Limiting Authorizations To Proceed With Construction Activities Pending Rehearing, 40113-40116 [2020-13015]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 85, Number 129 (Monday, July 6, 2020)]
[Rules and Regulations]
[Pages 40113-40116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13015]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153 and 157

[Docket No. RM20-15-000; Order No. 871]


Limiting Authorizations To Proceed With Construction Activities 
Pending Rehearing

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission (Commission) issues 
this final rule to amend its regulations to preclude the issuance of 
authorizations to proceed with construction activities with respect to 
natural gas facilities authorized by order issued pursuant to section 3 
or section 7 of the Natural Gas Act until either the time for filing a 
request for rehearing of such order has passed with no rehearing 
request being filed or the Commission has acted on the merits of any 
rehearing request.

DATES: This rule is effective August 5, 2020.

FOR FURTHER INFORMATION CONTACT: 
Tara DiJohn, Office of the General Counsel, Federal Energy Regulatory 
Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8671, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    1. By this final rule, the Federal Energy Regulatory Commission 
(Commission or agency) is revising its regulations to preclude the 
issuance of authorizations to proceed with construction activities with 
respect to a Natural Gas Act (NGA) section 3 authorization or section 
7(c) certificate order until the Commission acts on the merits of any 
timely-filed request for rehearing or the time for filing such a 
request has passed. This rule ensures that construction of an approved 
natural gas project will not commence until the Commission has acted 
upon the merits of any request for rehearing. The rule imposes no new 
obligations on the public.

II. Background

    2. The NGA vests the Commission with jurisdiction over the 
transportation and wholesale sale of natural gas in interstate 
commerce.\1\ To meet these aims, the NGA declares that ``the business 
of transporting and selling natural gas for ultimate distribution to 
the public is affected with [the] public interest.'' \2\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 717(a).
    \2\ Id.
---------------------------------------------------------------------------

    3. Before a company can construct a natural gas pipeline, it must 
obtain approval from the Commission under NGA section 7(e), which 
provides that the Commission ``shall'' issue a certificate if it 
determines that a proposed pipeline ``is or will be required by the 
present or future public convenience and necessity.'' \3\
---------------------------------------------------------------------------

    \3\ Id. 717f(e).
---------------------------------------------------------------------------

    4. If the Commission grants a certificate of public convenience and 
necessity, the NGA authorizes the certificate holder to exercise 
eminent domain authority if it ``cannot acquire by contract, or is 
unable to agree with the owner of property to the compensation to be 
paid for, the necessary right-of-way to construct, operate, and 
maintain a pipe line or pipe lines for the transportation of natural 
gas[.]'' \4\
---------------------------------------------------------------------------

    \4\ Id. 717f(h). The NGA specifies that any such condemnation 
proceedings shall take place in the federal court for the district 
in which the property is located or in the relevant state court.
---------------------------------------------------------------------------

    5. Separately, NGA section 3 prohibits the import or export of 
natural gas between the United States and a foreign nation without 
``first having secured an order of the Commission authorizing it to do 
so.'' \5\ NGA section 3 authority is divided between the Department of 
Energy, which oversees the import or export of the natural gas 
commodity,\6\ and the Commission, which oversees the siting, 
construction, and operation of import or export facilities.\7\ The 
Commission ``shall'' authorize proposed import or export facilities 
unless it finds that construction and operation of the proposed 
facilities ``will not be consistent with the public interest.'' \8\ 
Unlike section 7, section 3 does not provide for the acquisition of 
lands through eminent domain.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 717b.
    \6\ Id. 717b(a)-(c). In 1977, Congress transferred the 
regulatory functions of NGA section 3 from the Federal Power 
Commission to the Department of Energy. 42 U.S.C. 7151(b) 
(Department of Energy Organization Act). The Department of Energy 
delegated back to the newly created Federal Energy Regulatory 
Commission the limited authority under NGA section 3(e) to approve 
the physical facilities. 15 U.S.C. 717b(e).
    \7\ 15 U.S.C. 717b(e). See DOE Delegation Order No. 00-004.00A 
(effective May 16, 2006) (renewing delegation to the Commission 
authority over the construction and operation of LNG facilities); 
see also 43 FR 47,769, 47,772 (Oct. 17, 1978) (1978 delegation); 42 
U.S.C. 7172(e) (Commission authority includes any matter assigned by 
the Department).
    \8\ 15 U.S.C. 717b(a).
---------------------------------------------------------------------------

