Commissioner Richard Glick Dissent Regarding PennEast Pipeline Company, LLC

Commissioner Richard Glick Statement
January 30, 2020
Docket No. RP20-41-000
Order: C-1

Dissent Regarding PennEast Pipeline Company, LLC

I dissent1 from today’s order on both procedural and substantive grounds. There is no need for the Commission to insert itself into what is primarily a constitutional question that is being litigated where those questions belong: The federal courts. Nor is this an area where the Commission has the particular expertise the majority is so quick to claim. The NGA requires the Commission to determine whether an interstate pipeline is required by the public convenience and necessity.2 If the Commission finds that a proposed pipeline is so required, section 7(h) of the NGA automatically provides the pipeline developer eminent domain authority without any action or further involvement by the Commission. The congressional intent behind a statutory provision that governs a judicial scheme, which the Commission has no role in administering, is not a subject on which we are especially well-qualified to opine.

Turning to the substance of today’s order, I disagree with the majority that Congress unambiguously intended section 7(h) to apply state lands. In my view, the evidence simply is not clear one way or the other. The majority’s confidence in its conclusion is better evidence of its own ends-oriented decisionmaking than any unambiguous congressional intent.

I understand that my colleagues may not like the decision of the U.S. Court of Appeals for the Third Circuit (Third Circuit). 3 But we do not ordinarily rush out a declaratory order whenever a couple of commissioners disagree with a court. Nothing in today’s order makes a compelling case for why we should be doing so today.

It is not appropriate for the Commission to issue a declaratory order in an effort to buttress a private party’s litigation efforts. Moreover, as the majority notes, the important questions presented by PennEast Pipeline Company, LLC’s (PennEast) effort to condemn New Jersey’s property interests “involve[] esoteric matters of constitutional law.”4 In other words, the real stakes at issue involve the Eleventh Amendment to the U.S. Constitution; the majority’s attempt to divine congressional intent is just nibbling around the edges. Other than signaling the majority’s dissatisfaction with the Third Circuit, I see little to be achieved by today’s order.

The majority contends that today’s order is useful because its interpretation of Congress’s intent in enacting section 7(h) merits deference from the courts. It supports that statement with a single general citation to Chevron v. Natural Resources Defense Council, Inc.5 But courts do not afford an agency Chevron deference when the relevant issue was not delegated to the agency to decide. “Deference in accordance with Chevron . . . is warranted only ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’”6 And Chevron deference “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps7 That said, ambiguity alone will not always suffice: Congress must also have delegated to the agency in question the authority to fill in that ambiguity.8 Where the relevant issues are not ones that Congress has left for the agency to decide, Chevron does not apply.

The scope of the eminent domain authority in section 7(h) is not an issue that Congress left for the Commission to decide. Section 7(h) provides a mechanism for a certificate holder to go into court and condemn land that it has been unable to purchase on its own.9 The Commission has repeatedly made clear that it has no role to play in the proceedings contemplated by section 7(h) or the actual exercise of eminent domain more generally.10 As the Commission has explained, eminent domain is an “automatic right” that is incident to the Commission’s public convenience and necessity determination11 and disputes about the exercise of that eminent domain authority are best addressed by the federal courts.12

Because the Commission has no role in implementing or administering the eminent domain authority conveyed by section 7(h), the majority cannot reasonably argue that Congress delegated to the Commission the responsibility to address any ambiguity in that provision.13 Questions about the scope of a private party’s right to commence an action in federal or state court are not issues that Congress would have given this Commission to decide. Instead, the obvious venue to address those questions in the first instance is those courts themselves. Accordingly, the prospect of securing judicial deference is also not, in my opinion, a valid reason to put out today’s order.

Turning to the substance of today’s order, the majority’s conviction that Congress unambiguously intend section 7(h) to apply to state lands is dead wrong. The “evidence” that the majority relies on to argue that the eminent domain authority in section 7(h) applies to state lands is, at best, inapt or susceptible to multiple interpretations. Even viewed as a whole and in a light most charitable to the majority, the evidence discussed in today’s order simply does not demonstrate a clear congressional intent one way or another. All today’s order proves is that the majority believes that certificate holders should be able to condemn state lands, not that Congress intended that to be the case.

