Allegheny Defense Project v. FERC ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 27, 2020 Decided June 30, 2020
No. 17-1098
ALLEGHENY DEFENSE PROJECT, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ANADARKO ENERGY SERVICES COMPANY, ET AL.,
INTERVENORS
Consolidated with 17-1128, 17-1263, 18-1030
On Petition for Rehearing En Banc
Siobhan K. Cole argued the cause for petitioners. With her
on the joint briefs were Natalie B. Molz, Elizabeth F. Benson,
and Benjamin A. Luckett. Michael N. Onufrak and Derek O.
Teaney entered appearances.
Mark Sabath, Emily C. Wyche, Ariel Solaski, Jon A.
Mueller, Aaron Stemplewicz, John N. Moore, and Gillian R.
Giannetti were on the brief for amici curiae Alliance for the
Shenandoah Valley, et al., in support of petitioners.
2
Megan C. Gibson and David Bookbinder were on the brief
for amici curiae Affected Landowners in support of petitioners.
Brian E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, John B. Howard, Jr.,
Special Assistant Attorney General, Kathleen Jennings,
Attorney General, Office of the Attorney General for the State
of Delaware, Kwame Raoul, Attorney General, Office of the
Attorney General for the State of Illinois, Maura Healey,
Attorney General, Office of the Attorney General for the
Commonwealth of Massachusetts, Dana Nessel, Attorney
General, Office of the Attorney General for the State of
Michigan, Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Letitia James,
Attorney General, Office of the Attorney General for the State
of New York, Robert W. Ferguson, Attorney General, Office
of the Attorney General for the State of Washington, Gurbir S.
Grewal, Attorney General, Office of the Attorney General for
the State of New Jersey, Ellen F. Rosenblum, Attorney
General, Office of the Attorney General for the State of
Oregon, Josh Shapiro, Attorney General, Office of the
Attorney General for the Commonwealth of Pennsylvania, and
Karl A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, were on the brief for
amici curiae the State of Maryland, et al., in support of
petitioners.
Robert M. Kennedy, Senior Attorney, Federal Energy
Regulatory Commission, argued the cause for respondent.
With him on the brief were James P. Danly, General Counsel
at the time the brief was filed, and Robert H. Solomon,
Solicitor. Beth G. Pacella, Deputy Solicitor, and Anand R.
Viswanathan, Attorney, entered appearances.
3
John F. Stoviak argued the cause for intervenors. With
him on the joint brief were Elizabeth U. Witmer, Patrick F.
Nugent, Kevin M. Sweeney, Scott Borden Grover, and Jesse
Stuart Unkenholz. Pamela S. Goodwin entered an appearance.
Jeremy C. Marwell and Matthew X. Etchemendy were on
the brief for amicus curiae Interstate Natural Gas Association
of America in support of respondent.
Catherine E. Stetson, Stefan M. Krantz, A. Gregory Junge,
and Sean Marotta were on the brief for amicus curiae TC
Energy Corporation in support of respondent.
Megan E. Vetula, Brett K. White, Scott A. Keller, and
Marcia Hook were on the brief for amicus curiae the Edison
Electric Institute in support of respondent.
Before: SRINIVASAN, Chief Judge, and HENDERSON,
ROGERS, TATEL, GARLAND, GRIFFITH, MILLETT, PILLARD,
WILKINS, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Concurring opinion filed by Circuit Judge GRIFFITH.
Opinion concurring in the judgment and dissenting in part
filed by Circuit Judge HENDERSON.
MILLETT, Circuit Judge: Before a party aggrieved by an
order of the Federal Energy Regulatory Commission can obtain
judicial review, that party must file an application for rehearing
with the Commission. Congress directed that, if the
Commission fails to act on that rehearing application within
thirty days, the application may be deemed denied, allowing
the aggrieved party to proceed to federal court.
4
The question in this case is whether the Commission can
eliminate that statutorily prescribed consequence of its
inaction—and, in doing so, stave off judicial review—by
issuing a tolling order that takes no action on the application
other than buying the Commission more time. We hold that,
under the plain statutory language and context, such tolling
orders are not the kind of action on a rehearing application that
can fend off a deemed denial and the opportunity for judicial
review. We therefore deny the Commission’s and Intervenor’s
motions to dismiss the petitions filed after thirty days of
Commission inaction. On the merits, we deny the petitions for
review.
I
A
The Natural Gas Act, 15 U.S.C. §§ 717 et seq., requires a
company seeking to build or operate a natural gas pipeline for
use in interstate commerce to obtain a certificate of “public
convenience and necessity” from the Federal Energy
Regulatory Commission authorizing the pipeline’s
construction and operation. Id. § 717f(c); see Myersville
Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301,
1307 (D.C. Cir. 2015). The Commission “shall * * * issue[]”
the certificate if it finds that the proposed project “is or will be
required by the present or future public convenience and
necessity.” 15 U.S.C. § 717f(e).
Once the Commission issues such a certificate, the Natural
Gas Act authorizes the private party holding the certificate to
exercise the governmental power of eminent domain and take
“the necessary right-of-way to construct, operate and maintain”
the pipeline, unless the property owner agrees to its use. 15
U.S.C. § 717f(h).
5
A party, including an affected homeowner, who seeks to
challenge the Commission’s certificate order (or any other
order) must first seek rehearing before the Commission as a
precondition to obtaining judicial review. 15 U.S.C. § 717r(a)–
(b). The proper interpretation of Section 717r(a) is at the heart
of this case. Because it is quite a mouthful, we set out the
relevant statutory text before discussing it in more manageable
pieces:
Any person * * * aggrieved by an order issued by the
Commission in a proceeding under this chapter to
which such person * * * is a party may apply for a
rehearing within thirty days after the issuance of such
order. * * * 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 person unless such person
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) of this section, 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.
Id. § 717r(a).
As relevant to this case, here is what Section 717r(a)
provides.
6
First, as noted, parties wishing to challenge a Commission
decision cannot proceed directly to judicial review. Instead,
they must first seek rehearing before the Commission. 15
U.S.C. § 717r(a) (“No proceeding to review any order of the
Commission shall be brought by any person unless such person
shall have made application to the Commission for a rehearing
thereon.”).
Second, Congress identified four ways in which the
Commission can act upon the application for rehearing. “Upon
such application the Commission shall have power to [i] grant
or [ii] deny rehearing or to [iii] abrogate or [iv] modify its order
without further hearing.” 15 U.S.C. § 717r(a).
