that NGA section 19(c) 

demands.74 INGAA further asserts that 

the policy is unlawful because it will 

result in the Commission staying its 

orders before either a rehearing request 

has been filed or a stay has been sought, 

an outcome not contemplated by the 

NGA.75 Finally, INGAA takes issue with 

the Commission’s position that its 

authority to stay a certificate order is 

found in the APA, arguing that section 

705 of that act authorizes the 

Commission to postpone the effective 

date of its actions only ‘‘pending 

judicial review,’’ and that this authority 

is inapplicable prior to the filing of a 

request for rehearing and while such 

request is pending before the 

Commission.76

36. As explained in Order No. 871–B, 

NGA section 16 gives the Commission 

an independent basis for granting stays 

of a certificate order.77 Specifically, 

section 16 provides that ‘‘[t]he 

Commission shall have the 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 


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78 15 U.S.C. 717o. 

79 Id. 

80Under the APA, an agency may issue a stay of 

its order where the ‘‘agency finds that justice so 

requires.’’ 5 U.S.C. 705. In determining whether this 

standard has been met, we consider several factors, 

including: (1) Whether a stay is necessary to 

prevent irreparable injury; (2) whether issuing a 

stay may substantially harm other parties; and (3) 

whether a stay is in the public interest. See, e.g., 

Millennium Pipeline Co., L.L.C., 141 FERC ¶ 61,022, 

at P 13 (2012); Ruby Pipeline, L.L.C., 134 FERC 

¶ 61,103, at P 17 (2011). But see Okanogan PUD, 

162 FERC ¶ 61,040 at P 13, n.21 (explaining, in the 

hydroelectric licensing context, that ‘‘[p]reviously, 

the Commission has applied different standards 

than the one set forth in section 705 of the APA.’’) 

(citing Monongahela Power Co., 7 FERC ¶ 61,054 

(1979) (‘‘we considered [the motions for stay] under 

the standards of Virginia Jobbers Association v. 

FPC, 259 F.2d 291 (D.C. Cir. 1958) and Washington 

Metropolitan Area Transit Commission v. Holiday 

Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977)’’); 

Nantahala Power & Light Co., 20 FERC ¶ 61,026 

(1982) (‘‘finding that a stay pending rehearing is in 

the ‘public interest’ ’’); Kings River Conservation 

Dist., 27 FERC ¶ 61,098 (1984) (‘‘[i]t is appropriate 

and in the public interest to stay the license issued 

in Project No. 2890 until completion of judicial 

review.’’)). 

81 5 U.S.C. 705. 

82See INGAA Rehearing at 33. Indeed, a request 

for rehearing does not simply precede, but is a 

mandatory prerequisite to, judicial review. 15 

U.S.C. 717r(b). 

83 General statements of policy are not be subject 

to pre-enforcement judicial review. Nat’l Min. Ass’n 

v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) 

(citing Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 

538 U.S. 803, 809–11 (2003)). 

84See, e.g., INGAA v. FERC, 285 F.3d 18, 59–61 

(D.C. Cir. 2002) (finding Commission’s discussion 

of seasonal rates within a final rule ‘‘represents only 

a policy statement and therefore is neither binding 

on any party nor ripe for judicial review’’); Am. Gas 

Ass’n v. FERC, 888 F.2d 136, 151–52 (D.C. Cir. 

1989) (finding challenges to substantive aspects of 

Commission’s cost recovery policy statement not 

ripe for review); Pac. Gas & Elec. Co. v. FPC, 506 

F.2d 33, 35 (D.C. Cir. 1974) (finding Order No. 467, 

a policy proposal on delivery priorities by natural 

gas companies during curtailment periods, to be a 

general statement of policy that was not reviewable 

under NGA section 19(b) because it lacked 

‘‘sufficiently immediate and significant impact 

upon petitioners’’). That is consistent with the 

Commission’s long-standing approach of 

articulating its policies with respect to NGA section 

7 certificate applications, while leaving all actual 

findings and determinations for future proceedings. 

See, e.g., Certification of New Interstate Natural Gas 

Pipeline Facilities, 88 FERC ¶ 61,227, corrected, 89 

FERC ¶ 61,040 (1999), clarified, 90 FERC ¶ 61,128, 

further clarified, 92 FERC ¶ 61,094, at 61,375 (2000) 

(explaining that the purpose of the Certificate 

Policy Statement is ‘‘to provide the natural gas 

industry with guidance by stating the analytical 

framework the Commission will use to evaluate 

proposals for certificating new construction’’ and 

that ‘‘generally objections to such a statement are 

not directly reviewable. Rather, such review must 

await implementation of the policy in a specific 

case.’’). In line with that interpretation, the 

discussion in Order No. 871–B regarding how the 

Commission will approach those future cases was 

not accompanied by any revisions to the 

Commission’s rules or regulations. 

