Commissioner James Danly Statement
April 15, 2021
Docket No. CP20-487-000
I dissent from today’s decision to grant Enbridge Gas Pipelines’ (Enbridge) late intervention. I do not believe that Enbridge demonstrated good cause. Before I explain why I disagree with today’s decision, a discussion of the background of this certificate proceeding and Enbridge’s motion to intervene is necessary.
I. Background
On June 29, 2020, Northern Natural Gas Company (Northern) filed an application requesting Natural Gas Act (NGA) sections 7(b) and 7(c) authorizations.[1] Notice of Northern’s certificate application was published in the Federal Register on July 20, 2020, establishing a comment and intervention deadline of August 4, 2020.[2] Northern Illinois Gas Company and Xcel Energy Companies,[3] customers of Northern, filed timely, unopposed motions to intervene. Atmos Energy Corporation filed a motion to intervene out-of-time on August 11, 2020, which was denied by Secretary’s notice on August 31, 2020. The Secretary’s notice stated that Atmos Energy Corporation “failed to demonstrate that good cause exists to grant its motion to intervene out of time as it provided no explanation for why it was unable to intervene in a timely manner.”[4]
On March 17, 2021, Enbridge filed a motion to intervene out-of-time. In its filing, Enbridge cited the Commission’s recent decision regarding the Atlantic Bridge Project in Docket No. CP16-9-012 and stated that was “concerned about the possibility of industry-wide policy changes occurring in individual certificate dockets at the Commission.”[5] Indeed, on March 18, 2021, the Commission did just that when it reversed years of precedent regarding the assessment of the significance of greenhouse gas emissions by instituting, in an obscure docket, a new, undefined, and standardless approach.[6]
II. The Commission should deny Enbridge’s motion for late intervention
I said in my separate statement in Northern Natural Gas Company that I would hope that, given how consequential these orders have been, the Commission would show particular solicitude to parties doing no more than that which is necessary to ensure that their rehearing and appeal rights are not extinguished, especially when they have twice been surprised by policy changes with no notice and because the Commission has recently granted late intervention after the issuance of the order for which intervention was sought.[7] For Enbridge’s sake, I am pleased to see that the Commission has decided to treat its intervention request with something of an even hand. However, as I have previously explained, I believe strongly in strict procedural rules and am generally disinclined to grant late interventions absent a compelling demonstration of good cause. Thus, while I have urged interested entities to intervene in natural gas proceedings to protect their interests,[8] they must comply with the Commission’s regulations in doing so.
I acknowledge that my insistence on adhering to procedure can work hardships in some cases.[9] However, such rules and their unwavering application are necessary. As the United States Court of Appeals for the Ninth Circuit said in California Trout v. FERC, the Commission’s procedural rules “provide for orderly decisionmaking and constitute advance notice of the process by which our institutions will conduct themselves.”[10] In my concurrence in Tuscarora Gas Transmission Co., I took the opportunity to suggest that the Commission should apply and regularize our procedural rules to ensure consistent application across parties and across statutory regimes when considering late interventions.[11]
The Commission has not seen fit to do so. Instead, the Commission is still dependably inconsistent in the application of its regulations, routinely granting late interventions in natural gas rate, electric, and oil proceedings without requiring a showing of good cause, while demanding that good cause be shown in hydropower and natural gas certificate proceedings. Though I acknowledge that the courts have allowed, or at any rate, have not prohibited, the Commission from applying our procedural rules differently among our various programs,[12] I can see nothing inherent to natural gas rate, electric, or oil proceedings that justifies or requires this disparate treatment, and to my knowledge the Commission has offered no rationale in support of it. Every statute we administer should be subject to the same procedural rules and they should be applied rigorously every time.
Although I agree with Enbridge that policy changes in individual certificate proceedings “have the potential to apply generally to all natural gas industry participants, and affect the natural gas industry as a whole and each of the Enbridge Gas Pipelines individually in a manner not contemplated in discrete proceedings,”[13] the fact of the matter is that there was no actual impediment to earlier intervention and the proceeding was noticed in accordance with the Commission’s ordinary practice.[14] The only reason Enbridge did not file a timely intervention is that, like everyone else in the world, it had never imagined that obscure dockets would become the vehicles by which the Commission would announce drastic changes in policy. And the only reason Enbridge intervened at all was because the Commission had given it good reason to fear further surprise issuances.[15] As it turns out, it was right to be concerned.[16] While I sympathize, and while Enbridge’s arguments enjoy all the persuasiveness that one should accord well-formulated appeals to decency and good government, there simply is no reason why it could not have preserved its rights when it had the opportunity. I would therefore deny Enbridge’s motion to intervene.[17]
III. Nothing can be gleaned from today’s order
This order provides no reasoning for the Commission’s determination that Enbridge showed good cause under Rule 214.[18] It contains only the procedural history, a statement that the motion was unopposed, and an unadorned declaration that the intervention is granted pursuant to Rule 214.[19] That is all.[20] One wonders why the Commission would decline to explain why the showing made by Enbridge met the requirements of Rule 214.