Third, if the Commission fails to take any of those actions
“within thirty days after it is filed,” the “application may be
deemed to have been denied.” 15 U.S.C. § 717r(a).
Fourth, even after federal court jurisdiction attaches and a
petition is filed, the Commission retains the power to “modify
or set aside” its findings and orders “[u]ntil the record in a
proceeding [is] filed in a court of appeals.” 15 U.S.C.
§ 717r(a); see also Clifton Power Corp. v. FERC, 294 F.3d 108,
111 (D.C. Cir. 2002) (explaining that identical language in the
Federal Power Act, 16 U.S.C. § 825l(a), added by the same
statute “allow[s] [the Commission] to exercise concurrent
jurisdiction” with the court for that initial period of time). That
provision typically affords the Commission at least an
additional forty days after service of a petition for review
within which to reconsider its prior order. See FED. R. APP.
P. 17(a) (requiring an agency to “file the record with the circuit
clerk within forty days after being served with a petition for
review”). And the Commission can obtain even more time to
act if the court of appeals grants a motion for an extension of
7
time to file the record. Id. (authorizing the court to “shorten or
extend the time to file the record”).
Finally, Section 717r(b) authorizes judicial review in this
court or in the appropriate regional circuit to “[a]ny party to a
proceeding under [the Natural Gas Act] aggrieved by an order
issued by the Commission in such proceeding,” 15 U.S.C.
§ 717r(b), as long as the party “made application to the
Commission for a rehearing,” id. § 717r(a). The party must
then file a petition for review “within sixty days after the order
of the Commission upon the application for rehearing[.]” Id.
§ 717r(b).
B
1
In 2015, the Transcontinental Gas Pipe Line Co.
(“Transco”) applied to the Commission for a certificate of
public convenience and necessity for its Atlantic Sunrise
Project, a central aspect of which was the construction of nearly
200 miles of new pipeline in Pennsylvania. The Homeowner
Petitioners—the Erb and Hoffman families—found their
“much beloved home properties” in southeastern Pennsylvania
in the path of the pipeline. J.A. 286.
In opposing the grant of a certificate, the Erbs told the
Commission that their farm had been placed in the Lancaster
Farmland Trust so as to preserve it as farmland, and that they
wished to keep its “natural habitat and historical artifacts * * *
undisturbed for a long, long time.” J.A. 28; see also J.A. 75
(Erbs’ comment that they “thought [their] farm would be
preserved forever” given its placement in the Trust). The Erbs
wrote that they “love living [t]here and enjoy[ing] all the
pristine beauty [their] property has to offer.” J.A. 78. They
argued that the pipeline “would completely ruin the
8
woodlands” and damage the wetlands on their property, which
together are home to “[w]hitetail deer, turkey, geese, ducks,
owls, blue heron, red foxes, Pileated woodpeckers, eagles[,]”
and “various types of turtles[.]” J.A. 29. And the pipeline
would cut directly through the part of the property where one
of the Erbs’ sons had planned to build a home. J.A. 28.
Similarly, the Hoffmans explained that they valued the
“beauty and privacy” of their Millersville, Pennsylvania
property, where their home lies among “wooded areas,”
“agricultural fields,” and several springs that “form * * * the
headwaters of a stream [that] flows through a wetland area[.]”
Motion to Intervene of Stephen and Dorothea Hoffman at 1–2,
Transcontinental Gas Pipe Line Co., No. CP15-138-000
(FERC April 29, 2015). They objected that the pipeline’s
proposed route would mean cutting down trees and creating
“large piles of bare earth exposed to the elements on a steeply-
sloped hillside[,]” endangering the “stream bed and wetland
area” below. Id. at 3. They also warned the Commission that
their property was home to a site listed on the National Register
of Historic Places, and that they were concerned that the
pipeline would “plow through other sites [on their property]
deserving of protection” that had not yet been identified.
J.A. 71.
The Environmental Association Petitioners opposed the
Project as well. Some of their members live along the
pipeline’s route and are concerned that the pipeline could
contaminate their water sources. The Environmental
Associations argued that the Project would also pollute the air
in their members’ communities, damage “streams, wetland
systems, and forests” that their members frequently use, and
contribute to climate change by spurring gas drilling projects.
In addition, the Environmental Associations questioned the
public need for the Project, pointing to indications that the
9
Project was designed primarily to transport gas to export
terminals for private profit, rather than to meet domestic need.
2
The Commission granted Transco a certificate of public
convenience and necessity for the Project on February 3, 2017.
Transcontinental Gas Pipe Line Co., 158 FERC ¶ 61,125
(2017) (“Certificate Order”). Less than two weeks later,
Transco initiated condemnation proceedings against the
Homeowners in the United States District Court for the Eastern
District of Pennsylvania.
The Homeowners and Environmental Associations both
filed applications for rehearing before the Commission and, as
part of those applications, moved to stay the Certificate Order
pending the Commission’s rehearing decision. The
Environmental Associations’ applications were filed on
February 10 and 24, 2017; the Homeowners’ application was
filed on March 6, 2017.
In their application, the Homeowners argued that a stay
was necessary to prevent irreparable harm to “the character and
aesthetics” of their “home properties.” J.A. 286. In particular,
they argued that building the pipeline would involve “removing
topsoil, trees, shrubs, brush, roots, and large rocks, and then
removing or blasting additional soil and bedrock to create a
trench for the pipeline[,]” all while “contribut[ing] significantly
to air pollution[.]” J.A. 286. The Environmental Associations
explained that the construction would cause permanent
environmental, recreational, and aesthetic harms across
1200 acres.
On March 13, 2017—the first business day after the thirty-
day statutory time period for the Commission to act on the first
rehearing application, see 18 C.F.R. § 385.2007(a)(2)—the
10
Commission issued what is known as a “tolling order” that
applied to all three rehearing applications. That order “granted
[rehearing] for the limited purpose of further consideration” for
an open-ended period of time. J.A. 305 (“Tolling Order”). The
Tolling Order added that, by virtue of its issuance, the timely
filed rehearing applications “will not be deemed denied by
operation of law.” J.A. 305. The order read in full:
Rehearings have been timely requested of the
Commission order issued on February 3, 2017, in this
proceeding. In the absence of Commission action
within 30 days from the date the rehearing requests
were filed, the request for rehearing (and any timely
requests for rehearing filed subsequently) would be
deemed denied. 18 C.F.R. § 385.713 (2016).