85See Tuscarora Gas Transmission Co., 175 FERC 

¶ 61,147 (2021); N. Natural Gas Co., 175 FERC 

¶ 61,146 (2021); Enable Gas Transmission, LLC, 175 

FERC ¶ 61,183 (2021); WBI Energy Transmission, 

Inc., 175 FERC ¶ 61,182 (2021); N. Natural Gas Co., 

175 FERC ¶ 61,238 (2021). There were no 

landowner protests in any of these cases. 

86See 15 U.S.C. 717r(c) (‘‘The filing of an 

application for rehearing . . . shall not, unless 

specifically ordered by the Commission, operate as 

a stay of the Commission’s order.’’). 

87Enbridge Rehearing at 14–16 (citing 18 CFR 

157.6(d)(2)(i) (2020)). 

88 Id. at 15 (citing 18 CFR 157.6(d)(2)(i)). 

89See 15 U.S.C 717f(h) (authorizing certificate 

holders to acquire by eminent domain ‘‘the 

necessary right-of-way to construct, operate, and 

maintain a pipe line or pipe lines for the 

transportation of natural gas, and the necessary land 

or other property, in addition to right-of-way, for 

the location of compressor stations, pressure 

apparatus, or other stations or equipment necessary 

to the proper operation of such pipe line or pipe 

lines’’); see also 18 CFR 157.6(d)(2)(i) (defining 

directly affected landowners). 

of this [Act].’’ 78 Section 16 also 

mandates that Commission orders ‘‘shall 

be effective on the date and in the 

manner which the Commission shall 

prescribe.’’ 79 Thus, the NGA provides 

the Commission with broad authority to 

take actions necessary to carry out the 

act, and we find that, given the 

significant consequences that eminent 

domain has for landowners, issuance of 

a stay of a certificate order under certain 

narrowly prescribed circumstances is 

well within this authority. Because NGA 

section 16 is broadly applicable, the 

Commission utilizes the standard set 

forth in APA section 705 to determine 

whether a stay is justified.80 But the 

Commission’s underlying authority 

derives from NGA section 16. 

37. In any event, we disagree with 

INGAA’s argument that APA section 

705, which authorizes an agency to 

postpone the effective date of its actions 

‘‘pending judicial review,’’ 81 means that 

a stay issued pursuant to this authority 

must be connected to ongoing judicial 

review proceedings and is thus 

inapplicable to any proceedings before 

the Commission that precede judicial 

review (e.g., the time for filing and 

considering requests for rehearing).82

INGAA construes the statute too 

narrowly. The clause ‘‘pending judicial 

review’’ in section 705 could reasonably 

be construed as ‘‘in anticipation of’’ in 

which case all that is required is that the 

Commission reasonably anticipate— 

because rehearing has been sought or a 

proposal has been strongly protested— 

that a party will seek judicial review. 

38. Further, in Order No. 871–B, the 

Commission announced only a general 

policy with respect to stays.83

Accordingly, although contained in a 

final rule, the Commission’s discussion 

of that general policy did nothing more 

than explain how the Commission 

intends to approach a particular set of 

questions in the future without 

conclusively resolving those questions 

or otherwise fixing any rights or 

responsibilities.84 Indeed, as explained 

in Order No. 871–B, the Commission 

intends to make a particularized 

application of the policy in individual 

certificate orders and parties to those 

individual proceedings will have the 

opportunity to challenge the 

Commission’s determination on 

whether to issue a stay in those 

proceedings. Notably, the Commission 

has issued five certificate orders since 

adopting the policy reflected in Order 

No. 871–B, with none of those orders 

containing a stay along the lines 

contemplated in Order No. 871–B.85

39. Contrary to INGAA’s and 

Enbridge’s assertions, nothing in NGA 

section 19(c), which on its face 

contemplates that the Commission may 

stay its own orders, precludes the 

Commission from determining that a 

stay of an individual certificate order 

during the 30-day period for seeking 

rehearing. Section 19(c) provides that a 

request for rehearing does not 

automatically stay a Commission 

order.86 That section does not speak to, 

or otherwise limit, the Commission’s 

authority to issue a stay of its own 

accord. As described above, NGA 

section 16 provides the Commission 

with broad authority to issue a stay 

where warranted by the facts and 

circumstances in a particular 

proceeding. 

