Commissioner James Danly Statement
January 20, 2022
Docket Nos. CP18-46-004
I concur in the Commission’s decision to grant Adelphia Gateway, LLC’s (Adelphia) request for an 18-month extension of time to construct and place into service the facilities authorized by the Commission in its December 20, 2019 order issuing certificates.[1] I dissent from the Commission’s decision to depart from and set aside the intervention policy declared in Algonquin Gas Transmission, LLC.[2] Further, I dissent from the Commission’s repeated suggestions that it has the legal authority to revisit the determinations made in certificate proceedings after the certificate orders have become final and unappealable.
In setting aside its prior policy, the Commission has changed how it will handle interventions when reviewing requests for extensions of time in our certificate proceedings. Now, the Commission will allow intervention by litigants who were not parties to the underlying certificate proceeding.[3] Of course, the Commission has discretion to formulate procedures,[4] and in this case the Commission appears to have satisfied its obligations under the Administrative Procedure Act in announcing its departure from Algonquin and explaining its reasons.[5] Even so, I support the continuation of the Commission’s prior policy and I dissent because I believe this order represents an unwise and unnecessary exercise of our discretion to formulate procedural rules.
First, I understand that there may be a number of reasons why individuals may not have intervened in an initial certificate proceeding.[6] Nonetheless, courts have “recognized that ‘[a]gencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions.’”[7] And that is exactly what the Commission did in Algonquin. The Commission has also imposed, and courts have upheld, limitations to intervention in hydroelectric post-licensing proceedings.[8] I have supported limitations on the grant of interventions in extension of time proceedings based on whether the individual or entity was an intervenor in the underlying proceeding.[9] I continue to support reasonable limitations on granting intervention in both extension of time proceedings and hydroelectric post-licensing proceedings.
Second, the Commission reaffirms in today’s order that “the Commission’s decision to issue a certificate” and “whether the Commission properly found the project to be in the public convenience and necessity” may not be relitigated in extension of time proceedings.[10] While superficially reassuring, I am still concerned about the continued erosion of intervention policies that further administrative efficiency.[11] My colleagues justify today’s change in policy, in part, based on their view that “[e]ntities who did not intervene in the initial proceeding but whose interests may have changed since that time or were not affected by it . . . should have the opportunity to be heard and have the ability to challenge our decisions on such matters.”[12] To the extent to which the Commission’s order suggests that the Algonquin policy hindered participation in our proceedings, I disagree.
The Algonquin policy provided an opportunity to be heard. Specifically, the Commission directed the Office of the Secretary and Office of Energy Projects “to notice all requests for extension of time to complete construction for [Natural Gas Act] facilities within 7 calendar days of receiving the request.”[13] The Commission instructed staff that “[e]ach notice shall establish a 15 calendar day intervention and comment period deadline.”[14] Though Algonquin clarified that the Commission would not consider reply comments or answers,[15] the Commission committed to “address all arguments relating to whether the applicant has demonstrated there is good cause to grant the extension.”[16] Thus, the Commission (1) required a comment period in extension of time proceedings on a going-forward basis and (2) committed to address comments filed by the comment deadline that raised arguments regarding the request for extension of time. The effect of today’s order will simply be to provide more opportunities to challenge our decisions in certificate proceedings, thereby denying certainty and finality to project applicants, needlessly increasing projects’ litigation risk, and increasing the cost of financing.[17] To erase any doubt: parties already had the opportunity to be heard under Algonquin. Allowing intervention accomplishes only one goal—to confer full party status on late-coming litigants who, because of their party status, will be entitled to petition for review before the appellate courts. This change in policy amounts to little more than a pretextual invitation to additional litigation.
Finally, I would like to take a moment to highlight a sentence in today’s order: “We recognize that environmental impacts are subject to change, and thus the validity of an order’s conclusions and environmental conditions may not be sustained indefinitely.”[18] Similar language has been included in prior orders, including one that I voted for.[19] I disagree, however, with the continued use of this language in our orders and the Commission’s suggestion that “an order’s conclusions and environmental conditions may not be sustained indefinitely.”[20] To suggest that an order’s conclusions, which include its public convenience and necessity determination, may not be sustained indefinitely reinforces the Commission’s prior misguided view in Algonquin Gas Transmission, LLC that it may revisit determinations made in final, unappealable certificate orders.[21] In that proceeding,[22] 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.[23] To be clear: the Commission lacks authority to revisit its public convenience and necessity determinations once the order making those findings is final. Besides which, the implication that our public convenience and necessity determinations could be “unsustainable” appears to contradict the Commission’s affirmation in the instant order that “it will not consider arguments that relitigate the Certificate Order, including whether the Commission properly found the project to be in the public convenience and necessity.”[24]
For these reasons, I respectfully concur in part and dissent in part.
[1] Adelphia Gateway, LLC, 169 FERC ¶ 61,220 (2019).
[2] 170 FERC ¶ 61,144, at P 39 (2020) (Algonquin) (“Only interventions from entities that were party to the underlying proceeding will be accepted.”).