In order to afford additional time for consideration of
the matters raised or to be raised, rehearing of the
Commission’s order is hereby granted for the limited
purpose of further consideration, and timely-filed
rehearing requests will not be deemed denied by
operation of law. Rehearing requests of the above-
cited order filed in this proceeding will be addressed
in a future order. As provided in 18 C.F.R.
§ 385.713(d), no answers to the rehearing requests
will be entertained.
J.A. 305 (citation and footnote omitted).
The Tolling Order was issued by the Commission’s
Secretary. The Commission has delegated authority to the
Secretary to “[t]oll the time for action on requests for
rehearing,” 18 C.F.R. § 375.302(v), but has not delegated any
further “authority to act on requests for rehearing,” Order
Delegating Further Authority to Staff in Absence of Quorum,
11
82 Fed. Reg. 10,568, 10,568 n.10 (Feb. 14, 2017) (“Delegation
Order”).
The Commission took no action on the pending motions
for a stay of the Certificate Order.
The Homeowners and Environmental Associations
petitioned for review in this court of both the Certificate Order
and the Tolling Order. See Petition for Review, No. 17-1098
(D.C. Cir. March 23, 2017); Petition for Review, No. 17-1128
(D.C. Cir. May 12, 2017). The Commission and Transco
moved to dismiss the petitions for lack of jurisdiction,
contending that the petitions were “incurably premature”
because the Commission had not yet resolved the rehearing
requests on the merits and so had not taken “final agency
action” on the Certificate Order. Commission Motion to
Dismiss for Lack of Jurisdiction at 5–7, No. 17-1098 (D.C. Cir.
April 28, 2017) (“[The] requests for rehearing, which are
pending before the Commission, rendered the Certificate Order
non-final.”); see Motion of Movant-Intervenor
Transcontinental Gas Pipe Line Co. to Dismiss the Petition for
Review at 9, 14, No. 17-1098 (D.C. Cir. May 12, 2017) (“This
action is incurably premature because it seeks to disrupt [the
Commission’s] ongoing administrative review process.”); see
also Clifton Power, 294 F.3d at 111 (holding that, until a
rehearing application is resolved, the Commission’s decision is
not final for purposes of obtaining judicial review, and any
petition for review filed in court is “incurably premature”).1
1
See also Motion of Federal Energy Regulatory Commission to
Apply Disposition of the Motion to Dismiss Filed in Docket
No. 17-1098 to the Instant Petitions at 2, No. 17-1128 (D.C. Cir.
June 30, 2017) (arguing that the Homeowners’ petition was
“incurably premature” because it challenged “non-final orders”);
Motion of Movant-Intervenor Transcontinental Gas Pipe Line Co. to
12
Those motions were referred to the merits panel and, with the
grant of rehearing en banc, are now pending before this court.
While the Homeowners and Environmental Associations
waited for the Commission to resolve their rehearing
applications, Transco pressed forward with its condemnation
action against the Homeowners in the United States District
Court for the Eastern District of Pennsylvania. In response to
the Homeowners’ objection that the Commission’s Certificate
Order was not valid, Transco told the Pennsylvania district
court that, “as to this process, the eminent domain process, the
[certificate] order is final” and beyond the court’s jurisdiction
to review. See Transcript of July 20, 2017 Evidentiary Hearing
at 69, 80, 138–139, Transcontinental Gas Pipe Line Co. v.
Permanent Easement for 2.14 Acres, No. 5:17-cv-00715-JLS,
2017 WL 3624250 (E.D. Pa. Aug. 23, 2017), ECF No. 55
(“Hearing Tr.”); see also Permanent Easement for 2.14 Acres,
2017 WL 3624250, at *3–4 (district court holding that, despite
the pending application for rehearing, the Certificate Order
could support a condemnation action absent a stay from the
Commission); Transcontinental Gas Pipe Line Co. v.
Permanent Easements for 2.14 Acres, 907 F.3d 725, 740 (3d
Cir. 2018) (affirming that holding).
Transco made that argument a mere three weeks after it
and the Commission had told this court that the very same order
was “non-final” agency action for purposes of the
Homeowners’ effort to obtain judicial review. Motion to
Dismiss the Petitions for Review at 9, 15, No. 17-1128 (D.C. Cir.
June 30, 2017) (“The Petitions are incurably premature because they
seek to disrupt [the Commission’s] ongoing administrative review
process.”).
13
Dismiss for Lack of Jurisdiction, supra, at 5–7; see Motion of
Movant-Intervenor, No. 17-1128, supra, at 9, 15.
In August 2017—five months after the Commission issued
the Tolling Order—the district court in the eminent domain
case granted partial summary judgment and a preliminary
injunction to Transco, “effectively [giving] the company
immediate possession” of the rights of way it needed to build
its pipeline across the Homeowners’ land. See Permanent
Easements for 2.14 Acres, 907 F.3d at 728–729, 732.
The next week—nearly seven months after a motion for
stay was first filed—the Commission denied the Homeowners’
and Environmental Associations’ requests for a stay.
Transcontinental Gas Pipe Line Co., 160 FERC ¶ 61,042
(2017). In so doing, the Commission dismissed the
Homeowners’ concerns about the destruction of their trees, the
digging or blasting of a trench across their yards, and the air
pollution at their properties as merely “generalized claims of
environmental harm [that] do not constitute sufficient evidence
of irreparable harm that would justify a stay.” Id. at ¶ 8; see
also id. at ¶ 8 n.17 (quoting the Homeowners’ discussion of air
pollution, but not addressing their objections to the imminent
physical damage to their properties).
On September 5, 2017, Transco requested that the
Commission issue an order authorizing it to start construction,
including on the Homeowners’ land. Ten days later, the
Commission granted Transco a Construction Order. J.A. 324
(“Construction Order”). Transco broke ground in
Pennsylvania the same day. Meanwhile, the Homeowners’ and
Environmental Associations’ rehearing applications remained
pending.
The Environmental Associations promptly sought
rehearing and rescission of the Construction Order. As the
14
thirty-day mark approached, the Commission issued another
tolling order that served only to give itself an unlimited amount
of time to act while preventing judicial review of the
Construction Order based on agency inaction. J.A. 326.
Finally, in December 2017—nine months after the
statutory thirty-day period for action passed—the Commission
denied rehearing of the Certificate Order. Transcontinental
Gas Pipe Line Co., 161 FERC ¶ 61,250 (2017) (“Certificate
Rehearing Order”). By that time, Transco had already started
construction on the Homeowners’ property.