    6. Pursuant to the NGA, the Commission can approve a proposed

[[Page 40114]]

project subject to ``such reasonable terms and conditions as the public 
convenience and necessity may require.'' \9\ The certificate orders 
typically include conditions a company must meet before construction or 
operation of the project may begin, and typically provide that a 
company must receive written authorization from the Director of the 
Office of Energy Projects (or the Director's designee) before 
commencing construction of any project facilities.\10\ The purpose of 
requiring a written request for authorization to commence with 
construction activities (often referred to as a notice to proceed) is 
not to reexamine the underlying Commission order; rather, it is to 
ensure that the Commission's preconstruction requirements have been 
met.
---------------------------------------------------------------------------

    \9\ Id. 717f(e).
    \10\ See, e.g., Florida Gas Transmission Co., LLC, 170 FERC ] 
61,200, 62,335 (2020) (Environmental Condition 9 requires Florida 
Gas to ``receive written authorization from the Director of OEP 
before commencing construction of any project facilities. To obtain 
such authorization, Florida Gas must file with the Secretary 
documentation that it has received all applicable authorizations 
required under federal law (or evidence of waiver thereof)''); Gulf 
South Pipeline Co., LP, 170 FERC ] 61,201, 62,348 (2020) (same).
---------------------------------------------------------------------------

III. Discussion

    7. In recent years, the Commission's NGA sections 3 and 7 
proceedings have seen increased interest and participation by 
stakeholders, such as landowners, community members, non-governmental 
organizations, property rights advocates, and governmental entities, 
who have raised concerns about proposed projects. The Commission's 
order granting an authorization under section 3 and/or section 7 fully 
considers all stakeholder concerns raised during the proceeding.
    8. If a party is dissatisfied with the Commission's NGA section 3 
authorization or section 7 certificate determination, it may apply for 
rehearing.\11\ The application must ``set forth specifically'' the 
grounds for rehearing.\12\ On rehearing, the Commission is authorized 
to ``grant or deny'' the request, ``or to abrogate or modify its 
order[.]'' \13\ ``Unless the Commission acts upon the application for 
rehearing within thirty days after it is filed, such application may be 
deemed to have been denied.'' \14\ Often, because of the complex nature 
of the matters raised, the Commission issues an order (known as a 
tolling order) by the thirtieth day following the filing of a rehearing 
request, in order to allow additional time for the Commission to 
provide thoughtful, well-considered attention to the issues raised on 
rehearing.\15\
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 717r(a).
    \12\ Id.
    \13\ Id.
    \14\ Id.
    \15\ See, e.g., Cal. Co. v. FPC, 411 F.2d 720, 721 (DC Cir. 
1969); Kokajko v. FERC, 837 F.2d 524, 525 (1st Cir. 1988) (``The 
statutory language, . . . although requiring FERC to `act' upon the 
application for rehearing within thirty days after filing, lest the 
application is deemed denied, does not state . . . that FERC must 
`act on the merits' within that time lest the application is deemed 
denied.''); Gen. Am. Oil Co. of Tex. v. FPC, 409 F.2d 597, 599 (5th 
Cir. 1969); Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 
631 (4th Cir. 2018); see also Del. Riverkeeper Network v. FERC, 895 
F.3d 102, 113 (D.C. Cir. 2018) (rejecting a due process challenge to 
Commission tolling orders).
---------------------------------------------------------------------------

