Statement of Commissioner James P. Danly
November 16, 2022
CP15-115-007
I issue this statement to express my disagreement with the handling of this proceeding.
On June 29, 2022, the Commission issued an order granting National Fuel Gas Supply Corporation and Empire Pipeline, Inc. a 35-month extension of time, until December 31, 2024, to construct and place into service the Northern Access 2016 Project.[1] I concurred with the decision to grant the extension of time and commend to the reader’s attention my separate statement.[2]
On July 22, 2022, after the issuance of the order granting the extension of time, Diana Strablow filed a motion to intervene out-of-time and a request for rehearing.[3] On July 29, 2022, Sierra Club, a party to the proceeding,[4] requested rehearing of the Commission’s decision, questioning the Commission’s determination that there was good cause to grant the requested extension of time and arguing that the Commission erred in concluding that the certificate order’s findings and conclusions remain valid.[5] On August 29, 2022, a notice granting Ms. Strablow’s late intervention was issued.[6] The next day, i.e., August 30, 2022, a notice of denial of rehearing by operation of law was issued.[7] On September 6, 2022, Sierra Club filed a petition for review of the Commission’s order granting the extension of time in the U.S. Court of Appeals for the District of Columbia Circuit.
I would have preferred that the Commission issue an order addressing the arguments raised on rehearing. The decision, however, of whether to issue a notice stating that rehearing may be deemed denied by operation of law or whether the Commission issues an order addressing the arguments on rehearing is effectively within the Chairman’s purview since the Chairman sets the Commission’s agenda, oversees when and whether Commission staff issues notices, oversees staff assignments, and decides whether orders are presented for a vote.[8]
As noted above, on August 29, 2022, the Commission, by Secretary’s notice, granted a late intervention filed by Ms. Strablow without providing any reasoning as to why there is good cause to grant the late motion to intervene, which was filed after the Commission issued an order granting the extension of time.[9] I disagree with the decision to grant a late intervention while “provid[ing] no reasoning for the . . . determination that [the entity or individual] showed good cause under Rule 214.”[10] Agencies are bound by their own regulations yet, when it comes to our procedure, the Commission demonstrates time and time again that it views its regulations as optional.[11]
The Commission has procedural rules for a reason. The purpose of our intervention rules are particularly obvious: “[w]hen late intervention is sought after issuance of a dispositive order, the prejudice to other parties and the burden upon the Commission of granting the late intervention may be substantial.”[12] Admittedly, in this case the disruption was limited by the decision not to advance an order addressing Ms. Strablow’s rehearing request and because Ms. Strablow did not file a petition for review of the Commission’s order. Nonetheless, the notice granting the late intervention does not even acknowledge the potential burden or the disruption that attends granting party status after the issuance of an order. Nor does it acknowledge that the motion to intervene was filed after the order was issued.
Was the intervention granted because of Ms. Strablow’s allegation that the Office of Public Participation allegedly gave inaccurate guidance? Not according to the notice—the notice is silent regarding the basis for granting the late intervention except for merely referencing Rule 214 of the Commission’s regulations.[13] And it is the reasoning provided in the Commission’s issuances that matter when a court assesses whether the Commission has satisfied its Administrative Procedure Act obligations.[14]
The Commission’s refusal to explain why this motion for late intervention was granted also 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. Going forward, will any late intervention be granted based on an assertion from a party that an individual staff member in the Office of Public Participation gave them bad advice? If alleged guidance provided by Commission staff is sufficient to find good cause to grant party status, what weight would be given to, for example, staff’s informal discussions regarding jurisdictional determinations going forward?[15]
Because Ms. Strablow did not petition for review, I will not discuss the substance of her rehearing request except to observe that she raises arguments for the first time on rehearing,[16] and to note that “[t]he Commission looks with disfavor on parties raising issues for the first time on rehearing that could have been raised earlier and generally will not consider these issues.”[17] In response to Sierra Club’s arguments on rehearing regarding the validity of the Commission’s findings in the underlying certificate order, however, there is one issue worthy of repetition: our inquiry when reviewing a request for an extension of time is narrow—it is not an opportunity to revisit the determinations made after orders have become final and unappealable.[18] As the Commission explained in a recent rehearing order, “extension of time proceedings are not an invitation to re-open closed proceedings.”[19] The question we ask in extension of time proceedings is whether there is good cause to grant the extension—and indeed, in this case, there was.
For these reasons, I respectfully issue this statement.
______________________
James P. Danly
Commissioner
[1] Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226 (2022).
[2] Id. (Danly, Comm’r, concurring).
[3] See Diana Strablow July 22, 2022 Motion to Intervene Out-of-time & Request for Rehearing.
