USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 1 of 84 EN BANC ORAL ARGUMENT SCHEDULED FOR MARCH 31, 2020 No. 17-1098 (consolidated with Nos. 17-1128, 17-1263, 18-1030) IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ALLEGHENY DEFENSE PROJECT, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. On Petition for Review of Orders of the Federal Energy Regulatory Commission EN BANC BRIEF OF ALLIANCE FOR THE SHENANDOAH VALLEY, CHESAPEAKE BAY FOUNDATION, INC., CITIZENS FOR PENNSYLVANIA’S FUTURE, COWPASTURE RIVER PRESERVATION ASSOCIATION, DEFENDERS OF WILDLIFE, DELAWARE RIVERKEEPER NETWORK, FOOD & WATER WATCH, FRIENDS OF BUCKINGHAM, FRIENDS OF NELSON, HIGHLANDERS FOR RESPONSIBLE DEVELOPMENT, MOUNTAIN WATERSHED ASSOCIATION, NATURAL RESOURCES DEFENSE COUNCIL, PUBLIC JUSTICE, SOUND RIVERS, INC., VIRGINIA WILDERNESS COMMITTEE, AND WINYAH RIVERS ALLIANCE AS AMICI CURIAE IN SUPPORT OF PETITIONERS Mark Sabath Emily C. Wyche Aaron Stemplewicz SOUTHERN ENVIRONMENTAL LAW CENTER 1617 John F. Kennedy Blvd., Suite 1130 Philadelphia, PA 19103 (215) 717-4524 astemplewicz@earthjustice.org EARTHJUSTICE 201 West Main Street, Suite 14 Charlottesville, VA 22902 (434) 977-4090 msabath@selcva.org Additional counsel listed inside front cover USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 2 of 84 Danielle C. Fidler John N. Moore EARTHJUSTICE NATURAL RESOURCES DEFENSE COUNCIL 1625 Massachusetts Avenue, N.W., Suite 702 Washington, DC 20036 (202) 667-4500 dfidler@earthjustice.org 20 North Wacker Street, Suite 1600 Chicago, IL 60201 (312) 651-7927 jmoore@nrdc.org Gillian R. Giannetti Ariel Solaski Jon A. Mueller NATURAL RESOURCES DEFENSE COUNCIL CHESAPEAKE BAY FOUNDATION, INC. 6 Herndon Avenue Annapolis, MD 21403 (443) 482-2162 asolaski@cbf.org 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 717-8350 ggiannetti@nrdc.org Counsel for Amici Curiae USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 3 of 84 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), Amici certify as follows: A. Parties, Intervenors, and Amici All parties and intervenors appearing in this Court are listed in the certificate to Petitioners’ Joint Brief on Rehearing En Banc (“Petitioners’ Brief”). The following have appeared or are expected to appear as amici curiae: 1. Alliance for The Shenandoah Valley, Chesapeake Bay Foundation, Inc., Citizens for Pennsylvania’s Future, Cowpasture River Preservation Association, Defenders of Wildlife, Delaware Riverkeeper Network, Food & Water Watch, Friends of Buckingham, Friends of Nelson, Highlanders for Responsible Development, Mountain Watershed Association, Natural Resources Defense Council, Public Justice, Sound Rivers, Inc., Virginia Wilderness Committee, and Winyah Rivers Alliance, in support of Petitioners. 2. William Limpert, Carlos B. Arostegui, Richard G. Averitt III, Sandra S. Averitt, Jill Ann Averitt, Richard G. Averitt IV, Carolyn Fischer, Anne A. Norwood, Kenneth W. Norwood, Hershel Spears, Nancy Kassam-Adams, Shahir Kassam-Adams, Robert C. Day, Darlene Spears, Quinn Robinson, Delwyn A. Dyer, Cliff Shaffer, Maury Johnson, the New Jersey Conservation Foundation, Catherine Holleran, Alisa Acosta, Stacey McLaughlin, Craig McLaughlin, William McKinley, Pamela Ordway, Neal C. Brown Family LLC, Toni Woolsey, Ron iii USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 4 of 84 Schaaf, Deb Evans, the Evans Schaaf Family LLC, and the City of Oberlin, in support of Petitioners. 3. The States of Maryland, Delaware, Illinois, Minnesota, New Jersey, New York, Oregon, and Washington; the Commonwealths of Massachusetts and Pennsylvania; the District of Columbia; and the People of the State of Michigan, in support of Petitioners. B. Rulings Under Review The final agency actions under review appear in the certificate to Petitioners’ Brief. C. Related Cases All related cases appear in the certificate to Petitioners’ Brief. D. Rule 26.1 Disclosure Statement In accordance with Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1, Amici disclose the following: Alliance for the Shenandoah Valley is a 501(c)(3) nonprofit organization. Alliance for the Shenandoah Valley’s mission is to maintain healthy and productive rural landscapes and communities, protect and restore natural resources, and strengthen and sustain the Shenandoah Valley region’s agricultural economy. Alliance for the Shenandoah Valley has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. iv USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 5 of 84 Chesapeake Bay Foundation, Inc. is a 501(c)(3) nonprofit organization dedicated to saving the Chesapeake Bay by fighting for effective, science-based solutions to the pollution degrading the Bay and its rivers and streams, and protecting human health. Chesapeake Bay Foundation, Inc. has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Citizens for Pennsylvania’s Future (PennFuture) is a 501(c)(3) nonprofit organization dedicated to protecting Pennsylvania’s air, water and land, and empowering citizens to build sustainable communities for future generations. PennFuture has no parent companies, and no publicly held company has any ownership interest in it. Cowpasture River Preservation Association is a 501(c)(3) nonprofit organization dedicated to preserving the natural condition and beauty of the Cowpasture River and its tributaries for present and future generations. Cowpasture River Preservation Association has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Defenders of Wildlife is a 501(c)(3) nonprofit organization dedicated to the protection of all native animals and plants in their natural communities, including our country’s most imperiled species and habitats. Defenders of Wildlife has no v USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 6 of 84 parent companies. No publicly held company has a 10% or greater ownership interest in it. The Delaware Riverkeeper Network is a 501(c)(3) nonprofit environmental organization working to protect and restore the Delaware River, its tributaries, and habitats with over 23,000 members throughout the Delaware River Watershed. The Delaware Riverkeeper Network works throughout the four states that comprise the Watershed—including Pennsylvania, New Jersey, Delaware, and New York— and at the federal level on the issues, actions, regulations, legislation, policies, programs, and decisions that impact the health of the Delaware River Watershed waterways. The Delaware Riverkeeper Network has no parent companies, and no publicly held company holds ownership interest in it. Food & Water Watch is a national, 501(c)(3) non-profit consumer advocacy organization focused on protecting the fundamental human rights of our communities to clean water, safe food, and a livable climate. Food & Water Watch has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Friends of Buckingham is a Virginia corporation dedicated to protecting the natural resources and cultural heritage of Buckingham County, Virginia, and to promoting sustainable social and economic well-being. Friends of Buckingham vi USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 7 of 84 has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Friends of Nelson is incorporated and under the umbrella of Virginia Organizing, a 501(c)(3) organization, and is dedicated to protecting property rights, property values, rural heritage, and the environment for all the citizens of Nelson County, Virginia. Friends of Nelson has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Highlanders for Responsible Development is a 501(c)(3) nonprofit organization dedicated to the preservation and responsible use of the natural environment of Highland County, Virginia. Highlanders for Responsible Development has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Mountain Watershed Association, home of the Youghiogheny Riverkeeper, is a nonprofit organization dedicated to protecting, preserving, and restoring the Indian Creek and greater Youghiogheny River watersheds. Mountain Watershed Association has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Natural Resources Defense Council, Inc. certifies that it is a nongovernmental corporation with no parent corporation and no publicly held company holding 10% or more of its stock. NRDC, a corporation organized and vii USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 8 of 84 existing under the laws of the State of New York, is a national nonprofit organization dedicated to improving the quality of the human environment and protecting the nation’s endangered natural resources. Public Justice is a national public-interest law firm, dedicated to pursuing justice for victims of government misconduct and abuses. Public Justice specializes in precedent-setting and socially significant civil litigation. Working in federal and state courts throughout the country, Public Justice litigates cases that advance environmental conservation, public health and safety, abating and remediating water and air pollution, and lawsuits that ensure an open and transparent court system available to all people. Public Justice has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Sound Rivers, Inc. is a 501(c)(3) nonprofit organization dedicated to protecting the health and natural beauty of the Neuse and Tar-Pamlico River Basins in order to provide clean water to the surrounding communities for consumption, recreation, nature preservation, and agricultural use. Sound Rivers, Inc. has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Virginia Wilderness Committee is a 501(c)(3) nonprofit organization dedicated to permanently protecting the best of Virginia’s wild places for future viii USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 9 of 84 generations, fostering understanding and appreciation for Wilderness, and promoting enjoyment and stewardship of our last remaining wildlands. Virginia Wilderness Committee has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. Winyah Rivers Alliance is a 501(c)(3) nonprofit organization dedicated to protecting, preserving, monitoring, and revitalizing the health of the lands and waters of the greater Winyah Bay watershed. Winyah Rivers Alliance has no parent companies, and no publicly held company has a 10% or greater ownership interest in it. E. Statement Regarding Separate Briefing and Authorship Amici’s brief is limited to a discussion of the impacts of the Federal Energy Regulatory Commission’s tolling practice on conservation, community, and access-to-justice organizations challenging orders issued by FERC under the Natural Gas Act and Federal Power Act. Amici are aware of two other amicus curiae briefs to be filed in support of Petitioners in this case: (1) a brief filed on behalf of landowners in the path of pipelines approved by FERC that examines the impacts of FERC’s tolling practice on landowners’ private property interests, and (2) a brief filed by several governmental entities (entitled under Circuit Rule 29 to a separate brief) that addresses the effects of FERC’s tolling practice on their sovereign rights. Because the three sets of amici have distinct interests and non- ix USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 10 of 84 overlapping areas of focus, a single amicus brief is not practicable in this case. Amici have coordinated with the other amici to ensure that there would be no substantial overlap in issues between this brief and other amicus briefs. Pursuant to Federal Rule of Appellate Procedure 29(a)(4), Amici state that no party’s counsel authored this brief in whole or in part. No party or party’s counsel, and no person other than the Amici, their members, or their counsel, contributed money intended to fund the brief’s preparation or submission. F. Representation of Consent to Participate as Amici Curiae Amici have conveyed to the parties their intent to participate as amici curiae in this case. All parties have indicated that they consent to the filing of Amici’s brief. x USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 11 of 84 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ........... iii TABLE OF AUTHORITIES ................................................................................. xiii GLOSSARY............................................................................................................xvi INTEREST OF AMICI CURIAE ............................................................................... 1 STATUTES AND REGULATIONS ......................................................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 2 ARGUMENT ............................................................................................................. 4 I. FERC Habitually Tolls Requests for Rehearing Under the Natural Gas Act, Precluding Timely Judicial Review ......................................................... 4 II. FERC’s Tolling Under the Natural Gas Act Limits Meaningful Judicial Relief, Compounds the Disproportionate Harm to Environmental Justice Communities, and Poses an Imminent Threat to Challengers Presently Subject to FERC’s Tolling Practice ............................ 7 III. A. FERC’s tolling regime permits significant, irreparable harm to the environment, limiting meaningful judicial relief ............................ 7 B. FERC’s unjust practice exacerbates the disproportionate burdens pipeline infrastructure places on environmental justice communities ........................................................................................ 11 C. Court intervention is urgently needed to prevent further harm to parties currently challenging pipeline projects ................................... 12 FERC Offers No Valid Defense of Its Unlawful Tolling Scheme ................ 16 A. The Natural Gas Act does not permit tolling orders ........................... 16 xi USCA Case #17-1098 IV. V. Document #1824750 Filed: 01/17/2020 Page 12 of 84 B. FERC’s claim that it requires additional time is belied by its indiscriminate use of tolling orders and treatment of rehearing requests ................................................................................................ 17 C. No administrative or judicial recourse exists for parties stuck in FERC’s administrative limbo .............................................................. 19 FERC’s Practice of Issuing Tolling Orders Pursuant to the Federal Power Act Is Equally Pervasive, Is Equally Unlawful, and Equally Imposes Irreparable Harm ............................................................................. 20 A. Tolling under the Federal Power Act is necessarily implicated by a ruling on the Natural Gas Act’s parallel provisions .................... 21 B. FERC’s use of tolling orders under the Federal Power Act is pervasive and egregious ...................................................................... 21 C. FERC’s regulatory responsibilities have shifted such that tolling orders result in irreparable harm not contemplated in California Company .............................................................................................. 22 D. FERC’s Federal Power Act tolling orders threaten a wide range of irreparable harms and raise the specter of unconstitutional deprivation ........................................................................................... 25 FERC’s Use of Tolling Orders Is Inconsistent with the Supreme Court’s Evaluation of Access-to-Justice Principles ...................................... 27 CONCLUSION ........................................................................................................ 28 xii USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 13 of 84 TABLE OF AUTHORITIES Page(s) Court Cases Ark. La. Gas Co. v. Hall, 453 U.S. 571 (1981) ............................................................................................ 21 California Co. v. Fed. Power Comm’n, 411 F.2d 720 (D.C. Cir. 1969) ...................................................................... 17, 20 City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019) .............................................................................. 9 Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018), cert. granted, 140 S. Ct. 36 (Oct. 4, 2019) ...................................................................................................... 14 Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992) ............................................................................ 24 Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011) .......................................................................... 24 Defs. of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339 (4th Cir. 2019) ........................................................................13, 14 Del. Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) ............................................................................ 8 Ex parte Young, 209 U.S. 123 (1908) ............................................................................................ 27 Friends of Buckingham v. State Air Pollution Control Bd., 2020 WL 63295 (4th Cir. Jan. 7, 2020) ........................................................13, 14 Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019) ..................................................................................27, 28 LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) ............................................................................. 25 xiii USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 14 of 84 Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 (D.C. Cir. 2000) ............................................................................ 