The majority begins, as it must, with the text of section 7(h).14 But there is not much to say. The Commission’s two-paragraph discussion consists of one paragraph quoting section 7(h) in full15 and a second paragraph summarizing how it works.16 The only substantive point today’s order makes about the text of section 7(h) is that Congress did not expressly prohibit condemnation of state lands.17

On that point, I agree. But the absence of an express limitation on condemning state lands is hardly an unambiguous signal that Congress intended section 7 certificate holders to have that authority. After all, section 7(h) also does not contain an express prohibition on condemning federal land and, to my knowledge, no one believes that section 7(h) therefore conveys such authority. The majority references the “broad and unqualified reference to ‘the necessary land or property in section 7(h),’” suggesting that this language extends condemnation authority to any land deemed necessary to develop a proposed pipeline.18 Perhaps, but a more plausible reading is that the word “necessary” acts as a limiting provision, which makes clear that section 7(h) is not a general right of eminent domain and can be deployed only to condemn property that will be used in connection with the pipeline. Under that reading, the term “necessary” does not indicate anything one way or another about section 7(h)’s application to state lands.

With that, the majority turns to proffer a discussion of “[j]udicial review of section 7(h).”19 That discussion cites exactly one section 7(h) case: Thatcher v. Tennessee Gas Company,20 which is entirely irrelevant. Thatcher involved a dispute between a natural gas pipeline and a private landowner, who argued that section 7(h) was unconstitutional because, among other things, it did not regulate interstate commerce and eminent domain authority could not be exercised by a private company.21 Based on principles that were well established even then, the U.S. Court of Appeals for the Fifth Circuit rejected those arguments.22 The court said nothing about the extent of the eminent domain authority conveyed by section 7(h) or whether that authority extended to state lands. Simply put, Thatcher is irrelevant for our purposes, as the majority itself seems to recognize. 23

As part of its discussion of “judicial review,” the majority also points to Tenneco Atlantic, a decision issued by an administrative law judge (ALJ) in 1977, thirty years after Congress enacted section 7(h).24 I agree that, in Tenneco Atlantic, the ALJ explained his belief that section 7(h) gave the certificate holder the authority to condemn state land.25 But I disagree that a single ALJ opinion issued three decades after the relevant amendments tells us much, if anything, about the extent of the eminent domain authority that Congress intended to convey in section 7(h).26

In addition, the majority points to the Commission’s decision in Islander East, which rejected an Eleventh Amendment argument on the basis that a condemnation action was not a “suit in law or equity”27 —exactly the question that today’s order declines to address on the basis that it is outside “the heartland of our quotidian ambit.”28 As the majority recognizes, the Third Circuit dismissed the Commission’s conclusion in Islander East, calling it “an outlier and one that was reached with little, if any, analysis.”29 “More importantly,” the Third Circuit stated, “it is flatly wrong.”30 That sums it up pretty well. I appreciate that the majority likes the outcome in Islander East,31 but, as the Third Circuit noted, there is no reasoning or analysis in that order to support that outcome or explain why it is consistent with congressional intent.32 Simply put, it sheds no light on the question before us.

Next, the majority turns to cherry-picking examples from the NGA’s legislative history to bolster its case.33 It begins with the Senate report associated with the 1947 legislation that added section 7(h) to the NGA. It contends that the Senate report demonstrates that section 7(h) reflected a generalized concern about states’ ability to invade the Commission’s jurisdiction or “nullif[y]” its determinations—which, according to the majority, supports the conclusion that Congress plainly intended section 7(h) to apply to state lands.34

That is quite a leap. In fact, the Senate report indicates that a particular, relatively narrow concern motivated Congress to add section 7(h): Providing a federal right of eminent domain for pipeline developers that were ineligible to utilize state eminent domain laws. The report begins by noting that, because section 7 did not contain an eminent domain provision, certificate holders at the time were required to utilize state eminent domain laws.35 However, the report explains, an interstate pipeline may not qualify for eminent domain under certain state laws because, for example, the pipeline traverses the state without delivering gas, which can mean that it does not provide the “public use” needed to justify eminent domain under state law36 or because certain states outright prohibit the exercise of eminent domain authority by “foreign” (i.e., out-of-state) corporations.37 To address that concern, the report proposes to create a federal right of eminent domain, so that certificate holders are not left at the mercy of a patchwork of state eminent domain laws.38 But the report says nothing about the scope of that federal right of eminent domain or the entities against which it can be exercised.39