[4] See Sierra Club February 16, 2022 Motion to Intervene and Protest at 2; Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226 at P 7 (stating that Sierra Club filed a timely and un-opposed motion to intervene, which was “granted by operation of Rule 214 of the Commission’s rules of Practice and Procedure”) (citing 18 C.F.R. § 385.214(c)).
[5] See Sierra Club July 29, 2022 Rehearing Request.
[6] See August 29, 2022 Notice Granting Late Intervention.
[7] August 30, 2022 Notice of Denial of Rehearing by Operation of Law.
[8] See 42 U.S.C. § 7171(c) (“The Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission . . . .”); id. (providing that the Chairman is responsible for “the supervision of personnel employed by or assigned to the Commission”).
[9] See August 29, 2022 Notice Granting Late Intervention.
[10] N. Nat. Gas Co., 175 FERC ¶ 61,052 (2021) (Danly, Comm’r, dissenting at P 8) (citing 18 C.F.R. § 385.214).
[11] See, e.g., Rio Grande Pipeline Co. LLC, 179 FERC ¶ 61,236 (2022) (accepting a protest filed after the deadline established in 18 C.F.R. § 343.3); id. (Danly, Comm’r, dissenting at PP 2-3) (disagreeing with the Commission’s decision to accept the protest after the deadline set forth in our regulations and explaining that entities seeking to intervene and file a protest should not “wait[] until the last minute to file” because doing so “disrupt[s] . . . our proceeding[s]”).
[12] Mountain Valley Pipeline, LLC, 173 FERC ¶ 61,222, at P 7 (2020) (citing Nat’l Fuel Gas Supply Corp., 139 FERC ¶ 61,037, at P 18 (2012); Fla. Gas Transmission Co., LLC, 133 FERC ¶ 61,156, at P 6 (2010)).
[13] See August 29, 2022 Notice Granting Late Intervention (citing 18 C.F.R. § 385.214). 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) (State Farm) (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)).
[14] Cf. W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 25 (D.C. Cir. 2014) (recognizing that a court “need not—and indeed cannot—consider ‘appellate counsel’s post hoc rationalizations’ for Commission action”) (quoting Me. Pub. Utils. Comm’n v. FERC, 625 F.3d 754, 759 (D.C. Cir. 2010)); N.C. Utils. Comm’n v. FERC, 42 F.3d 659, 663 (D.C. Cir. 1994) (explaining that a “court cannot accept appellate counsel’s post hoc rationalization of an agency decision” and “[t]he Commission’s decision ‘must be upheld, if at all, on the basis articulated by the agency itself’”) (quoting State Farm, 463 U.S. at 50).
[15] But see New Fortress Energy Inc. v. FERC, 36 F.4th 1172, 1175 (D.C. Cir. 2022) (“While constructing the facility, New Fortress received ‘informal advice’ from Commission staff suggesting the Commission would not assert jurisdiction. See 18 C.F.R. § 388.104. Under Commission regulations, such ‘opinion[s]’ do ‘not represent the official views of the Commission,’ id., and shortly after the facility began operating, the Commission issued an order to show cause why the facility is not subject to Commission jurisdiction as an LNG terminal operating in foreign commerce.”); 18 C.F.R. § 388.104(a) (“The Commission staff provides informal advice and assistance to the general public and to prospective applicants for licenses, certificates, and other Commission authorizations. Opinions expressed by the staff do not represent the official views of the Commission, but are designed to aid the public and facilitate the accomplishment of the Commission’s functions.”).
[16] See, e.g., Diana Strablow July 22, 2022 Motion to Intervene Out-of-time & Request for Rehearing at 4-5 (asserting that “[o]n Cattaraugus Creek . . . , just downstream from the proposed pipeline crossing, demolition of the West Valley Demonstration Project, a nuclear waste facility is currently underway,” that “[t]he plans and implementation of this demolition occurred after the 2017 Issuing Order” and questioning whether “this new event that has occurred since 2017 cause[s] a cumulative impact for the Seneca Nation of Indians living downstream”).
[17] Corpus Christi Liquefaction Stage III, LLC, 181 FERC ¶ 61,033, at P 13 (2022) (citing Balt. Gas & Elec. Co., 91 FERC ¶ 61,270, at 61,922 (2000) (“We look with disfavor on parties raising on rehearing issues that should have been raised earlier. Such behavior is disruptive to the administrative process because it has the effect of moving the target for parties seeking a final administrative decision”)) (citation omitted).
[18] See Corpus Christi Liquefaction Stage III, LLC, 179 FERC ¶ 61,087, at P 15 (2022) (“extension of time proceedings are not an invitation to re-open the dockets”) (citations omitted); see also Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226 at P 20 (“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.”).
[19] Corpus Christi Liquefaction Stage III, LLC, 181 FERC ¶ 61,033 at P 15 (citations omitted).