Commissioner James Danly Statement
January 20, 2023
Docket No. CP16-454-005
I write separately to commend to the reader’s attention my separate statement to the Extension Order[1] and to explain the proper scope of this proceeding.[2]
Our inquiry when reviewing a request for extension of time is narrow—it is not an opportunity to revisit the determinations made in Natural Gas Act authorizations after orders have become final and unappealable.[3] The fact that the Commission has a pending remand proceeding for the Authorization Orders[4] has no effect on the scope of the inquiry in this proceeding. Nor does the pendency of a remand proceeding render the Commission unable to grant an extension of time. The Authorization Orders were “remand[ed] without vacatur for the Commission to remedy” their deficiencies.[5] Even though there are deficiencies in the Authorization Orders, the question in this proceeding is not whether the Commission has yet remedied those deficiencies or whether the Authorization Orders remain valid. Rather, the inquiry goes no further than determining whether there is good cause to grant the extension of time.
For these reasons, I respectfully concur.
[1] Rio Grande LNG, LLC, 181 FERC ¶ 61,032 (2022) (Extension Order) (Danly, Comm’r, concurring).
[2] See Rio Grande LNG, LLC, 182 FERC ¶ 61,027 (2023).
[3] See Corpus Christi Liquefaction Stage III, LLC, 179 FERC ¶ 61,087, at P 15 (2022) (“extension of time proceedings are not an invitation to re-open the dockets”) (citations omitted); see also Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226, at P 20 (2022) (“Rule 716 does not provide the Commission with additional authority to reopen the record underlying the Certificate Order here, where a final, non-appealable order has issued.”) (citations omitted); id. (Danly, Comm’r, concurring at P 5) (“Circumstances, no matter how extraordinary, cannot themselves grant jurisdiction where Congress has conferred no power. In the absence of authority provided by Congress, the Commission simply cannot revisit its public convenience and necessity determinations once a certificate order becomes final and unappealable.”).
[4] Rio Grande LNG, LLC, 169 FERC ¶ 61,131 (2019), order on reh’g, 170 FERC ¶ 61,046 (2020) (Authorization Orders). On August 3, 2021, the U.S. Court of Appeals for the District of Columbia Circuit remanded, without vacatur, the Authorization Orders due to deficiencies under the Administrative Procedure Act in the Commission’s analysis of environmental justice issues and the Commission’s failure to respond to an argument regarding section 1502.21(c) of the Council on Environmental Quality’s National Environmental Policy Act regulations when deciding whether it should use the Social Cost of Carbon. See Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021).
[5] Id. at 1325.