2. Qualifying Landowner Rehearing 

Requests 

40. Enbridge seeks clarification that, 

for the purpose of the policy, the term 

‘‘landowner’’ means ‘‘directly affected’’ 

landowner, as defined by the 

Commission’s regulations, or, in the 

alternative, rehearing.87 This 

clarification, Enbridge maintains, would 

align with the Commission’s 

justification for the policy as it would 

ensure that a stay is applied only when 

a ‘‘protest or request for rehearing is 

submitted by the owner of property that 

would be subject to an eminent domain 

proceeding (i.e., to directly affected 

landowners), and not owners of 

property that merely abuts the 

construction right-of-way or falls within 

a certain radius of compressor station 

construction or storage facilities.’’ 88

41. As a general matter, we agree with 

Enbridge’s suggestion that the policy is 

intended to protect those whose 

property would be crossed or used by 

the proposed pipeline project as these 

are the landowners whose property 

rights could be acquired by the eminent 

domain authority that NGA section 7(h) 

confers upon certificate holders.89

Should the issue of a landowner’s 

specific property interests arise in a 


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90Enbridge Rehearing at 21–23. 

91Order No. 871–B, 175 FERC ¶ 61,098 at P 51. 

92See INGAA Rehearing at 33–35. 

93 Id. at 33–34. 

94Enbridge Rehearing at 18–19. 

95 INGAA Rehearing at 34–35. 

96Order No. 871–B, 175 FERC ¶ 61,098 at P 49, 

n.101. 

97See 15 U.S.C. 717r(b); 5 U.S.C. 706. 

98 5 U.S.C. 553(b)(A). 

99See INGAA Rehearing at 35–39. 

100 Id. at 36. 

101See Order No. 871–B, 175 FERC ¶ 61,098 at PP 

48–51. 

102 INGAA Rehearing at 39. 

103See, e.g., Allegheny, 964 F.3d at 6. 

104See, e.g., Envtl. Def. Fund v. FERC, No. 20– 

1016, et al., 2021 WL 2546672, at *8, *15 (D.C. Cir. 

June 22, 2021) (citing to relevant pipeline’s use of 

eminent domain in support of court’s decision to 

vacate certificate order). 

proceeding, the Commission will 

consider it. 

3. Commitment To Refrain From 

Exercise of Eminent Domain 

42. Enbridge seeks clarification that 

the Commission will promptly lift a stay 

following a certificate holder’s 

commitment that it will not exercise its 

right of eminent domain ‘‘for any reason 

other than to obtain the access necessary 

to complete surveys’’ while a qualifying 

landowner rehearing request is 

pending,90 or, in the alternative, 

rehearing. 

43. In Order No. 871–B, the 

Commission explained that a developer 

may file a motion seeking ‘‘to preclude, 

or lift, a stay based on a showing of 

significant hardship,’’ and expressly 

stated ‘‘that a commitment by the 

pipeline developer not to begin eminent 

domain proceedings until the 

Commission issues a final order on any 

landowner rehearing requests will 

weigh in favor of granting such a 

motion.’’ 91 We reiterate that conclusion, 

but will not pre-judge the merits of any 

motion along the lines contemplated in 

Order No. 871–B. As with the other 

aspects of this policy, those 

determinations will be made in any 

future proceeding. 

4. Claims of Burden Shifting 

44. INGAA argues that the 

Commission unlawfully shifted to 

pipeline developers the burden of proof 

to show that a stay is not warranted and 

argues that such a change in policy can 

only be accomplished through notice 

and comment rulemaking.92 INGAA 

contends that the Commission failed to 

provide justification for its departure 

from past practice and failed to explain 

why it is permissible to shift this 

burden.93 Enbridge makes a similar 

argument, but takes it a step further 

arguing that the Commission failed to 

‘‘assess whether there were reliance 

interests, determine whether they were 

significant, and weigh any such 

interests against competing policy 

concerns.’’ 94 INGAA requests further 

clarification regarding how the 

Commission will determine when a stay 

should be issued and how specifically a 

developer can overcome the 

presumption that a stay will be 

granted.95

45. In Order No. 871–B, the 

Commission acknowledged that the stay 

policy is a departure from past practice 

and explained its belief that ‘‘this new 

policy better balances the relevant 

considerations—such as fairness, due 

process, and developer certainty— 

thereby justifying the change in 

policy.’’ 96 We disagree with the 

petitioners that this policy improperly 

shifts the burden to pipeline developers. 

As we previously explained, the 

Commission will determine whether to 

impose a stay based on the 

circumstances presented in each 

particular certificate proceeding—the 

burden is not on the pipeline. Rather, 

the Commission is obligated to ensure 

that all of its decisions, including 

whether to impose a stay in individual 

certificate proceedings, are supported by 

the record and reasonably explained.97

And parties to those individual 

proceedings will have the opportunity 

to provide input to and challenge the 

Commission’s decision to issue a stay, 

or not, in those proceedings. 

