Commissioner Mark C. Christie Statement
May 19, 2021
Docket No. CP16-9-014
On February 18, 2021, the majority issued an order[1] that, however it may be characterized now, re-opened the record and re-opened litigation of a certificate proceeding, more than four years after the certificate had been issued authorizing the applicants to construct and operate certain pipeline and compression facilities and long after the applicant and its investors – acting in reliance on the issuance of that certificate – committed to invest hundreds of millions of dollars to construct and put this project into operation.
That apparently unprecedented[2] action unquestionably raised the specter that the operation of the project – one this Commission found was needed to serve the public – is now vulnerable to re-litigation and possibly even shut-down by the Commission. Indeed, it remains unclear what the legal or practical purpose of the majority’s February 2021 Order really is, but its deleterious effect on the willingness of investors to invest in any infrastructure project based on a certificate issued by this Commission is obvious.
Despite re-opening a closed record for further litigation, the majority now dismisses requests for rehearing, claiming that the February 2021 Order was not a final order of the Commission and is not subject to rehearing.[3] Given the unprecedented nature of the February 2021 Order, to deny rehearing is to deny the parties affected by that Order and its ramifications the opportunity to express their views. Accordingly, I would grant rehearing to provide such an opportunity and also to allow the majority to reconsider its own position.
Finally, I would repeat a point I made in my dissent to the February 2021 Order: “I suspect that the use of legal weapons of unending litigation and collateral attacks against infrastructure projects long after they have been approved . . . will not be limited to natural gas projects, even though they are today’s primary target. Campaigns of unending legal warfare may well be used one day against other types of infrastructure projects, including those the majority may well want to promote.”[4]
For these reasons, I respectfully dissent.
[1] Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (“February 2021 Order”).
[2] See Bipartisan Former FERC Commissioners Comments on February 18, 2021 Order Establishing Briefing April 21, 2021 at 2 (“We are unaware of any other instance, in the eight-decade history of the Natural Gas Act, where the Commission has taken such a step. Certainly, we cannot recall any such cases during our tenures on the Commission, which collectively span 20 years.”).
[3] Algonquin Gas Transmission, LLC, 175 FERC ¶ 61,150, at P 4 (2021). The majority suggests that the request for rehearing is premature and that petitioners can raise their arguments in any briefs in this proceeding or after an order is issued as a result of the briefing. See, e.g., id. P 8. The record, however, is re-opened for additional litigation years after the certificate was issued, and to deny rehearing is to deny due process and inflict even greater damage.
[4] February 2021 Order (Christie, Comm’r, dissenting at P 7).