    9. The rehearing process serves as a mechanism for the Commission 
to carefully consider the arguments presented, in order to resolve 
disputes or bring its expertise to bear on complex, technical matters 
before they are potentially presented to the courts. The Commission 
balances the interests of numerous stakeholders and renders decisions 
that address challenging technical, economic, and environmental 
matters, as well as complex legal issues. This takes time. Only after 
resolving these ``difficult problems'' \16\ does the Commission issue 
an order on the merits of a rehearing request.
---------------------------------------------------------------------------

    \16\ FPC v. Colo. Interstate Gas Co., 348 U.S. 492, 501 (1955).
---------------------------------------------------------------------------

    10. Once the Commission issues an order on the merits of a 
rehearing request, a party may seek judicial review of the Commission's 
order. An application for agency rehearing is a prerequisite to 
judicial review, and only those objections raised on rehearing may be 
presented to the court of appeals.\17\ Congress specified that an 
application for rehearing ``shall not, unless specifically ordered by 
the Commission, operate as a stay of the Commission's order.'' \18\ 
Thus, following issuance of an NGA section 7 certificate or section 3 
authorization, a project sponsor may request that the Commission 
authorize construction while rehearing is pending.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 717r(b).
    \18\ Id. 717r(c).
---------------------------------------------------------------------------

    11. In order to balance our commitment to expeditiously respond to 
parties' concerns in comprehensive orders on rehearing and the serious 
concerns posed by the possibility of construction proceeding prior to 
the completion of Commission review, we are exercising our discretion 
to adopt a new regulation that precludes the issuance of authorizations 
to proceed with construction of projects authorized under NGA sections 
3 and 7 while rehearing of the initial orders is pending. This rule 
ensures that construction of an approved natural gas project will not 
commence until the Commission has acted upon the merits of any request 
for rehearing, regardless of land ownership.
    12. This final rule adds to our regulations new Sec.  157.23, which 
provides that:
    With respect to orders issued pursuant to 15 U.S.C. 717b or 15 
U.S.C. 717f(c) authorizing the construction of new natural gas 
transportation, export, or import facilities, no authorization to 
proceed with construction activities will be issued:
    (a) Until the time for the filing of a request for rehearing under 
15 U.S.C. 717r(a) has expired with no such request being filed, or
    (b) if a timely request for rehearing is filed, until the 
Commission has acted upon the merits of that request.
    13. In addition, we are revising Sec.  153.4 of our regulations to 
incorporate a cross-reference to new Sec.  157.23.

IV. Information Collection Statement

    14. The Paperwork Reduction Act \19\ requires each federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information (i.e., reporting, 
recordkeeping, or public disclosure requirements) directed to ten or 
more persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contained in final rules published in the Federal 
Register.\20\ This final rule does not contain any information 
collection requirements. The Commission is therefore not required to 
submit this rule to OMB for review.
---------------------------------------------------------------------------

    \19\ 44 U.S.C. 3501-3521.
    \20\ See 5 CFR 1320.12.
---------------------------------------------------------------------------

V. Environmental Analysis

    15. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant effect on the human environment.\21\ The Commission 
has categorically excluded certain actions from this requirement as not 
having a significant effect on the human environment, including the 
promulgation of rules that are clarifying, corrective, or procedural, 
or that do not substantially change the effect of legislation or the 
regulations being amended.\22\ This final rule disallows the issuance 
of authorizations to proceed with construction activities until the 
Commission acts on the merits of any

[[Page 40115]]

request for rehearing of an NGA section 3 authorization or section 7(c) 
certificate order. Because this final rule is procedural in nature, 
preparation of an Environmental Assessment or an Environmental Impact 
Statement is not required.
---------------------------------------------------------------------------

    \21\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 41 FERC ] 61,284 (1987).
    \22\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

VI. Regulatory Flexibility Act

    16. The Regulatory Flexibility Act of 1980 (RFA) \23\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
However, final rules promulgated without the publication of a general 
notice of proposed rulemaking under section 553 of the Administrative 
Procedure Act (APA) are exempt from the RFA's requirements.\24\ 
Pursuant to section 553(b)(3)(A) of the APA, ``rules of agency 
organization, procedure, or practice'' may be published without general 
notice of proposed rulemaking.\25\ Because this rule concerns only 
matters of agency procedure--specifically, the Commission's internal 
processes and procedure for issuing authorizations to proceed with 
construction activities under an NGA section 3 authorization or an NGA 
section 7(c) certificate order, the APA's public notice and comment 
procedures do not apply. Accordingly, this final rule is exempt from 
the requirements of the RFA.
---------------------------------------------------------------------------

