Commissioner Richard Glick Statement
May 21, 2020
Docket No. RP20-40-001
Order: C-6
Dissent Regarding PennEast Pipeline Company, LLC
I dissented from the underlying order because the Commission went out of its way to bolster a private party’s litigation efforts regarding the meaning of the U.S. Constitution.[1] I also disagreed with several aspects of the Commission’s slipshod analysis of the questions it chose to address. As I explained, the Commission magically saw clear congressional intent where a reasonable person could find only ambiguity and questions left unanswered. The bottom line was that “[t]he majority’s confidence in its conclusion [wa]s better evidence of its own ends-oriented decisionmaking than any unambiguous congressional intent.”[2]
Today’s order is more of the same, and I do not need to repeat all of my underlying dissent. A few points, however, are worth a brief mention.
The first is the Commission’s attempt to bolster its claim to Chevron deference.[3] In the underlying order, the Commission asserted, ipse dixit, that its interpretation would receive deference by the courts.[4] The Commission tries a little harder in today’s order, contending that Chevron deference is appropriate because the Commission is the agency charged with administering other provisions of the Natural Gas Act (NGA).[5] But the end result is the same, as today’s order once again misapprehends the purpose and role of Chevron.
As the Supreme Court has repeatedly held, “[d]eference 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] In particular, Chevron “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”[7] An implicit delegation can be found where an “agency’s generally conferred authority and other statutory circumstances [indicate] that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.”[8] But that must mean that ambiguity by itself is not sufficient to implicate Chevron; otherwise there would be no need to consider what Congress would “expect” from the agency.[9] “Rather, Chevron ‘deference comes into play . . . , only as a consequence of statutory ambiguity, and then only if the reviewing court finds an implicit delegation of authority to the agency.’”[10]
As I explained in my earlier dissent, nothing in the NGA indicates that Congress would have expected the Commission to fill in ambiguity regarding the scope of section 7(h).[11] That is because the Commission has no role to play whatsoever in administering that provision.[12] Rather, section 7(h) provides what the Commission describes as an “‘automatic right’” [13] that affords certificate holders the ability to begin eminent domain proceedings in federal court, with no Commission supervision. The Commission’s oft-stated position is that all it does is evaluate whether a proposed pipeline is required by the public convenience and necessity and that the “Commission itself does not grant the pipeline the right to take the property by eminent domain.”[14]
Indeed, the Commission has an impressive record of ducking questions related to section 7(h), insisting that the courts are the proper forum for those questions.[15] That makes sense given that section 7(h) provides no role for the Commission to play and there is nothing in the NGA’s “generally conferred authority and other statutory circumstances” that indicates that “Congress would expect the [Commission] to be able to speak with the force of law” when interpreting section 7(h).[16] Against that backdrop, the Commission’s role in administering other aspects of the NGA’s certification process is irrelevant.[17]
Second, the Commission attempts to rehabilitate its reliance on a series of cases that are —to put it charitably—inapt. As I previously explained, no reasonable person could read those cases to support the assertion that section 7(h) clearly vests certificate holders with the authority to condemn state lands.[18] Indeed, the Commission’s reliance on those cases only highlights the absence of persuasive authority supporting its position.
Today’s order begins with the Supreme Court’s decision in City of Tacoma v. Taxpayers of Tacoma.[19] Unlike the underlying order, the Commission this time admits that the case was decided on procedural grounds that are irrelevant to the question before us.[20] That should be the end of the analysis, since it means that all today’s order has to contribute is the observation that the substantive question presented in a case dismissed on jurisdictional grounds[21] was whether a subdivision of a state could condemn state land under section 21 of the Federal Power Act (the most analogous provision to section 7(h) under the NGA).[22] The Court, of course, could not address that question,[23] and so that case says nothing about the issues now before us.[24]
In a pseudo-response, the Commission slips into a footnote a new theory of City of Tacoma’s relevance, asserting that it is an example of the Court’s willingness to dismiss collateral attacks on the Commission’s certificate orders.[25] Although that theory correctly characterizes City of Tacoma (for the first time), its implication badly mischaracterizes New Jersey’s claim of sovereign immunity.[26] Whether right or wrong, a state’s assertion of its “dignity” interest in not being haled into court without its consent, is hardly just a collateral challenge to a Commission certificate.[27] Immunity from suit in federal court is an altogether different theory than a substantive challenge to a section 7 certificate, and a condemnation proceeding is exactly the forum in which one would expect a state to raise that putative right.[28] So brusquely dismissing a state’s attempt to assert its Constitutional immunity from suit in federal court as nothing more than a collateral challenge to a certificate order is quite the contrast to my colleagues’ oft-repeated commitments to federalism and states’ rights.
