Commissioner James Danly Statement
July 28, 2022
Docket Nos. CP15-554-010, CP15-555-008
I agree with the Commission’s decision to impose the atypical condition requiring seedlings to be planted on the right of way as part of the project sponsor’s restoration efforts under the specific circumstances of this case. I disagree, however, with the order’s discussion concerning the Commission’s authority to presumptively stay certificate orders.
As an initial matter, I recognize that in the underlying order to this proceeding, the Commission stated that “as a practical matter the Commission’s ability to impose conditions on Atlantic [Pipeline Company, LLC]’s and EGTS’s pending request is limited” because “[t]he companies are not seeking authorization . . . to construct and operate interstate pipelines, nor are they looking for permission to discontinue ongoing operations” but rather, the companies “propose[e] a plan to restore lands affected by activities to construct their aborted projects.”[1] Nonetheless, I agree with the inclusion of the condition because its imposition is “based on the facts of this particular case, including that the pipeline is no longer going into operation, and a determination that the condition will assist with the restoration of affected properties.”[2] I am persuaded that here, this condition amounts to a “reasonable . . . condition[] [that] the public convenience and necessity may require”[3] to assist with restoration of the affected properties.
I have written at length about my disagreement with the Commission’s presumptive stay policy established in Order No. 871-B and Order No. 871-C.[4] I dissented from the decision to establish that policy.[5] Because the presumptive stay policy does not constitute any part of the holding in today’s order, but is instead raised to satisfy our obligations under the Administrative Procedure Act to respond to litigants’ arguments,[6] I need not dissent. Nevertheless, I restate my view that the Commission has no authority to presumptively stay Natural Gas Act (NGA) section 7 certificate orders for the purpose of preventing the certificate holder from exercising eminent domain.[7] As the Commission recognizes in today’s order, “courts have repeatedly held that the Commission lacks authority to deny or restrict a certificate-holder’s exercise of the statutory right of eminent domain with respect to a certificate issued pursuant to the procedures laid out in NGA section 7(e).”[8] And the Commission should not attempt to do indirectly what it cannot do directly, i.e., restrict a certificate holder’s exercise of eminent domain.
For these reasons, I respectfully concur.
[1] Atl. Coast Pipeline, LLC, 178 FERC ¶ 61,201, at P 30 (2022) (emphasis added).
[2] Atl. Coast Pipeline, LLC, 180 FERC ¶ 61,059, at P 29 (2022).
[3] 15 U.S.C. § 717f(e).
[4] See Limiting Authorizations to Proceed with Constr. Activities Pending Rehearing, 175 FERC ¶ 61,098, at P 46 (2021) (Order No. 871-B), order on reh’g & clarification, 176 FERC ¶ 61,062 (2021) (Order No. 871-C).
[5] See Order No. 871-C, 176 FERC ¶ 61,062 (Danly, Comm’r, dissenting); Order No. 871-B, 175 FERC ¶ 61,098 (Danly, Comm’r, dissenting).
[6] See Atl. Coast Pipeline, LLC, 180 FERC ¶ 61,059, at PP 18-20 (discussing the Commission’s presumptive stay policy).
[7] See Order No. 871-B, 175 FERC ¶ 61,098 (Danly, Comm’r, dissenting at P 7).
[8] Atl. Coast Pipeline, LLC, 180 FERC ¶ 61,059, at P 19 (2022) (citing Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000) (“The Commission does not have the discretion to deny a certificate holder the power of eminent domain.” (internal citation omitted)); Twp. of Bordentown, N.J. v. FERC, 903 F.3d 234, 265 (3d Cir. 2018) (stating that NGA section 7(h) “contains no condition precedent” to the right of eminent domain, other than issuance of the certificate, when a certificate holder is unable to acquire a right-of-way by contract); Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 628 (4th Cir. 2018) (“Issuing such a Certificate conveys and automatically transfers the power of eminent domain to the Certificate holder . . . . Thus, FERC does not have discretion to withhold eminent domain once it grants a Certificate.” (internal citation omitted))).