    \23\ 5 U.S.C. 601-612.
    \24\ Id. 604(a).
    \25\ Id. 553(b)(3)(A).
---------------------------------------------------------------------------

VII. Document Availability

    17. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through FERC's Home Page (https://www.ferc.gov). At this time, 
the Commission has suspended access to the Commission's Public 
Reference Room due to the President's March 13, 2020 proclamation 
declaring a National Emergency concerning the Novel Coronavirus Disease 
(COVID-19).
    18. From FERC's Home Page on the internet, this information is 
available on eLibrary. The full text of this document is available on 
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or 
downloading. To access this document in eLibrary, type the docket 
number excluding the last three digits of this document in the docket 
number field.
    19. User assistance is available for eLibrary and the FERC's 
website during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371. Email the Public Reference Room at [email protected].

VIII. Effective Date

    20. The Commission is issuing this rule as a final rule without a 
period for public comment. Public notice and comment, otherwise 
required by 5 U.S.C. 553, do not apply to ``rules of agency 
organization, procedure, or practice.'' \26\ This rule concerns only 
matters of agency procedure, and will not significantly affect 
regulated entities or the general public.
---------------------------------------------------------------------------

    \26\ 5 U.S.C. 553(b)(3)(A).
---------------------------------------------------------------------------

    21. This rule is effective August 5, 2020. As a matter of policy, 
however, the Commission will not authorize construction to proceed 
pending rehearing during the period before this rule becomes effective.

List of Subjects

18 CFR Part 153

    Exports, Natural gas, Reporting and recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements.

    By the Commission. Commissioner Glick is concurring in part and 
dissenting in part with a separate statement attached.

    Issued June 9, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission is amending parts 
153 and 157, chapter I, title 18, Code of Federal Regulations, as 
follows:

PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR 
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS

0
1. The authority citation for Part 153 continues to read as follows:

    Authority: 15 U.S.C. 717b, 717o; E.O. 10485; 3 CFR, 1949-1953 
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, 
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).


0
2. Revise Sec.  153.4 to read as follows:


Sec.  153.4  General requirements.

    The procedures in Sec. Sec.  157.5, 157.6, 157.8, 157.9, 157.10, 
157.11, 157.12, and 157.23 of this chapter are applicable to the 
applications described in this subpart.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
3. The authority citation for Part 157 continues to read as follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.

0
4. Add Sec.  157.23 to subpart A to read as follows:


Sec.  157.23  Authorizations to Proceed with Construction Activities.

    With respect to orders issued pursuant to 15 U.S.C. 717b or 15 
U.S.C. 717f(c) authorizing the construction of new natural gas 
transportation, export, or import facilities, no authorization to 
proceed with construction activities will be issued:
    (a) Until the time for the filing of a request for rehearing under 
15 U.S.C. 717r(a) has expired with no such request being filed, or
    (b) If a timely request for rehearing is filed, until the 
Commission has acted upon the merits of that request.

The following will not appear in the Code of Federal Regulations

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Limiting Authorizations to Proceed with Construction Activities Pending 
Rehearing

Docket No. RM20-15-000

GLICK, Commissioner, concurring in part and dissenting in part:

    1. It is readily apparent that today's final rule attempts to 
address some of the concerns raised in the Allegheny Defense Project v. 
FERC proceeding before the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit). In that proceeding, numerous groups 
have objected to the Commission's practice of ``tolling'' for months, 
or even years, requests for rehearing of certificates issued pursuant 
to Sec.  7 of the Natural Gas Act,\1\ thereby preventing landowners 
from seeking judicial review, even while pipeline developers are 
permitted to condemn their land and start constructing a pipeline. In 
her concurring opinion in Allegheny Defense Project, Judge Millett 
correctly characterized the Commission's practice as a ``Kafkaesque 
regime''--one that allows ``the Commission [to] keep homeowners in

