Statement of Commissioner James P. Danly
February 17, 2023
CP16-10-010, CP19-477-002, CP21-57-002
I write separately to refer the reader to my separate statement to the Extension Order[1] and to reiterate that when reviewing a request for extension of time, our inquiry is narrow—it is not an opportunity to revisit the determinations made in Natural Gas Act (NGA) authorizations after orders have become final and unappealable.[2] As I have stated before, there can be no question that the public interest determination made in the certificate order remains valid.
I also observe that, in response to the arguments presented in the rehearing requests that challenge the need determination made in the Certificate Order,[3] the Commission today recognizes that “comments regarding the need for the project are a collateral attack on the underlying Certificate Order and need not be considered further.”[4] Quite right. Though perhaps not deleterious, the ink spilled in unnecessary responses to the merits of those arguments amount to no more than surplusage and one ought not read the order’s statement that the arguments do not serve as “a basis for revisiting the need determination in the underlying certificate order” to imply that there ever could be any such basis.[5] The Commission, having made its need determination in the underlying Certificate Order, can never have a reason to revisit that decision once the order has become final and unappealable.[6]
While Commissioner Clements has chosen to offer a gloss on the Commission’s inquiry in this extension of time proceeding and in prior proceedings, this gloss is ahistorical. We do not revisit our need determinations in extension of time proceedings and, even if, in theory, we could establish a new approach in extension of time proceedings such that we did revisit the underlying certificate order’s need determination (which, again, we cannot), it is absolutely certain that we did not do so here. It is black letter law that “[a]n agency may not . . . depart from a prior policy sub silentio.”[7] To depart from invariant policy would have required an acknowledgement of the fact that we were doing so and an explanation for why. This order, in fact, does just the opposite: it clearly states that “comments regarding the need for the project are a collateral attack on the underlying Certificate Order and need not be considered further.”[8] Nowhere does the Commission say that only certain “comments regarding the need for the project are a collateral attack on the underlying Certificate Order.” The plain terms of this order are in perfect conformity with our precedent which has, time and time again, unambiguously held that we do not revisit need determinations in extension of time proceedings.[9]
I recognize that the Commission establishes project deadlines in authorization orders in order to “diminish the potential that the public interest might be compromised by significant changes occurring between issuance of the certificate and commencement of the project.”[10] That does not mean, however, that the Commission can determine, with fresh eyes, perhaps years after a different Commission determined that a project was required by the public convenience and necessity, that such a determination was wrong or is no longer the case. Our determinations are not only for the “present” public convenience and necessity; rather, we determine whether a proposed project “is or will be required by the present or future public convenience and necessity.”[11] Nor do our need determinations include an expiration date.
The only inquiry is whether there is good cause to grant an extension. Hypothetically, were a pipeline company to have taken little or no action to satisfy the conditions of the certificate ahead of the certificate’s deadline to place the facilities into service, and were that delay to have been so grave that the natural gas company, because of its delay, had suffered the loss of its precedent agreements, perhaps that fact could be adduced as one element of the evidence that could support a finding that the requesting party did not demonstrate good cause. This, however, is merely an evidentiary matter for a single, narrow, and separate inquiry. As such, it would have no bearing whatever on the need determination in the underlying Certificate Order.
For these reasons, I respectfully concur.
[1] See Mountain Valley Pipeline, LLC, 180 FERC ¶ 61,117 (2022) (Extension Order) (Danly, Comm’r, concurring).
