Chairman James Danly Statement
November 19, 2020
Docket No. CP20-486-001
I concur with the decision to set aside the Notice Denying Late Intervention (Notice) and to grant Southwest Gas Corporation’s (Southwest) late motion to intervene. Although the Notice properly denied Southwest’s initial motion requesting late intervention solely based on an administrative oversight,[1] I agree that the Commission should find good cause to grant Southwest’s late intervention on the basis that it is the sole shipper on the Tuscarora Xpress Project.[2] Southwest states that it could not relay this fact in its initial motion due to a confidentiality provision in its precedent agreement.[3]
I write separately to express my view that the Commission should apply its regulations on granting late interventions consistently across all regimes it administers.[4] The Commission inconsistently applies its regulations by granting late interventions in natural gas rate, electric, and oil proceedings without inquiring as to good cause. In contrast, the Commission requires good cause in hydropower and natural gas certificate proceedings. Though I acknowledge that the courts have allowed us to apply our procedural rules differently across our various regulatory regimes,[5] there is nothing inherent in natural gas rate, electric, or oil proceedings that justifies or requires this disparity, and to my knowledge the Commission has offered no rationale for it. The mere fact that courts have permitted different policies in different regimes does not make it good policy.
For these reasons, I respectfully concur.
[1] See Algonquin Gas Transmission, LLC, 162 FERC ¶ 63,023, at P 3 (2018) (“[S]imply declaring that an administrative oversight was committed does not constitute good cause in and of itself.”); PJM Interconnection, L.L.C., 151 FERC ¶ 61,231, at P 13 (2015) (“Consolidated Edison contends its late-filed intervention is the result of administrative oversight. We find that Consolidated Edison failed to make a showing of good cause to justify late intervention, and accordingly we deny Consolidated Edison's late-filed motion to intervene.”).
[2] See Cal. Trout v. FERC, 572 F.3d 1003, 1021-22 (9th Cir. 2009) (“A finding that a movant has failed to show good cause is a sufficient basis for denying late intervention. If the Commission determines that the movant failed to show good cause, it ‘may,’ but is not required to, consider any other factor, including prejudice.”)
[3] Southwest September 24, 2020 Rehearing Request at 3.
[4] See Cal. Trout, 572 F.3d at 1026 (“[W]e observe that the Commission’s procedural rules are no less important—and, therefore, no less deserving of respect—than our own code of procedure. Such rules provide for orderly decisionmaking and constitute advance notice of the process by which our institutions will conduct themselves.”).
[5] See id. at 1023-24 (stating that natural gas projects may involve special circumstances distinguishing such projects from hydroelectric projects).