Next, the Commission turns to briefly defend its reliance on Thatcher v. Tennessee Gas Transmission Company,[29] a case from the U.S. Court of Appeals for the Fifth Circuit, which upheld section 7(h) against a challenge under the Tenth Amendment to the U.S. Constitution.[30] But, as I explained in my earlier dissent, the fact that section 7(h) did not violate the Tenth Amendment is irrelevant when considering whether Congress intended section 7(h) to apply to state lands or what that means for the Eleventh Amendment.[31] Nevertheless, the Commission insists that considering Thatcher was appropriate because, lacking any cases directly on point, it was forced to resort to “analogies, inferences, and comparisons.”[32] It may well be that Thatcher is all the Commission can point to as it works with what little authority it has.[33] But, if so, that only proves my point that we do not have a clear answer regarding Congress’ intentions behind section 7(h).
Finally, I am glad to see today’s order this time explicitly acknowledge that the text of section 7(h) is ambiguous.[34] Although I think that is the only reasonable conclusion, it means that this proceeding is not one that can be decided on the basis of the text alone, as the Commission suggested in the underlying order.[35] Instead, the outcome must turn on the other indicia of congressional intent that the Commission spent—and, in today’s order, spends—so much time discussing.[36] I have reviewed those materials again and, for the reasons discussed in my earlier dissent, can only reach the same conclusion as before: “The evidence simply is not clear one way or the other . . . whether Congress intended section 7(h) of the NGA to apply to state lands or not.”[37] As a result, the Commission had no business issuing the Declaratory Order that it did.
For these reasons, I respectfully dissent.
[1] PennEast Pipeline Company, LLC, 170 FERC ¶ 61,064, at P 15 (2020) (Order) (Glick, Comm’r, dissenting at P 1 & n.1).
[2] Id. (Glick, Comm’r, dissenting at P 2).
[3] PennEast Pipeline Company, LLC, 171 FERC ¶ 61,135, PP 20-22 (2020) (Rehearing Order); see generally Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (discussing deference).
[4] Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at P 5) (“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.”).
[5] Rehearing Order, 171 FERC ¶ 61,135 at PP 20-22.
[6] E.g., 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).
[7] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
[8] Mead, 533 U.S. at 229.
[9] Id.; see Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8-9 (D.C. Cir. 2002) (“‘Mere ambiguity in a statute is not evidence of congressional delegation of authority.’” (quoting Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir. 2001)).
[10] Atl. City, 295 F.3d. at 9 (emphasis in the original) (quoting Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 645 (D.C. Cir. 1998)).
[11] Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at P 6).
[12] This is a point the Commission makes frequently—almost every time eminent domain comes up in the certification process. See id. (collecting recent Commission orders disclaiming responsibility over the scope of certificate holders’ eminent domain authority or how they exercise that authority).
[13] Id. (Glick, Comm’r, dissenting at P 6) (quoting Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 72 (2018)).
[14] E.g., Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197 at P 74 (“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.”).
[15] See, e.g., Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at P 6). The Commission notes that it has not formally “disclaimed jurisdiction over every possible issue that may be deemed related to the acquisition of property rights by a pipeline.” Rehearing Order, 171 FERC ¶ 61,135 at P 22 (internal quotation marks omitted). That statement, which is supported only by a citation to an unsupported section of the underlying order, tells us nothing. An agency’s statement that it has not formally disclaimed jurisdiction hardly proves that it had it in the first place.
[16] Mead, 533 U.S. at 229. The Commission also suggests that its experience administering the NGA more generally entitles it to deference, even with regard to the provisions of the NGA that it does not administer. Rehearing Order, 171 FERC ¶ 61,135 at P 20. But that is not the theoretical foundation on which Chevron is based. See supra notes 6-10 and accompanying text; see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514 (1989) (explaining that “the ‘expertise’ of the agencies in question, their intense familiarity with the history and purposes of the legislation at issue, their practical knowledge of what will best effectuate those purposes” is “hardly a valid theoretical justification” for judicial deference). Instead, the theory of Chevron is that when Congress has not spoken to a specific issue and delegated to an agency the lawmaking authority to fill that gap, it is not for the courts’ to second guess the agency’s reasonable interpretation. The fact that the agency may have experience with other areas of the statute is beside the point where there is no indication from the “generally conferred authority and other statutory circumstances” that Congress would have expected the agency to fill in the ambiguity. Mead, 533 U.S. at 229.
[17] The Commission’s principal response is a run-on footnote that rehashes its above-the-line arguments. In particular the Commission reiterates that it “administers the certification process under NGA section 7,” that it believes that the statute’s silence on the issue of certificate holders’ ability condemn state lands is unambiguous evidence that they can do so, and that, in any case, it deserves deference in resolving any ambiguity. Rehearing Order, 171 FERC ¶ 61,135 at n.68. Those unsupported assertions are nothing that the Commission has not already said and repeating them does not make the points any more convincing.
[18] See Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at PP 11, 21).
[19] Rehearing Order, 171 FERC ¶ 61,135 at P 33 (discussing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 338 (1958))
[20] Compare id. (“recogniz[ing] that City of Tacoma was dismissed on procedural grounds”) with Order, 170 FERC ¶ 61,064 at PP 45-47 (claiming that “the Supreme Court’s decision in City of Tacoma . . . directly addressed the question whether a hydroelectric licensee may condemn state land pursuant to a license granted under FPA section 21”).