After the Commission denied rehearing, the Homeowners
and Environmental Associations timely filed their second
petitions for review with this court. See 15 U.S.C. § 717r(b);
see also Petition for Review, No. 17-1263 (D.C. Cir. Dec. 15,
2017) (Environmental Associations); Petition for Review,
No. 18-1030 (D.C. Cir. Jan. 29, 2018) (Homeowners). The
Homeowners and Environmental Associations argued that the
Commission conducted an inadequate environmental review
under the National Environmental Policy Act (“NEPA”), 42
U.S.C. §§ 4321 et seq., failed to support its determination that
the Project served a market need as required by the Natural Gas
Act, and denied them due process by allowing construction to
begin before any court could review the Certificate Order.
Three months after denying rehearing of the Certificate
Order, the Commission denied rehearing of the Construction
Order. Transcontinental Gas Pipeline Co., 162 FERC ¶ 61,192
(2018).
By the time a panel of this court held oral argument in
December 2018 on the merits of the Homeowners’ and
Environmental Associations’ petitions for review, the pipeline
had been built and operational for two months. Notification of
15
Placement Into Service, Transcontinental Gas Pipe Line Co.,
Nos. CP-15-138-000 & CP17-212-000 (FERC Oct. 9, 2018).
The panel ultimately treated the motions to dismiss the
first round of petitions as moot, reasoning that the second round
gave this court jurisdiction to review the Certificate Rehearing
Order, “which encompasses all of [the Homeowners’ and
Environmental Associations’] claims for our review and is the
final agency decision greenlighting the Project[.]” Allegheny
Defense Project v. FERC, 932 F.3d 940, 945 & n.1 (D.C. Cir.
2019) (per curiam). On the merits, the panel rejected the
Homeowners’ and Environmental Associations’ arguments
and denied the petitions for review. Id. at 945–948.
The court subsequently granted the Homeowners’ petition
for rehearing en banc and vacated the panel’s judgment.
II
We took this case en banc to address a focused question of
statutory construction: Does the Federal Energy Regulatory
Commission “act[] upon” an application for rehearing within
the meaning of Section 717r of the Natural Gas Act by issuing
a tolling order that does nothing more than prevent the
application from being deemed denied by agency inaction and
preclude the applicant from seeking judicial review until the
Commission acts?
The question is an important one. The Commission’s use
of tolling orders that do nothing more than buy itself more time
to act on a rehearing application and stall judicial review has
become virtually automatic. As the Commission
acknowledged at oral argument, absent some special need for
“quick action,” it enters tolling orders “almost as a matter of
routine,” as it did in this case. Oral Arg. Tr. 89:6–9; id. (“I
believe that’s the process that was followed here.”).
16
By way of illustration, over the last twelve years, the
Commission issued a tolling order in all thirty-nine cases in
which a landowner sought rehearing in a proceeding involving
natural gas pipeline construction. Commission’s Rule 28(j)
Letter at 111 (May 4, 2020) (reproducing documents the
Commission submitted to the Subcommittee on Civil Rights
and Civil Liberties of the House Committee on Oversight and
Reform). Another study showed (and the Commission has not
denied) that, between 2009 and 2017, the Commission issued
tolling orders in response to 99% of all the requests for
rehearing of pipeline certification decisions that it received,
whether from homeowners or other parties. Petition for an
Extraordinary Writ at Exhibit G, In re Appalachian Voices,
No. 18-1006 (Jan. 8, 2018) (cataloguing tolling orders issued
in 74 out of 75 pipeline certifications between 2009 and 2017).
And according to the Commission’s website, the Commission
has issued tolling orders in response to every rehearing petition
filed by any party (landowner or otherwise) to a pipeline
certification case since 2017.
The use of these tolling orders has real-world
consequences. In practice, they can prevent aggrieved parties
from obtaining timely judicial review of the Commission’s
decision. As mentioned, Section 717r provides that a rehearing
application may be deemed denied if the Commission does not
act upon it within thirty days. 15 U.S.C. § 717r(a). But through
the use of tolling orders, the Commission has eliminated
entirely the jurisdictional consequences of its inaction,
preventing rehearing applications from being deemed denied
even after they have been pending for prolonged periods of
time. In this case, the Commission used tolling orders to give
itself roughly ten times as long as the statute allots for it to act.
On top of that, the Commission and private certificate
holders use its tolling orders to split the atom of finality. They
17
are not final enough for aggrieved parties to seek relief in court,
but they are final enough for private pipeline companies to go
to court and take private property by eminent domain. And
they are final enough for the Commission to greenlight
construction and even operation of the pipelines. Tolling
orders, in other words, render Commission decisions akin to
Schrödinger’s cat: both final and not final at the same time.
That asymmetrical finality timetable has become
commonplace in Commission cases. For the 114 natural gas
pipeline cases pending before the Commission from October 1,
2008 through February 19, 2020 in which any party—
landowner or otherwise—requested a rehearing, the
Commission authorized construction to begin before resolving
the rehearing request on the merits in 64% of the cases.
Commission’s Rule 28(j) Letter at 111. See generally
Subcommittee Releases Preliminary Findings Showing FERC
Pipeline Approval Process Skewed Against Landowners,
HOUSE COMMITTEE ON OVERSIGHT & REFORM (April 28, 2020),
https://oversight.house.gov/news/press-releases/subcommittee-
releases-preliminary-findings-showing-ferc-pipeline-approval
(summarizing a preliminary video report on an investigation
into the Commission’s certificate and rehearing process by the
Subcommittee on Civil Rights and Civil Liberties of the House
Committee on Oversight and Reform).2
2
After oral argument in this case, the Commission adopted a
regulation addressing this slice of the problem in cases involving
orders “authorizing the construction of new natural gas
transportation, export, or import facilities[.]” Limiting
Authorizations to Proceed with Construction Activities Pending
Rehearing, 171 FERC ¶ 61,201, at 12–13 (to be codified at 18 C.F.R.
§ 157.23). In those cases, the Commission will not authorize any
“construction activities” until it “has acted upon the merits” of any
18
The problem is well known to the Commission itself.
Commissioner Glick has called the process enabled by the
Commission’s tolling orders “fundamentally unfair,” at least
when it “allows a pipeline developer to build its entire project
while simultaneously preventing opponents of that pipeline
from having their day in court[,] ensur[ing] that irreparable
harm will occur before any party has access to judicial relief.”
