Commissioner James P. Danly Statement
August 23, 2022
CP16-10-009, CP19-477-001, CP21-57-001
I concur in the Commission’s decision to grant Mountain Valley Pipeline, LLC’s request for a four-year extension of time,[1] until October 13, 2026, to construct and place into service the Mountain Valley Pipeline Project[2] and the Greene Interconnect Project.[3]
I write separately regarding the Commission’s assertion that “the validity of our conclusions and environmental conditions cannot be sustained indefinitely.”[4] As I explained in my separate statement in Delfin LNG LLC,[5] to suggest that an order’s conclusions, which include its public convenience and necessity determination, may not be sustained indefinitely reinforces the Commission’s misguided view in Algonquin Gas Transmission, LLC that it may revisit determinations made in final, unappealable certificate orders.[6] In Algonquin Gas Transmission, LLC, in the face of more than 80 years of contrary precedent, the Commission reopened the record of a judicially-final certificate order without even an attempt to offer a statutory basis for its action.[7] Although the Commission has since terminated the proceeding,[8] in doing so it refused to identify the authority that would permit it to reopen a certificate proceeding once final, while still leaving the door open to later revisit whether an approved project is still in the public convenience and necessity.[9]
Even though the Commission’s practice of establishing project deadlines in authorization orders is in order to “diminish[] the potential that the public interest might be compromised by significant changes occurring between issuance of the certificate and commencement of the project,”[10] our inquiry when reviewing a request for extension of time is narrow—it is not an opportunity to revisit the determinations made in certificate proceedings after orders have become final and unappealable.
For these reasons, I respectfully concur.
[1] See Mountain Valley Pipeline, LLC June 24, 2022 Request for Extension of Time.
[2] See Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017), order on reh’g, 163 FERC ¶ 61,197 (2018), aff’d sub. nom. Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019); see also Mountain Valley Pipeline, LLC, 179 FERC ¶ 61,013 (2022) (amending the Mountain Valley Pipeline Project’s certificate); Mountain Valley Pipeline, LLC, 173 FERC ¶ 61,026 (2020) (granting a two-year extension of time to complete construction and place the project into service), order on reh’g, 173 FERC ¶ 61,222 (2020), petition for review pending sub nom. Sierra Club v. FERC, No. 20-1512 (D.C. Cir.) (oral argument held Apr. 7, 2022).
[3] See Mountain Valley Pipeline, LLC, 171 FERC ¶ 61,047 (2020).
[4] Mountain Valley Pipeline, LLC, 180 FERC ¶ 61,117, at P 22 (2022).
[5] See 178 FERC ¶ 61,031 (2022) (Danly, Comm’r, concurring in part & dissenting in part at P 3).
[6] See generally Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting).
[7] See Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126; id. (Danly, Comm’r, dissenting at PP 18, 22); Former Commissioners Mike Naeve, Elizabeth A. Moler, Donald F. Santa, Jr., Pat Wood, III, Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly April 12, 2021 Letter to the Commission, Docket No. CP16-9-000, et al., at 1-2 (“We are troubled by the novel assertion of authority to reconsider a long-since-final certificate order, without any suggestion that the terms of that order were violated, and long after a private company built and placed into service the facilities in question, at a cost of approximately a half billion dollars. 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.”). Cf. U.S. v. Seatrain Lines, Inc., 329 U.S. 424 (1947) (affirming district court’s holding that the Interstate Commerce Commission had exceeded its statutory authority in reopening the proceeding and altering the certificate).
[8] See Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029 (2022).
[9] Id. (Danly, Comm’r, concurring in part & dissenting in part at P 9) (“The majority’s refusal to explain the Commission’s authority only highlights the obvious fact that it had none. And instead of acknowledging this plain fact, the majority leaves the door open to revisit whether a project is in the public convenience and necessity at its whim.”).
[10] Altamont Gas Transmission Co., 75 FERC ¶ 61,348, at 62,103 (1996).