19 No Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir. 2014) ............................................................................ 18 Sackett v. EPA, 566 U.S. 120 (2012) ............................................................................................ 28 Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942) ................................................................................................ 10 Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) ......................................................................9, 11 Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989) ................................................................................. 9 Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260 (4th Cir. 2018) .............................................................................. 14 Administrative Cases Ameren Servs. Co. v. Midwest Indep. Transmission Sys. Operator, Inc., 127 FERC ¶ 61,121 (2009) ......................................................................... 24 Atl. Coast Pipeline, LLC, 161 FERC ¶ 61,042 (2017) ................................................................................. 13 Atl. Coast Pipeline, LLC, 164 FERC ¶ 61,100 (2018) ................................................................................. 14 Columbia Gas Transmission, LLC, 152 FERC ¶ 61,131 (2015) ................................................................................. 17 In re Va. Elec. & Power Co.’s Integrated Resource Plan filing, 2018 WL 6524202 (Va. SCC Dec. 7, 2018) ................................................................ 13 ISO New England Inc., 162 FERC ¶ 61,205 (2018) ................................................................................. 26 ISO New England Inc., 166 FERC ¶ 61,061 (2019) ................................................................................. 26 xiv USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 15 of 84 Nat’l Fuel Gas Supply Corp., 154 FERC ¶ 61,180 (2016) ................................................................................. 17 PennEast Pipeline Co., 163 FERC ¶ 61,159 (2018) .............................................................................7, 19 PJM Interconnection, L.L.C., 150 FERC ¶ 61,251 (2015) ................................................................................. 25 Spire STL Pipeline LLC, 169 FERC ¶ 61,134 (2019) ............................................................................... 5, 6 Statutes 15 U.S.C. § 717r....................................................................................................... 21 15 U.S.C. § 717r(a) ..........................................................................................2, 4, 16 15 U.S.C. § 717r(b) .................................................................................................... 4 16 U.S.C. § 823b(b) ................................................................................................. 27 16 U.S.C. § 824e(b) ................................................................................................. 23 16 U.S.C. § 825l(a) ..............................................................................................2, 21 Regulatory Fairness Act of 1988, Pub. L. No. 100-473, 102 Stat. 2299 ................. 23 Regulations 18 C.F.R. § 385.713(c)(3) ........................................................................................ 18 Other Authorities Ari Peskoe, Easing Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets, 38 Energy L.J. 1 (2017) .................... 23 NAACP and Clean Air Task Force, Fumes Across the Fence-Line (Nov. 2017), https://bit.ly/2NA9h1u .................................................................. 11 xv USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 16 of 84 GLOSSARY FERC or Commission Federal Energy Regulatory Commission FERC Opp’n Opposition to Petition for Rehearing En Banc of Respondent Federal Energy Regulatory Commission NEPA National Environmental Policy Act Petitioners’ Brief Petitioners’ Joint Brief on Rehearing En Banc Intervenors’ Opp’n Intervenors’ Response in Opposition to Petitioners’ Petition for Rehearing En Banc xvi USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 17 of 84 INTEREST OF AMICI CURIAE Amici, identified individually on pages iv-ix, supra, are nonprofit conservation, community, and access-to-justice organizations that advocate on behalf of their members and clients for the protection of public health, cultural heritage, and the environment. Amici’s interests are harmed when the Federal Energy Regulatory Commission (“FERC”) authorizes energy infrastructure projects under the Natural Gas Act or issues energy market rules under the Federal Power Act without being subject to meaningful judicial oversight. As participants in FERC proceedings under these statutes, Amici have a strong interest in ensuring that FERC does not continue to obstruct timely access to the courts when parties like Amici challenge FERC’s decisions. How the Court resolves this case and rules on the legality of FERC’s tolling practice will significantly affect Amici’s ability to seek timely, meaningful review of challenges presently tolled by FERC and of FERC’s future decisions. Amici are thus well-suited to speak to the Court about the unfairness of FERC’s tolling practice and the irreparable harms that result. STATUTES AND REGULATIONS All applicable statutes and regulations not contained in the Addendum to Petitioners’ Brief are included in the attached Addendum. 1 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 18 of 84 INTRODUCTION AND SUMMARY OF ARGUMENT For decades, the Federal Energy Regulatory Commission has exploited this Court’s precedent to forestall judicial review of its orders under all of its regulatory programs. Parties seeking judicial review of FERC’s orders under the Natural Gas Act or Federal Power Act must first file a request for rehearing with FERC; unless FERC “acts upon the application for rehearing within thirty days,” rehearing “may be deemed to have been denied.” 15 U.S.C. § 717r(a) (Natural Gas Act); 16 U.S.C. § 825l(a) (Federal Power Act). By issuing so-called “tolling orders” that nominally grant rehearing “for the limited purpose of further consideration,” FERC consistently grants itself an indefinite extension of time in which to act on the merits of such requests, while locking requesters out of court. As its public dockets reveal, FERC does not reserve this practice for only the most complex of cases; it tolls virtually all requests for rehearing of all types of orders—certificate orders, orders authorizing construction, and even tolling orders themselves. Over the past two years, FERC tolled every timely filed rehearing request it received in proceedings in which it issued a decision, spanning all four of FERC’s regulatory programs—natural gas, hydropower, electricity, and oil. What is a ministerial exercise for FERC causes significant, irreparable harm to individuals, communities, and conservation organizations affected by FERC’s 2 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 19 of 84 authorization of pipeline projects under the Natural Gas Act. While barring challengers from obtaining judicial review, FERC allows pipeline developers to trench through rivers, clear-cut forested land, destroy wildlife habitat, and construct facilities that threaten the health of vulnerable communities. In many cases, by the time FERC finally hands over the keys to the courthouse, pipelines are already in the ground, denying community and conservation groups the opportunity for meaningful judicial relief—even where courts ultimately find that FERC’s orders were arbitrary, capricious, or contrary to law. In this way, FERC’s tolling scheme is not simply an issue of fair process. For Amici—some currently held in FERC’s legal purgatory—it may well be one of outcomes, too. FERC’s indiscriminate and unlawful use of tolling orders under the identical provisions of the Federal Power Act similarly causes irreparable harm to parties challenging FERC’s authorization of power projects and issuance of energy market rules. Due to dramatic changes in FERC’s regulatory responsibilities, FERC’s tolling practice causes harms not contemplated decades ago when this Court initially upheld FERC’s practice in California Company v. Federal Power Commission, ranging from irreversible environmental degradation and consumer costs to deprivations of constitutionally protected liberties. The interpretation upheld in California Company and its progeny can now be seen, in the light of 3 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 20 of 84 decades of abuse and the shifting responsibilities of FERC’s regulatory regime, to have proven unworkable in practice in both statutory contexts. Amici seek the timely access to the courts granted by Congress in the text of FERC’s governing statutes and by principles of due process. Because this Court’s precedent permits FERC to issue tolling orders that deny challengers timely judicial review, it should be overruled. ARGUMENT I. FERC Habitually Tolls Requests for Rehearing Under the Natural Gas Act, Precluding Timely Judicial Review. Because the filing of a rehearing request is a jurisdictional prerequisite for seeking judicial review of a FERC order, 15 U.S.C. § 717r(a), (b), FERC can keep challengers out of court by extending the time the Commission takes to resolve such requests. To illustrate FERC’s systematic use of tolling orders to foreclose timely judicial review, Amici have compiled tables documenting FERC’s handling of rehearing requests filed in the certificate proceedings for every major pipeline project FERC has approved under the Natural Gas Act from 2009 to 2019. See Exs. A-C.1 These tables reflect a practice staggering in its scope and uniformity. 1 The information in Exhibits A, B, and C was compiled from records in FERC’s publicly available “eLibrary” and its list of “Approved Major Pipeline Projects.” See https://www.ferc.gov/docs-filing/elibrary.asp; https://www.ferc.gov/industries/gas/indus-act/pipelines/approved-projects.asp. 4 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 21 of 84 From 2009 to 2019, parties other than project proponents filed requests for rehearing of FERC certificates of public convenience and necessity, or “certificate orders,” in 63 proceedings. See Ex. A. In 61 of those 63 proceedings, FERC issued an order “granting” the rehearing request “solely for the purpose of further consideration”—unilaterally extending its statutory deadline for final action on the merits. See id. Not one of these boilerplate tolling orders provided any explanation for FERC’s delay. To make matters worse, FERC not only extends the period of review: it also allows its challenged decisions to take effect. First, FERC uniformly rejects requests to stay the implementation of the certificate order, allowing energy companies to take possession of landowners’ property and to seek approval for construction activities. See Ex. B (indicating that since 2009, FERC has denied or dismissed every stay request except for three requests still pending). In some cases, FERC did not even act on stay requests for a year or more, waiting until it finally resolved the rehearing requests and then dismissing the stay motions as moot. See, e.g., Spire STL Pipeline LLC, 169 FERC ¶ 61,134, at ¶ 31 & n.85 (2019) (Glick, Comm’r, dissenting). And when parties sought rehearing of FERC’s orders denying stay requests, FERC tolled those requests, too.2 2 See, e.g., Order Denying Stay (Aug. 31, 2017) and Order Granting Reh’g for Further Consideration (Nov. 1, 2017), Transcontinental Gas Pipe Line Co., Dkt. CP15-138 (Accession Nos. 20170831-3088 and 20171101-3006); Order Denying 5 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 22 of 84 Then, even as it claims to be giving “further consideration” to requests for rehearing, FERC issues orders authorizing construction of the project purportedly under review. In more than three-quarters of the challenges to certificate orders discussed above—48 of 61—FERC authorized construction activity while rehearing requests were pending. See Ex. A. And in every case where parties sought rehearing of orders authorizing construction activity, FERC tolled those rehearing requests, yet again locking the challengers out of court. See Ex. C. Meanwhile, as construction proceeds apace, projects are largely or fully completed before FERC acts on the merits of the request for rehearing of a certificate order—that is, before challengers may seek judicial review of FERC’s approval. See Ex. A (indicating that projects were placed into partial or full service prior to rehearing order in 21 of 48 cases in which FERC authorized construction activity). In short, FERC’s tolling scheme “allows a pipeline developer to build its entire project while simultaneously preventing opponents of that pipeline from having their day in court”—to challenge the underlying certificate orders, denials of stay applications, orders authorizing construction, or even tolling orders Stay (Aug. 21, 2017) and Order Granting Reh’g for Further Consideration (Oct. 17, 2017), Algonquin Gas Transmission, LLC, Dkt. CP16-9 (Accession Nos. 20170821-3024 and 20171017-3049). 6 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 23 of 84 themselves.3 Spire, 169 FERC ¶ 61,134, at ¶ 33 (Glick, Comm’r, dissenting). Through its indiscriminate tolling, “the Commission has guaranteed substantial irreparable harm occurs before any party can even set foot in court.” Id. ¶ 34. II. FERC’s Tolling Under the Natural Gas Act Limits Meaningful Judicial Relief, Compounds the Disproportionate Harm to Environmental Justice Communities, and Poses an Imminent Threat to Challengers Presently Subject to FERC’s Tolling Practice. A. FERC’s tolling regime permits significant, irreparable harm to the environment, limiting meaningful judicial relief. The inevitable result of FERC’s tolling scheme is that significant irreparable harm occurs while parties languish in legal purgatory, unable to seek judicial review. As Judge Millett recognized in her panel concurrence, “constructing a gas pipeline is not a tidy intrusion.” Op. of Millett, J., at 13. During FERC’s protracted tolling period, FERC allows pipeline companies to rush forward with construction, resulting in landslides, permanent destruction of wildlife habitat, irreversible degradation of wetlands, and fragmentation of previously undisturbed, wild areas. 3 Remarkably, when parties seek rehearing of tolling orders, FERC simply tolls those rehearing requests, creating a mise en abyme seemingly without end. See, e.g., PennEast Pipeline Co., 163 FERC ¶ 61,159, at ¶ 5 (2018) (reporting that “the Commission issued a second procedural order tolling the statutory time period for consideration of the requests for rehearing of the Tolling Order”); Order Granting Reh’gs for Further Consideration (May 24, 2017), Algonquin Gas Transmission, LLC, Dkt. CP16-9 (Accession No. 20170524-3018) (tolling requests for rehearing of initial tolling order). 7 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 24 of 84 In the case of the Northeast Upgrade Project, FERC forced affected communities to stand idly by for seven months as it authorized stream crossings, tree clearing, and compressor station construction.4 Even though this Court ultimately held that FERC’s analysis violated the National Environmental Policy Act (“NEPA”), the damage was done. The project had crossed Pennsylvania’s Delaware State Forest, New Jersey’s Highpoint State Park, and the Appalachian Trail, and destroyed over 810 acres of land, including mature forests and endangered species habitat5—all based on a legally deficient environmental analysis. See Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309 (D.C. Cir. 2014). For the Mountain Valley Pipeline, parties challenging the project witnessed tree-felling along the entire 300-mile route6 and extensive damage to Virginia and West Virginia waterbodies7 during FERC’s six-month tolling period. Once a 300- 4 See, e.g., Letter Orders (Oct. 24, 2012, Dec. 14, 2012, and Dec. 19, 2012), Tenn. Gas Pipeline Co., Dkt. CP11-161 (Accession Nos. 20121024-3037, 201212143053, and 20121219-3031). 5 See Envtl. Assessment 1-20, 2-47, 2-69, 2-73 (Nov. 2011) and Envtl. Compliance Monitoring Report 7-12 (Dec. 2, 2013), Tenn. Gas Pipeline Co., Dkt. CP11-161 (Accession Nos. 20111121-4001 and 20131202-4001). 6 Weekly Status Report, App. A at 1-4 (June 26, 2018), Mountain Valley Pipeline, LLC, Dkt. CP16-10 (Accession No. 20180626-5195). 7 See Compl., Paylor v. Mountain Valley Pipeline, LLC, No. CL18006874-00 (Va. Cir. Dec. 7, 2018) (detailing violations of Virginia law that occurred in May and June 2018); W.V. Dep’t of Envtl. Prot., Consent Order 1-3 (Apr. 19, 2019), 8 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 25 of 84 mile path has been cleared and water quality degraded, “it is difficult if not impossible to unshuffle the deck. The damage to property rights, property values, and the environment is done.” Op. of Millett, J., at 10. In many cases, FERC’s tolling scheme allows projects to be placed into full or partial service prior to the conclusion of judicial review. When parties prevail in challenging FERC approvals of these projects, “bureaucratic decision-makers (when the law permits) are less likely to tear down a nearly completed project than a barely started project.” Sierra Club v. Marsh, 872 F.2d 497, 500-01 (1st Cir. 1989) (Breyer, J.). This is no hypothetical problem. In City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019), this Court found that FERC failed to justify its reliance on capacity contracts with foreign shippers in finding a public need for the Nexus pipeline. Id. at 606-08. Yet the Court did not vacate FERC’s order, deeming such a remedy disruptive because the pipeline was already operational. Id. at 611. In Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017), the Court concluded that FERC failed to adequately consider the Sabal Trail project’s downstream greenhouse gas emissions. Id. at 1374. Yet the project had been operating for almost three months by the time of the opinion, causing the very harm at issue. See Letter Order (June 9, 2017), Fla. S.E. Connection, LLC, Dkt. CP14-554 https://bit.ly/37HtTfB (detailing violations of West Virginia law that occurred in April, May, and June 2018). 