46. We further disagree with INGAA’s 

assertion that public notice and 

comment was required prior to the 

Commission announcing the stay 

policy. General statements of policy, 

such as the one announced in Order No. 

871–B, are exempted from the APA’s 

notice and comment procedures.98

5. Consideration of Industry Concerns 

47. INGAA contends that the 

Commission both failed to sufficiently 

appreciate the harm that will befall the 

natural gas industry and to explain what 

activities certificate holders can perform 

while a stay is in place.99 INGAA points 

to the length of this proceeding to cast 

doubt on the Commission’s statement 

that it has increased the speed with 

which it resolves rehearing requests.100

It also seeks further clarity regarding the 

types of activities that certificate holders 

may undertake while a stay is in place. 

48. The Commission fully considered 

industry concerns and ultimately 

concluded that the stay policy 

announced in Order No. 871–B struck 

an appropriate balance between the 

interests of pipeline developers and 

landowners.101 The rehearing process in 

this rulemaking proceeding, involving 

generally applicable policy 

considerations, is not representative of 

the increased speed with which the 

Commission handles project-specific 

rehearing requests in the post-Allegheny 

era. In fact, the Commission continues 

to strive to act on landowner rehearing 

requests (the subset of rehearing 

requests that may result in a stay 

extending beyond the 30-day period for 

seeking rehearing) within 30 days. The 

petitioners do not cite an instance of a 

delay in the Commission’s issuance of 

an order on rehearing of a certificate 

order. While a stay is intact, certificate 

holders can engage only in those 

development activities that they were 

free to undertake prior to receiving a 

certificate order, such as negotiating 

easement agreements with landowners 

and conducting environmental surveys 

on private property they have 

permission to access. 

6. Landowner Ability To Seek Judicial 

Stay 

49. Finally, INGAA asserts that the 

Commission failed to explain why the 

policy is necessary in light of an 

aggrieved party’s ability to seek a stay 

from a reviewing court after a request 

for rehearing is deemed denied.102

50. As the Commission explained in 

Order No. 871–B, certificate holders 

can, and routinely do, initiate 

condemnation proceedings immediately 

upon receipt of a certificate order.103

Absent a stay in a particular proceeding, 

certificate holders have the ability to 

initiate condemnation actions against 

landowners prior to the expiration of 

the 30-day period for seeking rehearing, 

and prior to the 30-day period for the 

Commission to act on such a request 

before it may be deemed denied. This 

leaves a gap of approximately 60 days 

preceding a deemed denial and during 

which time landowners could be 

susceptible to condemnation 

proceedings being initiated prior to a 

reviewing court obtaining concurrent 

jurisdiction following the filing of a 

petition for review.104 As we explained 

at length in Order No. 871–B, this 

Commission finds the fundamental 

unfairness that could result from that 

outcome untenable. Further, the stay 

policy is an appropriate exercise of our 

authority, and there is no need to leave 

these matters solely to the courts. 

C. Commission Determination 

51. In response to INGAA’s, 

Enbridge’s, and Mountain Valley’s 

requests for rehearing, Order No. 871–B 

is hereby modified and the result 


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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 43085 

1See Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, 176 

FERC ¶ 61,062 (2021) (Order No. 871–C). 

2See Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, 175 

FERC ¶ 61,098 (2021) (Danly, Comm’r, dissenting at 

P 2) (Order No. 871–B). 

3See id. (Danly, Comm’r, dissenting at PP 3, 6– 

14). 

4Order No. 871–C, 176 FERC ¶ 61,062 at P 36. 

5 Id. (quoting 15 U.S.C. 717o). 

6New England Power Co. v. Fed. Power Comm’n, 

467 F.2d 425, 431 (D.C. Cir. 1972), aff’d, 415 U.S. 

345 (1974). 

7 Id. at 430 (citation omitted). 

8Order No. 871–B, 175 FERC ¶ 61,098 at P 45 

(citation omitted). Indeed, Order No. 871–B quotes 

the Berkley v. Mountain Valley Pipeline, LLC, as 

stating, ‘‘FERC does not have discretion to withhold 

eminent domain once it grants a Certificate.’’ Id. P 

45 n.86 (quoting Berkley v. Mountain Valley 

Pipeline, LLC, 896 F.3d 624, 628 (4th Cir. 2018)) 

(emphasis added). 

9 15 U.S.C. 717f(h) (emphasis added). 

10 15 U.S.C. 717f(e). 

11See Order No. 871–B, 175 FERC ¶ 61,098 at P 

45 (‘‘In other words, the Commission lacks the 

authority to deny or restrict the power of eminent 

domain in a section 7 certificate.’’) (citation 

omitted). 

12 15 U.S.C. 717f(e) (emphasis added). 