In addition, a careful reading of the report indicates that the committee was also concerned about another particular and relatively narrow way in which state decisions might interfere with or invade Commission jurisdiction. The report explains that natural gas pipelines frequently transport gas long distances between producing regions and consuming markets, often crossing multiple intervening states without delivering gas for consumption in those states.40 The report further explains that the Commission certificates the transport of gas “from points of supply to certain defined and limited markets” and that this defined certification of transportation service from point A to point B would be “nullified” if the intervening states could condition eminent domain authority on the pipeline also delivering gas to points C, D, and E along the way.41 Once again, nothing about that defined problem—states seeking to force interstate natural gas pipelines to deliver gas within their borders—or Congress’s solution—a federal right of eminent domain—says anything about the scope of that federal right of eminent domain or the entities against which it can be exercised.42

The majority then turns to discuss the divergent evolution of the eminent domain provisions under the NGA and the Federal Power Act (FPA).43 And, to be fair, the majority is on relatively stronger ground here. As today’s order explains, the Energy Policy Act of 1992 amended the FPA to limit the exercise of eminent domain against state lands without making a corresponding change to section 7(h).44 From that, the majority concludes that “Congress did not intend for condemnations under NGA section 7(h) to be subject to the restrictions Congress later imposed in amendments to FPA section 21.”45 The implication, as I understand it, is that because Congress limited the power to condemn state land under section 21 of the FPA, such limits must have been necessary and because Congress did not similarly limit the power to condemn state land under section 7(h) of the NGA, that power must be unlimited.46

That is one plausible interpretation, but it is hardly the only one. It is equally possible that Congress did not modify NGA section 7(h) because, for whatever reason, it did not believe that section 7(h) presented the same concerns. Although my colleagues may think that Congress would have been wrong in reaching that judgment, that opinion tells us relatively little about Congress’s actual motivations. In any case, the fact that Congress subsequently sought to limit the scope of eminent domain under the FPA sheds little light on what Congress intended when it enacted section 7(h) of the NGA roughly 45 years earlier.47

In addition, the Third Circuit posited another reason why Congress might have added this language when amending the FPA in 1992: “When Congress passed the NGA and [section 7(h)] in 1938 and 1947, respectively, Congress was legislating under the consensus that it could not abrogate states’ Eleventh Amendment immunity pursuant to the Commerce Clause.”48 The Energy Policy Act of 1992, by contrast, was enacted during a brief period in which the Supreme Court held that Congress could abrogate state sovereign immunity pursuant to its Commerce Clause powers, giving Congress a reason to explicitly limit eminent domain against state lands.49 It is possible that, in addressing the FPA in 1992, Congress saw fit to provide newly relevant limits on eminent domain—limits that it did not, for whatever reason, apply to section 7 of the NGA, which the Energy Policy Act of 1992 did not modify.

The majority attempts to cast doubt on that possibility by noting that the relevant committee report for the Energy Policy Act of 1992 does not discuss the Supreme Court’s sovereign immunity jurisprudence.50 Although it is true that the report does not mention the Supreme Court’s sovereign immunity cases, the absence of any such discussion hardly proves that those cases were irrelevant to Congress’s thinking. As the Supreme Court has explained, when using legislative history to “ascertain[] the meaning of a statute, [we] cannot, in the manner of Sherlock Holmes,” find clear meaning in “the theory of the dog that did not bark.”51

Finally, the majority asserts that this relationship between the eminent domain provisions in the NGA and FPA is of paramount importance because the Supreme Court “directly addressed the question whether a hydroelectric licensee may condemn state land pursuant to a license granted under FPA section 21” in City of Tacoma v. Taxpayers of Tacoma.52 Except that it didn’t. In City of Tacoma, the Court held that section 313(b) of the FPA provided the “specific, complete and exclusive mode for judicial review of the Commission’s orders,”53 that the issues then before the Court—which arose on appeal from a decision of the Supreme Court of Washington54 —could only have been properly raised in an appeal pursuant to section 313(b), and that those issues were, in fact, raised in such an appeal to the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit).55 City of Tacoma is a case about the procedures for judicial review of Commission action, not the scope of eminent domain authority under the FPA. Accordingly, the fact that the Supreme Court was not, in the majority’s judgment, “alarm[ed]” by the prospect of eminent domain against state lands56 is of no real help in deciding the issues before us today.