9 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 26 of 84 (Accession No. 20170609-3026). Where an “agency has committed errors of law[,] … judicial review [is] an idle ceremony if the situation [is] irreparably changed before the correction [can] be made.” Scripps-Howard Radio v. FCC, 316 U.S. 4, 10 (1942). In particularly egregious cases, pipelines are fully constructed and operational before FERC issues its rehearing order. For the Mountaineer Xpress Pipeline project, FERC placed communities in legal purgatory nearly two years ago,8 and still has not issued a final rehearing order. Meanwhile, FERC has permitted the pipeline operator to construct the entire project, crossing nearly 500 waterbodies;9 traversing more than 50 miles of steep slopes and causing landslides;10 and building three new polluting compressor stations.11 FERC 8 Order Granting Reh’g for Further Consideration (Feb. 28, 2018), Columbia Gas Transmission, LLC, Dkt. CP16-357 (Accession No. 20180228-3017). 9 Final Envtl. Impact Statement 4-51 to 4-53, 4-62 (July 28, 2017), Columbia Gas Transmission, LLC, Dkt. CP16-357 (Accession No. 20170728-4002). 10 Id. at 4-11; see also, e.g., Envtl. Compliance Monitoring Report 6 (Apr. 9, 2018), Envtl. Compliance Monitoring Report 9 (June 7, 2018), and Envtl. Compliance Monitoring Report 2-7 (Sept. 10, 2018), Columbia Gas Transmission, LLC, Dkt. CP16-357 (Accession Nos. 20180409-3003, 20180607-3005, and 20180910-3024). 11 Final Envtl. Impact Statement 4-273 to 4-275 (July 28, 2017), Columbia Gas Transmission, LLC, Dkt. CP16-357 (Accession No. 20170728-4002). 10 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 27 of 84 authorized full operation of the project nearly a year ago,12 depriving challengers of the chance of receiving the relief to which they may be entitled. B. FERC’s unjust practice exacerbates the disproportionate burdens pipeline infrastructure places on environmental justice communities. Developers disproportionately locate pipeline infrastructure in communities of color and low-income communities along pipeline routes. See NAACP and Clean Air Task Force, Fumes Across the Fence-Line 6-7 (Nov. 2017), https://bit.ly/2NA9h1u. FERC routinely considers environmental justice issues under NEPA; when it does, that analysis is subject to judicial review. Sierra Club, 867 F.3d at 1369. Yet FERC’s tolling scheme has consistently disempowered environmental justice communities by barring them from challenging the siting of pipeline facilities in their backyards until after the projects are substantially under way.13 12 Envtl. Compliance Monitoring Report 1 (Dec. 23, 2019), Columbia Gas Transmission, LLC, Dkt. CP16-357 (Accession No. 20191223-3047) (listing all inservice approvals for project). 13 See, e.g., Kiokee-Flint Group Request for Reh’g 6, 19-31 (Mar. 3, 2016) and Order Granting Reh’gs for Further Consideration (Mar. 29, 2016), Fla. S.E. Connection, LLC, Dkt. CP14-554 (Accession Nos. 20160303-5069 and 201603293008); Town of Weymouth Request for Reh’g 13, 70-74 (Feb. 24, 2017) and Order Granting Reh’gs for Further Consideration (Mar. 27, 2017), Algonquin Gas Transmission, LLC, Dkt. CP16-9 (Accession Nos. 20170224-5121 and 201703273006). 11 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 28 of 84 For example, the predominantly African American community bordering the Atlantic Coast Pipeline’s compressor station in Northampton, North Carolina, had to watch as construction on the station proceeded for six months while FERC tolled rehearing requests. African Americans are more than twice as likely as whites to live near sources of harmful air pollution and as a result suffer disproportionately from respiratory sickness.14 The Northampton Compressor Station will emit harmful air pollution that exacerbates respiratory sickness. See Final Envtl. Impact Statement 4-558 to 4-559 (July 21, 2017), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession No. 20170721-4000). Yet while FERC tolled requests for rehearing raising these very concerns, it authorized construction of the station. See Letter Order (Feb. 12, 2018), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession No. 20180212-3034). By the time FERC denied rehearing, Atlantic had already begun building it. See Weekly Status Report 18 (Aug. 10, 2018), Atl. Coast Pipeline, LLC, Dkt. 15-554 (Accession No. 20180810-5146). C. Court intervention is urgently needed to prevent further harm to parties currently challenging pipeline projects. The Atlantic Coast Pipeline presents a stark example of a project that may yet cause much of the harm detailed above if FERC is permitted to continue its tolling practice. The proposed 600-mile pipeline would require over 1,000 14 See Shenandoah Valley Network Request for Reh’g 118-46 (Nov. 13, 2017) and Pub. Interest Groups Request for Reh’g 23-29 (Nov. 13, 2017), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession Nos. 20171113-5367 and 20171113-5137). 12 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 29 of 84 waterbody crossings, traverse two national forests and two national parks, and impact at least six endangered and threatened species.15 The project also requires three compressor stations, two of which would be located in environmental justice communities in Northampton County, North Carolina, see supra Section II.B, and Buckingham County, Virginia.16 Meanwhile, the alleged need for the Atlantic Coast Pipeline to run power plants is in serious question, and the route is uncertain. The pipeline’s capacity is subscribed entirely by pipeline developer-affiliated, monopoly power utilities that can recover their costs and the FERC-allowed return on investment from captive ratepayers. See Atl. Coast Pipeline, LLC, 161 FERC ¶ 61,042, at ¶¶ 9, 60 (2017). Yet in 2018, the Virginia State Corporation Commission concluded that one of those utilities—also the project’s lead developer—had “consistently overstated” its energy demand forecasts. See In re Va. Elec. & Power Co.’s Integrated Resource Plan filing, 2018 WL 6524202, at *5 (Va. SCC Dec. 7, 2018). Further, federal courts or the issuing agencies themselves have vacated or suspended eight required 15 Final Envtl. Impact Statement ES-6 to ES-7, ES-9 (July 21, 2017), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession No. 20170721-4000); Defs. of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339, 344 (4th Cir. 2019). 16 See Friends of Buckingham v. State Air Pollution Control Bd., 2020 WL 63295 (4th Cir. Jan. 7, 2020). 13 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 30 of 84 permits17 that exceeded the agencies’ authority or were based on inadequate environmental analysis, including analysis in FERC’s own Environmental Impact Statement. See Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150, 170-74 (4th Cir. 2018). FERC has already subjected parties challenging the Atlantic Coast Pipeline to its tolling scheme, and they are at imminent risk of irreparable harm during additional tolling periods. During the nine-month certificate order tolling period,18 Atlantic began felling trees, constructing the Northampton Compressor Station, and lowering pipe into the ground.19 When conservation groups, attempting to maintain the status quo during the tolling period, filed requests for rehearing of FERC orders authorizing construction 17 See Friends of Buckingham, 2020 WL 63295 (vacating state-issued air permit for compressor station); Defs. of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339 (4th Cir. 2019) (vacating reissued Fish and Wildlife Service authorization); Order, Sierra Club v. U.S. Army Corps of Eng’rs, No. 18-1743 (4th Cir. Jan. 25, 2019) (vacating Nationwide Permit 12 Verification from U.S. Army Corps of Engineers, Huntington District); Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018) (vacating Forest Service Special Use Permit and Right-ofWay), cert. granted, 140 S. Ct. 36 (Oct. 4, 2019); Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260 (4th Cir. 2018) (vacating Fish and Wildlife Service and National Park Service authorizations). 18 See Order Granting Reh’g for Further Consideration (Dec. 11, 2017), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession No. 20171211-3013); Atl. Coast Pipeline, LLC, 164 FERC ¶ 61,100 (2018). 19 See Weekly Status Report 1-3 (Feb. 2, 2018), Letter Order (Feb. 12, 2018), and Weekly Status Report 17 (Aug. 10, 2018), Atl. Coast Pipeline, LLC, Dkt. CP15554 (Accession Nos. 20180202-5182, 20180212-3034, and 20180810-5146). 14 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 31 of 84 because the project lacked critical required permits, FERC tolled those requests.20 Over 500 days have passed since the groups’ last request for rehearing, and FERC has yet to issue a final, reviewable order on the rehearing requests.21 Petitions challenging FERC’s approval of the Atlantic Coast Pipeline are finally pending before this Court, subject to an order holding the petitions in abeyance. See Order, Atl. Coast Pipeline, LLC v. FERC, No. 18-1224 (D.C. Cir. Oct. 4, 2019). These petitioners may still receive meaningful relief, because the permitting problems for the project halted construction over a year ago. See Suppl. Information (Dec. 7. 2018), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession No. 20181207-5147). But this may not be the case for long: the project’s lead developer announced in November 2019 that it expects to receive a new biological opinion from the Fish and Wildlife Service and restart construction this winter. See Dominion Energy, Q3 2019 Earnings Call Presentation 13 (Nov. 1, 2019), https://bit.ly/2QXFDoI. What will likely happen next under FERC’s tolling practice is not difficult to predict: Atlantic will seek FERC’s authorization to restart construction. FERC 20 See, e.g., Orders Granting Reh’g for Further Consideration (July 10, 2018 and Aug. 23, 2018) Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession Nos. 20180710-3053 and 20180823-3027). 21 See Defs. of Wildlife Request for Reh’g (Aug. 23, 2018) and Order Granting Reh’g for Further Consideration (Sept. 24, 2018), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession Nos. 20180823-5142 and 20180924-3038). 15 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 32 of 84 may issue an order authorizing construction, notwithstanding the fact that Atlantic would still lack seven permits required for construction by FERC’s certificate order. If parties challenge that notice—hoping to prevent even more irreparable harm from occurring before they obtain this Court’s review—FERC will reflexively issue a tolling order, shutting the courthouse doors indefinitely. If FERC is permitted to continue this practice, the petitioners’ ability to obtain meaningful relief in their challenge to FERC’s approval of the Atlantic Coast Pipeline will be significantly diminished, regardless of the Court’s ultimate decision in their case. III. FERC Offers No Valid Defense of Its Unlawful Tolling Scheme. A. The Natural Gas Act does not permit tolling orders. Petitioners ably refute FERC’s claim that the Natural Gas Act’s requirement that FERC act on rehearing requests within 30 days, 15 U.S.C. § 717r(a), permits FERC not to act on such requests, except to grant itself an additional, undefined amount of time. See Pet’rs’ Br. 12-15. Congress authorized FERC only “to grant or deny rehearing or to abrogate or modify its order without further hearing,” and provided that if FERC fails to so “act[]” on the rehearing request within 30 days, the request “may be deemed to have been denied,” permitting judicial review. 15 U.S.C. § 717r(a). If FERC truly needs more than the 30 days provided by Congress to resolve rehearing requests, the burden should fall on FERC to seek 16 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 33 of 84 Congressional relief—not on the landowners, communities, and conservation groups that currently suffer the consequences of FERC’s tolling scheme. B. FERC’s claim that it requires additional time is belied by its indiscriminate use of tolling orders and treatment of rehearing requests. Even if the Natural Gas Act permitted FERC to take more than 30 days to act on rehearing requests—a reading contrary to the statute’s plain text—FERC’s claim that it needs additional time to “giv[e] careful and mature consideration to the multiple, and often clashing, arguments … in complex cases” rings hollow. FERC Opp’n 13 (quoting California Co. v. Fed. Power Comm’n, 411 F.2d 720, 721 (D.C. Cir. 1969)). FERC’s own actions refute its claim. FERC tolls rehearing requests as a matter of course—regardless of the number of parties seeking rehearing, see generally Ex. B, or the complexity of the issues. FERC issues tolling orders postponing final action for nearly a year in cases involving only a single rehearing request.22 Even where multiple rehearing requests are filed, FERC addresses no new issues beyond those it encountered in 22 See, e.g., Order Granting Reh’g for Further Consideration (Oct. 20, 2014), Columbia Gas Transmission, LLC, Dkt. 14-99 (Accession No. 20141020-3001) (tolling sole request for rehearing of certificate order authorizing pipeline replacement project); Columbia Gas Transmission, LLC, 152 FERC ¶ 61,131 (2015) (denying request 10 months later); Order Granting Reh’g for Further Consideration (Apr. 16, 2015), Nat’l Fuel Gas Supply Corp., Dkt. 14-70 (Accession No. 20150416-3002) (tolling sole request for rehearing of certificate order authorizing pipeline expansion project); Nat’l Fuel Gas Supply Corp., 154 FERC ¶ 61,180 (2016) (denying request 11 months later). 17 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 34 of 84 producing its original order—as FERC frequently reminds parties to its rehearing orders.23 Tellingly, FERC tolls requests for rehearing of even simple, two-page letter orders authorizing construction.24 The indiscriminate manner in which FERC tolls rehearing requests undermines any claim that its practice is motivated by complexity. Nor does FERC’s practice serve to “limit or obviate the need for judicial review.” Intervenors’ Opp’n 4. From 2009 to 2019, FERC denied or dismissed all but two certificate order rehearing requests filed by parties other than project proponents, and made only minor modifications in response to the remaining two requests while reaffirming its underlying decision. See Ex. A. Of course, if FERC truly requires more than 30 days to act on the merits of a rehearing request, FERC has a ready means to ensure that no irreparable harm from condemnation or construction will occur during that period: staying the underlying order. See Op. of Millett, J., at 16. At the very least, FERC could hold off on approving any requests to proceed with construction while it considers 23 See No Gas Pipeline v. FERC, 756 F.3d 764, 770 (D.C. Cir. 2014) (noting that FERC “regularly rejects requests for rehearing that raise issues not previously presented” unless the issue is based on newly available information); 18 C.F.R. § 385.713(c)(3). 24 See, e.g., Letter Order (May 11, 2018) and Order Granting Reh’g for Further Consideration (July 10, 2018), Atl. Coast Pipeline, LLC, Dkt. CP15-554 (Accession Nos. 20180511-3048 and 20180710-3053). 18 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 35 of 84 requests for rehearing of its underlying certificate order. See id.25 But FERC, exploiting this Court’s precedent, has seen fit to take neither approach. C. No administrative or judicial recourse exists for parties stuck in FERC’s administrative limbo. It is not enough for FERC to assert that “while requests for rehearing are under consideration, parties are free to seek stays from the Commission or other interim relief from the courts.” PennEast Pipeline Co., 163 FERC ¶ 61,159, at ¶ 10 (2018). FERC knows all too well that when parties seek administrative stays, it invariably denies their requests. See Section I, supra. FERC’s suggestion that parties stymied by FERC’s tolling orders may seek mandamus relief under the All Writs Act is even more disingenuous. The “extraordinary remedy” of mandamus, Op. of Millett, J., at 15, is hardly a readily available avenue. FERC consistently opposes such petitions,26 and has not cited a single case in which a court granted a pipeline challenger’s bid for mandamus relief. Id. Relatedly, FERC’s ill-conceived proposal to expedite decisions on the merits of only “the narrow set of rehearing requests involving landowner rights,” see 25 While the latter approach would avert potentially unnecessary harm to the environment, it would not eliminate harm to landowners from the exercise of eminent domain. See Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000) (“Once a certificate has been granted, the statute allows the certificate holder to obtain needed private property by eminent domain.”). 