13 Id. § 717f(h) (emphasis added). 

14Holder, Black’s Law Dictionary (11th ed. 2019). 

sustained, as discussed in the body of 

this order. 

III. Document Availability 

52. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the internet through the 

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). 

53. 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. 

54. 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 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. Email the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

IV. Dates 

55. The effective date of the document 

published on May 13, 2021 (86 FR 

26,150), is confirmed: June 14, 2021. 

By the Commission. Commissioner 

Chatterjee is not participating. Commissioner 

Danly is dissenting with a separate statement 

attached. 

Issued: August 2, 2021. 

Debbie-Anne A. Reese, 

Deputy Secretary. 

DEPARTMENT OF ENERGY 

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 

affirming the majority’s modification 

and expansion of Order No. 871.1 As I 

stated in my dissent in Order No. 871– 

B, I would repeal the rule as it is no 

longer required by law or prudence.2 I 

write separately today to further explain 

how the Commission’s new, 

unnecessary, and unjustifiable 

presumption to stay certificate orders 

conflicts with the plain text of the 

Natural Gas Act (NGA) and is beyond 

the Commission’s authority.3 I also 

write to explain how the majority’s 

presumptive stay is not based on 

reasoned decision making and therefore 

runs afoul of the Administrative 

Procedure Act (APA). 

I. The Presumptive Stay Is Beyond the 

Commission’s Authority and Contrary 

to the Plain Text of the Natural Gas Act 

2. In today’s order, the majority states 

‘‘the Commission’s underlying authority 

derives from NGA section 16.’’ 4

Specifically, the majority relies on the 

provisions providing the Commission 

authority ‘‘to perform any and all acts 

. . . necessary or appropriate to carry 

out the provisions of this [Act]’’ and to 

determine the effective date of its 

orders.5 Like many before it, the 

majority has turned to NGA section 16 

when all else has failed, placing more 

weight upon this section than it can 

reasonably bear. NGA section 16 ‘‘do[es] 

not confer independent authority to 

act.’’ 6 It is ‘‘of an implementary rather 

than substantive character’’ and ‘‘can 

only be implemented ‘consistently with 

the provisions and purposes of the 

legislation.7’ ’’ The majority, however, 

fails to confront this limitation on 

section 16’s reach and employs this 

provision in a manner that contravenes 

the NGA in three respects. 

3. First, the majority’s policy denies 

pipelines holding certificates the ability 

to exercise eminent domain for up to 

150 days—doing exactly what the 

majority explicitly concedes it cannot 

do: ‘‘restrict the power of eminent 

domain in a section 7 certificate.’’ 8

NGA section 7(h) authorizes ‘‘any 

holder of a certificate’’ to exercise 

eminent domain authority.9 Other than 

the issuance of a certificate, Congress 

ordained no other condition be met in 

advance of a pipeline pursuing eminent 

domain. The Commission can only 

employ NGA section 16 in a manner 

consistent with the other provisions of 

the act. Here, the use of section 16 is in 

direct in conflict with the statute—and 

the majority does not see fit to argue 

otherwise. 

4. Second, presumptively staying a 

pipeline’s ability to pursue eminent 

domain is not appropriate under section 

16 because such a delay is not a 

‘‘necessary or appropriate’’ adjunct to 

the Commission’s effectuation of its 

responsibilities under section 7 of the 

NGA. That section requires the 

Commission to issue certificates to 

applicants whose proposed natural gas 

facilities are found to be in the public 

convenience and necessity. The timing 

of a pipeline’s use of eminent domain 

does not weigh into the Commission’s 

determination of whether proposed 

pipeline facilities are in the public 

convenience and necessity. If it did, the 

majority would rely on the 

Commission’s authority under NGA 

section 7(e) to ‘‘attach to the issuance of 

the certificate . . . such reasonable 

terms and conditions as the public 

convenience and necessity may 

require.’’ 10 The majority, however, does 

not.11 Nor does the majority cite any 

other provision of the NGA for which 

the Commission’s action would be 

‘‘necessary or appropriate’’ under 

section 16. 

5. Third, the only reasonable reading 

of NGA section 7 leads to the 

conclusion that Congress intended for 

certificates to be effective upon issuance 

and acceptance, and for the right to 

exercise eminent domain to attach 

thereupon. NGA section 7(e) provides, 

‘‘a certificate shall be issued’’ so long as 

the applicant is ‘‘able and willing 

properly to do the acts . . . .’’ 12

Further, NGA section 7(h) authorizes 

‘‘any holder of a certificate of public 

convenience and necessity’’ to acquire 

by eminent domain the land necessary 

for the construction, operation, and 

maintenance of its pipeline facilities.13

Black’s Law Dictionary defines ‘‘holder’’ 

as ‘‘[a] person with legal possession of 

a document of title or an investment 

security,’’ meaning that the title was 

issued and accepted by that person.14

This view has been shared by the 


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43086 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 

15See Maritimes & Ne. Pipeline, L.L.C. v. 