[21] City of Tacoma, 357 U.S. at 334-37 (explaining that the Court lacked jurisdiction to review the claims because they could only have been—and, in fact, were—brought through an appeal pursuant FPA section 313(b)).
[22] Id. at 323. In any case, as I explained in my earlier dissent, the City of Tacoma’s substantive arguments appear to have addressed the Supremacy Clause of the U.S. Constitution, U.S. Const. Art. 6, cl. 2, not the scope of section 7(h). Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at P 22); see State of Wash. Dep’t of Game v. FPC, 207 F.2d 391, 396 (9th Cir. 1953) (explaining that the authority conferred by a federal license trumped state law limitations on a city’s capacity to exercise that authority); see also City of Tacoma, 357 U.S. at 339 (explaining that the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) resolved the case based on its “[c]onclu[sion] that . . . state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license”); City of Tacoma, 357 U.S. at 341 (Harlan, J., concurring) (explaining that the question decided by the Ninth Circuit was “whether state or federal law governed” the particular dispute between the parties).
[23] See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (explaining that addressing the merits of any proceeding before establishing subject-matter jurisdiction violates Article III of the U.S. Constitution and “offends fundamental principles of separation of powers” (citing Ex parte McCardle, 7 Wall. 506, 514 (1868)); see also Smith Lake Improvement & Stakeholders Ass’n v. FERC, 809 F.3d 55, 56 (D.C. Cir. 2015) (dismissing an appeal for lack of subject-matter jurisdiction because the petitioner did not comply with FPA section 313(b)). That means that any substantive discussion therein was not just dicta, but dicta about an issue on which the Court lacked subject-matter jurisdiction to opine.
[24] The Commission criticizes this “assertion,” Rehearing Order, 171 FERC ¶ 61,135 at n.104, but then fails to respond to the arguments on which it is based. That tells you all you need to know. The Commission’s evident frustration with the holes in its argument does not rob the counterarguments of their force.
[25] Rehearing Order, 171 FERC ¶ 61,135 at n.104.
[26] It also has nothing in common with the interpretation the Commission spent four pages advancing in the underlying order. See Order, 170 FERC ¶ 61,064 at PP 43-48.
[27] See Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) (“The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.” (citing In re Ayers, 123 U.S. 443, 505 (1887)); see also Alden v. Maine, 527 U.S. 706, 748 (1999) (“The founding generation thought it ‘neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.’” (citing In re Ayers, 123 U.S. at 505)).
[28] Cf., e.g., Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 258 (2011) (“The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent.”).
[29] 180 F.2d 644 (5th Cir. 1950).
[30] Rehearing Order, 171 FERC ¶ 61,135 at P 34.
[31] Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at P 11).
[32] Rehearing Order, 171 FERC ¶ 61,135 at P 34. The Commission suggests that Thatcher is somehow relevant because I do not cite old cases that involve the Eleventh Amendment or that present the Third Circuit’s interpretation of section 7(h). Id. Now we’re really grasping for straws. As I have maintained throughout this proceeding, the question before us simply cannot be answered clearly one way or the other. Why that ambiguity justifies the Commission in building an over-confident interpretation of section 7(h) on a foundation of irrelevant cases is beyond me.
[33] Cf. Bob Dylan, Like A Rolling Stone (1965) (“When you ain’t got nothing, you got nothing to lose.”).
[34] Rehearing Order, 171 FERC ¶ 61,135 at P 19 (asserting that it is appropriate for the Commission to weigh in “given the statute’s ambiguity and silence with respect to lands in which states hold an interest”); see also id. P 20 (claiming Chevron deference and noting that “[d]eference is appropriate ‘if the statute is silent or ambiguous with respect to the specific issue’” (quoting Chevron, 467 U.S. at 843)).
[35] Order, 170 FERC ¶ 61,064 at P 32.
[36] It is also noteworthy that the Commission addresses for the first time the consequences of that ambiguity. Despite the Commission’s claim in the underlying order to be addressing only the “straightforward questions of law” regarding Congress’ intent in enacting section 7(h), Order, 170 FERC ¶ 61,064 at P 21, today’s order wanders so far afield as to theorize about whether the Supreme Court’s clear statement rule for abrogating states’ Eleventh Amendment immunity applies in the context of an eminent domain proceeding, Rehearing Order, 171 FERC ¶ 61,135 at P 28 (“[E]mploying the federal power of eminent domain is distinguishable from other instances necessitating application of the clear statement rule); Rehearing Order, 171 FERC ¶ 61,135 at n.92 (speculating about distinctions in the nature of authority conferred by Congress)—hardly a matter within “the heartland of our quotidian ambit,” Order, 170 FERC ¶ 61,064 at P 39.
[37] Order, 170 FERC ¶ 61,064 (Glick, Comm’r, dissenting at PP 2, 23).