[[Page 40116]]

seemingly endless administrative limbo while energy companies plow 
ahead seizing land and constructing the very pipeline that the 
procedurally handcuffed homeowners seek to stop.'' \2\ Now that the en 
banc D.C. Circuit has heard oral argument on the legality of this 
Kafkaesque regime, the Commission is finally deciding to stop allowing 
developers to begin constructing a pipeline before the Commission's 
rehearing process is complete. That is a step in the right direction.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 717f(c).
    \2\ Allegheny Def. Project v. FERC, 932 F.3d 940, 948 (D.C. 
Cir.) (Millett, J., concurring), reh'g en banc granted, judgment 
vacated, 943 F.3d 496 (D.C. Cir. 2019).
---------------------------------------------------------------------------

    2. Nevertheless, I dissent in part from this final rule because it 
does nothing to address the concern, articulated clearly in Judge 
Millett's concurrence, that a pipeline developer should not be able to 
begin the process of condemning private land before the owners of that 
land can go to court to challenge the certificate. Eminent domain is 
among the most significant actions that a government may take with 
regard to an individual's private property.\3\ And the harm to an 
individual from having his or her land condemned is one that may never 
be fully remedied, even in the event they receive their 
constitutionally required compensation.\4\ Bearing those basic facts in 
mind, there is something fundamentally unfair about a regulatory regime 
that allows a private entity to start the process of condemning an 
individual's land before the landowner can go to court to contest the 
basis for that condemnation action.
---------------------------------------------------------------------------

    \3\ Cf. Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) 
(observing that government action that provides for ``public access 
[to private property] would deprive [the owner] of the right to 
exclude others, `one of the most essential sticks in the bundle of 
rights that are commonly characterized as property.''') (quoting 
Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)); Loretto v. 
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (``[W]e 
have long considered a physical intrusion by government to be a 
property restriction of an unusually serious character for purposes 
of the Takings Clause.''); Hendler v. United States, 952 F.2d 1364, 
1374 (Fed. Cir. 1991) (``In the bundle of rights we call property, 
one of the most valued is the right to sole and exclusive 
possession--the right to exclude strangers, or for that matter 
friends, but especially the Government.'' (emphasis in the 
original)).
    \4\ See Kimball Laundry Co. v. United States, 338 U.S. 1, 5 
(1949) (``The value of property springs from subjective needs and 
attitudes; its value to the owner may therefore differ widely from 
its value to the taker.''); United Church of the Med. Ctr. v. Med. 
Ctr. Comm'n, 689 F.2d 693, 701 (7th Cir. 1982) (``It is settled 
beyond the need for citation . . . that a given piece of property is 
considered to be unique, and its loss is always an irreparable 
injury.''); accord Richardson v. City & Cty. of Honolulu, 124 F.3d 
1150, 1168 (9th Cir. 1997) (O'Scannlain, J., concurring in part and 
dissenting in part) (``Whether because of a sentimental attachment 
to his property or a conviction that the property is actually worth 
more than what the market will currently bear, a landlord might 
choose not to sell, even at the `fair market value.''').
---------------------------------------------------------------------------

    3. That concern was central to Judge Millett's concurrence in 
Allegheny Defense Project. Throughout her opinion, she touched on the 
profound inequity of allowing a developer to condemn land and construct 
a pipeline while the opponents of that pipeline are stuck in 
``administrative limbo'' before the Commission.\5\ I see nothing in her 
opinion that suggests that the problem created by the Commission's 
abuse of tolling orders is limited to the actual construction of a 
pipeline. To the contrary, Judge Millett pointed repeatedly to the 
exercise of eminent domain prior to rehearing as an example of how the 
Commission's use of tolling orders ``runs roughshod over basic 
principles of fair process.'' \6\
---------------------------------------------------------------------------