The majority also points, albeit briefly, to the Ninth Circuit57 case referenced in City of Tacoma and the Supreme Court’s earlier decision in First Iowa Hydro-Electric Cooperative v. Federal Power Commission.58 But, once again, neither case squarely addresses the scope of the relevant eminent domain authority. Instead, both cases stand for a single clear proposition: That “state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States.”59 That conclusion, which would appear to be a relatively straightforward application of the Supremacy Clause,60 says nothing about the scope of the eminent domain authority in FPA section 21. The majority implies that the Ninth Circuit must have approved of the exercise of eminent domain against state property because the licensee in that case, the City of Tacoma, intended to exercise that authority.61 But whatever the court may have thought about such an exercise of eminent domain is irrelevant, since the question before the court was whether a subdivision of a state could act contrary to state law if it was doing so pursuant to a federal license—a question that the court answered in the affirmative, without addressing its implications for eminent domain.62

It bears repeating that I am not certain whether Congress intended section 7(h) of the NGA to apply to state lands or not. The evidence simply is not clear one way or the other. I have gone through the foregoing discussion to highlight the extent to which the Commission has misconstrued the evidence or ignored the limits of the authority on which it relies. I appreciate that my colleagues disagree with the conclusion reached by the Third Circuit and that some badly want to see it overturned. But that disagreement, profound as it may be, does not excuse the ends-oriented reasoning in today’s order, which is both deeply troubling and, frankly, a discredit to the agency.

Finally, the majority concludes by asserting that the Third Circuit’s decision will “have profoundly adverse impacts on the development of the nation’s interstate natural gas transportation system.”63 That discussion is, frankly, the most honest part of today’s order, as it reflects the majority’s belief that the Third Circuit’s decision is a bad outcome. But it is not clear just how “profound[]” or “adverse” those effects will actually turn out to be. That question depends on a number of factors that are difficult to predict in a vacuum.

For one thing, the primary effect of the Third Circuit’s ruling may be to encourage pipeline developers to undertake greater efforts to cooperate and coordinate with the relevant states—not necessarily a bad outcome. And, moreover, it is not clear that requiring such coordination would represent an insuperable obstacle to pipeline development. After all, until recently, the Commission interpreted section 401 of the Clean Water Act64 to create essentially the same type of state-level veto authority that the majority now sees in the Third Circuit’s decision.65 And, notwithstanding that effective veto, the development of interstate pipelines did not exactly grind to a halt.66

And we must not forget that Congress can have the last say. If Congress disapproves of the Third Circuit’s decision, it can step in and remedy the situation.67 Congress has a long and well-documented history of responding to judicial decisions with which it disagrees, including decisions involving state sovereign immunity and the Eleventh Amendment.68 If the Third Circuit’s decision stands, Congress could, for example, amend section 7(h) of the NGA, attempt to validly abrogate state sovereign immunity under the NGA, or pursue measures, such as the “work-around” contemplated by the Third Circuit,69 to facilitate pipeline developers’ efforts to acquire rights-of-way over state land.

For these reasons, I respectfully dissent.



 

