Commissioner Mark C. Christie Statement
January 20, 2022
Docket No. CP18-46-004

I concur in granting the extension of time Adelphia requested to complete the construction of a project this Commission has already found is needed to serve the public.

I strongly dissent from that part of the order announcing a new procedural rule that allows essentially unlimited late intervention by new parties every time a holder of a certificate of public convenience and necessity (CPCN) simply seeks more time to complete a needed project.[1]  The certain effect (whatever the purpose) of this new rule will be to facilitate even more unending litigation against the gas facilities needed to provide the public with the energy needed to keep the lights on and homes heated during cold winters.  It will undeniably drive up the legal costs associated with building gas facilities, creating yet another disincentive to the construction of vitally needed infrastructure.  

I acknowledge that today’s order tells late intervenors in extension request proceedings that they “may not relitigate the Commission’s decision to issue a certificate.”[2]  Easier said than done.  Late intervenors can raise any issues they want, including challenging the original CPCN’s need determination or demanding new environmental reviews.  And the D.C. Circuit has shown that it is quite willing to overturn CPCN decisions of this Commission not on the merits but for alleged failures to explain decisions adequately under the Administrative Procedure Act (APA).[3]  Allowing unlimited late intervention in extension requests clearly sets the stage for more such remands, or at least the need for CPCN holders to spend yet more time and money defending the inevitable appeals of extension orders.  

This order’s blank check for late interventions is not a legal standard, but a legal weapon.  And as I said in my dissent to the Commission’s Algonquin order of last February:

Mark Twain said the art of prophecy is very difficult, especially with respect to the future; however, I suspect that the use of the legal weapons of unending litigation and collateral attacks against infrastructure projects long after they have been approved, as is enabled by today’s order, will not be limited to natural gas projects, even though they are today’s primary target.  Campaigns of unending legal warfare may well be used one day against other types of infrastructure projects, including those the majority may well want to promote.[4] 

Finally, there is simply no need for this policy reversal.  The policy adopted in the earlier Algonquin case created a new opportunity for parties to the underlying certificate proceedings to be heard on requests for extensions of time.[5]  Prior to that decision there was no opportunity for anyone to intervene in a certificate-holder’s extension request.[6]  I acknowledge that there could be truly unusual circumstances that would support allowing late intervention by a new party.  I believe our rules are already adequate to address such unusual situations, but if others disagree, the rules could be amended, using a general rulemaking in which all affected persons and organizations would have the opportunity to comment on such a major procedural issue, as they have not had in this individual case with limited participation. 

For these reasons, I concur in part and dissent in part.


[1] Adelphia Gateway, LLC, 178 FERC ¶ 61,030, at P 10 (2022).

[2] Id.

[3] See, e.g., Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (remanding certificate order without vacatur due, inter alia, to deficiencies under the APA in the Commission’s NEPA analyses of greenhouse gas emissions and environmental justice issues); and Envtl. Def. Fund v. FERC, 2 F.4th 953 (D.C. Cir. 2021) (vacating and remanding certificate order due to failure to adequately satisfy the Commission’s APA obligation to engage in reasoned decision-making).

[4] Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Christie, Comm’r, dissenting at P 7) (available at  See also Peter Behr and Miranda Willson, Details emerge about DOE, FERC grid plans for clean energy, Energy Wire, (Jan. 13, 2022).

[5] Algonquin Gas Transmission, LLC, 170 FERC ¶ 61,144, at P 39 (2020) (“[t]o ensure that the Commission acting as a whole act on [extension] requests that may be contested, and further increase transparency and durability of Commission orders, going forward the Office of the Secretary and Office of Energy Projects are directed to notice all requests for extension of time to complete construction for NGA facilities within 7 calendar days of receiving the request.  Each notice shall establish a 15 calendar day intervention and comment period deadline.”

[6] Id. P 38 (“the Commission is not required to solicit public input before acting upon a certificate-holder’s request for an extension of time, and nothing in the Commission’s regulations suggests that an opportunity for notice and comment is required.”) (citations omitted).

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