[3] See Adelphia Gateway, LLC, 178 FERC ¶ 61,030, at P 10 (2022) (Adelphia).
[4] See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) (“[T]his Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments.”); Cal. Trout v. FERC, 572 F.3d 1003, 1007 (9th Cir. 2009) (“So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act . . . and the Constitution, we are not free to ‘improperly intrude[] into the agency’s decisionmaking process’ and second-guess its administrative tradeoffs.”) (citation omitted).
[5] See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (recognizing that an agency must provide a “reasoned explanation for its action,” which “would ordinarily demand that it display awareness that it is changing position”) (emphasis in original); id. (explaining that an agency “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.”) (emphasis removed); see also Adelphia, 178 FERC ¶ 61,030 at P 10 (recognizing the Commission’s departure from prior policy and explaining its reasons for such departure).
[6] For example, my colleagues submit that “entities that moved into the project area after the initial proceeding was concluded” may not have intervened in the initial proceeding but may have an interest participating in or challenging the Commission’s decisions in extension of time proceedings. Adelphia, 178 FERC ¶ 61,030 at P 10.
[7] Nat’l Parks Conservation Ass’n v. FERC, 6 F.4th 1044, 1052 (9th Cir. 2021) (quoting Cal. Trout v. FERC, 572 F.3d at 1007).
[8] See, e.g., Eagle Crest Energy Co., 168 FERC ¶ 61,186, at PP 14-17 (2019) (explaining that “the Commission will permit post-licensing intervention in certain limited circumstances”), aff’d sub nom. Nat’l Parks Conservation Ass’n, 6 F.4th 1044; see also Nat’l Parks Conservation Ass’n, 6 F.4th 1044, 1051 (finding that the Commission “may properly limit intervention in post-licensing proceedings”); id. at 1052 (explaining that the Commission’s decision to “[l]imit[] automatic intervention in post-licensing matters where the licensee seeks only a deadline extension prevents relitigation of substantive issues already decided in the original licensing proceeding”).
[9] See, e.g., Midship Pipeline Co., LLC, 173 FERC ¶ 61,255, at P 5 & n.16 (2020) (applying Algonquin policy); Mountain Valley Pipeline, LLC, 173 FERC ¶ 61,026, at P 7 & nn.11, 16, order addressing arguments raised on reh’g, 173 FERC ¶ 61,222, at PP 6-8 (2020) (same).
[10] Adelphia, 178 FERC ¶ 61,030 at P 10.
[11] See Kern & Tule Hydro LLC, 174 FERC ¶ 61,081 (2021) (Danly, Comm’r, dissenting) (disagreeing with the Commission’s decision to depart from its policy for interventions in post-licensing proceedings without explanation).
[12] Adelphia, 178 FERC ¶ 61,030 at P 10 (emphasis added).
[13] Algonquin, 170 FERC ¶ 61,144 at P 39.
[14] Id.
[15] The Commission’s policy that it would not consider reply comments or answers in extension of time proceedings remains in place and is applied in another order issued concurrently with this order. See Delfin LNG LLC, 178 FERC ¶ 61,031, at P 8 (2022) (Delfin) (applying Algonquin Gas Transmission, LLC to support its decision to not consider an answer filed by the certificate holder). I pause to note that it is puzzling that the Commission in the instant order underscores the importance of participation in extension of time proceedings on the part of “any parties affected by these sorts of projects” but then wants to continue to restrict certain filings, such as an answer filed by the certificate holder in another order voted on at the January 2022 Commission meeting. Compare Adelphia, 178 FERC ¶ 61,030 at P 10 (“We believe that requests to extend deadlines established in certificate proceedings have public interest implications, and accordingly the policy shift we announce here will better ensure that any parties affected by these sorts of projects have an opportunity to vindicate their interests.”), with Delfin, 178 FERC ¶ 61,031 at P 8 (“In Algonquin Gas Transmission, LLC, the Commission barred both reply comments and answers in extension of time proceedings. Accordingly, Delfin’s answer will not be considered.”) (citation omitted).
[16] Algonquin, 170 FERC ¶ 61,144 at P 40.
[17] I voted for an order that stated that “the Commission’s prior determinations that extensions of time are administrative matters or interlocutory decisions for which intervention and rehearing do not lie.” Mountain Valley Pipeline, LLC, 173 FERC ¶ 61,222 at P 8 (citing Algonquin, 170 FERC ¶ 61,144 at P 38 n.106). After further consideration, I am not convinced that extensions of time are interlocutory decisions.
[18] Adelphia, 178 FERC ¶ 61,030 at P 16 (emphasis added).
[19] See, e.g., Transcon. Gas Pipe Line Co., LLC, 175 FERC ¶ 61,148, at P 17 (2021).
[20] Adelphia, 178 FERC ¶ 61,030 at P 23 (emphasis added); see also id. P 16 (“These are improper collateral attacks on the Certificate Order and need not be considered further.”).
[21] See generally Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting).
[22] The Commission, in an order issued concurrently with this one, terminates the Order Establishing Briefing. See Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029 (2022).
[23] 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).
[24] Adelphia, 178 FERC ¶ 61,030 at P 16.