Spire STL Pipeline LLC, 169 FERC ¶ 61,134, 2019 WL
6242969, at *29–30 (2019) (Glick, Comm’r, dissenting); see
also id. at *30 (“Under those circumstances, dismissing as
moot [a party’s] year-old request for a stay pending rehearing
because the Commission finally issued an order on rehearing is
a level of bureaucratic indifference that I find hard to
stomach.”) (footnote omitted). See generally Narragansett
Indian Tribal Historic Preservation Office v. FERC, 949 F.3d
8, 10–12 (D.C. Cir. 2020) (Commission tolled rehearing
applications and a stay motion until pipeline construction
irremediably destroyed religiously significant features, and
then denied the stay motion as moot); Delaware Riverkeeper
Network v. FERC, 753 F.3d 1304, 1307–1309, 1312 (D.C. Cir.
2014) (Commission authorized tree clearing and compressor
station construction, see 142 FERC ¶ 61,025, at ¶ 26 (2013),
while tolling rehearing applications and a stay motion for six
and a half months, with the result that the pipeline was
completed by the time this court held that the Commission
timely rehearing application or the deadline to seek rehearing has
passed without an application. Id. This new rule does not, however,
prevent eminent domain proceedings from going forward based on
the underlying certificate order. See id., 2020 WL 3072333, at *7
(Glick, Comm’r, concurring in part and dissenting in part) (“[T]his
final rule deals only with construction without making any effort to
address the exercise of eminent domain during that period when the
courthouse doors are closed to landowners seeking to challenge the
certificate.”).
19
order violated NEPA); Columbia Gas Transmission, LLC, 170
FERC ¶ 61,246, at ¶¶ 1–2 (2020) (Commission tolled
environmental groups’ rehearing application for more than two
years, while allowing a 170-mile pipeline to be completely
built and put into service more than a year before the
Commission ruled on the merits, see Environmental
Compliance Monitoring Report at 1, No. CP16-357-000
(FERC Dec. 23, 2019)).
Against that backdrop, we turn to first principles and ask
whether the Natural Gas Act allows the Commission to issue
tolling orders for the sole purposes of preventing rehearing
from being deemed denied by its inaction and the statutory
right to judicial review attaching. As a matter of plain statutory
text and structure, the Commission lacks that authority.
A
Because it is a pure question of law, we decide the meaning
of Section 717r of the Natural Gas Act de novo. See
Association of American Railroads v. United States Dep’t of
Transp., 896 F.3d 539, 544 (D.C. Cir. 2018); Validus
Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1042 (D.C.
Cir. 2015).
To be sure, in agency cases, we generally grant deference
to an agency’s reasonable interpretation of ambiguity in a
statute it administers, applying the framework of Chevron
U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837
(1984); see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2142, 2144 (2016). And that is what the Commission
asks for here.
The problem for the Commission is that Chevron
deference is available only when an agency interprets a
statutory provision that Congress has charged it with
20
administering through application of its expertise. See
National Parks Conservation Ass’n v. Semonite, 916 F.3d
1075, 1088 (D.C. Cir. 2019). But statutory provisions
addressing the jurisdiction of federal courts do not fit that mold.
Federal agencies do not administer and have no relevant
expertise in enforcing the boundaries of the courts’ jurisdiction.
See Murphy Exploration & Production Co. v. United States
Dep’t of the Interior, 252 F.3d 473, 478–479 (D.C. Cir. 2001);
see also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650
(1990) (holding that, in the context of identifying a private right
of action, the congressional delegation to the agency of
authority to administer other parts of the statute did not
“empower [the agency] to regulate the scope of the judicial
power vested by the statute”).
Section 717r(a) speaks directly to federal court jurisdiction
to review Commission orders. It conditions jurisdiction on a
petitioner having first “made application to the Commission for
a rehearing.” 15 U.S.C. § 717r(a). It also provides that if the
Commission fails to act on such an application after thirty days,
the application “may be deemed to have been denied,” id., so
that the underlying Commission order can be judicially
reviewed, id. § 717r(b). So Chevron deference does not apply
in this case.
The Commission acknowledges that Section 717r(b) is a
jurisdiction-conferring provision administered by the courts.
But it argues that the provision at issue here is Section 717r(a),
which it views as addressing only the Commission’s own
“jurisdiction to entertain rehearing requests.” Commission’s
Br. 21.
That slices the salami too thinly. In Murphy Exploration,
we held that Chevron deference does not apply to a similarly
structured statute, 30 U.S.C. § 1724(h), in which the provisions
21
addressing administrative proceedings were tied directly to a
neighboring provision conferring federal court jurisdiction.
See 252 F.3d at 478–480. Subsection (1) of Section 1724(h)
instructed the agency to “issue a final decision in any
administrative proceeding” within a specified time period. Id.
at 480 (quoting 30 U.S.C. § 1724(h)(1)). Subsection (2)
provided that, if the agency failed to act within the specified
time period, it “shall be deemed to have issued a final decision
in [its] favor and the appellant shall have a right to judicial
review of such deemed final action[.]” Id. (quoting 30 U.S.C.
§ 1724(h)(2)). And the definition of “administrative
proceeding” appeared in another section altogether. Id. (citing
30 U.S.C. § 1702(18)). Given the statutory intertwining of the
administrative proceeding and the attachment of federal court
jurisdiction, we held that Chevron deference did not apply to
“the meaning of the words ‘any administrative proceeding.’”
Id. at 479–480. That term, in the context of a jurisdiction-
conferring statute, “regulate[d] the scope of the judicial power
vested by the statute[,]” and so courts, not the agency, were
responsible for construing it. See id. at 478–479.
So too here. Section 717r(a) addresses both the filing of
an application for rehearing as a precondition to judicial
review, and the effect of agency inaction within a specified
time limit on opening the courthouse doors. As a result, the
responsibility for interpreting Section 717r(a) falls to the
courts, not to the Commission. We so held in Alabama
Municipal Distributors Group v. FERC, 300 F.3d 877 (D.C.
Cir. 2002) (per curiam), where we applied Murphy Exploration
to the very statutory provisions at issue here—Sections 717r(a)
and (b), id. at 879 (citing Murphy Exploration, 252 F.3d at
478–480). We reaffirm that aspect of Alabama Municipal
Distributors and the inapplicability of Chevron deference here.
22
B
The question before this court is whether the Commission
had the authority to issue the Tolling Order that served solely
to override the deemed-denied provision and thereby prevent
the petitioners from seeking judicial review until whenever the
Commission acted. Because Section 717r(a) unambiguously
forecloses such a Tolling Order, our analysis “begins with the
statutory text, and ends there as well.” National Ass’n of
Mfrs. v. Department of Defense, 138 S. Ct. 617, 631 (2018)
(internal quotation marks omitted).