Decoulos, 146 F. App’x 495, 498 (1st Cir. 2005) 

(‘‘Once a CPCN is issued by the FERC, and the gas 

company is unable to acquire the needed land by 

contract or agreement with the owner, the only 

issue before the district court in the ensuing 

eminent domain proceeding is the amount to be 

paid to the property owner as just compensation for 

the taking.’’) (emphasis added); E. Tenn. Nat. Gas 

Co. v. Sage, 361 F.3d 808, 818 (4th Cir. 2004) 

(‘‘Once FERC has issued a certificate, the NGA 

empowers the certificate holder to exercise ‘the 

right of eminent domain’ over any lands needed for 

the project.’’) (emphasis added); Bohon v. FERC, 

No. 20–6 (JEB), slip op. at 2 (D.D.C. May 6, 2020) 

(‘‘FERC’s issuance of a certificate, moreover, 

conveys the power of eminent domain to its 

holder.’’) (emphasis added); Paul H. Stitt & Loretta 

Stitt, 39 F.P.C. 323, 324 (1968) (‘‘While the 

condemnation powers granted to certificate holders 

by Section 7(h) of the Natural Gas Act operate 

prospectively from the date of issuance of a 

certificate . . . .’’) (emphasis added). 

16See 18 CFR 157.20(a) (2020) (‘‘The certificate 

shall be void and without force or effect unless 

accepted in writing by applicant . . . .’’). 

17This is and separate apart from the argument 

that I raised in my earlier dissent that NGA section 

19(c), while allowing for stays, requires a specific 

order by the Commission. Order No. 871–B, 175 

FERC ¶ 61,098 (Danly, Comm’r, dissenting at PP 8– 

10; see also 15 U.S.C. 717r(c) (‘‘The filing of an 

application for rehearing under subsection (a) shall 

not, unless specifically ordered by the Commission, 

operate as a stay of the Commission’s order.’’). 

Clearly, an automatically-applied presumption is 

not a specific order and thus violates the 

unambiguous terms of the statute. 

18 5 U.S.C. 705. 

19Order No. 871–C, 176 FERC ¶ 61, 61,062 at P 

37, n.82 (citing INGAA Rehearing at 33). 

20 Id. P 37. 

21Nat. Res. Def. Council v. U.S. Dep’t of Energy, 

362 F. Supp. 3d 126, 150 (S.D.N.Y. 2019) (‘‘A stay 

is supposed to be grounded on ‘the existence or 

consequences of the pending litigation.’ ’’); Bauer v. 

DeVos, 325 F. Supp. 3d 74, 106 (D.D.C. 2018) 

(‘‘Most significantly, the relevant equitable 

considerations are not free-floating but, rather, must 

be tied to the underlying litigation. Section 705 

expressly provides that an agency may ’postpone 

the effective date of [agency] action . . . pending 

judicial review.’ ’’) (emphasis in original); Sierra 

Club v. Jackson, 833 F. Supp. 2d 11, 34 (D.D.C. 

2012) (‘‘Where, as in this case, [an agency] seeks to 

justify a stay of its rules ‘pending judicial review,’ 

the agency must have articulated, at a minimum, a 

rational connection between its stay and the 

underlying litigation in the court of appeals.’’). 

22 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983). 

See also Elec. Consumers Res. Council v. FERC, 747 

F.2d 1511, 1513–14 (D.C. Cir. 1984) (‘‘We defer to 

the agency’s expertise . . . so long as its decision 

is supported by ‘substantial evidence’ in the record 

and reached by ‘reasoned decision-making,’ 

including an examination of the relevant data and 

a reasoned explanation supported by a stated 

connection between the facts found and the choice 

made.’’) (citing Burlington Truck Lines v. United 

States, 371 U.S. 156, 168 (1962); Memphis Light, 

Gas & Water Div. v. FPC, 504 F.2d 225, 230 (D.C. 

Cir. 1974); 16 U.S.C. 825l (1982)). 

23Order No. 871–B, 175 FERC ¶ 61,098 (Danly, 

Comm’r, dissenting at P 8). 

24See id. (Danly, Comm’r, dissenting at P 14) 

(noting Dominion Energy Transmission, Inc. 

withdrew its application for a certificate for its 

Sweden Valley Project that it had filed seventeen 

months prior). 

25Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. 

