Commissioner James Danly Statement
June 29, 2022
Docket No. CP15-115-006
I concur in the Commission’s decision to grant National Fuel Gas Supply Corporation’s and Empire Pipeline, Inc.’s request for a 35-month extension of time, until December 31, 2024, to construct and place into service the Northern Access 2016 Project.[1]
In today’s order, the Commission states that it lacks “authority to reopen the record underlying the Certificate Order here, where a final, non-appealable order has issued”;[2] I agree. I have taken this position in several separate statements.[3]
Nonetheless, recent Commission orders for extensions of time, some of which I have voted for, have included language that I believe reinforces the Commission’s misguided view in Algonquin Gas Transmission, LLC,[4] issued in 2021, that it may revisit determinations made in final, unappealable certificate orders.[5] In that proceeding, 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.[6] Although the Commission has since terminated the proceeding,[7] 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.[8]
And while I am pleased by the Commission’s recognition in the instant order that reopening a final, non-appealable certificate order is not within the Commission’s authority, statements by the Commission undercut that assertion. For instance, in today’s order, the Commission recognizes “that environmental impacts are subject to change,” and then goes on to state that “the Commission generally will grant an extension of time if the movant files for an extension of time within a timeframe during which the environmental findings underlying the Commission’s authorization can be expected to remain valid.”[9] As I have explained, the Commission should exercise caution when inquiring into whether a prior authorization order’s public interest findings and environmental analysis remain valid.[10] This is because the question of the validity of “findings underlying the Commission’s authorization” is intertwined with the public interest findings.[11]
One final observation: citing to the Order on Briefing, the Commission asserts that “[t]o persuade the Commission to reopen the record, the requesting party must demonstrate the existence of ‘extraordinary circumstances.’”[12] 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.
For these reasons, I respectfully concur.
[1] See National Fuel Gas Supply Corporation and Empire Pipeline, Inc. January 28, 2022 Request for Extension of Time.
[2] Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226, at P 20 (2022).
[3] See Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting); id. (Danly, Comm’r, dissenting at P 26) (“Rule 716, which allows the Commission to reopen the record in certain proceedings, explicitly applies only to initial or revised initial decisions and, moreover, does not apply to final, unappealable orders.”) (citations omitted) (emphasis in original); see also Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029 (2022) (Danly, Comm’r, concurring in part & dissenting in part at P 9) (“If the majority intended to calm what they believed to be unnecessary and overstated fears that the Commission had reopened a final certificate, or to prove that, as my colleague neatly put it, ‘the British are not actually coming,’ it has failed to do so. 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.”) (quoting Transcript of the 1079th Meeting, FERC, at 12 (May 20, 2021), https://www.ferc.gov/media/transcript-6) (Order on Briefing); Algonquin Gas Transmission, LLC, 175 FERC ¶ 61,150 (2021) (Danly, Comm’r, dissenting at PP 4-11) (explaining that the Commission reopened the record for a final, non-appealable certificate order). Cf. Adelphia Gateway, LLC, 178 FERC ¶ 61,030 (2022) (Danly, Comm’r, concurring in part & dissenting in part at P 6) (“To be clear: the Commission lacks authority to revisit its public convenience and necessity determinations once the order making those findings is final.”).
[4] 174 FERC ¶ 61,126 (Danly, Comm’r, dissenting).
[5] For example, recently in Delfin LLG LLC, the Commission stated, “[i]n Chestnut Ridge, we explained that when we act on an application, we rely on information available at that time but that the data that underpin our conclusions on the need for a project, its commercial prospects, and its environmental impacts are subject to change. As we stated there, ‘the validity of our conclusions and environmental mitigation conditions cannot be sustained indefinitely.’” 178 FERC ¶ 61,031, at P 12 (2022) (quoting Chestnut Ridge Storage LLC, 139 FERC ¶ 61,149, at P 8 n.9 (2012)) (emphasis added). As I note above the line, I have voted for other orders that have included similar language. See, e.g., Transcon. Gas Pipe Line Co., LLC, 175 FERC ¶ 61,148, at P 17 (2021). In my concurrence in part and dissent in part in Delfin LNG LLC, I explained how that language reinforces the misguided view in Algonquin Gas Transmission, LLC. See 178 FERC ¶ 61,031 (Danly, Comm’r, concurring in part & dissenting in part at P 3).
[6] 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).
[7] See Order on Briefing, 178 FERC ¶ 61,029.
[8] Id. (Danly, 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.”).
[9] Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226 at P 18 (citations omitted) (emphasis added). I note that similar language has been included in prior Commission orders, including orders that I have voted for. See, e.g., Trunkline Gas Co., LLC, 179 FERC ¶ 61,086, at P 8 (2022) (“The Commission generally will grant an extension of time if the movant files for an extension of time within a timeframe during which the environmental findings underlying the Commission’s authorization can be expected to remain valid.”); Transcon. Gas Pipe Line Co., LLC, 175 FERC ¶ 61,148 at P 17 (“We recognize that environmental impacts are subject to change . . . The Commission generally will grant an extension of time if the movant files for an extension of time within a timeframe during which the environmental findings underlying the Commission’s authorization can be expected to remain valid.”).
[10] E.g., Trunkline Gas Co., LLC, 179 FERC ¶ 61,086 (Danly, Comm’r, concurring at P 1).
[11] Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226 at P 18.
[12] Id. P 20 (citing Order on Briefing, 178 FERC ¶ 61,029 at P 27 (quoting Millennium Pipeline Co., 142 FERC ¶ 61,077, at P 8 (2013)).