26 See, e.g., Opp’n to Pet. for Writ & to Mot. for Stay, In re Appalachian Voices, No. 18-1271 (4th Cir. Mar. 15, 2018); Resp. in Opp’n to Mot. for Stay Pending Review, Coal. to Reroute Nexus v. FERC, No. 17-4302 (6th Cir. Feb. 12, 2018). 19 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 36 of 84 FERC Opp’n at 2-3, would not only fail to resolve the statutory and fair process concerns that accompany FERC’s tolling scheme, but would also create precisely the kinds of “administrative and judicial problems” that this Court has historically sought to avoid. California Co., 411 F.2d at 722. Where, as here, separate requests for rehearing are filed by landowners and by non-landowner groups, FERC’s proposed approach would invite piecemeal litigation in the courts of appeals, with serial petitions for review of the same FERC certificate order filed months, or even years, apart. IV. FERC’s Practice of Issuing Tolling Orders Pursuant to the Federal Power Act Is Equally Pervasive, Is Equally Unlawful, and Equally Imposes Irreparable Harm. FERC’s use of tolling orders to significantly delay a party’s day in court is not limited to the Natural Gas Act; it is equally pervasive under the Federal Power Act. The parade of irreparable harm resulting from tolling orders under the Federal Power Act implicates electric market rules that direct infrastructure investments, licensing decisions that affect hydroelectric dam construction and operation, and numerous other authorities that can impose imminent harm to affected parties. Undefined delay of judicial review of orders under the Federal Power Act habitually imposes the threat of irreparable harms not anticipated at the time of California Company’s decision and raises the threat of unconstitutional deprivation without due process. 20 USCA Case #17-1098 A. Document #1824750 Filed: 01/17/2020 Page 37 of 84 Tolling under the Federal Power Act is necessarily implicated by a ruling on the Natural Gas Act’s parallel provisions. Section 313 of the Federal Power Act is “is the same in all relevant respects as section 19 of the Natural Gas Act.” FERC Opp’n 10 n.2; compare 15 U.S.C. § 717r with 16 U.S.C. § 825l(a). A new interpretation of Section 19 of the Natural Gas Act will apply with equal force to the parallel provisions of Section 313 of the Federal Power Act. See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n. 7 (1981) (finding certain provisions of Federal Power Act and Natural Gas Act “are in all material respects substantially identical” and citing interchangeably decisions interpreting statutes’ parallel language). The rejection of FERC’s tolling practice across both statutes is the only appropriate outcome. As detailed below, FERC’s practice under the Federal Power Act of indefinitely delaying final decisions on rehearing requests is as ubiquitous and egregious as its practice under the Natural Gas Act. B. FERC’s use of tolling orders under the Federal Power Act is pervasive and egregious. As displayed in Exhibit D,27 FERC deploys tolling orders as a matter of course across all of its regulatory programs. Over the past two years, FERC tolled every timely filed rehearing request it received in proceedings in which it issued a 27 The information in Exhibit D was compiled from records in FERC’s publicly available “eLibrary” and list of “Decisions & Notices.” See https://www.ferc.gov/docs-filing/elibrary.asp; https://www.ferc.gov/docsfiling/dec-not/archives.asp. 21 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 38 of 84 decision, spanning all four of FERC’s regulatory programs—natural gas, hydropower, electricity, and oil. See Ex. D (indicating tolling orders issued in 163 proceedings). Moreover, FERC delays access to the courts for significant periods of time. For FERC proceedings in 2018 and 2019, the average tolling period was greater than six months. See id. And this average does not capture egregiously tolled cases in which orders were not issued in the last two years. Like under the Natural Gas Act, time has proven that FERC’s interpretation of the Federal Power Act to indefinitely issue tolling orders has not led to the selective application of that purported authority only where necessary to achieve statutory objectives; instead, it reflects an abuse of power without consideration of harms to affected parties or connection to Congressional purpose. C. FERC’s regulatory responsibilities have shifted such that tolling orders result in irreparable harm not contemplated in California Company. The regulatory regime underpinning this Court’s seminal decision on FERC’s use of tolling orders no longer exists. FERC’s current market-based regulatory regime to oversee sale and transmission of wholesale electricity bears little resemblance to the narrow, cost-of-service ratemaking it previously administered, and which was in place at the time this Court issued its decision in California Company. Modern FERC tariffs now govern complex markets with 22 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 39 of 84 thousands of participants. Once an electricity market has been run, the harm is done, as ratepayers will pay the bill for market results without hope of refund, regardless of later decisions overturning the rules of the market. From 1935 until the 1980s, FERC “regulated wholesale sales of electricity exclusively on a cost-of-service basis.” Ari Peskoe, Easing Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets, 38 Energy L.J. 1, 3 (2017). However, in the late 1980s—well after California Company was decided—FERC “shifted from cost-of-service to market-based regulation of wholesale electricity sales.” Id. Under this new regime, FERC transitioned to regulating more complex “market-based rates, … open-access transmission, … utility-created RTOs, and … rules for spot-market auctions.” Id. at 4-5. Under FERC’s traditional ratemaking practices, it was typically true that erroneous orders could be easily unwound, and a delay getting into court resulted in limited permanent damage to aggrieved parties. See 16 U.S.C. § 824e(b) (describing FERC’s authority to order refunds).28 However, the markets and their rules are now so complicated that it is often impossible to unwind a set of transactions where FERC’s actions are ultimately determined to be unlawful. 28 Congress provided this refund authority in 1988, well before FERC’s more complicated market-based regulatory regime fully emerged. See Regulatory Fairness Act of 1988, Pub. L. No. 100-473, 102 Stat. 2299. 23 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 40 of 84 FERC has admitted as much, finding that “[i]n cases involving changes to market design, the Commission generally exercises its discretion and does not order refunds when doing so would require re-running a market.” Ameren Servs. Co. v. Midwest Indep. Transmission Sys. Operator, Inc., 127 FERC ¶ 61,121, at ¶ 157 (2009) (emphasis added). FERC further clarified that such refunds “would necessarily be inaccurate because they cannot take into account the changes in behavior that those market participants would have made.” Id. This type of financial harm is irreparable. See, e.g., Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011) (“[T]he imposition of money damages that cannot later be recovered … constitutes irreparable injury.” (internal quotation marks omitted)). While previously such orders posed little risk of incurable harm, in this new regulatory construct they can now impose substantial, irreversible harms. Because FERC’s shifting responsibilities have significantly eroded the foundation upon which this Court decided California Company, it is more than appropriate for the Court to revisit, reverse, or otherwise distinguish its decision. See Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876-77 (D.C. Cir. 1992). 24 USCA Case #17-1098 D. Document #1824750 Filed: 01/17/2020 Page 41 of 84 FERC’s Federal Power Act tolling orders threaten a wide range of irreparable harms and raise the specter of unconstitutional deprivation. While they may be less self-evident than the harms caused by pipeline construction while a Natural Gas Act order is tolled, FERC’s tolling practice under the Federal Power Act implicates a broad host of irreversible harms and, in some cases, may amount to deprivation of constitutionally protected interests without due process—further underscoring that California Company and its progeny are fundamentally flawed, and must be reversed. FERC’s tolling of an order under the Federal Power Act can result in the same environmental harms identified in the context of pipeline construction. For example, FERC’s issuance of a license pursuant to Part I of the Federal Power Act can authorize construction of dams, transmission lines, and other facilities in a manner that irreparably harms property interests, livelihood, and the environment. See, e.g., LaFlamme v. FERC, 852 F.2d 389, 393 (9th Cir. 1988) (staying hydroelectric license due to environmental impacts and failure to comply with NEPA). Unlawful wholesale power market rules that are insulated from review by tolling orders can also result in irreparable harms. For example, eligibility rules can change so fundamentally as to put smaller, non-utility companies participating in the markets out of business. See, e.g., PJM Interconnection, L.L.C., 150 FERC 25 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 42 of 84 ¶ 61,251, at ¶ 16 (2015) (noting allegation of irreparable harm proposed tariff changes could cause to curtailment-service providers by pushing them out of the market). Market rules that unlawfully discriminate against new technologies— which are now predominantly cheaper sources of clean energy—in favor of incumbent generation typically have the effect of increasing emissions of greenhouse gases and air pollutants that threaten public health and welfare, while imposing higher costs on ratepayers and killing the business of entrepreneurs seeking to enter the market. See, e.g., ISO New England Inc., 162 FERC ¶ 61,205, at 5 (2018) (Glick, Comm’r, dissenting in part and concurring in part) (describing rule’s “enormous costs on consumers” and effect of limiting competitive pressure from increasingly cheaper renewables). Indeed, FERC’s practice of failing to act on rehearing requests is so egregious that market rules can be further modified in ways that amplify ongoing harm before the original tariff change is reviewed in court. See, e.g., ISO New England Inc., 166 FERC ¶ 61,061, at ¶ 1 (2019) (adopting revisions to tariff change while rehearing requests filed nine months earlier remained pending). FERC’s tolling orders under the Federal Power Act can also implicate constitutionally protected rights and interests, raising the risk of due process violations. Delaying review while hydroelectric plant construction proceeds, for example, may pose the same constitutional concerns to property owner interests as 26 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 43 of 84 the use of tolling orders in pipeline projects. See Pet’rs’ Br. 17-21. Tolling orders that delay review of FERC enforcement actions, which include authority to revoke licenses or certificates and impose fines, see, e.g., 16 U.S.C. § 823b(b), also raise constitutional concerns, see Ex parte Young, 209 U.S. 123, 147 (1908). For example, one affected party recently challenged rules limiting reporting on Regional Transmission Organization/Independent System Operator stakeholder meetings, alleging, inter alia, that the restriction violates First Amendment freedoms. See Public Citizen, LLC Request for Reh’g (May 10, 2019), RTO Insider Inc. v. New England Power Pool Participants Comm., Dkt. EL18-196 (May 10, 2019) (Accession No. 20190510-5008).29 V. FERC’s Use of Tolling Orders Is Inconsistent with the Supreme Court’s Evaluation of Access-to-Justice Principles. FERC’s use of tolling orders is also counter to recent Supreme Court jurisprudence regarding the public’s access to justice. In Knick v. Township of Scott, 139 S. Ct. 2162 (2019), the Court overruled decades of precedent imposing burdensome exhaustion requirements to vindicate the right of federal judicial review for a landowner asserting an unlawful takings claim. Id. at 2167. In its discussion of overruling past precedent, the Court noted that the exhaustion 29 The request for rehearing is, of course, subject to a tolling order that has been pending since June 2019. Order Granting Reh’g For Further Consideration (June 7, 2019), RTO Insider Inc. v. New England Power Pool Participants Comm., Dkt. EL18-196 (Accession No. 20190607-3034). 27 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 44 of 84 requirement proved unworkable in practice, as many takings plaintiffs “never have the opportunity to litigate” in the manner provided by the statute. Id. at 2179. At its core, Knick affirms the centrality of meaningful access to judicial review. See also Sackett v. EPA, 566 U.S. 120, 127-28 (2012). It offends logic to say that an agency action that is fully operable, has legal consequences, and harms affected parties is not final for purposes of judicial review. FERC’s practice of issuing orders that go into full effect while obstructing the ability of anyone to challenge the legal sufficiency of those orders violates the clear mandate of the Natural Gas Act, Federal Power Act, and Fifth Amendment. CONCLUSION The Court should hold that FERC’s tolling practice is contrary to law. To the extent this Court’s precedent authorizes FERC’s tolling practice, that precedent should be overruled. 28 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 45 of 84 Respectfully submitted, /s/ Mark Sabath Mark Sabath Emily C. Wyche /s/ Aaron Stemplewicz Aaron Stemplewicz SOUTHERN ENVIRONMENTAL LAW CENTER 1617 John F. Kennedy Blvd., Suite 1130 Philadelphia, PA 19103 (215) 717-4524 astemplewicz@earthjustice.org EARTHJUSTICE 201 West Main Street, Suite 14 Charlottesville, VA 22902 (434) 977-4090 msabath@selcva.org Danielle C. Fidler Counsel for Alliance for the Shenandoah Valley, Cowpasture River Preservation Association, Friends of Buckingham, Friends of Nelson, Highlanders for Responsible Development, Sound Rivers, Inc., Virginia Wilderness Committee, and Winyah Rivers Alliance EARTHJUSTICE 1625 Massachusetts Avenue, N.W., Suite 702 Washington, DC 20036 (202) 667-4500 dfidler@earthjustice.org Counsel for Citizens for Pennsylvania’s Future, Defenders of Wildlife, Delaware Riverkeeper Network, Food & Water Watch, Mountain Watershed Association, and Public Justice /s/ John N. Moore John N. Moore NATURAL RESOURCES DEFENSE COUNCIL 20 North Wacker Street, Suite 1600 Chicago, IL 60201 jmoore@nrdc.org /s/ Ariel Solaski Ariel Solaski Jon A. Mueller Gillian R. Giannetti CHESAPEAKE BAY FOUNDATION, INC. NATURAL RESOURCES DEFENSE COUNCIL 6 Herndon Avenue Annapolis, MD 21403 (443) 482-2162 asolaski@cbf.org th 1152 15 Street, NW, Suite 300 Washington, DC 20005 ggiannetti@nrdc.org Counsel for Natural Resources Defense Council Counsel for Chesapeake Bay Foundation, Inc. Dated: January 17, 2020 29 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 46 of 84 CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1), this document contains 6,450 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman. /s/ Mark Sabath Mark Sabath SOUTHERN ENVIRONMENTAL LAW CENTER Dated: January 17, 2020 USCAPipeline Case #17-1098 Document #1824750 Filed: 01/17/2020 Pageof47 of 84 Orders, 2009-2019 Exhibit A: Major Approved Projects for Which Parties Other than Project Proponents Requested Rehearing Certificate Docket No. CP07-62 Project Sparrows Point Project Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order AES Sparrows Point, LLC , 126 FERC ¶ 61,019 (Jan. 15, 2009) Jan. 21, 2009 (20090121-5043) Feb. 12, 2009 (20090212-5134) Feb. 13, 2009 (20090213-5173) Feb. 13, 2019 (20090213-5081) Feb. 17, 2009 (20090218-5022) Feb. 17, 2009 (20090218-5001) Feb. 17, 2009 (20090218-0173) Feb. 17, 2009 (20090218-0172) Feb. 17, 2009 (20090217-5227)* Feb. 17, 2009 (20090217-5199) Feb. 17, 2009 (20090217-5160) Feb. 17, 2009 (20090217-5154) Feb. 17, 2009 (20090217-5100) Mar. 16, 2009 (20090316-3015) Dec. 17, 2009 129 FERC ¶ 61,245 (Granted in part, denied in part; added two environmental conditions) June 8, 2009 (20090608-5074)* CP08-429 CP08-462 2010 Expansion Project Kleen Energy Lateral Kern River Gas Transmission Company , 127 FERC ¶ 61,223 (June 4, 2009) Algonquin Gas Transmission, LLC , 126 FERC ¶ 62,077 (Feb. 5, 2009) Ruby Pipeline, LLC , 128 FERC ¶ 61,224 (Sept. 4, 2009) (need determination) CP09-54 July 2, 2009 (20090702-5119) July 8, 2009 (20090708-3018) July 14, 2009 128 FERC ¶ 61,024 (Granted) Nov. 9, 2009 129 FERC ¶ 61,115 (Denied) Mar. 9, 2009 (20090309-5122) Apr. 8, 2009 (20090408-3008) N/A (rehearing request withdrawn) Sept. 28, 2009 (20090928-5123)* Oct. 5, 2009 (20091005-5102)* Oct. 28, 2009 (20091028-3008) Apr. 5, 2010 131 FERC ¶ 61,007 (Granted in part, denied in part) Ruby Pipeline Project Ruby Pipeline, LLC , 131 FERC ¶ 61,007 (Apr. 5, 2010) (certificate order) May 4, 2010 (20100505-5005) May 4, 2010 (20100505-5007) May 5, 2010 (20100505-5108) May 5, 2010 (20100505-5107) June 2, 2010 (20100602-3040) Oct. 6, 2010 133 FERC ¶ 61,015 (Denied) CP09-68 TEMAX and TIME III Projects Texas Eastern Transmission, LP , 129 FERC ¶ 61,151 (Nov. 19, 2009) Dec. 18, 2009 (20091218-5206) Dec. 21, 2009 (20091221-5180)* Jan. 19, 2010 (20100119-3032) May 20, 2010 131 FERC ¶ 61,164 (Denied all but proponent's) CP09-455 Mobile Bay Lateral Extension Project Florida Gas Transmission Company , 132 FERC ¶ 61,040 (July 15, 2010) Aug. 4, 2010 (20100804-5084) Sept. 3, 2010 (20100903-3044) Nov. 18, 2010 133 FERC ¶ 61,156 (Dismissed) CP10-480 MARC I Project Central New York Oil & Gas Company, LLC , 137 FERC ¶ 61,121 (Nov. 14, 2011) Nov. 18, 2011 (20111118-5194) Dec. 1, 2011 (20111202-5013) Dec. 13, 2011 (20111213-5045)* Dec. 19, 2011 (20111219-3026) Feb. 13, 2012 138 FERC ¶ 61,104 (Denied all but proponent's) A-1 Construction Activity Authorized (Accession No.) July 17, 2009 (20090717-3050) May 13, 2010 (20100513-3000) Jan. 28, 2010 (20100128-3044) Nov. 21, 2011 (20111121-3019) Placed into Service (Accession No.) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 48 of 84 Project Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) CP11-56 NJ-NY Project Texas East Transmission LP , 139 FERC ¶ 61,138 (May 21, 2012) June 20, 2012 (20120620-5132) June 20, 2012 (20120620-5126) June 20, 2012 (20120620-5110) June 20, 2012 (20120620-5085) June 21, 2012 (20120621-5107) July 18, 2012 (20120718-3041) Oct. 18, 2012 141 FERC ¶ 61,043 (Denied) June 21, 2012 (20120621-3058) CP11-128 Northern Access Expansion Project National Fuel Gas Supply Corporation , 137 FERC ¶ 61,054 (Oct. 20, 2011) Nov. 18, 2011 (20111118-5034) Dec. 19, 2011 (20111219-3027) Apr. 13, 2012 139 FERC ¶ 61,037 (Denied) Tennessee Gas Pipeline Company , 139 Northeast Upgrade Project FERC ¶ 61,161 (May 29, 2012) June 12, 2012 (20120612-5156) June 21, 2012 (20120625-4008) June 27, 2012 (20120627-5181) June 27, 2012 (20120627-5060) June 27, 2012 (20120627-5022) June 28, 2012 (20120628-5171) June 28, 2012 (20120628-5162)* July 9, 2012 (20120709-3002) Jan. 11, 2013 142 FERC ¶ 61,025 (Denied all but proponent's) Oct. 24, 2012 (20121024-3037) Docket No. CP11-161 CP11-515 Minisink Compressor Station Millennium Pipeline Company, LLC , 140 FERC ¶ 61,045 (July 17, 2012) Aug. 15, 2012 (20120815-5160) Aug. 15, 2012 (20120815-5159) Aug. 15, 2012 (20120815-5141) Aug. 15, 2012 (20120815-5016) Aug. 16, 2012 (20120817-5014) Sept. 13, 2012 (20120913-3037) Dec. 7, 2012 141 FERC ¶ 61,198 (Denied) Sept. 18, 2012 (20120918-3038) CP12-30 Northeast Supply Link Project Transcontinental Gas Supply Company, LLC , 141 FERC ¶ 61,091 (Nov. 2, 2012) Dec. 1, 2012 (20121203-5072) Dec. 3, 2012 (20121203-5184) Dec. 3, 2012 (20121203-5123) Dec. 28, 2012 (20121228-3036) May 16, 2013 143 FERC ¶ 61,132 (Denied) Nov. 19, 2012 (20121119-3031) Dominion Transmission, Inc. , 141 FERC ¶ 61,240 (Dec. 20, 2012) Jan. 9, 2013 (20130114-0201) Jan. 19, 2013 (20130122-5099) Jan. 21, 2013 (20130122-5100) Jan. 21, 2013 (20130122-5102) Jan. 21, 2013 (20130122-5105) Jan. 22, 2013 (20130122-5106) Jan. 22, 2013 (20130122-5107) Jan. 22, 2013 (20130122-5351) Jan. 22, 2013 (20130122-5334) Jan. 22, 2013 (20130122-5333) Jan. 22, 2013 (20130122-5332) Jan. 22, 2013 (20130122-5229) Jan. 22, 2013 (20130122-5221) Jan. 22, 2013 (20130122-5218) Feb. 11, 2013 (20130211-3019) May 16, 2013 143 FERC ¶ 61,148 (Denied) Apr. 25, 2013 (20130425-3024) Cheniere Creole Trail Pipeline, LP , 142 FERC ¶ 61,137 (Feb. 21, 2013) Mar. 25, 2013 (20130325-5204) Apr. 22, 2013 (20130422-3009) Oct. 25, 2013 145 FERC ¶ 61,074 (Denied) CP12-72 CP12-351 Allegheny Storage Project A-2 Placed into Service (Accession No.) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 49 of 84 Docket No. Project Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) CP12-507 Liquefaction Project Cheniere Corpus Christi Pipeline, LP , 149 FERC ¶ 61,283 (Dec. 30, 2014) Jan. 29, 2015 (20150129-5314) Mar. 2, 2015 (20150302-4004) May 6, 2015 151 FERC ¶ 61,098 (Denied) Feb. 3, 2015 (20150203-3033) CP13-25 Liquefaction Project Cameron Interstate Pipeline, LLC , 147 FERC ¶ 61,230 (June 19, 2014) July 22, 2014 (20140722-5002) July 29, 2014 148 FERC ¶ 61,073 (Dismissed as untimely) N/A CP13-113 Cove Point Liquefaction Project Dominion Cove Point LNG, LP , 148 FERC ¶ 61,244 (Sept. 29, 2014) Oct. 15, 2014 (20141015-5159) Oct. 28, 2014 (20141028-5148) Oct. 29, 2014 (20141029-5143) Oct. 29, 2014 (20141030-5015) Nov. 13, 2014 (20141113-3021) May 4, 2015 151 FERC ¶ 61,095 (Denied) Oct. 3, 2014 (20141003-3002) CP13-499 Constitution Pipeline Project Constitution Pipeline Company, LLC , 149 FERC ¶ 61,199 (Dec. 2, 2014) Dec. 30, 2014 (20141230-5288) Dec. 31, 2014 (20141231-5296) Jan. 2, 2015 (20150102-5236) Jan. 2, 2015 (20150102-5158) Jan. 2, 2015 (20150102-5100) Jan. 27, 2015 (20150127-3038) Jan. 28, 2016 154 FERC ¶ 61,046 (Denied) Sept. 18, 2015 (20150918-3046) CP13-551 Leidy Southeast Project Transcontinental Gas Pipe Line Company, LLC , 149 FERC ¶ 61,258 (Dec. 18, 2014) Jan. 16, 2015 (20150116-5100) Jan. 17, 2015 (20150120-5197) Jan. 20, 2015 (20150120-5539) Feb. 18, 2015 (20150218-3021) Mar. 3, 2016 154 FERC ¶ 61,166 (Denied) Jan. 30, 2015 (20150130-3009) CP13-552 Sabine Pass Sabine Pass Liquefaction Expansion, LLC , 151 FERC ¶ 61,012 (Apr. 6, 2015) May 6, 2015 (20150506-5237) June 3, 2015 (20150603-3031) June 23, 2015 151 FERC ¶ 61,253 (Denied) CP14-17 East Side Expansion Project Columbia Gas Transmission, LLC , 149 FERC ¶ 61,255 (Dec. 18, 2014) Jan. 16, 2015 (20150116-5291) Jan. 20, 2015 (20150120-5523) Jan. 20, 2015 (20150120-5215) Feb. 18, 2015 (20150218-3020) Oct. 14, 2015 153 FERC ¶ 61,064 (Denied) Jan. 9, 2015 (20150109-3023) West Side Expansion and National Fuel Gas Supply Corporation , Modernization Project 150 FERC ¶ 61,162 (Mar. 2, 2015) Mar. 16, 2015 (20150317-5027) Apr. 16, 2015 (20150416-3002) Mar. 8, 2016 154 FERC ¶ 61,180 (Denied) Mar. 10, 2015 (20150310-3022) Oct. 8, 2015 (20151008-3046) Apr. 16, 2015 (20150416-3003) Mar. 9, 2016 154 FERC ¶ 61,184 (Denied in part, granted in part; required National Fuel to assess incremental fuel rate for project) Mar. 13, 2015 (20150313-4020) Oct. 22, 2015 (20151022-3006) CP14-70 CP14-88 Niagara Expansion Project Tennessee Gas Pipeline Company, LLC ,150 FERC ¶ 61,160 (Feb. 27, 2015) Mar. 16, 2015 (20150317-5027) Mar. 27, 2015 (20150327-5117) A-3 Placed into Service (Accession No.) Oct. 16, 2015 (20151016-3023) USCA Case #17-1098 Docket No. Project Document #1824750 Filed: 01/17/2020 Page 50 of 84 Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) May 1, 2015 (20150501-3016) Jan. 28, 2016 154 FERC ¶ 61,048 (Denied) Apr. 13, 2015 (20150413-3015) Placed into Service (Accession No.) CP14-96 Algonquin Incremental Market Project (AIM Project) Algonquin Gas Transmission, LLC , 150 FERC ¶ 61,163 (Mar. 3, 2015) Apr. 1, 2015 (20150401-5718) Apr. 1, 2015 (20150401-5627) Apr. 1, 2015 (20150401-5694) Apr. 1, 2015 (20150402-5308) Apr. 2, 2015 (20150402-5290) Apr. 2, 2015 (20150402-5274) Apr. 2, 2015 (20150402-5267) Apr. 2, 2015 (20150402-5265) Apr. 2, 2015 (20150402-5135) Apr. 2, 2015 (20150403-5016) CP14-99 Line 1655 North Project Columbia Gas Transmission, LLC , 148 FERC ¶ 61,138 (Aug. 22, 2014) Sept. 19, 2014 (20140919-5160) Oct. 20, 2014 (20141020-3001) Aug. 18, 2015 152 FERC ¶ 61,131 (Denied) Aug. 22, 2014 148 FERC ¶ 61,138 CP14-112 Tuscarora Later Project Empire Pipeline, Inc. , 150 FERC ¶ 61,181 (Mar. 10, 2015) Mar. 16, 2015 (20150317-5027) Apr. 9, 2015 (20150409-5163)* Apr. 16, 2015 (20150416-3004) Dec. 20, 2015 153 FERC ¶ 61,379 (Denied all but proponents') Mar. 19, 2015 (20150319-3079) Oct. 22, 2015 (20151022-3028) Sept. 20, 2016 (20160920-3007) CP14-115 Elba Express Modification Elba Liquefaction Company, LLC , 155 Project and Elba FERC ¶ 61,219 (June 1, 2016) Liquefaction Project June 29, 2016 (20160630-5029) June 30, 2016 (20160630-5312) July 1, 2016 (20160701-5315) Aug. 1, 2016 (20160801-3012) Dec. 9, 2016 157 FERC ¶ 61,195 (Denied) June 7, 2016 (20160607-3026) CP14-119 CP14-120 Pipeline Modifications and Liquefaction Projects Trunkline Gas Company, LLC , 153 FERC ¶ 61,300 (Dec. 17, 2015) Jan. 19, 2016 (20160119-5385) Feb. 16, 2016 (20160216-3038) June 30, 2016 155 FERC ¶ 61,328 (Denied) Feb. 23, 2016 (20160223-3028) CP14-496 Clarington Project Dominion Transmission, Inc. ,152 FERC ¶ 61,138 (Aug. 19, 2015) Sept. 18, 2015 (20150918-5239) Dec. 8, 2015 153 FERC ¶ 61,284 (Denied) N/A CP14-497 New Market Project Dominion Transmission, Inc. ,155 FERC ¶ 61,106 (Apr. 28, 2016) May 31, 2016 (20160531-5685) June 27, 2016 (20160627-3025) May 18, 2018 163 FERC ¶ 61,128 (Denied) Mar. 17, 2017 (20170317-3044) Oct. 27, 2017 (20171027-3025) CP14-498 East-to-West Project Rockies Express Pipeline LLC , 150 FERC ¶ 61,161 (Feb. 27, 2015) Mar. 27, 2015 (20150327-5341) Apr. 27, 2015 (20150427-3048) Apr. 7, 2016 155 FERC ¶ 61,018 (Denied) Mar. 11, 2015 (20150311-3020) July 30, 2015 (20150730-3045) May 16, 2016 (20160516-5392) June 13, 2016 (20160613-3006) Nov. 23, 2016 157 FERC ¶ 61,149 (Denied) June 15, 2015 (20150615-5335) July 13, 2015 (20150713-3010) Nov. 19, 2015 153 FERC ¶ 61,204 (Denied) CP14-511 CP14-513 Lake Charles Expansion Kinder Morgan Louisiana Pipeline LLC , Project 155 FERC ¶ 61,033 (Apr. 15, 2016) Impulsora Pipeline, LLC , 151 FERC ¶ 61,117 (May 14, 2015) A-4 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 51 of 84 Docket No. Project Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) CP14-529 Connecticut Expansion Project Tennessee Gas Pipeline Company, LLC , 154 FERC ¶ 61,191 (Mar. 11, 2016) Apr. 8, 2016 (20160408-5149) Apr. 11, 2016 (20160411-5317) Apr. 11, 2016 (20160411-5301)* May 9, 2016 (20160509-3010) Aug. 25, 2017 160 FERC ¶ 61,027 (Denied all but proponent's) Mar. 21, 2017 (20170321-3031) CP14-553 Ohio-Louisiana Access Project Texas Gas Transmission, LLC , 152 FERC ¶ 61,160 (Aug. 28, 2015) Sept. 28, 2015 (20150928-5318) Oct. 27, 2015 (20151027-3063) Apr. 27, 2016 155 FERC ¶ 61,099 (Denied) Sept. 22, 2015 (20150922-3022) Florida Southeast Connection, LLC , 154 FERC ¶ 61,080 (Feb. 2, 2016) Feb. 2, 2012 (20160301-0001) Mar. 1, 2016 (20160302-5027) Mar. 2, 2016 (20160302-5236)* Mar. 2, 2016 (20160302-5062) Mar. 3, 2016 (20160303-5168)* Mar. 3, 2016 (20160303-5077)* Mar. 3, 2016 (20160303-5069) Mar. 8, 2017 (20170308-5189) Mar. 29, 2016 (20160329-3008) Sept. 7, 2016 156 FERC ¶ 61,160 (Denied all but proponents') Apr. 22, 2016 (20160422-3042) Dec. 9, 2015 (20151209-3041) Florida Southeast Project CP14-554 Hillabee Expansion Project Sabal Trail Project Placed into Service (Accession No.) Apr. 27, 2016 (20160427-3043) CP14-555 Lebanon West II Project Dominion Transmission, Inc. , 153 FERC ¶ 61,203 (Nov. 19, 2015) Dec. 21, 2015 (20151222-5023) Jan. 19, 2016 (20160119-3013) June 2, 2016 155 FERC ¶ 61,234 (Denied) CP15-8 Kalama Lateral Project Northwest Pipeline LLC , 155 FERC ¶ 61,026 (Apr. 11, 2016) May 11, 2016 (20160511-5046) June 8, 2016 (20160608-3030) Nov. 8, 2016 157 FERC ¶ 61,093 (Denied) CP15-77 Broad Run Expansion Project Tennessee Gas Pipeline Company, LLC , 156 FERC ¶ 61,157 (Sept. 6, 2016) Oct. 6, 2016 (20161006-5155) Oct. 6, 2016 (20161006-5149)* Oct. 6, 2916 (20161006-5132) Nov. 7, 2016 (20161107-3017) June 12, 2018 163 FERC ¶ 61,190 (Denied/Dismissed) Dec. 7, 2016 (20161207-3009) CP15-89 Garden State Project Transcontinental Gas Pipe Line Company, LLC , 155 FERC ¶ 61,016 (Apr. 7, 2016) May 9, 2016 (20160509-5182) May 9, 2016 (20160509-5173) June 8, 2016 (20160608-3028) Nov. 9, 2016 157 FERC ¶ 61,095 (Denied) July 6, 2016 (20160706-3030) CP15-93 Rover Pipeline Project Rover Pipeline LLC , 158 FERC ¶ 61,109 (Feb. 2, 2017) Mar. 1, 2017 (20170302-5042) Mar. 6, 2017 (20170306-5212)* Mar. 15, 2017 (20170315-4040) Nov. 30, 2017 161 FERC ¶ 61,244 (Denied) Feb. 13, 2017 (20170213-3020) Aug. 31, 2017 (20170831-3070) CP15-115 Northern Access 2016 Project National Fuel Gas Supply Corporation , 158 FERC ¶ 61,145 (Feb. 3, 2017) Mar. 3, 2017 (20170303-5147)* Mar. 6, 2017 (20170306-5199) Mar. 6, 2017 (20170306-5203) Mar. 6, 2017 (20170306-5194) Apr. 3, 2017 (20170403-3016) Aug. 6, 2018 164 FERC ¶ 61,084 (Denied/Dismissed) CP15-117 Dalton Expansion Project Transcontinental Gas Pipe Line Company, LLC , 156 FERC ¶ 61,092 (Aug. 3, 2016) Aug. 8, 2016 (20160808-5214/5209) Sept. 2, 2016 (20160902-5176) Sept. 6, 2016 (20160906-3043) Nov. 21, 2017 161 FERC ¶ 61,211 (Denied) Aug. 15, 2016 (20160815-3011) Mar. 28, 2017 (20170328-3065) A-5 Mar. 20, 2018 (20180320-3049) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 52 of 84 Docket No. Project Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) Placed into Service (Accession No.) CP15-118 Virginia Southside Expansion Project II Transcontinental Gas Pipe Line Company, LLC , 156 FERC ¶ 61,022 (July 7, 2016) Aug. 8, 2016 (20160808-5214/5209) Sept. 6, 2016 (20160906-3044) Nov. 21, 2017 161 FERC ¶ 61,212 (Denied) Oct. 5, 2016 (20161005-3000) Nov. 27, 2017 (20171127-3036) Mar. 13, 2017 (20170313-3024) Dec. 6, 2017 161 FERC ¶ 61,250 (Denied/Dismissed) Feb. 23, 2017 (20170223-3040) CP15-138 Atlantic Sunrise Project Transcontinental Gas Pipe Line Company, LLC , 158 FERC ¶ 61,125 (Feb. 3, 2017) Feb. 10, 2017 (20170210-5182) Feb. 24, 2017 (20170224-5106) Mar. 6, 2017 (20170306-5163) Mar. 6, 2017 (20170306-5207) Mar. 6, 2017 (20170306-5205) Mar. 6, 2017 (20170306-5204) Mar. 6, 2017 (20170306-5202) Mar. 6, 2017 (20170306-5198) Mar. 6, 2017 (20170306-5185) Mar. 6, 2017 (20170306-5184) Mar. 6, 2017 (20170306-5123) Mar. 6, 2017 (20170307-5017) Mar. 6, 2017 (20170307-5013) CP15-148 Susquehanna West Project Tennessee Gas Pipeline Company, LLC , 156 FERC ¶ 61,156 (Sept. 6, 2016) Oct. 6, 2016 (20161006-5150) Oct. 6, 2016 (20161006-5134)* Nov. 7, 2016 (20161107-3018) May 18, 2018 163 FERC ¶ 61,129 (Denied/Dismissed) Oct. 25, 2016 (20161025-3034) Aug. 30, 2017 20170830-3013 CP15-492 Leidy South Project Dominion Transmission, Inc. , 156 FERC ¶ 61,140 (Aug. 29, 2016) Sept. 28, 2016 (20160928-5174) Oct. 26, 2016 (20161026-3038) Jan. 17, 2017 158 FERC ¶ 61,029 (Denied) Oct. 5, 2016 (20161005-3005) Dec. 2, 2016 (20161202-3001) A-6 June 23, 2017 (20170623-3002) USCA Case #17-1098 Docket No. CP15-500 CP15-554 Project Presidio Border Crossing Project Document #1824750 Filed: 01/17/2020 Page 53 of 84 Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) Trans-Pecos Pipeline, LLC , 155 FERC ¶ 61,140 (May 5, 2016) May 31, 2016 (20160531-5727) May 31, 2016 (20160531-5363) May 31, 2016 (20160531-5281) June 1, 2016 (20160601-5315) June 1, 2016 (20160601-5298) June 1, 2016 (20160601-5255) June 1, 2016 (20160601-5140) June 2, 2016 (20160603-5074) June 2, 2016 (20160603-5072) June 3, 2016 (20160603-5200) June 3, 2016 (20160603-5180) June 3, 2016 (20160606-5072) June 3, 2018 (20160606-5061) June 4, 2016 (20160606-5067) June 5, 2016 (20160606-5071) June 5, 2016 (20160606-5066) June 6, 2016 (20160606-5293) June 6, 2016 (20160606-5292) June 6, 2016 (20160606-5259) June 6, 2016 (20160606-5245) June 6, 2016 (20160606-5214) June 6, 2016 (20160606-5096) June 6, 2016 (20160606-0100) June 6, 2016 (20160606-0099) June 6, 2016 (20160606-0098) June 6, 2016 (20160606-0095) June 6, 2016 (20160607-5022) June 6, 2016 (20160607-5009) June 7, 2016 (20160608-0006) June 13, 2016 (20160613-0067) June 27, 2016 (20160627-3026) Nov. 1, 2016 157 FERC ¶ 61,081 (Denied/Dismissed) July 29, 2016 (20160729-3002) Nov. 9, 2017 (20171109-5167)* Nov. 10, 2017 (20171113-5115) Nov. 13, 2017 (20171113-5379) Nov. 13, 2017 (20171113-5373) Nov. 13, 2017 (20171113-5370) Nov. 13, 2017 (20171113-5367) Nov. 13, 2017 (20171113-5324) Nov. 13, 2017 (20171113-5276) Nov. 13, 2017 (20171113-5275) Nov. 13, 2017 (20171113-5273) Nov. 13, 2017 (20171113-5262) Nov. 13, 2017 (20171113-5137) Dec. 11, 2017 (20171211-3013) Aug. 10, 2018 164 FERC ¶ 61,100 (Denied/Dismissed all but proponent's) Atlantic Coast Pipeline Atlantic Coast Pipeline, LLC , 161 FERC and Supply Header Project ¶ 61,042 (Oct. 13, 2017) A-7 Jan. 19, 2018 (20180119-3052) Placed into Service (Accession No.) USCA Case #17-1098 Docket No. Project Document #1824750 Filed: 01/17/2020 Page 54 of 84 Certificate Order Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Feb. 22, 2018 (20180222-3037) Aug. 10, 2018 164 FERC ¶ 61,098 (Denied/Dismissed) CP15-558 PennEast Pipeline PennEast Pipeline Company, LLC , 162 FERC ¶ 61,053 (Jan. 19, 2018) Jan. 22, 2018 (20180123-5035) Jan. 24, 2018 (20180124-5153) Jan. 28, 2018 (20180129-5074) Jan. 31, 2018 (20180131-5302) Feb. 3, 2018 (20180205-5037) Feb. 3, 2018 (20180205-5032) Feb. 5, 2018 (20180206-5017) Feb. 5, 2018 (20180206-5010) Feb. 9, 2018 (20180209-5190) Feb. 9, 2018 (20180209-5158) Feb. 12, 2018 (20180213-5082) Feb. 15, 2018 (20180215-5188) Feb. 15, 2018 (20180215-5096) Feb. 16, 2018 (20180216-5219) Feb. 16, 2018 (20180216-5183) Feb. 16, 2018 (20180216-5168) Feb. 16, 2018 (20180216-5085) Feb. 16, 2018 (20180216-5062) Feb. 19, 2018 (20180220-5107) Feb. 19, 2018 (20180220-5101) Feb. 19, 2018 (20180220-5094) Feb. 20, 2018 (20180220-5306) Feb. 20, 2018 (20180220-5272) Feb. 20, 2018 (20180220-5253) Feb. 20, 2018 (20180220-5238) Feb. 20, 2018 (20180220-5224) Feb. 20, 2018 (20180220-5221) Feb. 20, 2018 (20180220-5131) Feb. 20, 2018 (20180220-5128) Feb. 20, 2018 (20180220-5127) Feb. 20, 2018 (20180220-5111) Feb. 20, 2018 (20180220-5110) CP16-4 Orion Project Tennessee Gas Pipeline Company, LLC , 158 FERC ¶ 61,110 (Feb. 2, 2017) Feb. 14, 2017 (20170214-5195) Mar. 3, 2017 (20170303-5136)* Mar. 6, 2017 (20170306-5165) Mar. 13, 2017 (20170313-3025) Feb. 27, 2018 162 FERC ¶ 61,167 (Denied/Dismissed) CP16-9 Atlantic Bridge Project Algonquin Gas Transmission, LLC , 158 FERC ¶ 61,061 (Jan. 25, 2017) Feb. 24, 2017 (20170224-5187) Feb. 24, 2017 (20170224-5186) Feb. 24, 2017 (20170224-5181) Feb. 24, 2017 (20170224-5121) Mar. 27, 2017 (20170327-3006) Dec. 13, 2017 161 FERC ¶ 61,255 (Denied) A-8 Construction Activity Authorized (Accession No.) Feb. 23, 2017 (20170223-3044) Mar. 27, 2017 (20170327-3018) Placed into Service (Accession No.) Nov. 30, 2017 (20171130-3044) June 30, 2017 (20170630-3048) USCA Case #17-1098 Docket No. CP16-10 CP16-17 Project Mountain Valley Pipeline Valley Lateral Project Document #1824750 Filed: 01/17/2020 Page 55 of 84 Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) Nov. 12, 2017 (20171113-5125) Nov. 13, 2017 (20171113-5378) Nov. 13, 2017 (20171113-5376) Nov. 13, 