• 11 Although I agree with the conclusion in today’s order that section 7(h) of the Natural Gas Act (NGA), 15 U.S.C. § 717f(h) (2018), delegates eminent domain authority to the holder of an NGA section 7 certificate and not to the Commission, I dissent in full because the Commission should not be issuing this order in the first place. PennEast Pipeline Company, LLC, 170 FERC ¶ 61,064, at PP 49-53 (2020) (Order).
• 22 15 U.S.C. § 717f(c).
• 33 In re PennEast Pipeline Co., LLC, 938 F.3d 96 (3d Cir. 2019).
• 44 Order, 170 FERC ¶ 61,064 at P 39.
• 55 Id. P 15. The Commission also asserts, notably without citation, that it has the authority to apply and interpret section 7(h). Id. at P 13. For the reasons discussed below, that is not the case. See infra PP 6-7.
• 66 Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)); see Fox v. Clinton, 684 F.3d 67, 76 (D.C. Cir. 2012) (explaining that not all agency statutory interpretations qualify for Chevron deference; only those interpretations that meet the criteria outlined in Gonzalez).
• 77 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
• 88 See Atl. City Elec. Co. v. FERC, 295 F.3d 1, 9 (D.C. Cir. 2002) ([M]ere ambiguity in a statute is not evidence of congressional delegation of authority in the first instance. Rather, Chevron deference comes into play of course, only as a consequence of statutory ambiguity, and then only if the reviewing court finds an implicit delegation of authority to the agency.” (internal quotation marks and citations omitted) (emphasis in the original)).
• 99 See 15 U.S.C. § 717f(h).
• 1010 E.g., Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 74 (2018) (“In NGA section 7(c), Congress gave the Commission jurisdiction to determine if the construction and operation of proposed pipeline facilities are in the public convenience and necessity. Once the Commission makes that determination, in NGA section 7(h), Congress gives the natural gas company authorization to acquire the necessary land or property to construct the approved facilities by the exercise of the right of eminent domain . . . . The Commission itself does not grant the pipeline the right to take the property by eminent domain.”); Atl. Coast Pipeline, 161 FERC ¶ 61,042, at PP 66, 77 (2017) (same).
• 1111 Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197 at P 72; see Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000) (“Once a certificate has been granted, the statute allows the certificate holder to obtain needed private property by eminent domain. The Commission does not have the discretion to deny a certificate holder the power of eminent domain.” (citations omitted)); Atl. Coast Pipeline, 161 FERC ¶ 61,042 at P 78 (“[O]nce a natural gas company obtains a certificate of public convenience and necessity, it may exercise the right of eminent domain in a U.S. District Court or a state court.”).
• 1212 Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197 at PP 72-73; see Millennium Pipeline Co., L.L.C., 158 FERC ¶ 61,086, at P 6 (2017) (“Issues related to the acquisition of property rights by a pipeline under the eminent domain provisions of section 7(h) of the Natural Gas Act, including issues regarding compensation, are matters for the applicable state or federal court.”).
• 1313 See, e.g., Atl. City Elec., 295 F.3d at 9; Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir. 2001).
• 1414 Order, 170 FERC ¶ 61,064 at PP 33-34; See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (“The task of resolving the dispute over the meaning of [a statutory provision] begins where all such inquiries must begin: with the language of the statute itself.”).
• 1515 Order, 170 FERC ¶ 61,064 at P 33
• 1616 Id. P 34.
• 1717 Id.
• 1818 Id. (quoting 15 U.S.C. § 717f(h)).
• 1919 Id. P 35.
• 2020 Thatcher v. Tenn. Gas Transmission Co., 180 F.2d 644, 645 (5th Cir. 1950).
• 2121 Id. (summarizing the Thatcher’s arguments).
• 2222 Id. at 646-48; accord Order, 170 FERC ¶ 61,064 at P 29 (noting that the Third Circuit’s opinion does not question these well-established principles).
• 2323 Order, 170 FERC ¶ 61,064 at P 35.
• 2424 Id.P 36.
• 2525 Id.
• 2626 In that same section of the opinion, the ALJ described as “patently absurd” the notion that Congress would authorize the use of eminent domain to develop a pipeline to serve a liquefied natural gas import/export facility yet deny the use of eminent domain for the actual import/export facility itself. Tenneco Atl. Pipeline Co., 1 FERC ¶ 63,025, 65,204 (1977). Of course, that is exactly what the law currently does. Compare 15 U.S.C. § 717b (no provision for eminent domain) with 15 U.S.C. § 717f(h) (providing for eminent domain). Accordingly, it might be worth taking with a grain of salt the ALJ’s conclusion that Congress obviously intended the condemnation authority in section 7(h) to apply to state lands.
• 2727 Islander East Pipeline Co., 102 FERC ¶ 61,054, at P 123 (2003).
• 2828 Order, 170 FERC ¶ 61,064 at P 39.
• 2929 In re PennEast, 938 F.3d at 111 n.19.
• 3030 Id.
• 3131 Order, 170 FERC ¶ 61,064 at P 38 (recognizing that the holding in Islander East was “terse,” but asserting that being light on analysis “does not . . . obviate the validity of th[e] final holding”).
• 3232 In re PennEast, 938 F.3d at 111 n.19.
• 3333 Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking over a crowd and picking out your friends.’” (quoting Patricia Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983))).