As noted earlier, there is no question that Section 717r(a)
requires the filing of an application for rehearing as a
precondition to judicial review of Commission action. See 15
U.S.C. § 717r(a).
The statute then specifies what happens once such an
application is filed:
Upon such application [for rehearing] 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.
15 U.S.C. § 717r(a) (emphases added). So, to break it down,
the Commission can (i) “grant * * * rehearing,” (ii) “deny
rehearing,” (iii) “abrogate * * * its order without further
hearing,” or (iv) “modify its order without further hearing[.]”
Id.
The statute is equally precise about what is to happen if the
Commission fails to “act[] upon the application” within thirty
23
days: The application “may be deemed to have been denied.”
15 U.S.C. § 717r(a). By referring again in the deemed-denied
provision to what the Commission has—or has not—done
“upon the application[,]” Congress signaled that the kinds of
actions that prevent a deemed denial are the four dispositions
just listed. So once thirty days pass without an enumerated
action by the Commission, the applicant may deem its
rehearing application denied and seek judicial review of the
now-final agency action. Id. § 717r(b); see Texas–Ohio Gas
Co. v. Federal Power Comm’n, 207 F.2d 615, 616–617 (D.C.
Cir. 1953) (“The primary intent evidently was to permit an
appeal to the courts by a disappointed litigant as soon as thirty
days have passed, without waiting longer for the Commission
to act on his application for rehearing.”).
The Commission insists (Br. 22–24) that its Tolling Order
did “act[] upon the application,” 15 U.S.C. § 717r(a), because
it included language stating that “rehearing * * * is hereby
granted[,]” J.A. 305. But Section 717r(a) is not such an empty
vessel. The question is not one of labels, but of signification:
Did the Tolling Order amount to a “grant” of rehearing within
the meaning of the statute, or instead amount only to inaction
on the application, which would trigger the possibility of
judicial review as a deemed denial. The Tolling Order fell into
the latter camp.
First, a “grant” of rehearing, as opposed to inaction on an
application for rehearing, necessarily requires at least some
substantive engagement with the application. A grant of
rehearing cannot consist solely of a grant of additional time to
decide whether to grant rehearing. Yet the Commission admits
that its purported grant of rehearing in this case, as is true “in
virtually every case[,]” was made without any substantive
engagement with the rehearing application. Oral Arg.
Tr. 89:10–20. Rather, the sole purpose of the Tolling Order
24
was to take “some” kind of “action on [the application] within
30 days” just to give the Commission more time “to issue a
substantive order” on the application at some unspecified later
date. Id. at 89:23–90:12. That is why the Tolling Order is
emphatic that it is doing one thing, and one thing only: It is
preventing “timely-filed rehearing requests” from being
“deemed denied by operation of law,” J.A. 305, and in that way
foreclosing judicial review of the underlying order for as much
time as the Commission chooses to take.
Lest there be any doubt, the Tolling Order immediately
qualifies its “grant[]” as being made only “for the limited
purpose” of “afford[ing] additional time for consideration of
the matters raised[.]” J.A. 305. That is not a grant of rehearing
of the challenged order; it is kicking the can down the road.
Which the Tolling Order admits in the next sentence when it
assures that “[r]ehearing requests of the above-cited order filed
in this proceeding will be addressed in a future order.”
J.A. 305. The Commission cannot have it both ways, claiming
to have granted rehearing in one breath, while promising in the
next breath that it will decide in some future order whether to
grant rehearing or not. See Certificate Rehearing Order ¶¶ 2–
3, 5 (denying the applications for rehearing that were
purportedly granted in the Tolling Order); Oral Arg. Tr. 84:10–
13 (Commission conceding that an order that “sets a schedule”
for further proceedings addressed to the merits of the
application would be different from a tolling order).
Nor does the Commission even attempt to argue that its
announced intention to decide something about the rehearing
application at some unspecified time in the future falls within
the ordinary meaning of “rehearing,” or any definition of
“rehearing” known to the law. We could not find any textual
justification for it either. When Section 717r(a) was enacted in
1938, a “rehearing” was just what it sounds like: a “second
25
hearing.” Rehearing, BLACK’S LAW DICTIONARY 1519 (3d ed.
1933) (defining “rehearing” as, “[i]n equity practice[,] [a]
second hearing of a cause, for which a party who is dissatisfied
with the decree entered on the former hearing may apply by
petition”); accord Rehearing, WEBSTER’S NEW
INTERNATIONAL DICTIONARY 2100 (2d ed. 1934) (defining
“rehearing” as “[a] hearing again or anew; specif., Law, a
second or repeated hearing, as of a trial or of an argument on
appeal”).3
Second, the Tolling Order did not do—and could not have
done—anything more than stall for time. As routinely
happens, the Tolling Order was entered not by the Commission
itself, but by its Secretary (or Deputy Secretary). J.A. 305, 326.
The Secretary, though, has not been delegated any authority to
“act on” the rehearing application. Delegation Order, 82 Fed.
Reg. at 10,568 (Secretary lacks “authority to act on requests for
rehearing”); cf. 18 C.F.R. § 375.302(g)–(h) (authorizing the
Secretary to reject filings if they are untimely or deficient in
“form”). The only thing the Secretary can do with rehearing
applications is “[t]oll the time for action on requests for
rehearing.” 18 C.F.R. § 375.302(v); see also Delegation of
Authority to the Secretary, 60 Fed. Reg. 62,326 (Dec. 6, 1995)
(explaining that 18 C.F.R. § 375.302(v) allows the Secretary to
“issue[] an order granting rehearing for the purpose of further
3
Cf. Hearing, BLACK’S LAW DICTIONARY, supra, at 882
(defining “hearing” as, “in equity practice[,]” “the hearing of the
arguments of the counsel for the parties upon the pleadings, or
pleadings and proofs; corresponding to the trial of an action at law”)
(capitalization modified); Hearing, WEBSTER’S NEW
INTERNATIONAL DICTIONARY, supra, at 1150 (defs. 8a, 8b)
(defining “hearing” as, “[i]n equity practice, a trial” and as “[a]
listening to arguments or proofs and arguments in interlocutory
proceedings”).
26
consideration” so as to avoid a deemed denial). Contrast 15
U.S.C. § 717r(a) (“Commission” must “act[] upon the
application for rehearing within thirty days” to avoid it being
deemed denied).
Yet, to avoid having the rehearing application deemed
denied, Section 717r(a) expressly requires what the Secretary
is specifically forbidden to do: “act[] upon” the application.
