Commissioner James Danly Statement
May 1, 2023
Docket Nos. CP21-94-002, CP21-94-000, CP21-94-001
I would have denied rehearing altogether. To the extent to which the Commission suggests that,[1] in issuing the First Notice to Proceed[2] prior to the issuance of the Rehearing Order,[3] Order No. 871-B[4] and 18 C.F.R. § 157.23 were violated, I dissent in part. While, perhaps for the sake of clarity, it may have been better were the Rehearing Order to have issued first, I remain unconvinced that an error was committed in the First Notice to Proceed being issued prior to the Rehearing Order, for two reasons: (1) the Commission acted on the rehearing request at its March 16, 2023 Commission meeting; and (2) the Secretary of the Commission issued a notice prior to the issuance of the First Notice to Proceed indicating that the Commission took action in the rehearing docket at the open meeting.
No one can suggest that the Commission’s action, which was brought about by a majority vote on the Rehearing Order at the open meeting, was a legally meaningless or otherwise unnecessary gesture.[5] In fact, that vote disposed of the matter definitively. While the Office of the Secretary had not yet entered the resulting Commission order into the proceeding’s docket at the time that Commission staff issued the First Notice to Proceed, the Commission had already voted on an order disposing of the rehearing request. That vote was taken with prior notice to all parties because it was duly noticed under the Sunshine Act a week before the Commission meeting. In contrast to deliberation and voting at open meetings, the posting of an order on the Commission’s website is a ministerial act. What really matters is the “complet[ion] [of the Commission’s] decisionmaking process.”[6]
I recognize Order No. 871-B states that,
construction could not be allowed to proceed until the Commission issues its further order or otherwise indicates that the rehearing is no longer pending before the Commission by notice, order, or filing the record with the court of appeals (which affords the court exclusive jurisdiction to affirm, modify, or set aside the Commission’s order(s)).[7]
Nevertheless, the issuance of the First Notice to Proceed conforms with the process described in Order No. 871-B because the Commission, in fact, “indicate[d] that the rehearing is no longer pending before the Commission by notice”[8] through the Secretary’s separate issuance of a Notice of Action Taken,[9] which listed all dockets in which the Commission had taken dispositive action at the open meeting. That notice was issued on March 16, 2023 at 11:49 a.m.[10] on FERC’s eLibrary, while the First Notice to Proceed, was not issued until 12:39 p.m.[11] Given the action taken at the Commission meeting and the proper notice given to all parties under our regulation, it is my view that the Commission properly complied with the requirements of Order No. 871-B and 18 C.F.R. § 157.23.[12]
For these reasons, I respectfully dissent in part.
[1] See Transcon. Gas Pipe Line Co., LLC, 183 FERC ¶ 61,071, at P 21 & n.46 (2023) (stating that “the preamble to the relevant regulation explicitly ties the timing of the commencement of construction to the issuance of the order denying rehearing” and agreeing with the parties requesting rehearing that “the Rehearing Order should have issued prior to the First Notice to Proceed”).
[2] March 16, 2023 Letter to Transcontinental Gas Pipe Line Company, LLC granting the 02/14/2023 request under CP21-94 (Accession No. 20230316-3044) (First Notice to Proceed).
[3] Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148 (2023) (Rehearing Order).
[4] Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, 175 FERC ¶ 61,098 (2021) (Order No. 871-B).
[5] See 42 U.S.C. § 7171(e) (“Actions of the Commission shall be determined by a majority vote of the members present.”).
[6] Order No. 871-B, 175 FERC ¶ 61,098 at P 25.
[7] Id. P 23 (citations omitted).
[8] Id.
[9] Secretary’s Notice of Action Taken at the 03/16/2023 Commission Meeting (Accession No. 20230316-3036) (listing the items the Commission acted on at the March 16, 2023 Commission meeting) (Notice of Action Taken).
[10] See Notice of Action Taken, Document Info for Accession Number: 20230316-3036, https://elibrary.ferc.gov/eLibrary/docinfo?accession_number=20230316-3036 (showing date and time of posting).
[11] See First Notice to Proceed, Document Info for Accession Number: 20230316-3044, https://elibrary.ferc.gov/eLibrary/docinfo?accession_number=20230316-3044 (showing date and time of posting).
[12] To the extent to which parties may argue that the Secretary’s notice or Rehearing Order are insufficient to satisfy the requirements of our regulations, I note that 18 C.F.R. § 157.23(b), by specifying three different requirements precedent, distinguishes between the Commission’s loss of jurisdiction by filing the record on appeal and other actions that serve as notice that the rehearing request is no longer pending, including Commission orders and notices.