2017 (20171113-5375) Nov. 13, 2017 (20171113-5374) Nov. 13, 2017 (20171113-5372) Nov. 13, 2017 (20171113-5371) Nov. 13, 2017 (20171113-5368) Nov. 13, 2017 (20171113-5365) Nov. 13, 2017 (20171113-5364) Nov. 13, 2017 (20171113-5363) Nov. 13, 2017 (20171113-5337) Nov. 13, 2017 (20171113-5366) Nov. 13, 2017 (20171113-5331) Nov. 13, 2017 (20171113-5330) Nov. 13, 2017 (20171113-5299) Nov. 13, 2017 (20171113-5277) Nov. 13, 2017 (20171113-5267) Nov. 13, 2017 (20171113-5260) Nov. 13, 2017 (20171113-5259) Nov. 13, 2017 (20171113-5236) Dec. 13, 2017 (20171213-3061) June 15, 2018 163 FERC ¶ 61,197 (Denied/Dismissed) Jan. 22, 2018 (20180122-3009) Millennium Pipeline Company, LLC , 157 FERC ¶ 61,096 (Nov. 9, 2016) Dec. 9, 2016 (20161209-5234) Dec. 9, 2016 (20161209-5231) Dec. 9, 2016 (20161209-5162) Dec. 9, 2016 (20161212-5303) Dec. 9, 2016 (20161212-5028) Jan. 9, 2017 (20170109-3015) Nov. 16, 2017 161 FERC ¶ 61,194 (Denied/Dismissed) Oct. 27, 2017 (20171027-3049) Oct. 23, 2017 (20171023-3012) July 25, 2018 164 FERC ¶ 61,054 (Denied all but proponent's) Oct. 11, 2017 (20171011-3009) Certificate Order Mountain Valley Pipeline LLC , 161 FERC ¶ 61,043 (Oct. 13, 2017) CP16-22 NEXUS Project NEXUS Gas Transmission, LLC , 160 FERC ¶ 61,022 (Aug. 25, 2017) Sept. 21, 2017 (20170922-5029) Sept. 22, 2017 (20170922-5162) Sept. 22, 2017 (20170922-5161) Sept. 22, 2017 (20170922-5156)* Sept. 25, 2017 (20170925-5124) Sept. 25, 2017 (20170925-5123) Sept. 25, 2017 (20170925-5021) CP16-357 Mountaineer Xpress Project Columbia Gas Transmission, LLC , 161 FERC ¶ 61,314 (Dec. 29, 2017) Jan. 29, 2018 (20180129-5355) Feb. 28, 2018 (20180228-3017) Pending (as of Jan. 17, 2020) Jan. 12, 2018 (20180112-3063) Eastern System Upgrade Millennium Pipeline Company, LLC , 161 Project FERC ¶ 61,229 (Nov. 28, 2017) Dec. 1, 2017 (20171201-5112) Dec. 18, 2017 (20171219-5244) Dec. 28, 2017 (20171228-3037) July 19, 2018 164 FERC ¶ 61,039 (Denied/Dismissed) Dec. 19, 2017 (20171219-3014) Tennessee Gas Pipeline Company, LLC , 161 FERC ¶ 61,265 (Dec. 15, 2017) Jan.16, 2018 (20180116-5208) Feb. 14, 2018 (20180214-3015) Dec. 7, 2018 165 FERC ¶ 61,217 (Denied) Jan. 16, 2018 (20180116-3006) CP16-486 CP16-496 Lone Star Project A-9 Placed into Service (Accession No.) Oct. 5, 2018 (20181005-3001) Nov. 28, 2018 (20181128-3028) USCA Case #17-1098 Docket No. Project CP17-15 Eastern Market Access Project Certificate Order Dominion EnergyCove Point LNG, LP , 162 FERC ¶ 61,056 (Jan. 23, 2018) Document #1824750 Filed: 01/17/2020 Page 56 of 84 Rehearing Request (Accession No.) (*Project Proponent) Tolling Order (Accession No.) Rehearing Order Construction Activity Authorized (Accession No.) Feb. 22, 2018 (20180222-5102) Mar. 26, 2018 (20180326-3018) Aug. 10, 2018 164 FERC ¶ 61,102 (Denied) Feb. 23, 2018 (20180223-3039) Aug. 31, 2018 (20180831-5229) Aug. 31, 2018 (20180831-5228) Aug. 31, 2018 (20180831-5072) Sept. 4, 2018 (20180904-5078) Oct. 1, 2018 (20181001-3017) Nov. 21, 2019 169 FERC ¶ 61,134 (Denied/Dismissed) Nov. 5, 2018 (20181105-3031) Nov. 14, 2019 (20191114-3058) Feb. 25, 2019 (20190225-3003) Aug. 21, 2019 (20190821-3067) CP17-40 Spire STL Pipeline Spire STL Pipeline LLC , 164 FERC ¶ 61,085 (Aug. 3, 2018) CP17-80 Eastern Panhandle Expansion Project Columbia Gas Transmission, LLC , 164 FERC ¶ 61,036 (July 19, 2018) Aug. 17, 2018 (20180817-5181) Sept. 17, 2018 (20180917-3035) Pending (as of Jan. 17, 2020) CP17-101 Northeast Supply Enhancement Project Transcontinental Gas Pipe Line Company , 167 FERC ¶ 61,110 (May 3, 2019) June 3, 2019 (20190603-5198) July 2, 2019 (20190702-3009) Pending (as of Jan. 17, 2020) CP18-18 Gateway Expansion Project Transcontinental Gas Pipe Line Company , 165 FERC ¶ 61,221 (Dec. 12, 2018) Jan. 11, 2019 (20190111-5207) Feb. 11, 2019 (20190211-3037) Pending (as of Jan. 17, 2020) A-10 Placed into Service (Accession No.) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 57 of 84 Exhibit B: FERC Action on Stay Requests -- Major Approved Pipeline Projects, 2009-2019 Docket No. Project Certificate Order Action on Stay Request(s) CP07-62 Sparrows Point Project AES Sparrows Point, LLC , 126 FERC ¶ 61,019 (Jan. 15, 2009) Dec. 17, 2009 129 FERC ¶ 61,245 (Denied in rehearing order) Ruby Pipeline, LLC , 128 FERC ¶ 61,224 (Sept. 4, 2009) (need determination) CP09-54 Ruby Pipeline Project Ruby Pipeline, LLC , 131 FERC ¶ 61,007 (Apr. 5, 2010) (certificate order) Jan. 12, 2011 134 FERC ¶ 61,020 (Denied) CP10-480 MARC I Project Central New York Oil & Gas Company, LLC , 137 FERC ¶ 61,121 (Nov. 14, 2011) Feb. 13, 2012 138 FERC ¶ 61,104 (Dismissed in rehearing order) CP11-56 NJ-NY Project Texas East Transmission LP , 139 FERC ¶ 61,138 (May 21, 2012) Oct. 18, 2012 141 FERC ¶ 61,043 (Denied in rehearing order) CP11-128 Northern Access Expansion Project National Fuel Gas Supply Corporation , 137 FERC ¶ 61,054 (Oct. 20, 2011) Apr. 13, 2012 139 FERC ¶ 61,037 (Denied in rehearing order) CP11-161 Northeast Upgrade Project Tennessee Gas Pipeline Company , 139 FERC ¶ 61,161 (May 29, 2012) Jan. 11, 2013 142 FERC ¶ 61,025 (Denied in rehearing order) CP11-515 Minisink Compressor Station Millennium Pipeline Company, LLC , 140 FERC ¶ 61,045 (July 17, 2012) Oct. 9, 2012 141 FERC ¶ 61,022 (Denied) CP12-30 Northeast Supply Link Project Transcontinental Gas Supply Company, LLC , 141 FERC ¶ 61,091 (Nov. 2, 2012) May 16, 2013 143 FERC ¶ 61,132 (Denied in rehearing order) Cheniere Creole Trail Pipeline, LP , 142 FERC ¶ 61,137 (Feb. 21, 2013) Oct. 25, 2013 145 FERC ¶ 61,074 (Dismissed in rehearing order) CP12-351 CP13-113 Cove Point Liquefaction Project Dominion Cove Point LNG, LP , 148 FERC ¶ 61,244 (Sept. 29, 2014) May 4, 2015 151 FERC ¶ 61,095 (Dismissed in rehearing order) CP13-499 Constitution Pipeline Project Constitution Pipeline Company, LLC , 149 FERC ¶ 61,199 (Dec. 2, 2014) Jan. 28, 2016 154 FERC ¶ 61,046 (Dismissed in rehearing order) CP13-551 Leidy Southeast Project Transcontinental Gas Pipe Line Company, LLC , 149 FERC ¶ 61,258 (Dec. 18, 2014) Mar. 12, 2015 150 FERC ¶ 61,183 (Denied) CP14-17 East Side Expansion Project Columbia Gas Transmission, LLC , 149 FERC ¶ 61,255 (Dec. 18, 2014) Oct. 14, 2015 153 FERC ¶ 61,064 (Denied in rehearing order) B-1 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 58 of 84 Docket No. Project Certificate Order Action on Stay Request(s) CP14-70 West Side Expansion and Modernization Project National Fuel Gas Supply Corporation , 150 FERC ¶ 61,162 (Mar. 2, 2015) Mar. 8, 2016 154 FERC ¶ 61,180 (Denied in rehearing order) CP14-88 Niagara Expansion Project Tennessee Gas Pipeline Company, LLC , 150 FERC ¶ 61,160 (Feb. 27, 2015) Mar. 9, 2016 154 FERC ¶ 61,184 (Denied in rehearing order) CP14-96 Algonquin Incremental Market Project (AIM Project) Algonquin Gas Transmission, LLC , 150 FERC ¶ 61,163 (Mar. 3, 2015) Jan. 28, 2016 154 FERC ¶ 61,048 (Dismissed in rehearing order) CP14-99 Line 1655 North Project Columbia Gas Transmission, LLC , 148 FERC ¶ 61,138 (Aug. 22, 2014) Aug. 18, 2015 152 FERC ¶ 61,131 (Denied in rehearing order) CP14-112 Tuscarora Later Project Empire Pipeline, Inc. , 150 FERC ¶ 61,181 (Mar. 10, 2015) Dec. 20, 2015 153 FERC ¶ 61,379 (Denied in rehearing order) CP14-497 CP14-529 New Market Project Connecticut Expansion Project Dominion Transmission, Inc. , 155 FERC ¶ 61,106 (Apr. 28, 2016) Tennessee Gas Pipeline Company, LLC , 154 FERC ¶ 61,191 (Mar. 11, 2016) June 21, 2016 155 FERC ¶ 61,292 (Denied) June 23, 2016 155 FERC ¶ 61,296 (Denied) Mar. 30, 2016 154 FERC ¶ 61,263 (Denied) Apr. 22, 2016 155 FERC ¶ 61,087 (Denied) CP14-554 Florida Southeast Project Hillabee Expansion Project Sabal Trail Project Florida Southeast Connection, LLC , 154 FERC ¶ 61,080 (Feb. 2, 2016) Mar. 30, 2016 154 FERC ¶ 61,264 (Denied) CP15-8 Kalama Lateral Project Northwest Pipeline LLC , 155 FERC ¶ 61,026 (Apr. 11, 2016) Aug. 1, 2016 156 FERC ¶ 61,086 (Denied) CP15-77 Broad Run Expansion Project Tennessee Gas Pipeline Company, LLC , 156 FERC ¶ 61,157 (Sept. 6, 2016) Nov. 29, 2016 157 FERC ¶ 61,154 (Denied) CP15-89 Garden State Project Transcontinental Gas Pipe Line Company, LLC , 155 FERC ¶ 61,016 (Apr. 7, 2016) June 8, 2016 155 FERC ¶ 61,246 (Denied) CP15-115 Northern Access 2016 Project National Fuel Gas Supply Corporation , 158 FERC ¶ 61,145 (Feb. 3, 2017) Aug. 31, 2017 160 FERC ¶ 61,043 (Denied) CP15-117 Dalton Expansion Project Transcontinental Gas Pipe Line Company, LLC , 156 FERC ¶ 61,092 (Aug. 3, 2016) Pending (as of Jan. 17, 2020) B-2 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 59 of 84 Docket No. Project Certificate Order Action on Stay Request(s) CP15-138 Atlantic Sunrise Project Transcontinental Gas Pipe Line Company, LLC , 158 FERC ¶ 61,125 (Feb. 3, 2017) Aug. 31, 2017 161 FERC ¶ 61,250 (Denied) CP15-148 Susquehanna West Project Tennessee Gas Pipeline Company, LLC , 156 FERC ¶ 61,156 (Sept. 6, 2016) Jan. 3, 2017 158 FERC ¶ 61,002 (Denied) CP15-554 Atlantic Coast Pipeline and Supply Header Project Atlantic Coast Pipeline, LLC , 161 FERC ¶ 61,042 (Oct. 13, 2017) Aug. 10, 2018 164 FERC ¶ 61,100 (Dismissed in rehearing order) CP15-558 PennEast Pipeline PennEast Pipeline Company, LLC , 162 FERC ¶ 61,053 (Jan. 19, 2018) Aug. 10, 2018 164 FERC ¶ 61,098 (Dismissed in rehearing order) CP16-4 Orion Project Tennessee Gas Pipeline Company, LLC , 158 FERC ¶ 61,110 (Feb. 2, 2017) Sept. 8, 2017 160 FERC ¶ 61,062 (Denied) CP16-9 Atlantic Bridge Project Algonquin Gas Transmission, LLC , 158 FERC ¶ 61,061 (Jan. 25, 2017) Aug. 21, 2017 160 FERC ¶ 61,015 (Denied) CP16-10 Mountain Valley Pipeline Mountain Valley Pipeline LLC , 161 FERC ¶ 61,043 (Oct. 13, 2017) June 15, 2018 163 FERC ¶ 61,197 (Dismissed in rehearing order) CP16-17 Valley Lateral Project Millennium Pipeline Company, LLC , 157 FERC ¶ 61,096 (Nov. 9, 2016) Jan. 30, 2017 158 FERC ¶ 61,086 (Denied) CP16-22 NEXUS Project NEXUS Gas Transmission, LLC , 160 FERC ¶ 61,022 (Aug. 25, 2017) Jan. 10, 2018 162 FERC ¶ 61,011 (Denied) CP16-357 Mountaineer Xpress Project Columbia Gas Transmission, LLC , 161 FERC ¶ 61,314 (Dec. 29, 2017) Mar. 22, 2018 162 FERC ¶ 61,260 (Denied) CP16-486 Eastern System Upgrade Project Millennium Pipeline Company, LLC , 161 FERC ¶ 61,229 (Nov. 28, 2017) Mar. 19, 2018 162 FERC ¶ 61,241 (Denied) CP17-40 Spire STL Pipeline Spire STL Pipeline LLC , 164 FERC ¶ 61,085 (Aug. 3, 2018) Nov. 21, 2019 169 FERC ¶ 61,134 (Dismissed in rehearing order) CP17-101 Northeast Supply Enhancement Project Transcontinental Gas Pipe Line Company , 167 FERC ¶ 61,110 (May 3, 2019) Pending (as of Jan. 17, 2020) CP18-18 Gateway Expansion Project Transcontinental Gas Pipe Line Company , 165 FERC ¶ 61,221 (Dec. 12, 2018) Pending (as of Jan. 17, 2020) B-3 USCA #17-1098 #1824750 01/17/2020 Page 2009-2019 60 of 84 Exhibit Case C: Requests for RehearingDocument of Orders Authorizing Construction --Filed: Major Approved Pipeline Projects, Docket No. Project Certificate Order CP14-529 Connecticut Expansion Project Tennessee Gas Pipeline Company, LLC , 154 FERC ¶ 61,191 (Mar. 11, 2016) CP15-138 Atlantic Sunrise Project Transcontinental Gas Pipe Line Company, LLC , 158 FERC ¶ 61,125 (Feb. 3, 2017) CP15-554 CP16-9 CP16-10 Atlantic Coast Pipeline and Supply Header Project Atlantic Bridge Project Mountain Valley Pipeline Atlantic Coast Pipeline, LLC , 161 FERC ¶ 61,042 (Oct. 13, 2017) Algonquin Gas Transmission, LLC , 158 FERC ¶ 61,061 (Jan. 25, 2017) Mountain Valley Pipeline LLC , 161 FERC ¶ 61,043 (Oct. 13, 2017) FERC Order (Accession No.) Rehearing Request (Accession No.) Tolling Order (Accession No.) Rehearing Order Jan. 10, 2018, 162 FERC ¶ 61,013 (Denied) Apr. 12, 2017 (20170412-3003) Apr. 24, 2017 (20170424-5148) May 10, 2017 (20170510-5019) May 24, 2017 (20170524-3009) 1. Sept. 7, 2017 (20170907-3005) 1. Sept. 11, 2017 (20170912-5001) 1. Oct. 12, 2017 (20171012-3019) 2. Sept. 15, 2017 (20170915-3021) 2. Sept. 19, 2017 (20170920-5023) 2. Oct. 17, 2017 (20171017-3050) 1. Feb. 16, 2018 (20180216-3053) 1. Feb. 22, 2018 (20180223-5027) 1. Mar. 26, 2018 (20180326-3028) 1. May 4, 2018, 163 FERC ¶ 61,098 (Denied) 2. May 11, 2018 (20180511-3048) 2. June 11, 2018 (20180611-5183) 2. July 10, 2018 (20180710-3053) 2. Pending (as of Jan. 17, 2020) 3. June 25, 2018 (20180625-3036) 3. July 24, 2018 (20180724-5047) 3. Aug. 23, 2018 (20180823-3027) 3. Pending (as of Jan. 17, 2020) 4. July 3, 2018 (20180703-3043) 4. Aug. 2, 2018 (20180802-5140) 4. Sept. 4, 2018 (20180904-3009) 4. Pending (as of Jan. 17, 2020) 5. July 24, 2018 (20180724-3057) 5. Aug. 23, 2018 (20180823-5142) 5. Sept. 24, 2018 (20180924-3038) 5. Pending (as of Jan. 17, 2020) 1. Mar. 27, 2017 (20170327-3018) 1. Apr. 7, 2017 (20170407-5231) 1. May 8, 2017 (20170508-3013) 1-2. Dec. 21 2017, 161 FERC ¶ 61,287 (Denied) 2. May 19, 2017 (20170519-3018) 2. June 19, 2017 (20170619-5152) 2. July 17, 2017 (20170717-3009) 3. Nov. 27, 2019 (20191127-3025) 3. Dec. 9, 2019 (20191209-5260) Dec. 27, 2019 (20191227-5021) 3. Jan. 8, 2020 (20200108-3028) 3. Pending (as of Jan. 17, 2020) 1. Jan. 22, 2018 (20180122-3009) Jan. 29, 2018 (20180129-3032) Feb. 8, 2018 (20180208-3017) Feb. 9, 2018 (20180209-3001) Feb. 12, 2018 (20180212-3009) Feb. 13, 2018 (20180213-3001) Feb. 14, 2018 (20180214-3019) Feb. 15, 2018 (20180215-3007) Feb. 16, 2018 (20180216-3040) 1. Feb. 22, 2018 (20180223-5185) Feb. 26, 2018 (20180226-5131) 1. Mar. 26, 2018 (20180326-3052) 1. May 4, 2018, 163 FERC ¶ 61,099 (Denied) 2. Apr. 6, 2018 (20180406-3021) 2. May 4, 2018 (20180504-5234) 2. June 4, 2018 (20180604-3012) 2-3. Aug. 3, 2018, 164 FERC ¶ 61,086 (Denied) 3. Apr. 23, 2018 (20180423-3015) 3. May 3, 2018 (20180503-5141) 3. June 4, 2018 (20180604-3013) C-1 Mar. 1, 2018, 162 FERC ¶ 61192 (Denied) USCA CaseExhibit #17-1098 Document Filed: 01/17/2020 Page 61 of 84 D: Proceedings in#1824750 Which FERC Issued Decisions, 2018-2019 Docket No. Industry Rehearing Requested Request Tolled AC18-59 General No No AC19-75 General No No CP08-454 Natural Gas No No CP09-465 Natural Gas No No CP13-520 Natural Gas No No CP15-499 Natural Gas No No CP16-20 Natural Gas Yes Yes CP16-116 Natural Gas No No CP16-454 Natural Gas No No CP16-480 Natural Gas No No CP16-486 Natural Gas Yes Yes CP17-20 Natural Gas No No CP17-40 Natural Gas Yes Yes CP17-41 Natural Gas No No CP17-46 Natural Gas No No CP17-58 Natural Gas No No CP17-74 Natural Gas No No CP17-80 Natural Gas Yes Yes CP17-117 Natural Gas No No CP17-219 Natural Gas Yes Yes CP17-257 Natural Gas No No CP17-409 Natural Gas No No CP17-441 Natural Gas No No CP17-468 Natural Gas No No CP17-469 Natural Gas No No CP17-470 Natural Gas No No CP17-476 Natural Gas Yes Yes CP18-1 Natural Gas No No CP18-5 Natural Gas Yes Yes CP18-10 Natural Gas No No CP18-13 Natural Gas No No CP18-26 Natural Gas No No CP18-46 Natural Gas No No CP18-48 Natural Gas No No CP18-66 Natural Gas No No CP18-102 Natural Gas No No CP18-186 Natural Gas No No CP18-332 Natural Gas No No CP18-485 Natural Gas Yes Yes CP18-506 Natural Gas No No CP18-512 Natural Gas No No CP18-525 Natural Gas No No D-1 Tolling Period (Days) 171 230 417 Pending (as of Jan. 17, 2020) 178 228 76 Pending (as of Jan. 17, 2020) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Industry Rehearing Requested Request Tolled CP18-532 Natural Gas No No CP18-534 Natural Gas No No CP18-548 Natural Gas No No CP19-3 Natural Gas Yes Yes CP19-7 Natural Gas No No CP19-20 Natural Gas No No CP19-26 Natural Gas No No CP19-31 Natural Gas No No CP19-34 Natural Gas No No CP19-52 Natural Gas No No Docket No. Page 62 of 84 Tolling Period (Days) Pending (as of Jan. 17, 2020) CP19-191 Natural Gas No No DI18-1 Hydropower Yes Yes EC17-49 Electricity No No EC17-126 Electricity No No EC18-21 Electricity No No EC18-63 Electricity Yes Yes EC18-117 Electricity No No EC19-36 Electricity No No EC19-63 Electricity No No EC19-68 Electricity No No EC19-99 Electricity No No EC19-100 Electricity No No EC98-2 Electricity Yes Yes EL00-95 Electricity No No EL01-88-015 Electricity Yes Yes EL01-88-017 Electricity No No EL01-88-020 Electricity Yes Yes 213 EL01-88-022 Electricity Yes Yes 182 EL05-121 Electricity Yes Yes 535 EL08-14 Electricity Yes Yes 99 EL09-61 Electricity Yes Yes 379 EL10-65 Electricity Yes Yes 28 EL14-9 Electricity Yes 391 EL14-12 Electricity Yes EL14-37 Electricity No EL15-3 Electricity Yes EL15-67-003 Electricity Yes Yes No (filed within last 30 days) No No (filed within last 30 days) Yes EL15-67-004 Electricity Yes Yes 93 EL15-68 Electricity Yes Yes EL15-70 Electricity Yes Yes 445 Pending (as of Jan. 17, 2020) D-2 113 251 Pending (as of Jan. 17, 2020) 182 458 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 63 of 84 Docket No. Industry Rehearing Requested Request Tolled Tolling Period (Days) EL15-95 Electricity Yes Yes EL16-49 Electricity Yes Yes 262 Pending (as of Jan. 17, 2020) EL16-64 Electricity No No EL16-71-000 Electricity Yes Yes 28 EL16-71-001 Electricity Yes Yes 150 EL16-89 Electricity No No EL16-100 Electricity No No EL16-107 Electricity Yes Yes 90 EL16-108 Electricity Yes Yes 157 EL16-110 Electricity Yes Yes 178 EL16-120 Electricity Yes Yes 274 EL17-29 Electricity Yes Yes 157 EL17-31 Electricity Yes Yes 157 EL17-41 Electricity No No EL17-44 Electricity No No EL17-45 Electricity Yes Yes 336 EL17-54 Electricity Yes Yes 157 EL17-59 Electricity Yes Yes 150 EL17-70 Electricity No No EL17-83 Electricity No No EL17-89 Electricity No No EL17-94 Electricity Yes Yes EL17-95 Electricity No No EL18-17 Electricity No No EL18-20 Electricity Yes Yes EL18-26 Electricity Yes Yes EL18-33 Electricity No No EL18-34 Electricity No No EL18-45 Electricity No No EL18-48 Electricity Yes Yes EL18-50 Electricity No No EL18-56 Electricity No No EL18-58 Electricity No No EL18-61 Electricity Yes Yes EL18-62 Electricity No No EL18-64 Electricity No No EL18-66 Electricity No No EL18-67 Electricity No No