Compare 15 U.S.C. § 717r(a), with Delegation Order, 82 Fed.
Reg. at 10,568.
Third, the Commission’s practice confirms what the
Tolling Order said: Its sole function was to grant the
Commission an unbounded amount of “additional time,”
J.A. 305, 326, within which rehearing could never be deemed
denied and during which the applicants were prevented from
obtaining judicial review. Indeed, the Commission asserted at
oral argument that the statute puts no limit at all on how long it
may toll. Oral Arg. Tr. 98:13–99:6.
In this case, the Commission took an extra nine months to
act. Over the last twelve years, the Commission has taken 212
days on average—about seven months—from tolling order to
actual rehearing decision on landowners’ applications in
pipeline cases. Commission’s Rule 28(j) Letter at 111. On
average, then, the Commission has been octupling the statutory
timeframe for decision in such cases. Other matters before the
Commission have met a similar fate, with open-ended tolling
orders leaving applicants awaiting action for a year or more.
See, e.g., Calpine Corp., 171 FERC ¶ 61,034, at ¶¶ 60–66
(2020) (Commission took twenty-two months to deny States’
rehearing applications challenging an order in a Federal Power
Act tariff case that, in the States’ view, infringed on their
jurisdiction and sovereign rights); Environmental Amici’s
Br. 21–22 & Exhibit D (collecting proceedings across all
27
categories of the Commission’s business in which the
Commission issued a decision in 2018 or 2019, and finding that
it tolled every timely filed rehearing application, with an
average tolling period of more than six months).
At bottom, what the Tolling Order did was delete the
thirty-day time limit and the deemed-denied provision from the
statute. Section 717r(a) says in straightforward terms that the
Commission’s failure to act on a rehearing application within
thirty days means that rehearing can be deemed denied and the
applicant can obtain judicial review. 15 U.S.C. § 717r(a); see
Texas–Ohio Gas Co., 207 F.2d at 616–617. The Commission
has rewritten the statute to say that its failure to act within thirty
days means nothing; it can take as much time as it wants; and
until it chooses to act, the applicant is trapped, unable to obtain
judicial review.
But the Commission has no authority to erase and replace
the statutorily prescribed jurisdictional consequences of its
inaction. Agencies, no less than courts, cannot render statutory
language a nullity and leave entire operative clauses with “no
job to do.” Doe v. Chao, 540 U.S. 614, 623 (2004); see also
Clark v. Rameker, 573 U.S. 122, 131 (2014) (“Petitioners’
reading would write out of the statute the first element. It
therefore flouts the rule that a statute should be construed so
that effect is given to all its provisions, so that no part will be
inoperative or superfluous.”) (internal quotation marks
omitted).
Fourth, and tellingly, when Congress wants to allow
agencies to modify the consequences of their inaction, it says
so explicitly—and carefully cabins the agency’s leeway in the
process. See, e.g., 15 U.S.C. § 78s(b)(2)(A), (C) (Securities
and Exchange Commission has 45 days to “approve or
disapprove” a regulated party’s proposed rule changes or to
28
“institute proceedings”; if the Commission fails to act in 45
days, the changes are deemed approved; the Commission may
“extend [that] period * * * by not more than an additional
45 days” only in limited, specified circumstances). Similar
provisions include 10 U.S.C. § 628(g)(3), 12 U.S.C.
§ 1843(j)(1)(C), 15 U.S.C. § 8704(d)(2)(C), 21 U.S.C.
§ 343(r)(4)(A)(i), 21 U.S.C. § 360ccc(d)(2), 30 U.S.C.
§ 1724(h)(1), 46 U.S.C. § 53911(d), 47 U.S.C. § 160(c), and 47
U.S.C. § 537.
Congress, in fact, kept the Commission on a tight leash
when it amended the Federal Power Act, a close relative of the
Natural Gas Act, to allow the Commission to extend the
amount of time it had to act on public utilities’ applications for
the Commission’s approval of certain transactions. See, e.g.,
City of Clarksville v. FERC, 888 F.3d 477, 484 (D.C. Cir. 2018)
(“Because the [Natural Gas Act] is modeled substantively after
the [Federal Power Act], they are interpreted similarly.”). In
2005, Congress amended the Federal Power Act to provide that
those applications are “deemed granted” unless the
Commission acts within 180 days. 16 U.S.C. § 824b(a)(5). But
Congress expressly authorized the Commission to toll that
period for “not more than 180 days” if, and only if, it first finds,
“based on good cause, that further consideration is required to
determine whether” to approve the application. Id.
The absence of any comparable authority to toll in
Section 717r(a) is stark. And that textual omission pulls the
rug out from under the Commission’s claim of the unwritten
and unilateral power to indefinitely evade a deemed denial and
the accompanying prospect of judicial review.
Undeterred by the lack of authorizing language in
Section 717r(a), the Commission points to another provision of
the Natural Gas Act—15 U.S.C. § 717o—as the source of
29
authority for tolling orders. Commission’s Br. 27–28.
Section 717o empowers the Commission “to perform any and
all acts, and to prescribe, issue, make, amend, and rescind such
orders, rules, and regulations as it may find necessary or
appropriate to carry out the provisions of” the Natural Gas Act.
15 U.S.C. § 717o. But that is an authority to “carry out the
provisions of” the Natural Gas Act, id., not to render nugatory
the deemed-denied provision and its jurisdictional
consequences. “A general grant of authority cannot displace
the clear, specific text of” a statute. Murray Energy Corp. v.
EPA, 936 F.3d 597, 627 (D.C. Cir. 2019).
Fifth, the Commission argues (Br. 28–33) that the Tolling
Order was necessary to afford it the time it needed to act in this
complicated area of law. While the Commission’s
responsibilities are substantial, we are bound to enforce the
statutory text and its jurisdictional grant as Congress wrote it.
It also bears emphasizing, in that regard, that the only
question we decide is that the Commission cannot use tolling
orders to change the statutorily prescribed jurisdictional
consequences of its inaction. That is not the same thing as
saying the Commission must actually decide the rehearing
application within that thirty-day window. Because the Tolling
Order served only to override the deemed-denied provision and
so to postpone judicial review, we need not decide whether or
how Section 717r(a), the ripeness doctrine, or exhaustion
principles might apply if the Commission were to grant
rehearing for the express purpose of revisiting and
substantively reconsidering a prior decision, and needed
30
additional time to allow for supplemental briefing or further
hearing processes.4
Moreover, even when the agency takes no action during
the thirty-day period, Section 717r(a) specifically gives the
Commission more time to decide by providing that, “[u]ntil the
record in a proceeding shall have been filed in a court of
appeals,” 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 [the Natural Gas Act].” 15
U.S.C. § 717r(a).
