Commissioner James Danly Statement
July 29, 2022
Docket No. CP21-179-001
I join the Commission’s decision and agree that on rehearing the Commission should sustain its determination that Nopetro LNG, LLC’s (Nopetro) proposed facility is not an LNG terminal subject to the Commission’s jurisdiction under Natural Gas Act (NGA) section 3.[1]
While I agree that the Commission lacks jurisdiction for the described facilities, I write separately to reiterate that, for the reasons stated in my New Fortress dissents, I generally do not think that the Commission should take an expansive view regarding its NGA section 3 jurisdiction.[2] I recognize that the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recently affirmed the Commission’s broad interpretation of its jurisdiction in New Fortress.[3] Nonetheless, as I stated in my New Fortress dissent, NGA section 3 is poorly drafted,[4] and NGA section 2(11), which defines “LNG terminal” is ambiguous and broad.[5] I remain convinced that had the Commission taken a narrow view of its jurisdiction, consistent with my dissent in New Fortress,[6] that interpretation of our jurisdiction would also have been affirmed by the D.C. Circuit as reasonable[7] and that interpretation—by the agency that oversees the siting of “LNG terminal[s]”[8]—would have therefore been afforded deference.[9]
For these reasons, I respectfully concur.
[1] 15 U.S.C. § 717b.
[2] See New Fortress Energy LLC, 174 FERC ¶ 61,207 (Danly, Comm’r, dissenting), order on reh’g, 176 FERC ¶ 61,031 (2021) (Danly, Comm’r, dissenting) (New Fortress).
[3] See New Fortress Energy Inc. v. FERC, 36 F.4th 1172 (D.C. Cir. 2022) (denying the petitions for review of the Commission’s determination that the New Fortress facility is jurisdictional under NGA section 3).
[4] New Fortress Energy LLC, 174 FERC ¶ 61,207 (Danly, Comm’r, dissenting at P 3) (recognizing that the definition for “LNG terminal” in NGA section 2(11) is broad but doubting that the text was intended to be broadly interpreted or “that any majority of commissioners charged with implementing the statute from the time of its enactment would have found that jurisdiction should have been exercised over [a] rail yard in Topeka” “that takes shipments of LNG in ISO containers shipped by rail from Canada and holds them for a period of time before sending them elsewhere by rail”).
[5] Id. (Danly, Comm’r, dissenting at PP 2-3); see also Nopetro LNG, LLC, 180 FERC ¶ 61,057, at P 24 (2022) (“We acknowledge, as the Commission has in the past, that the text of section 2(11) sets forth a broad, ambiguous definition of ‘LNG terminal,’ the plain language of which, if interpreted unmoored from the context in which the statute was enacted, could be read to include in its ambit a far larger universe of facilities than Congress intended.”) (citing Shell U.S. Gas & Power, LLC, 148 FERC ¶ 61,163, at P 43 (2014); New Fortress Energy LLC, 174 FERC ¶ 61,207 (Danly, Comm’r, dissenting) (“This text [referencing section 2(11)] is ambiguous and broad.”)).
[6] See New Fortress Energy LLC, 174 FERC ¶ 61,207 (Danly, Comm’r, dissenting).
[7] See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.967, 980 (2005) (“If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-844 & n.11 (1984) (Chevron)); Chevron, 467 U.S. at 843 (1984) (“if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute”); see also City of Arlington v. FCC, 569 U.S. 290, 307 (2013) (finding “the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority”).
[8] 15 U.S.C. § 717a(11).
[9] The 1977 Department of Energy (DOE) Organization Act (42 U.S.C. § 7151(b)) placed all section 3 jurisdiction under DOE. The Secretary of Energy subsequently delegated authority to the Commission to “[a]pprove or disapprove the construction and operation of particular facilities, the site at which such facilities shall be located, and with respect to natural gas that involves the construction of new domestic facilities, the place of entry for imports or exit for exports.” DOE Delegation Order No. 00-004.00A, section 1.21A (May 16, 2006).