• 3434 Order, 170 FERC ¶ 61,064 at P 41.
• 3535 S. Rep. 80-429, at 2 (1947).
• 3636 Id. (discussing Shedd v. Northern Indiana Public Service Company, 188 N.E. 322 (Ind. 1934)); id. (collecting other cases to the same effect).
• 3737 Id. (discussing Shedd v. Northern Indiana Public Service Company, 188 N.E. 322 (Ind. 1934)); id. (collecting other cases to the same effect).
• 3838 Id. at 3.
• 3939If anything, aspects of the report could suggest that the committee may not have believed that section 7(h) would apply state-owned lands at all. For example, in enumerating the problems with relying on state eminent domain laws, the report notes that, under Arkansas’s Constitution, “a foreign corporation shall not have the power to condemn private property.” Id. at 2 (emphasis added). One could infer that the focus on private property indicates that private lands were all the senators had in mind at the time, although, unlike the majority, I am hesitant to find clear congressional intent based on circumstantial inferences alone.
• 4040 Id. at 3.
• 4141 Id. at 4 (“If a State may require such interstate natural-gas pipe lines to serve markets within that State as a condition to exercising the right of eminent domain, then it is obvious that the orders of the Federal Power Commission may be nullified.”).
• 4242 Cf. In re PennEast, 938 F.3d at 113 n.20 (“As for the legislative history, it demonstrates that Congress intended to give gas companies the federal eminent domain power. . . . But it says nothing about Congress’s intent to allow suits against the States.” (citing S. Rep. No. 80-429, at 2-3)).
• 4343 Order, 170 FERC ¶ 61,064 at PP 42-43.
• 4444 Id. P 43.
• 4545 Id.
• 4646 Id. PP 43-44.
• 4747 See Mackey v. Lanier Collection Agency & Serv., Inc.,486 U.S. 825, 840 (1988) (“‘[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’” (quoting United States v. Price, 361 U.S. 304, 313 (1960))); accord Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring in part) (“Arguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously.”).
• 4848 PennEast, 938 F.3d at 113 n.20 (internal quotation marks omitted).
• 4949 Id.
• 5050 Order, 170 FERC ¶ 61,064 at P 43.
• 5151 Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980) (citing Arthur Conan Doyle, The Silver Blaze, in The Complete Sherlock Holmes (1938)).
• 5252 Order, 170 FERC ¶ 61,064 at P 45.
• 5353 City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958).
• 5454 Id. at 332-333.
• 5555 Id. at 339.
• 5656 Order, 170 FERC ¶ 61,064 at P 47.
• 5757 State of Wash. Dep’t of Game v. FPC, 207 F.2d 391 (9th Cir. 1953).
• 5858 328 U.S. 152 (1946).
• 5959 207 F.2d at 396-97 (citing First Iowa).
• 6060 E.g., id.
• 6161 Order, 170 FERC ¶ 61,064 at P 47.
• 6262 207 F.2d at 396.
• 6363 Order, 170 FERC ¶ 61,064 at P 56.
• 6464 33 U.S.C. § 1341(a)(1) (2018).
• 6565 See Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019) (explaining that the “withdrawal-and-resubmission scheme” that the Commission had previously interpreted to be consistent with the Clean Water Act and the FPA was invalid because it would allow for the “indefinite[] delay [of] federal licensing proceedings and undermine FERC’s jurisdiction”).
• 6666 In 2017 and 2018, roughly 1,500 miles of interstate natural gas pipelines entered service with a combined capacity of 25 billion cubic feet per day (Bcfd). FERC, 2018 State of the Markets Report 7 (Apr. 2019), available at https://www.ferc.gov/ market-assessments/reports-analyses/st-mkt-ovr/2018-A-3-report.pdf (“Over 13 Bcfd and 689 miles of Commission-jurisdictional pipeline capacity entered service during 2018.”); FERC, 2017 State of the Markets Report 4 (Apr. 2018), available at https://www.ferc.gov/market-assessments/reports-analyses/st-mkt-ovr/2017-som-A-3-full.pdf (“Nearly 12 Billion Cubic Feet per day (Bcfd) and 773 miles of Commission-jurisdictional natural gas pipeline capacity went into service in 2017.”). The combined total capacity of those pipelines is equivalent to nearly a third of U.S. natural gas consumption. See U.S. Energy Info. Admin., Short-Term Energy Outlook (Jan. 2020), available at https://www.eia.gov/outlooks/steo/pdf/steo_full.pdf (“Total domestic U.S. natural gas consumption averaged an estimated 85.3 billion cubic feet per day (Bcf/d) in 2019.”).
• 6767 See Lamie v. U.S. Trustee, 540 U.S. 526, 542 (2004) (“If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent.”); Hamilton v. Lanning, 560 U.S. 505, 537 (2010) (Scalia, J., dissenting) (“But it is in the hard cases, even more than the easy ones, that we should faithfully apply our settled interpretive principles, and trust that Congress will correct the law if what it previously prescribed is wrong.”); Teague v. Lane, 489 U.S. 288, 317 (1989) (White, J., concurring in part and concurring in the judgment) (“If we are wrong . . . , Congress can of course correct us.”).
• 6868 Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011, 92 Tex. L. Rev. 1317, 1445 & n.453(2014) (explaining that Congress responded to the Supreme Court’s decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), by explicitly abrogating state sovereign immunity not just in the Rehabilitation Act of 1973, the statute at issue in Atascadero, but also in a handful other statutes).
• 6969 In re PennEast, 938 F.3d at 113.