Removal of Regulations Limiting Authorizations To Proceed With Construction Activities Pending Rehearing

DEPARTMENT OF ENERGY <SUBAGY>Federal Energy Regulatory Commission</SUBAGY> <CFR>18 CFR Parts 153 and 157</CFR> <DEPDOC>[Docket No. RM25-9-000]</DEPDOC> <SUBJECT>Removal of Regulations Limiting Authorizations To Proceed With Construction Activities Pending Rehearing</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Energy Regulatory Commission, DOE. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Federal Energy Regulatory Commission (Commission) proposes to remove from its regulations a rule that precludes the issuance of authorizations to proceed with construction activities with respect to natural gas facilities approved pursuant to section 3 or section 7 of the Natural Gas Act for a limited time while certain requests for rehearing are pending before the Commission. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments are due July 24, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Comments, identified by docket number, may be filed in the following ways. Electronic filing through <E T="03">http://www.ferc.gov,</E> is preferred. • <E T="03">Electronic Filing:</E> Documents must be filed in acceptable native applications and print-to-PDF, but not in scanned or picture format. • For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery. ○ <E T="03">Mail via U.S. Postal Service Only:</E> Addressed to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. ○ <E T="03">Hand (including courier) delivery:</E> Deliver to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852. The Comment Procedures section of this document contains more detailed filing procedures. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT: </HD> Indigo Brown, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8505, <E T="03">indigo.brown@ferc.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 1. Section 157.23 of the Federal Energy Regulatory Commission's (Commission) regulations provides that with respect to orders issued pursuant to 15 U.S.C. 717b or 15 U.S.C. 717f(c) authorizing the construction of new natural gas transportation, export, or import facilities, no authorization to proceed with construction activities will be issued during the periods specified therein. The Commission proposes to remove § 157.23 and modify § 153.4 to remove the reference to § 157.23, in response to the imperative to remove impediments to the construction of needed energy infrastructure identified in the Interstate Natural Gas Association of America's (INGAA) petition for rulemaking and elsewhere. <SU>1</SU> <FTREF/> This action would advance the Commission's principal statutory mission under the Natural Gas Act “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”  <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See, e.g.,</E> FERC, <E T="03">Federal-State Current Issues Collaborative</E> (Apr. 28 2025), <E T="03">https://www.ferc.gov/federal-state-current-issues-collaborative</E> (noting that constrained natural gas pipeline capacity and storage availability is increasing impacts on domestic manufacturing where manufacturing is facing a growing crisis due to inadequate natural gas pipeline capacity); FERC, <E T="03">January 2025 Arctic Events: A System Performance Review,</E> 18-19 (2025), <E T="03">https://www.ferc.gov/media/report-january-2025-arctic-events-system-performance-review-ferc-nerc-and-its-regional</E> (accessed May 16, 2025) (supporting that new natural gas infrastructure is needed in the immediate term to help address pressing nationwide reliability and resource adequacy concerns); Secretary Burgum April 30, 2025 Letter Endorsing Petition for Rulemaking to Rescind Order No. 871; Exec. Order No. 14,154, 90 FR 8353 (Jan. 20, 2025); Exec. Order No. 14,156, 90 FR 8433 (Jan. 20, 2025); Exec. Order No. 14,213, 90 FR 9945 (Feb. 14, 2025). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See Citizens Action Coal. of Ind., Inc.</E> v. <E T="03">FERC,</E> 125 F.4th 229, 244 (D.C. Cir. 2025) (quoting <E T="03">NAACP</E> v. <E T="03">FPC,</E> 425 U.S. 662, 669-70 (1976)). </FTNT> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Order No. 871</HD> 2. On June 9, 2020, the Commission in Order No. 871  <SU>3</SU> <FTREF/> issued a final rule amending its regulations to add 18 CFR 157.23, precluding the issuance of authorizations to proceed with construction of projects authorized under sections 3 and 7 of the Natural Gas Act (NGA) during the period for filing requests for rehearing of initial orders, or while rehearing is pending. <SU>4</SU> <FTREF/> Order No. 871 also revised § 153.4 of the Commission's regulations, which sets forth general requirements for NGA section 3 applications, to incorporate a cross-reference to § 157.23. The Commission issued Order No. 871 to address concerns raised in the then-pending appeal <E T="03">Allegheny Defense Project</E> v. <E T="03">FERC</E>   <SU>5</SU> <FTREF/> before the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). <FTNT> <SU>3</SU>   <E T="03">Limiting Authorizations to Proceed with Construction Activities Pending Rehearing,</E> Order No. 871, 85 FR 40113 (July 6, 2020), 171 FERC ¶ 61,201 (2020), <E T="03">order on reh'g,</E> Order No. 871-A, 86 FR 7643 (Feb. 1, 2021), 174 FERC ¶ 61,050, <E T="03">order on reh'g,</E> Order No. 