[2] See Midship Pipeline Co., LLC, 182 FERC ¶ 61,031, at P 11 (2023) (“[W]e have explained that extension orders are not an invitation to re-open closed proceedings.”) (citation omitted); Rio Grande LNG, LLC, 181 FERC ¶ 61,032, at P 17 (2022) (“Extension of time proceedings are not an invitation to re-open the underlying dockets.”) (citation omitted), reh’g denied, 182 FERC ¶ 61,027, at P 15 (2023) (“[W]e reject the argument that the Commission needs to revisit either the climate analysis from the Authorization Order or subsequent changes to its liquefaction design because extension of time proceedings are not an invitation to relitigate the underlying proceedings.”) (citations omitted); Port Arthur LNG, LLC, 181 FERC ¶ 61,024, at P 12 (2022) (“Extension of time proceedings are not an invitation to re-open the underlying dockets.”); Corpus Christi Liquefaction Stage III, LLC, 179 FERC ¶ 61,087, at P 15 (“[E]xtension of time proceedings are not an invitation to re-open the dockets.”) (citations omitted), reh’g denied, 181 FERC ¶ 61,033, at P 15 (2022) (affirming on rehearing that the Commission “continue[s] to find that an extension of time proceeding is not an opportunity to revisit the public interest determination in the Authorization Order”); Corpus Christi Liquefaction Stage III, 181 FERC ¶ 61,033 at P 15 (“While we recognize that environmental policy, environmental conditions, and market conditions are subject to change, extension of time proceedings are not an invitation to re-open closed proceedings.”); see also Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226, at P 20 (2022) (“Rule 716 does not provide the Commission with additional authority to reopen the record underlying the Certificate Order here, where a final, non-appealable order has issued.”) (citations omitted); id. (Danly, Comm’r, concurring at P 5) (“Circumstances, no matter how extraordinary, cannot themselves grant jurisdiction where Congress has conferred no power. In the absence of authority provided by Congress, the Commission simply cannot revisit its public convenience and necessity determinations once a certificate order becomes final and unappealable.”).
[3] See Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017) (Certificate Order), order on reh’g, 163 FERC ¶ 61,197 (2018), aff’d sub. nom. Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019).
[4] Mountain Valley Pipeline, LLC, 182 FERC ¶ 61,046, at P 19 (2023).
[5] Id. P 22 (citing to paragraph 19 of the order, which explains that “in the context of an extension of time to complete construction of a project, comments regarding the need for the project are a collateral attack on the underlying Certificate Order and need not be considered further”) (emphasis added).
[6] See, e.g., Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029, at P 25 (2022) (“The Commission does not have the authority to revisit the Certificate Order as requested. The NGA does not expressly permit the Commission to reconsider the Certificate Order because judicial review of the Certificate Order has ended . . . . [T]he Certificate Order became final once the record was filed with D.C. Circuit Court and affirmed on appeal.”); id. P 27 (“Rule 716 does not, however, provide the Commission with additional authority to reopen the record underlying the Certificate Order here, where a final, non-appealable order has issued.”) (citing Old Dominion Elec. Coop., 105 FERC ¶ 61,094, at P 15 (2003); N. Nat. Gas Co., 113 FERC ¶ 61,060, at P 22 (2005)); id. (Danly, Comm’r, concurring in part & dissenting in part at P 25) (“[T]he Commission cannot absolve itself of the fact that the Briefing Order unlawfully reopened a final, non-appealable certificate.”); Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting at P 22) (“The current Commission may believe that the Commission, voting unanimously, acted improvidently in early 2017. They may believe that circumstances have changed. They may believe that the parties seeking rehearing were completely correct and that rehearing should have been granted . . . . Regardless, there is no basis in law to re-examine final orders.”); see also Midship Pipeline Co., LLC, 182 FERC ¶ 61,031 at P 11 (“The Commission previously authorized construction of the compressor units, and we have explained that extension orders are not an invitation to re-open closed proceedings.”) (citation omitted). 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); Hirschey v. FERC, 701 F.2d 215, 218 (D.C. Cir. 1983) (explaining that “the Commission only has the ‘power to correct an order . . . until such time as the record on appeal has been filed with a court of appeals or the time for filing a petition for judicial review has expired’”) (citation omitted) (emphasis in original).
[7] 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).
[8] Mountain Valley Pipeline, LLC, 182 FERC ¶ 61,046 at P 19.
[9] Supra note 2.
[10] Altamont Gas Transmission Co., 75 FERC ¶ 61,348, at 62,103 (1996).
[11] 15 U.S.C. § 717f(e) (emphasis added).