Cir. 2002) (‘‘As a federal agency, FERC is a ’creature 

of statute,’ having ‘no constitutional or common law 

existence or authority, but only those authorities 

conferred upon it by Congress.’’’) (quoting Michigan 

v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)) 

(emphasis in original); see Bowen v. Georgetown 

Univ. Hosp., 488 U.S. 204, 208 (1988) (‘‘It is 

axiomatic that an administrative agency’s power to 

promulgate legislative regulations is limited to the 

authority delegated by Congress.’’). 

26See 15 U.S.C. 717f(h). 

27S. Rep. No. 80–429, at 3 (1947). 

28Richmond Power & Light v. FERC, 574 F.2d 

610, 620 (D.C. Cir. 1978) (‘‘What the Commission 

is prohibited from doing directly it may not achieve 

by indirection.’’). 

courts 15 and the Commission.16 This is 

not to say that the Commission can 

never make a certificate effective after 

its issuance or stay a certificate order. 

Both may be warranted in certain 

instances. In my view, however, it is 

contrary to the purpose of the NGA to 

adopt a policy that presumptively stays 

certificates for the avowed purpose of 

delaying a pipeline’s Congressionallyauthorized entitlement to exercise 

eminent domain.17

6. In addition to NGA section 16, the 

majority appears to place some reliance 

on APA section 705, which provides 

‘‘[w]hen an agency finds that justice so 

requires, it may postpone the effective 

date of action taken by it, pending 

judicial review.’’ 18 I presume this is the 

case because the majority responds to 

arguments raised by the Interstate 

Natural Gas Association of America 

(INGAA) that the phrase ‘‘pending 

judicial review’’ in APA section 705 

means an agency stay must be ‘‘tied to 

litigation.’’ 19 The majority asserts that a 

more reasonable interpretation of the 

phrase ‘‘pending judicial review’’ is ‘‘in 

anticipation of [judicial review].’’ 20 I’ve 

found no court that supports that 

position and multiple courts, in fact, 

disagree.21

II. Presumptive Stay Is Not Based on 

Reasoned Decision Making 

7. To the extent the majority merely 

argues that it can apply the three factors 

of the equitable standard set forth in 

APA section 705 to determine whether 

a stay is warranted, I agree. However, 

the majority’s application of the 

equitable standard is not based on 

reasoned decision making, and thus 

violates the APA.22

8. As I stated in my dissent to Order 

No. 871–B, the majority’s assumption 

that the mere existence of a ‘‘landowner 

protest’’ automatically means a stay is 

required in the interest of justice is—at 

best—questionable.23 This represents a 

broad category of litigant, whose mere 

participation in a proceeding would 

temporarily extinguish a certificate 

holder’s Congressionally-established 

rights. Surely, the Commission should 

at least impose rational limits on the 

rule they are establishing. For example, 

will the Commission stay a certificate 

where there is a protest by a landowner 

with property interests that abut the 

proposed right-of-way but are not 

subject to condemnation? And the 

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 and thus cannot seek 

rehearing or judicial review? What 

about in the case where the landowner 

joined a protest, but may not have active 

interests in the proceeding? 

9. The majority also fails to consider 

the second factor ‘‘whether issuing a 

stay may substantially harm other 

parties.’’ Will the Commission stay a 

certificate where the proposed project is 

delivering natural gas to municipalities 

that need the gas within six months of 

certificate issuance? Will the 

Commission stay a certificate if the 

delay caused by its stay would cause an 

additional year’s delay in construction 

because of seasonal restrictions? To 

what degree will the financial 

consequences for the project proponent 

be considered? What about the 

consequences to the pipeline’s 

customers? It is not inconceivable that 

those projects whose applications have 

been pending for more than a year 

ultimately will be canceled as a result 

of delay.24 How can the potential 

cancellation of a project that has been 

determined by the Commission to be in 

the public interest itself be in the public 

interest or, under the second factor, be 

found not to ‘‘substantially harm other 

parties’’? 

III. Conclusion 

10. The power of eminent domain is 

surely profound and formidable. I 

cannot fault my colleagues for the 

anxiety they have expressed regarding 

its wise and just exercise. However, the 

Commission, as a mere ‘‘creature of 

statute,’’ can only act pursuant to law by 

which Congress has delegated its 

authority.25 Congress conferred the right 

to certificate holders to pursue eminent 

domain in federal district court or state 

court,26 having recognized that states 

‘‘defeat[] the very objectives of the 

Natural Gas Act’’ 27 by conditioning or 

withholding the exercise of eminent 

domain. Congress has made that 

determination. It has codified it into 

law. The Commission, as an executive 

agency, is empowered only to 

implement Congressional mandate, not 

to second-guess Congressional wisdom 

or attempt to do indirectly what it 

cannot directly.28

11. Despite this, I doubt that the 

Commission’s arguments will be 


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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 43087 

presented to the courts. It will be 

challenging for those that are harmed by 

the issuance of a generally-applicable 

policy to show aggrievement before it is 

actually applied in a case. And by the 

time those harmed are able seek review, 

the damage of the stay will have been 

done and the stay will have been lifted. 