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ¶ 61,098, <E T="03">order on reh'g,</E> Order No. 871-C, 176 FERC ¶ 61,062 (2021). </FTNT> <FTNT> <SU>4</SU>  Under NGA section 3(e), the Commission is authorized to grant or deny applications to site, construct, expand, or operate liquefied natural gas (LNG) terminals. Under NGA section 7(c), the Commission is authorized to issue certificates of public convenience and necessity for the construction of interstate natural gas transportation facilities. </FTNT> <FTNT> <SU>5</SU>  932 F.3d 940 (D.C. Cir. 2019), <E T="03">on reh'g en banc,</E> 964 F.3d 1 (D.C. Cir. 2020) ( <E T="03">Allegheny</E> ). </FTNT> 3. Following the issuance of <E T="03">Allegheny,</E> in response to requests for clarification and rehearing of Order No. 871, the Commission in Order No. 871-A provided interested parties an opportunity to file initial and reply briefs on the arguments raised on rehearing and specific questions posed by the Commission. <SU>6</SU> <FTREF/> <FTNT> <SU>6</SU>  Order No. 871-A, 174 FERC ¶ 61,050. </FTNT> 4. After review of the briefs filed, the Commission in Order No. 871-B revised § 157.23 to provide that the rule prohibiting the issuance of construction authorizations pending rehearing would apply only when a request for rehearing raised issues reflecting opposition to project construction, operation, or need. <SU>7</SU> <FTREF/> Order No. 871-B also revised § 157.23 to provide that the rule's restriction on issuing construction authorizations would expire if no qualifying request for rehearing was filed or, if such a request was filed, when (1) the request was no longer pending ( <E T="03">i.e.,</E> it had been withdrawn or the Commission had acted on it), (2) the record of the proceeding was filed with the court of appeals, or (3) 90 days had passed from the date that the request might be deemed denied by operation of law under NGA section 19(a). <SU>8</SU> <FTREF/> Finally, Order No. 871-B also adopted a policy of presumptively staying, on a case-by-case basis where a pipeline developer has not already acquired all necessary property interests and where a landowner who would be subject to eminent domain proceedings protested, <SU>9</SU> <FTREF/> an NGA section 7(c) certificate order during the 30-day period for seeking rehearing, and pending Commission resolution of any timely requests for rehearing filed by a landowner, until the earlier of the date on which the Commission (1) issues a substantive order on rehearing or otherwise indicates that the Commission will not take further action, or (2) 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19(a). <SU>10</SU> <FTREF/> <FTNT> <SU>7</SU>  Order No. 871-B, 175 FERC ¶ 61,098 at PP 14, 30. </FTNT> <FTNT> <SU>8</SU>   <E T="03">Id.</E> PP 26, 30. </FTNT> <FTNT> <SU>9</SU>  Order No. 871-C, 176 FERC ¶ 61,062 at P 41 (clarifying that the stay policy applies to landowners subject to eminent domain). </FTNT> <FTNT> <SU>10</SU>  Order No. 871-B, 175 FERC ¶ 61,098 at PP 43-51 (noting at P 51 that the new policy is only presumptive and that the question of whether to impose a stay will be decided on the circumstances presented in each particular certificate proceeding.). </FTNT> 5. In Order No. 871-C, the Commission addressed requests for rehearing and clarification of Order No. 871-B. <SU>11</SU> <FTREF/> The Commission modified the discussion but did not change the outcome of Order No. 871-B. <SU>12</SU> <FTREF/> <FTNT> <SU>11</SU>  Order No. 871-C, 176 FERC ¶ 61,062. </FTNT> <FTNT> <SU>12</SU>  INGAA and others filed and later withdrew petitions for review of the Order No. 871 rulemaking. </FTNT> 6. On January 20, 2025, the President issued Executive Order 14154, to eliminate delays in and streamline the permitting process for energy infrastructure projects, and noting that it is “in the national interest to unleash America's affordable and reliable energy and natural resources.”  <SU>13</SU> <FTREF/> On the same date, the President issued Executive Order 14156, which declare ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 43k characters. 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