EL18-68 Electricity No No EL18-71 Electricity Yes Yes EL18-72 Electricity No No D-3 93 28 Pending (as of Jan. 17, 2020) 126 Pending (as of Jan. 17, 2020) 213 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 64 of 84 Docket No. Industry Rehearing Requested Request Tolled EL18-75 Electricity No No EL18-79 Electricity No No EL18-89 Electricity No No EL18-91 Electricity No No EL18-93 Electricity No No EL18-95 Electricity No No EL18-98 Electricity No No EL18-104 Electricity Yes Yes EL18-107 Electricity No No EL18-108 Electricity No No EL18-109 Electricity No No EL18-111 Electricity No No EL18-115 Electricity No No EL18-118 Electricity No No EL18-119 Electricity No No EL18-131 Electricity No No EL18-138 Electricity No No EL18-140 Electricity Yes Yes 249 EL18-142 Electricity Yes Yes 269 EL18-143 Electricity Yes Yes 345 EL18-145 Electricity No No EL18-146 Electricity No No EL18-152 Electricity No No EL18-155 Electricity No No EL18-157 Electricity No No EL18-158 Electricity No No EL18-159 Electricity No No EL18-163 Electricity No No EL18-164 Electricity No No EL18-165 Electricity No No EL18-167 Electricity No No EL18-168 Electricity No No EL18-172 Electricity No No EL18-174 Electricity No No EL18-176 Electricity Yes Yes 205 EL18-177 Electricity Yes Yes 302 EL18-183 Electricity No No EL18-188 Electricity No No EL18-189 Electricity No No EL18-194 Electricity Yes Yes 244 EL18-197 Electricity Yes Yes 103 EL18-199 Electricity No No EL18-200 Electricity No No D-4 Tolling Period (Days) 100 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 65 of 84 Docket No. Industry Rehearing Requested Request Tolled Tolling Period (Days) EL18-203 Electricity Yes Yes 206 EL18-203 Electricity Yes Yes 206 EL18-204 Electricity No No EL18-205 Electricity No No EL19-2 Electricity No No EL19-6 Electricity No No EL19-10 Electricity No No EL19-11 Electricity Yes Yes EL19-16 Electricity No No EL19-17 Electricity No No EL19-27 Electricity No No EL19-30 Electricity No No EL19-39 Electricity Yes Yes EL19-40 Electricity No No EL19-42 Electricity No EL19-50 Electricity Yes EL19-60 Electricity No No No (filed within last 30 days) No EL19-72 Electricity No No EL19-81 Electricity No No EL19-88 Electricity No No EL19-90 Electricity No No EL19-94 Electricity No No ER09-548 Electricity No No ER09-1256 Electricity Yes Yes ER10-1350 Electricity Yes Yes Pending (as of Jan. 17, 2020) 969 ER10-1791 Electricity Yes Yes 769 ER10-2126 Electricity No No ER10-2564 Electricity No No ER11-2774 Electricity No No ER13-75 Electricity Yes Yes ER13-102 Electricity No No ER13-343 Electricity No No ER13-535 Electricity Yes Yes 710 ER14-225 Electricity Yes Yes 87 ER14-874 Electricity No No ER14-1409 Electricity No No ER14-2154 Electricity Yes Yes ER14-2529 Electricity Yes Yes ER15-623 Electricity Yes Yes ER15-2028 Electricity Yes Yes D-5 213 150 Pending (as of Jan. 17, 2020) Pending (as of Jan. 17, 2020) Pending (as of Jan. 17, 2020) Pending (as of Jan. 17, 2020) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 66 of 84 Docket No. Industry Rehearing Requested Request Tolled ER15-2059 Electricity No No ER15-2115 Electricity Yes Yes ER16-120 Electricity No No ER16-204-001 Electricity Yes Yes 244 ER16-204-004 Electricity Yes Yes 216 ER16-1169-001 Electricity Yes Yes 48 ER16-1169-002 Electricity Yes Yes 142 ER16-1251 Electricity No No ER16-2186 Electricity No No ER16-2217 Electricity No No ER16-2401 Electricity No No ER16-2493 Electricity No No ER17-156 Electricity No No ER17-219 Electricity No No ER17-419 Electricity No No ER17-603 Electricity No No ER17-706-001 Electricity No No ER17-706-002 Electricity Yes Yes ER17-801 Electricity No No ER17-802 Electricity No No ER17-905 Electricity Yes Yes ER17-910 Electricity No No ER17-1016 Electricity No No ER17-1198 Electricity Yes Yes ER17-1236 Electricity Yes Yes ER17-1357 Electricity No No ER17-1459 Electricity No No ER17-1561 Electricity No No ER17-1568 Electricity No No ER17-1575 Electricity Yes Yes 178 ER17-1750 Electricity Yes Yes 427 ER17-2073 Electricity Yes Yes 345 ER17-2113 Electricity No No ER17-2154 Electricity Yes Yes 700 ER17-2201 Electricity Yes Yes 720 ER17-2229 Electricity Yes Yes 171 ER17-2267 Electricity Yes Yes 318 ER17-2323 Electricity Yes Yes 353 ER17-2495 Electricity No No ER17-2536 Electricity No No ER17-2577 Electricity No No ER17-2579 Electricity No No D-6 Tolling Period (Days) Pending (as of Jan. 17, 2020) 150 773 87 USCA Case #17-1098 Document #1824750 Rehearing Requested Filed: 01/17/2020 Request Tolled Page 67 of 84 Tolling Period (Days) Docket No. Industry ER18-1 Electricity No No ER18-99 Electricity Yes Yes 28 ER18-136 Electricity Yes Yes 413 ER18-156 Electricity No No ER18-164 Electricity No No ER18-370 Electricity Yes Yes ER18-465 Electricity No No ER18-614 Electricity Yes Yes ER18-783 Electricity No No ER18-809 Electricity No No ER18-810 Electricity No No ER18-829 Electricity No No ER18-840 Electricity No No ER18-855 Electricity No No ER18-1122 Electricity No No ER18-1169 Electricity Yes Yes 213 ER18-1169 Electricity Yes Yes 213 ER18-1222 Electricity No No ER18-1225 Electricity Yes Yes 428 ER18-1259 Electricity Yes Yes 238 ER18-1360 Electricity No No ER18-1418 Electricity No No ER18-1596 Electricity No No ER18-1598 Electricity No No ER18-1632 Electricity No No ER18-1704 Electricity No No ER18-1730 Electricity Yes Yes ER18-1737 Electricity No No ER18-1788 Electricity No No ER18-1899 Electricity Yes Yes ER18-1952 Electricity No No ER18-1953 Electricity No No ER18-2273 Electricity No No ER18-2318 Electricity No No ER18-2324 Electricity No No ER18-2340 Electricity No No ER18-2362 Electricity No No ER18-2370 Electricity No No ER18-2377 Electricity No No ER18-2397 Electricity No No ER18-2401 Electricity No No ER18-2428 Electricity Yes Yes 101 ER19-34 Electricity Yes Yes 217 D-7 336 323 413 290 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 68 of 84 Docket No. Industry Rehearing Requested Request Tolled Tolling Period (Days) ER19-158 Electricity Yes Yes 134 ER19-166 Electricity No No ER19-169 Electricity No No ER19-266 Electricity No No ER19-283 Electricity Yes Yes ER19-308 Electricity No No ER19-355 Electricity No No ER19-360 Electricity No No ER19-366 Electricity Yes Yes ER19-460 Electricity No ER19-465 Electricity Yes ER19-467 Electricity No No No (filed within last 30 days) No ER19-468 Electricity No No ER19-469 Electricity No ER19-470 Electricity Yes No No (filed within last 30 days) ER19-538 Electricity Yes Yes ER19-550 Electricity No No ER19-585 Electricity No No ER19-654 Electricity No No ER19-697 Electricity No No ER19-875 Electricity No No ER19-945 Electricity Yes Yes ER19-1112 Electricity No No ER19-1357 Electricity No No ER19-1507 Electricity No No ER19-1661 Electricity Yes Yes ER19-1823 Electricity No No ER19-1864 Electricity No No ER19-1876 Electricity No No ER19-1900 Electricity No No ER19-1910 Electricity No No ER19-1920 Electricity No No ER19-1922 Electricity No No ER19-1924 Electricity No No ER19-1925 Electricity No No ER19-1926 Electricity No No ER19-1927 Electricity No No ER19-1948 Electricity No No ER19-1955 Electricity No No ER19-1957 Electricity No No ER19-1958 Electricity No No D-8 141 73 Pending (as of Jan. 17, 2020) 169 Pending (as of Jan. 17, 2020) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 69 of 84 Docket No. Industry Rehearing Requested Request Tolled ER19-1959 Electricity No No ER19-2023 Electricity No No ER19-2273 Electricity No No ER19-2422 Electricity No No ER19-2488 Electricity No No ER19-2681 Electricity Yes ER19-2846 Electricity Yes ER20-153 Electricity No Yes No (filed within last 30 days) No ER20-227 Electricity No No ES19-5 Electricity No No ES19-14 Electricity No No ES19-15 Electricity No No IS08-390-008 Oil Yes Yes 28 IS08-390-010 Oil Yes Yes 311 IS09-437 Oil Yes Yes 28 IS11-444 Oil No No IS17-498 Oil Yes Yes 86 IS18-228 Oil Yes Yes 201 NJ19-10 Electricity No No OR11-13 Oil No No OR14-4 Oil Yes Yes OR14-35 Oil No No OR15-6 Oil No No OR15-25 Oil No No OR16-26 Oil No No OR17-11 Oil No No OR18-2 Oil No No OR18-7 Oil Yes Yes OR18-8 Oil No No OR18-9 Oil No No OR18-15 Oil Yes Yes OR18-18 Oil No No OR19-26 Oil No No OR19-31 Oil No No P-5 Hydropower No No P-13 Hydropower Yes Yes 258 P-785 Hydropower Yes Yes 38 P-1889 Hydropower Yes Yes 102 P-2035 Hydropower Yes Yes 76 P-2079 Hydropower Yes Yes 153 P-2082-062 Hydropower Yes Yes 66 P-2082-065 Hydropower Yes Yes 38 D-9 Tolling Period (Days) 213 360 275 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 70 of 84 Docket No. Industry Rehearing Requested Request Tolled Tolling Period (Days) P-2107-021 Hydropower Yes Yes 93 P-2114-293 Hydropower Yes Yes 91 P-2114-296 Hydropower Yes Yes 66 P-2242 Hydropower Yes Yes 157 P-2290 Hydropower Yes Yes 111 P-2426 Hydropower Yes Yes 85 P-2485-074 Hydropower Yes Yes 101 P-2485-076 Hydropower No No P-2611 Hydropower Yes Yes 161 P-2744 Hydropower Yes Yes 143 P-2829 Hydropower No No P-2833 Hydropower Yes Yes P-2897 Hydropower No No P-4253 Hydropower No No P-6461 Hydropower Yes Yes 108 P-9709 Hydropower Yes Yes 87 P-10808-056 Hydropower Yes Yes 31 P-10808-062 Hydropower Yes Yes 104 P-10808-066 Hydropower Yes Yes 261 P-12514 Hydropower Yes Yes 182 P-12569-015 Hydropower Yes Yes 90 P-12569-018 Hydropower Yes Yes 101 P-12611 Hydropower Yes Yes 48 P-12715 Hydropower No No P-13123 Hydropower Yes Yes 108 P-13753 Hydropower Yes Yes 139 P-14329 Hydropower Yes Yes 70 P-14655 Hydropower No No P-14805 Hydropower Yes Yes 64 P-14856 Hydropower Yes Yes P-14858 Hydropower Yes Yes P-14896 Hydropower Yes Yes 100 Pending (as of Jan. 17, 2020) 90 P-14983 Hydropower No No PL10-2 General No No PL17-1 General No No PL18-1 General No No PL19-2 General No No PL19-3 General No No PL19-4 General No No PL20-1 General No No PR17-60 Natural Gas No No PR19-42 Natural Gas No No D-10 114 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 71 of 84 Docket No. Industry Rehearing Requested Request Tolled QF18-452 Electricity Yes Yes RD19-3 Electricity No No RM01-8 Rulemaking No No RM05-5 Rulemaking No No RM16-6 Rulemaking No No RM16-15 Rulemaking Yes Yes RM16-17 Rulemaking Yes Yes RM16-23 Rulemaking Yes Yes 514 Pending (as of Jan. 17, 2020) 28 RM16-23 Rulemaking Yes Yes 426 RM17-2 Rulemaking No No RM17-8-000 Rulemaking Yes Yes 144 RM17-8-001 Rulemaking Yes Yes 275 RM17-11 Rulemaking No No RM17-12 Rulemaking No No RM17-13 Rulemaking No No RM18-2 Rulemaking No No RM18-7 Rulemaking No No RM18-8 Rulemaking No No RM18-11-000 Rulemaking Yes Yes 31 RM18-11-001 Rulemaking Yes Yes 244 RM18-12 Rulemaking No No RM18-14 Rulemaking No No RM18-15 Rulemaking Yes Yes 115 RM18-15 Rulemaking Yes Yes 115 RM18-20 Rulemaking No No RM19-2 Rulemaking Yes Yes RM19-4 Rulemaking No RM19-5 Rulemaking Yes RM19-6 Rulemaking No No No (filed within last 30 days) No RM19-10 Rulemaking No No RM19-12 Rulemaking No No RM19-13 Rulemaking No No RM19-15 Rulemaking No No RM96-1 Rulemaking No No RP15-23 Natural Gas No No RP15-1022 Natural Gas No No RP16-618 Natural Gas No No RP16-1299 Natural Gas No No RP17-811-001 Natural Gas Yes Yes 232 RP17-811-003 Natural Gas Yes Yes 113 RP17-944 Natural Gas No No D-11 Tolling Period (Days) Pending (as of Jan. 17, 2020) Pending (as of Jan. 17, 2020) USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 72 of 84 Industry Rehearing Requested Request Tolled RP18-354 Natural Gas No No RP18-441 Natural Gas No No RP18-442 Natural Gas Yes Yes RP18-851 Natural Gas No No RP18-922 Natural Gas Yes Yes RP18-923 Natural Gas Yes Yes RP18-987 Natural Gas Yes Yes 306 Pending (as of Jan. 17, 2020) 241 RP18-1038 Natural Gas Yes Yes 199 RP18-1126 Natural Gas Yes Yes 265 RP18-1219 Natural Gas No No RP19-55 Natural Gas No No RP19-60 Natural Gas No No RP19-65 Natural Gas No No RP19-71 Natural Gas No No RP19-238 Natural Gas No No RP19-240 Natural Gas No No RP19-266 Natural Gas No No RP19-276 Natural Gas No No RP19-307 Natural Gas No No RP19-310 Natural Gas No No RP19-352 Natural Gas No No RP19-389 Natural Gas Yes Yes RP19-395 Natural Gas No No RP19-420 Natural Gas No No RP19-810 Natural Gas No No RP19-872 Natural Gas Yes Yes RP19-996 Natural Gas No No RP19-1371 Natural Gas No No RP19-1598 Natural Gas No No RP20-216 Natural Gas No No RR17-6 Electricity No No RR18-9 Electricity No No RR19-8 Electricity No No TX17-1 Electricity No No TX19-1 Electricity No No Docket No. D-12 Tolling Period (Days) Pending (as of Jan. 17, 2020) 123 153 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 73 of 84 Addendum USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 74 of 84 TABLE OF CONTENTS Statutes 16 U.S.C. § 823b................................................................................... ADD 1 16 U.S.C. § 824e .................................................................................. ADD 4 16 U.S.C. § 825l ................................................................................... ADD 7 Regulations 18 C.F.R. § 385.713 .............................................................................. ADD 9 ii § 823b. Enforcement, 16 USCA § 823b USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 75 of 84 United States Code Annotated Title 16. Conservation Chapter 12. Federal Regulation and Development of Power (Refs & Annos) Subchapter I. Regulation of the Development of Water Power and Resources (Refs & Annos) 16 U.S.C.A. § 823b § 823b. Enforcement Currentness (a) Monitoring and investigation The Commission shall monitor and investigate compliance with each license and permit issued under this subchapter and with each exemption granted from any requirement of this subchapter. The Commission shall conduct such investigations as may be necessary and proper in accordance with this chapter. After notice and opportunity for public hearing, the Commission may issue such orders as necessary to require compliance with the terms and conditions of licenses and permits issued under this subchapter and with the terms and conditions of exemptions granted from any requirement of this subchapter. (b) Revocation orders After notice and opportunity for an evidentiary hearing, the Commission may also issue an order revoking any license issued under this subchapter or any exemption granted from any requirement of this subchapter where any licensee or exemptee is found by the Commission: (1) to have knowingly violated a final order issued under subsection (a) after completion of judicial review (or the opportunity for judicial review); and (2) to have been given reasonable time to comply fully with such order prior to commencing any revocation proceeding. In any such proceeding, the order issued under subsection (a) shall be subject to de novo review by the Commission. No order shall be issued under this subsection until after the Commission has taken into consideration the nature and seriousness of the violation and the efforts of the licensee to remedy the violation. (c) Civil penalty Any licensee, permittee, or exemptee who violates or fails or refuses to comply with any rule or regulation under this subchapter, any term, or condition of a license, permit, or exemption under this subchapter, or any order issued under subsection (a) shall be subject to a civil penalty in an amount not to exceed $10,000 for each day that such violation or failure or refusal continues. Such penalty shall be assessed by the Commission after notice and opportunity for public hearing. In determining the amount of a proposed penalty, the Commission shall take into consideration the nature and seriousness of the violation, failure, or refusal and the efforts of the licensee to remedy the violation, failure, or refusal in a timely manner. No civil penalty shall be assessed where revocation is ordered. (d) Assessment © 2020 Thomson Reuters. No claim toADD original1U.S. Government Works. 1 § 823b. Enforcement, 16 USCA § 823b USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 76 of 84 (1) Before issuing an order assessing a civil penalty against any person under this section, the Commission shall provide to such person notice of the proposed penalty. Such notice shall, except in the case of a violation of a final order issued under subsection (a), inform such person of his opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of paragraph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment. (2)(A) In the case of the violation of a final order issued under subsection (a), or unless an election is made within 30 calendar days after receipt of notice under paragraph (1) to have paragraph (3) apply with respect to such penalty, the Commission shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of Title 5 before an administrative law judge appointed under section 3105 of such Title 5. Such assessment order shall include the administrative law judge's findings and the basis for such assessment. (B) Any person against whom a penalty is assessed under this paragraph may, within 60 calendar days after the date of the order of the Commission assessing such penalty, institute an action in the United States court of appeals for the appropriate judicial circuit for judicial review of such order in accordance with chapter 7 of Title 5. The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in Part 1 , the order of the Commission, or the court may remand the proceeding to the Commission for such further action as the court may direct. (3)(A) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Commission shall promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (1) of the proposed penalty. (B) If the civil penalty has not been paid within 60 calendar days after the assessment order has been made under subparagraph (A), the Commission shall institute an action in the appropriate district court of the United States for an order affirming the assessment of the civil penalty. The court shall have authority to review de novo the law and the facts involved, and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in Part 1 , such assessment. (C) Any election to have this paragraph apply may not be revoked except with the consent of the Commission. (4) The Commission may compromise, modify, or remit, with or without conditions, any civil penalty which may be imposed under this subsection, taking into consideration the nature and seriousness of the violation and the efforts of the licensee to remedy the violation in a timely manner at any time prior to a final decision by the court of appeals under paragraph (2) or by the district court under paragraph (3). (5) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (2), or after the appropriate district court has entered final judgment in favor of the Commission under paragraph (3), the Commission shall institute an action to recover the amount of such penalty in any appropriate district court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review. (6)(A) Notwithstanding the provisions of Title 28 or of this chapter, the Commission may be represented by the general counsel of the Commission (or any attorney or attorneys within the Commission designated by the Chairman) who shall supervise, conduct, and argue any civil litigation to which paragraph (3) of this subsection applies (including any related collection action under paragraph (5)) in a court of the United States or in any other court, except the Supreme Court. However, the Commission or © 2020 Thomson Reuters. No claim toADD original2U.S. Government Works. 