My pessimistic outlook is that despite 

this order’s obvious infirmities, the 

Commission will avoid judicial scrutiny 

and thereby thwart the intent of 

Congress. 

For these reasons, I respectfully 

dissent. 

lllllllllllllllllll

James P. Danly, 

Commissioner. 

[FR Doc. 2021–16812 Filed 8–5–21; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2021–0162] 

Special Local Regulations; Marine 

Events Within the Fifth Coast Guard 

District 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation; change of enforcement date. 

SUMMARY: The Coast Guard will enforce 

the special local regulation for the 11th 

Annual Atlantic City Triathlon on 

August 7, 2021, from 6 a.m. through 9 

a.m., to provide for the safety of life on 

navigable waterways during this event. 

Our regulation for marine events within 

the Fifth Coast Guard District identifies 

the regulated area for this event in 

Atlantic City, NJ. During the 

enforcement periods, the operator of any 

vessel in the regulated area must 

comply with directions from the Patrol 

Commander or any Official Patrol 

displaying a Coast Guard ensign. 

DATES: The regulation in 33 CFR 

100.501 for the special local regulation 

listed in item (a)(12) in the table to 

§ 100.501 will be enforced from 6 a.m. 

through 9 a.m. on August 7, 2021. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this notice of 

enforcement, call or email Petty Officer 

Jennifer Padilla, U.S. Coast Guard, 

Sector Delaware Bay, Waterways 

Management Division, telephone 215– 

271–4814, email Jennifer.L.Padilla@

uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the special local 

regulation as described in section (a), 

row (12) of the table to 33 CFR 100.501 

for the 11th Annual Atlantic City 

Triathlon from 6 a.m. through 9 a.m. on 

August 7, 2021. The published 

enforcement periods for this event 

included the 2nd or 3rd Sunday in 

August. We are announcing a change of 

enforcement date for this year’s event 

with this notice of enforcement because 

August 7, 2021, is the first Saturday in 

August. This action is necessary to 

ensure safety of life on the navigable 

waters of the United States immediately 

prior to, during, and immediately after 

the swim portion of the triathlon. Our 

regulation for marine events within the 

Fifth Coast Guard District, table to 

§ 100.501, section (a), row (12), specifies 

the location of the regulated area as all 

waters of the New Jersey ICW bounded 

by a line connecting the following 

points: Latitude 39°21′20′′ N, longitude 

074°27′18′′ W, thence northeast to 

latitude 39°21′27.47′′ N, longitude 

074°27′10.31′′ W, thence northeast to 

latitude 39°21′33′′ N, longitude 

074°26′57′′ W, thence northwest to 

latitude 39°21′37′′ N, longitude 

074°27′03′′ W, thence southwest to 

latitude 39°21′29.88′′ N, longitude 

074°27′14.31′′ W., thence south to 

latitude 39°21′19′′ N, longitude 

074°27′22′′ W, thence east to latitude 

39°21′18.14′′ N, longitude 074°27′19.25′′ 

W, thence north to point of origin, near 

Atlantic City, NJ. 

During the enforcement periods, as 

reflected in § 100.501(c), if you are the 

operator of a vessel in the regulated area 

you must comply with directions from 

the Patrol Commander or any Official 

Patrol displaying a Coast Guard ensign. 

In addition to this notice of 

enforcement in the Federal Register, the 

Coast Guard will provide notification of 

the enforcement periods via broadcast 

notice to mariners. 

Dated: July 29, 2021. 

Jonathan D. Theel, 

Captain, U.S. Coast Guard, Captain of the 

Port Delaware Bay. 

[FR Doc. 2021–16808 Filed 8–5–21; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2021–0146] 

RIN 1625–AA08 

Special Local Regulation; Delaware 

Bay, Lower Township, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a special local regulation 

for certain navigable waters of the 

Delaware Bay. This action is necessary 

to provide safety of life on these 

navigable waters near Lower Township, 

NJ, during a swimming competition on 

August 29, 2021. This regulation 

prohibits persons and vessels from 

entering, transiting, or remaining within 

the regulated area unless authorized by 

the Captain of the Port Delaware Bay or 

a designated representative. 

DATES: This rule is effective from 6:30 

a.m. through 9:30 a.m. on August 29, 

2021. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0146 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Petty Officer Jennifer Padilla, U.S. 

Coast Guard, Sector Delaware Bay, 

Waterways Management Division; 

telephone 215–271–4814, email 

Jennifer.l.Padilla@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 


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