The Commission’s refusal to explain why this motion for late intervention was granted poses a problem for future litigants: it is very difficult to argue inconsistency in the Commission’s treatment of out-of-time interventions absent an articulation of the Commission’s reasoning.[21] I wonder how similar late intervention requests will be treated. As it happens, we may well find out. Enbridge filed two other motions to intervene out-of-time on the same day in two other proceedings—Midship Pipeline Company, LLC (Docket Nos. CP17-458 and CP19-17) and Spire STL Pipeline LLC (Docket No. CP17-40)—for which orders were issued at the March 18, 2021 Commission meeting. Although Enbridge offered the same justification for late intervention in those filings as it did in this proceeding, the Commission has not yet acted on those requests to intervene. Will the Commission treat them similarly? I, for one, am interested to see what happens.
For these reasons, I respectfully dissent.
[1] 15 U.S.C. §§ 717f(b), (c).
[2] 85 Fed. Reg. 43,828.
[3] Xcel Energy Companies consists of Northern States Power - Minnesota, Northern States Power - Wisconsin and Southwestern Public Service Company.
[4] August 31, 2020 Notice Denying Late Intervention.
[5] See Enbridge March 17, 2021 Motion to Intervene at 2 (citing Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021)).
[6] See N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021) (Danly, Comm’r, concurring in part and dissenting in part at P 7). I want to take this opportunity to point out, again, that this order was issued during the pendency of a Notice of Inquiry (Docket No. PL18-1-000) that sought directly relevant comments. See Certification of New Interstate Nat. Gas Facilities, 174 FERC ¶ 61,125 (2021); Certification of New Interstate Nat. Gas Facilities, 163 FERC ¶ 61,042 (2018).
[7] N. Nat. Gas Co., 174 FERC ¶ 61,189 (Danly, Comm’r, concurring in part and dissenting in part at P 28) (citing Kern & Tule Hydro LLC, 174 FERC ¶ 61,081 (2021) (granting late intervention filed nineteen days following issuance of order and finding good cause on the basis that some project details were not specified)).
[8] See id.
[9] Speaking of hardship, in her concurrence, Commissioner Clements mischaracterizes Tennessee Gas Pipeline Company, L.L.C., 162 FERC ¶ 61,167 (2018) (Tennessee). That issuance did not establish a “restrictive approach.” N. Nat. Gas Co., 175 FERC ¶ 61,052 (Clements, Comm’r, concurring at P 1). Tennessee stands for one proposition: that the Commission should enforce the terms of Rule 214 of the Commission’s Rules of Practice and Procedure. See Tennessee, 162 FERC ¶ 61,167 at PP 49-50. It was no more than an announcement of the reinvigoration of an extant policy. If there is a “restrictive approach,” and I would argue that there is not, it is in our regulations.
[10] Cal. Trout v. FERC, 572 F.3d 1003, 1026 (9th Cir. 2009).
[11] See Tuscarora Gas Transmission Co., 173 FERC ¶ 61,169 (2020) (Danly, Chairman, concurring at P 2) (Tuscarora).
[12] See Cal. Trout, 572 F.3d at 1023-24 (stating that natural gas projects may involve special circumstances distinguishing such projects from hydroelectric projects).
[13] Enbridge March 17, 2021 Motion to Intervene at 2.
[14] I acknowledge that this reasoning may appear inconsistent with my vote in Tuscarora in which the movant also suffered no actual impediment to timely filing. These two cases are different. In Tuscarora, the movant was the sole shipper, a would-be party with a direct stake in the outcome of that particular proceeding, whose interests as a shipper could not be represented by any other party. See Tuscarora, 173 FERC ¶ 61,169 at P 4.
[15] See, e.g., Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (reopening the Atlantic Bridge Project certificate order).
[16] See N. Nat. Gas Co., 174 FERC ¶ 61,189 (Danly, Comm’r, concurring in part and dissenting in part at PP 25-26).
[17] I also agree that it was appropriate to deny Atmos Energy Corporation’s motion to intervene out-of-time. See supra P 2.
[18] 18 C.F.R. § 385.214 (2020).
[19] I note that this order, all 200-odd words of it, bears a striking resemblance to a Secretary’s Notice.
[20] One might well argue that a conclusory statement that an intervention will be granted pursuant to a rule that requires specific showings—without any explanation as to how those required showings were satisfied—violates the Administrative Procedure Act for failure to engage in reasoned decision making. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (requiring agencies to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made’”) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). However, I do not anticipate that the approval of this intervention request will be appealed.
[21] Chairman Glick’s concurrence describes this order as “abandon[ing] the harsh approach to late interventions in natural gas proceedings that the Commission adopted in Tennessee Gas Pipeline Company, L.L.C.” N. Nat. Gas Co., 175 FERC ¶ 61,052 (Glick, Chairman, concurring at P 2). Of course it did not. Not only did Tennessee not adopt a policy, see supra note 9, there can be no “abandonment” of a position adopted by an administrative agency without the agency 1) acknowledging the reversal and 2) explaining the reasoning why that reversal has been decided upon. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.”) (citation omitted). This order, unencumbered as it is by explanation or reasoning, simply cannot have precedential value, nor can it “for all intents and purposes, overturn[] Tennessee Gas.” N. Nat. Gas Co., 175 FERC ¶ 61,052 (Glick, Chairman, concurring at P 3).