2 § 823b. Enforcement, 16 USCA § 823b USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 77 of 84 the general counsel shall consult with the Attorney General concerning such litigation, and the Attorney General shall provide, on request, such assistance in the conduct of such litigation as may be appropriate. (B) The Commission shall be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this subsection, except to the extent provided in subparagraph (A) of this paragraph. CREDIT(S) (June 10, 1920, c. 285, § 31, as added Pub.L. 99-495, § 12, Oct. 16, 1986, 100 Stat. 1255.) Notes of Decisions (26) Footnotes So in original. Probably should not be capitalized. 1 16 U.S.C.A. § 823b, 16 USCA § 823b Current through P.L. 116-91. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim toADD original3U.S. Government Works. 3 § 824e. Power of Commission to fix rates and charges;..., 16 USCA § 824e USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 78 of 84 United States Code Annotated Title 16. Conservation Chapter 12. Federal Regulation and Development of Power (Refs & Annos) Subchapter II. Regulation of Electric Utility Companies Engaged in Interstate Commerce 16 U.S.C.A. § 824e § 824e. Power of Commission to fix rates and charges; determination of cost of production or transmission Effective: August 8, 2005 Currentness (a) Unjust or preferential rates, etc.; statement of reasons for changes; hearing; specification of issues Whenever the Commission, after a hearing held upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order. Any complaint or motion of the Commission to initiate a proceeding under this section shall state the change or changes to be made in the rate, charge, classification, rule, regulation, practice, or contract then in force, and the reasons for any proposed change or changes therein. If, after review of any motion or complaint and answer, the Commission shall decide to hold a hearing, it shall fix by order the time and place of such hearing and shall specify the issues to be adjudicated. (b) Refund effective date; preferential proceedings; statement of reasons for delay; burden of proof; scope of refund order; refund orders in cases of dilatory behavior; interest Whenever the Commission institutes a proceeding under this section, the Commission shall establish a refund effective date. In the case of a proceeding instituted on complaint, the refund effective date shall not be earlier than the date of the filing of such complaint nor later than 5 months after the filing of such complaint. In the case of a proceeding instituted by the Commission on its own motion, the refund effective date shall not be earlier than the date of the publication by the Commission of notice of its intention to initiate such proceeding nor later than 5 months after the publication date. Upon institution of a proceeding under this section, the Commission shall give to the decision of such proceeding the same preference as provided under section 824d of this title and otherwise act as speedily as possible. If no final decision is rendered by the conclusion of the 180-day period commencing upon initiation of a proceeding pursuant to this section, the Commission shall state the reasons why it has failed to do so and shall state its best estimate as to when it reasonably expects to make such decision. In any proceeding under this section, the burden of proof to show that any rate, charge, classification, rule, regulation, practice, or contract is unjust, unreasonable, unduly discriminatory, or preferential shall be upon the Commission or the complainant. At the conclusion of any proceeding under this section, the Commission may order refunds of any amounts paid, for the period subsequent to the refund effective date through a date fifteen months after such refund effective date, in excess of those which would have been paid under the just and reasonable rate, charge, classification, rule, regulation, practice, or contract which the Commission orders to be thereafter observed and in force: Provided, That if the proceeding is not concluded within fifteen months after the refund effective date and if the Commission determines at the conclusion of the proceeding that the proceeding was not resolved within the fifteen-month period primarily because of dilatory behavior by the public utility, the Commission may order refunds of any or all amounts paid for the period subsequent to the refund effective date and prior to the conclusion of the proceeding. The refunds shall be made, with interest, to those persons who have paid those rates or charges which are the subject of the proceeding. © 2020 Thomson Reuters. No claim toADD original4U.S. Government Works. 1 § 824e. Power of Commission to fix rates and charges;..., 16 USCA § 824e USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 79 of 84 (c) Refund considerations; shifting costs; reduction in revenues; “electric utility companies” and “registered holding company” defined Notwithstanding subsection (b), in a proceeding commenced under this section involving two or more electric utility companies of a registered holding company, refunds which might otherwise be payable under subsection (b) shall not be ordered to the extent that such refunds would result from any portion of a Commission order that (1) requires a decrease in system production or transmission costs to be paid by one or more of such electric companies; and (2) is based upon a determination that the amount of such decrease should be paid through an increase in the costs to be paid by other electric utility companies of such registered holding company: Provided, That refunds, in whole or in part, may be ordered by the Commission if it determines that the registered holding company would not experience any reduction in revenues which results from an inability of an electric utility company of the holding company to recover such increase in costs for the period between the refund effective date and the effective date of the Commission's order. For purposes of this subsection, the terms “electric utility companies” and “registered holding company” shall have the same meanings as provided in the Public Utility Holding Company Act of 1935, as amended. (d) Investigation of costs The Commission upon its own motion, or upon the request of any State commission whenever it can do so without prejudice to the efficient and proper conduct of its affairs, may investigate and determine the cost of the production or transmission of electric energy by means of facilities under the jurisdiction of the Commission in cases where the Commission has no authority to establish a rate governing the sale of such energy. (e) Short-term sales (1) In this subsection: (A) The term “short-term sale” means an agreement for the sale of electric energy at wholesale in interstate commerce that is for a period of 31 days or less (excluding monthly contracts subject to automatic renewal). (B) The term “applicable Commission rule” means a Commission rule applicable to sales at wholesale by public utilities that the Commission determines after notice and comment should also be applicable to entities subject to this subsection. (2) If an entity described in section 824(f) of this title voluntarily makes a short-term sale of electric energy through an organized market in which the rates for the sale are established by Commission-approved tariff (rather than by contract) and the sale violates the terms of the tariff or applicable Commission rules in effect at the time of the sale, the entity shall be subject to the refund authority of the Commission under this section with respect to the violation. (3) This section shall not apply to-(A) any entity that sells in total (including affiliates of the entity) less than 8,000,000 megawatt hours of electricity per year; or (B) an electric cooperative. © 2020 Thomson Reuters. No claim toADD original5U.S. Government Works. 2 § 824e. Power of Commission to fix rates and charges;..., 16 USCA § 824e USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 80 of 84 (4)(A) The Commission shall have refund authority under paragraph (2) with respect to a voluntary short term sale of electric energy by the Bonneville Power Administration only if the sale is at an unjust and unreasonable rate. (B) The Commission may order a refund under subparagraph (A) only for short-term sales made by the Bonneville Power Administration at rates that are higher than the highest just and reasonable rate charged by any other entity for a short-term sale of electric energy in the same geographic market for the same, or most nearly comparable, period as the sale by the Bonneville Power Administration. (C) In the case of any Federal power marketing agency or the Tennessee Valley Authority, the Commission shall not assert or exercise any regulatory authority or power under paragraph (2) other than the ordering of refunds to achieve a just and reasonable rate. CREDIT(S) (June 10, 1920, c. 285, pt. II, § 206, as added Aug. 26, 1935, c. 687, Title II, § 213, 49 Stat. 852; amended Pub.L. 100-473, § 2, Oct. 6, 1988, 102 Stat. 2299; Pub.L. 109-58, Title XII, §§ 1285, 1286, 1295(b), Aug. 8, 2005, 119 Stat. 980, 981, 985.) Notes of Decisions (177) 16 U.S.C.A. § 824e, 16 USCA § 824e Current through P.L. 116-91. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim toADD original6U.S. Government Works. 3 § 825l. Review of orders, 16 USCA § 825l USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 81 of 84 United States Code Annotated Title 16. Conservation Chapter 12. Federal Regulation and Development of Power (Refs & Annos) Subchapter III. Licensees and Public Utilities; Procedural and Administrative Provisions 16 U.S.C.A. § 825l § 825l. Review of orders Effective: August 8, 2005 Currentness (a)Application for rehearing; time periods; modification of order Any person, electric utility, State, municipality, or State commission aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person, electric utility, State, municipality, or State commission is a party may apply for a rehearing within thirty days after the issuance of such order. The application for rehearing shall set forth specifically the ground or grounds upon which such application is based. Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. 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. No proceeding to review any order of the Commission shall be brought by any entity unless such entity shall have made application to the Commission for a rehearing thereon. Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection (b), the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter. (b)Judicial review Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall forthwith be transmitted by the clerk of the court to any member of the Commission and thereupon the Commission shall file with the court the record upon which the order complained of was entered, as provided in section 2112 of Title 28. Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts by reason of the additional evidence so taken, and it shall file with the court such modified or new findings which, if supported by substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of the original order. The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28. © 2020 Thomson Reuters. No claim toADD original7U.S. Government Works. 1 § 825l. Review of orders, 16 USCA § 825l USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 82 of 84 (c)Stay of Commission's order The filing of an application for rehearing under subsection (a) shall not, unless specifically ordered by the Commission, operate as a stay of the Commission's order. The commencement of proceedings under subsection (b) of this section shall not, unless specifically ordered by the court, operate as a stay of the Commission's order. CREDIT(S) (June 10, 1920, c. 285, Pt. III, § 313, as added Aug. 26, 1935, c. 687, Title II, § 213, 49 Stat. 860; amended June 25, 1948, c. 646, § 32(a), 62 Stat. 991; May 24, 1949, c. 139, § 127, 63 Stat. 107; Pub.L. 85-791, § 16, Aug. 28, 1958, 72 Stat. 947; Pub.L. 109-58, Title XII, § 1284(c), Aug. 8, 2005, 119 Stat. 980.) Notes of Decisions (449) 16 U.S.C.A. § 825l, 16 USCA § 825l Current through P.L. 116-91. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim toADD original8U.S. Government Works. 2 § 385.713 Request for rehearing (Rule 713)., 18 C.F.R. § 385.713 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 83 of 84 Code of Federal Regulations Title 18. Conservation of Power and Water Resources Chapter I. Federal Energy Regulatory Commission, Department of Energy Subchapter X. Procedural Rules Part 385. Rules of Practice and Procedure (Refs & Annos) Subpart G. Decisions 18 C.F.R. § 385.713 § 385.713 Request for rehearing (Rule 713). Effective: March 23, 2006 Currentness (a) Applicability. (1) This section applies to any request for rehearing of a final Commission decision or other final order, if rehearing is provided for by statute, rule, or order. (2) For the purposes of rehearing under this section, a final decision in any proceeding set for hearing under subpart E of this part includes any Commission decision: (i) On exceptions taken by participants to an initial decision; (ii) When the Commission presides at the reception of the evidence; (iii) If the initial decision procedure has been waived by consent of the participants in accordance with Rule 710; (iv) On review of an initial decision without exceptions under Rule 712; and (v) On any other action designated as a final decision by the Commission for purposes of rehearing. (3) For the purposes of rehearing under this section, any initial decision under Rule 709 is a final Commission decision after the time provided for Commission review under Rule 712, if there are no exceptions filed to the decision and no review of the decision is initiated under Rule 712. (b) Time for filing; who may file. A request for rehearing by a party must be filed not later than 30 days after issuance of any final decision or other final order in a proceeding. (c) Content of request. Any request for rehearing must: (1) State concisely the alleged error in the final decision or final order; © 2020 Thomson Reuters. No claim toADD original9U.S. Government Works. 1 § 385.713 Request for rehearing (Rule 713)., 18 C.F.R. § 385.713 USCA Case #17-1098 Document #1824750 Filed: 01/17/2020 Page 84 of 84 (2) Conform to the requirements in Rule 203(a), which are applicable to pleadings, and, in addition, include a separate section entitled “Statement of Issues,” listing each issue in a separately enumerated paragraph that includes representative Commission and court precedent on which the party is relying; any issue not so listed will be deemed waived; and (3) Set forth the matters relied upon by the party requesting rehearing, if rehearing is sought based on matters not available for consideration by the Commission at the time of the final decision or final order. (d) Answers. (1) The Commission will not permit answers to requests for rehearing. (2) The Commission may afford parties an opportunity to file briefs or present oral argument on one or more issues presented by a request for rehearing. (e) Request is not a stay. Unless otherwise ordered by the Commission, the filing of a request for rehearing does not stay the Commission decision or order. (f) Commission action on rehearing. Unless the Commission acts upon a request for rehearing within 30 days after the request is filed, the request is denied. Credits [49 FR 21316, May 21, 1984; 60 FR 4860, Jan. 25, 1995; 60 FR 16567, March 31, 1995; Order 663, 70 FR 55725, Sept. 23, 2005; 71 FR 14642, March 23, 2006] AUTHORITY: 5 U.S.C. 551–557; 15 U.S.C. 717–717z, 3301–3432; 16 U.S.C. 791a–825r, 2601–2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42 U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85. Notes of Decisions (90) Current through January 9, 2020; 85 FR 1128. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim toADD original10 U.S. Government Works. 2