Commissioner James Danly Statement
January 21, 2022
Docket No. CP15-490-002
I concur in the Commission’s decision to grant Delfin LNG LLC’s (Delfin) request for a one-year extension of time, to construct and place into service the facilities authorized by the Commission in its September 28, 2017 order[1] issuing certificate authorization.[2] I dissent[3] from the order’s application of the new intervention policy announced today in the concurrently-issued Adelphia Gateway, LLC,[4] an employment of the Commission’s discretion with which I disagree. 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.[5]
In Adelphia, the Commission announces its departure from the intervention policy declared in Algonquin Gas Transmission, LLC (Algonquin), issued in 2020.[6] For the reasons discussed in my separate statement in Adelphia,[7] I dissent from the Commission’s decision to apply the new intervention policy to this proceeding.[8] I remain unconvinced that it is best to allow litigants to intervene in extension of time proceedings when they were not parties in the underlying certificate proceeding. Nonetheless, as I recognize in my Adelphia separate statement,[9] the Commission has discretion to formulate procedures,[10] and the Commission appears to have satisfied its obligations under the Administrative Procedure Act in Adelphia by acknowledging its departure from Algonquin and by explaining its reasons for doing so.[11] Recognizing this, I note that while my preference would have been for the Commission to retain the policy announced in Algonquin, I will not write separately upon the Commission’s future application of this new policy.
Finally, I would like to address two additional aspects of today’s order. First, the Commission cites to Chestnut Ridge Storage LLC[12] and states that: “‘the validity of our conclusions and environmental mitigation conditions cannot be sustained indefinitely.’”[13] Similar language has been included in prior orders, including orders that I voted for.[14] I disagree, however, with the continued use of this language in our orders and the Commission’s suggestion that “the validity of our conclusions and environmental mitigation conditions may not be sustained indefinitely.”[15] 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, issued in 2021, that it may revisit determinations made in final, unappealable certificate orders.[16] In that proceeding,[17] 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.[18] 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 “a person who is permitted to intervene in an extension of time proceeding may not relitigate the Commission’s decision to issue a certificate, including whether the Commission properly found the project to be in the public convenience and necessity.”[19]
Second, I disagree with the Commission’s decision to commit to preparing a supplemental Environmental Impact Statement [EIS] “[i]f additional ESA consultation results in proposed new measures with impacts not previously studied.”[20] The Commission should make such a determination after considering the consultation results, if consultation occurs, and must also consider whether a supplemental EIS is required under the Council on Environmental Quality’s regulations.[21] It is premature to do so now.
For these reasons, I respectfully concur in part and dissent in part.
[1] Delfin LNG LLC, 160 FERC ¶ 61,130 (2017) (Certificate Order).
[2] Delfin LNG LLC, 178 FERC ¶ 61,031 (2022) (Danly, Comm’r, concurring in part and dissenting in part).
[3] Id.
[4] Adelphia Gateway, LLC, 178 FERC ¶ 61,030 (2022) (Adelphia) (Danly, Comm’r, concurring in part and dissenting in part).
[5] Delfin LNG LLC, 178 FERC ¶ 61,031 (Danly, Comm’r, concurring in part and dissenting in part).
[6] 170 FERC ¶ 61,144, at P 39 (2020) (“Only interventions from entities that were party to the underlying proceeding will be accepted.”).
[7] See Adelphia, 178 FERC ¶ 61,030 (Danly, Comm’r, concurring in part and dissenting in part).
[8] See Delfin LNG LLC, 178 FERC ¶ 61,031 at P 6 (“As detailed in the order on Adelphia Gateway LLC’s motion for an extension of time, we are setting aside the Algonquin intervention policy to allow motions to intervene in extension of time proceedings from any person, including those that were not party to the underlying proceeding.”) (citing Adelphia, 178 FERC ¶ 61,030 at P 10).
[9] See Adelphia, 178 FERC ¶ 61,030 (Danly, Comm’r, concurring in part and dissenting in part at P 2).
[10] 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).
[11] 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 in Algonquin and explaining the reasons for such departure).
[12] Chestnut Ridge Storage LLC, 139 FERC ¶ 61,149 (2012).
[13] Delfin LNG LLC, 178 FERC ¶ 61,031 at P 12 (quoting Chestnut Ridge Storage LLC, 139 FERC ¶ 61,149 at P 8 n.9).
[14] See, e.g., Transcon. Gas Pipe Line Co., LLC, 175 FERC ¶ 61,148, at P 17 (2021).
[15] 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.”).
[16] See generally Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting).
[17] 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).
[18] 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).
[19] Delfin LNG LLC, 178 FERC ¶ 61,031 at P 6 n.21.
[20] Id. P 19 n.53 (“If additional ESA consultation results in proposed new measures with impacts not previously studied or if a certificate amendment is necessary to incorporate new measures, the Commission would supplement its NEPA review.”); see also id. P 19 (“We note that, should it become necessary based on ESA consultation with the Services, we will supplement our environmental review under NEPA prior to authorizing Delfin to commence construction.”).
[21] See 40 C.F.R. § 1502.9(d)(1) (stating that agencies “[s]hall prepare supplements to either draft or final environmental impact statements if a major Federal action remains to occur, and: (i) [t]he agency makes substantial changes to the proposed action that are relevant to environmental concerns; or (ii) [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”).