Commissioner Mark C. Christie Statement
May 4, 2021
Docket No. RM20-15-001


I write separately to add the following.

Last year the Commission issued Order No. 871.[1]  Just a few weeks later, the D.C. Circuit issued its ruling in Allegheny.[2]

The combination created deep uncertainty, as well as the threat under Order No. 871, that a certificated facility could have its notice to proceed with construction withheld potentially for an unlimited period of time while requests for rehearing remained pending before the Commission.

Today’s order is necessary to address the present unsustainable situation.  While it may not be perfect nor exactly how I alone would resolve the uncertainties and threats created by Order No. 871, it does represent an acceptable compromise, consistent with the applicable law.  

Notably, it puts clear time limits—where there are none now under Order No. 871—on how long the Commission is required to withhold a notice to proceed with construction while the Commission considers a request for rehearing. 

Second, it sets forth a policy for future cases—not mandatory, but subject to the facts and circumstances of each case—that a property owner opposing the involuntary use of eminent domain should be protected from a seizure of his or her property during a reasonable period of time while the Commission is still considering requests for rehearing; however, this period will also be subject to the same time limits as the withholding of the notice to proceed with construction. 

Third, nothing in today’s order will prevent the developer from continuing expeditiously with all development activities that do not involve construction or the use of eminent domain against unwilling property owners.  Voluntary land acquisition is unaffected by this order.

I understand the desire of the dissent simply to repeal Order No. 871 with nothing more,[3] but that is not a realistic prospect; put bluntly, it is not going to happen.  Rather than allow the current unsustainable status quo to continue, under present circumstances I believe this order represents a realistic path forward.  If it is not administered fairly or does not bring the clarity and certainty needed, it can be revisited.

Accordingly, I respectfully concur.


[1] Order No. 871, 171 FERC ¶ 61,201(2020).

[2] Allegheny Defense Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc) (Allegheny).

[3] Danly Dissent at PP 1-2. 

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