    \5\ Allegheny Def. Project, 932 F.3d at 948, 950, 952-53, 956 
(Millett, J., concurring).
    \6\ Id. at 950 (Millett, J., concurring).
---------------------------------------------------------------------------

    4. And yet this final rule deals only with construction without 
making any effort to address the exercise of eminent domain during that 
period when the courthouse doors are closed to landowners seeking to 
challenge the certificate. That is a shame. And the failure to do 
anything in that regard is a striking contrast to the Commission's 
supposed concern for landowners. Rather than remaining silent on this 
situation, we ought to do everything in our power to address it and 
ensure that certificate holders are not permitted to go to court before 
landowners.
    5. To that end, I believe that we should adopt a practice of 
presumptively staying Sec.  7 certificates \7\ pending Commission 
action on the merits of any timely filed requests for rehearing.\8\ A 
practice along those lines would help protect landowners from an action 
seeking to condemn their property by delaying the issuance of the 
condition precedent for a condemnation action pursuant to the NGA.\9\ 
Only then will we have addressed the most glaring due process 
shortcomings associated with the Commission's use of tolling orders in 
NGA certificate proceedings.
---------------------------------------------------------------------------

    \7\ Unlike Sec.  7 of the NGA, Sec.  3 does not convey eminent 
domain authority. See Limiting Authorizations to Proceed with 
Construction Activities Pending Rehearing, 171 FERC ] 61,201, P 5 
(2020). Accordingly, I do not believe it is necessary to 
presumptively stay the Commission's Sec.  3 determinations. I do, 
however, agree with my colleagues that it is appropriate to refrain 
from issuing any notices to proceed with construction under both 
Sec.  3 and Sec.  7 given the potential for irreparable harm due to 
construction pursuant to either provision of the NGA. See id. P 11.
    \8\ Under such an approach, the Commission could, in its 
discretion, lift the stay in response to a showing from the pipeline 
developer that it is necessary or appropriate to commence 
condemnation proceedings prior to the Commission acting on 
rehearing.
    \9\ Multiple courts have contemplated a stay having an effect 
along those lines. See, e.g., Mountain Valley Pipeline, LLC v. An 
Easement to Construct, Operate & Maintain a 42-inch Gas Transmission 
Line, No. 2:17-CV-04214, 2018 WL 1004745, at *5 (S.D.W. Va. Feb. 21, 
2018) (``The landowners insist that the various challenges that 
Mountain Valley faces before FERC and the courts of appeals counsel 
against the granting of partial summary judgment. As explained 
earlier, a FERC order remains in effect unless FERC or a court of 
appeals issues a stay and no such stay has been issued here.'' 
(internal citations omitted)); In re Algonquin Nat. Gas Pipeline 
Eminent Domain Cases, No. 15-CV-5076, 2015 WL 10793423, at *7 
(S.D.N.Y. Sept. 18, 2015) (``Here, various interested parties have 
filed Requests for Rehearing with FERC but, absent a stay by FERC, 
those Requests for Rehearing neither prohibit these proceedings from 
going forward nor affect Algonquin's substantive right to condemn or 
the need for immediate possession.''); Tenn. Gas Pipeline Co. v. 104 
Acres of Land More or Less, in Providence Cty. of State of R.I., 749 
F. Supp. 427, 431 (D.R.I. 1990) (``Because in this case the 
Commission's order has not been stayed, condemnation pursuant to 
that order may proceed.'').
---------------------------------------------------------------------------

    6. During my time at the Commission, I have had the opportunity to 
meet with many landowners who lost their property rights through 
eminent domain proceedings authorized by the NGA. It is heartbreaking 
to hear their stories of watching their land be condemned while the 
Commission sat on rehearing requests, leaving them helpless to 
challenge the certificate, even as it was used to seize their land. We 
should be doing everything in our power to prevent such a patently 
unfair result.
    For these reasons, I respectfully concur in part and dissent in 
part.

Richard Glick, Commissioner.

[FR Doc. 2020-13015 Filed 7-2-20; 8:45 am]
BILLING CODE 6717-01-P