That means that, even after a petition for judicial review is
filed, the Commission retains the authority to “modify or set
aside, in whole or in part” the underlying order or findings. The
Commission retains this authority until the administrative
record is filed in court, which is typically forty days after the
petition is served on the Commission. FED. R. APP. P. 17(a).
That same Rule allows the court to further extend that time, id.,
as occurred in this very case, Order, No. 17-1098 (D.C. Cir.
Nov. 21, 2017) (per curiam) (denying the Commission’s
motion for an open-ended extension until it resolved the
rehearing applications, but giving it until December 14, 2017—
nearly nine months after the first petition for review was
filed—to file the administrative record).
So in practice, even if an applicant files a petition for
review immediately after a deemed denial, the Commission
will typically still have at least seventy days total, with the
4
Nor need we decide what the implications of such a
substantive grant of merits rehearing by the Commission itself might
be for reliance in eminent domain proceedings on an order under
such active reconsideration.
31
possibility of more time, to act on a rehearing application. The
difference between Section 717r(a)’s provision and the
Commission’s tolling-order approach is critical. The statute’s
approach, unlike the Commission’s, ensures that the
Commission’s additional time for action comes with judicial
superintendence and the opportunity for the applicant to seek
temporary injunctive relief if needed under the ordinary
standards for a stay.
Preserving that balance as Congress struck it is vital
because “no legislation pursues its purposes at all costs.”
Rodriguez v. United States, 480 U.S. 522, 525–526 (1987) (per
curiam). Much as it has in the statutes that expressly grant a
tightly cabined tolling authority, see supra at 27–28, Congress
chose in Section 717r(a) to balance the Commission’s need for
decisional time with the applicants’ need for timely judicial
review. The Commission’s unilateral use of tolling orders both
to grant itself unlimited time to act without rehearing being
deemed denied and to delay judicial review unravels
Congress’s arrangement. If the Commission still cannot decide
whether to grant rehearing within the timeframe that the plain
statutory text affords, it “can seek relief from Congress,
which * * * is both qualified and constitutionally entitled to
weigh the costs and benefits of different approaches and make
the necessary policy judgment.” Azar v. Allina Health Servs.,
139 S. Ct. 1804, 1816 (2019).
Finally, the Commission (Br. 23, 42) and the dissenting
opinion invoke stare decisis—“the idea that today’s [c]ourt
should stand by yesterday’s decisions[,]” Kimble v. Marvel
Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). Both contend that,
because past decisions allowed the Commission’s use of tolling
orders, stare decisis prevents us from invalidating the Tolling
Order in this case.
32
We first upheld a tolling order in California Co. v. Federal
Power Commission, 411 F.2d 720 (D.C. Cir. 1969) (per
curiam). There, a two-judge panel of the court, without the
benefit of oral argument, deferred to the Commission’s reading
of Section 717r(a)’s deemed-denied provision as allowing the
Commission to forestall a deemed denial simply by claiming
more time to decide whether to grant rehearing. Id. at 720, 722.
In so doing, the panel candidly acknowledged that the
Commission’s reading of the statute was “far from self-
evident.” Id. at 722. The panel nonetheless elevated policy
concerns about “administrative and judicial problems” over the
plain statutory text. Id. Of course, in so doing, that panel could
not have foreseen the Commission’s routinization of tolling
orders, the unbounded length of tolling periods, or, since
California Co. involved rate setting, the severe consequences
of the tolling practice for property owners. See supra 16–19;
cf. Knick v. Township of Scott, 139 S. Ct. 2162, 2178–2179
(2019). Later panels followed California Co. without further
analysis. See Moreau v. FERC, 982 F.2d 556, 564, 567 (D.C.
Cir. 1993); Delaware Riverkeeper Network v. FERC, 895 F.3d
102, 113 (D.C. Cir. 2018).
Stare decisis principles do not require us to continue down
the wrong path. Because circuit courts “play a different role in
the federal system than the Supreme Court,” stare decisis
applies differently to circuit precedent than it does at the
Supreme Court. Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) (en
banc). In particular, as the dissenting opinion acknowledges,
Dissenting Op. at 3, it is appropriate for the en banc court to set
aside circuit precedent when, “on reexamination of an earlier
decision, it decides that the panel’s holding on an important
question of law was fundamentally flawed[,]” Critical Mass
Energy, 975 F.2d at 876; accord United States v. Burwell, 690
F.3d 500, 504 (D.C. Cir. 2012) (en banc) (same).
33
We also may depart from circuit precedent when
“intervening development[s]” in the law—such as Supreme
Court decisions—“ha[ve] removed or weakened the
conceptual underpinnings from the prior decision[.]” Burwell,
690 F.3d at 504 (quoting Patterson v. McLean Credit Union,
491 U.S. 164, 173 (1989)).
California Co.’s acceptance of tolling orders is both
“fundamentally flawed,” Critical Mass Energy, 975 F.2d at
876, and irreconcilable with intervening Supreme Court
decisions, Burwell, 690 F.3d at 504, in two respects.
First, intervening Supreme Court precedent emphatically
establishes that courts must take statutory language at its word.
See, e.g., Intel Corp. Investment Policy Comm. v. Sulyma, 140
S. Ct. 768, 776 (2020) (“We must enforce plain and
unambiguous statutory language * * * according to its terms.”)
(internal quotation marks omitted); Obduskey v. McCarthy &
Holthus LLP, 139 S. Ct. 1029, 1040 (2019) (“[W]e must
enforce the statute that Congress enacted.”). Doing so requires
courts to start with the statutory text, and to end there as well
when, as here, the statute speaks clearly. As the Supreme Court
“has explained many times over many years,” when “the
meaning of the statute’s terms is plain, our job is at an end.”
Bostock v. Clayton County, Nos. 17-1618 et al., 2020 WL
3146686, at *14 (U.S. June 15, 2020); see also, e.g., National
Ass’n of Mfrs., 138 S. Ct. at 631.
Second, as we and the Supreme Court have since
recognized, agencies get no deference in interpreting
jurisdictional statutes. See Adams Fruit, 494 U.S. at 649–650;
Murphy Exploration, 252 F.3d at 478–479; supra at 19–21.
Because the approach to statutory construction reflected in
our tolling order precedent was fundamentally flawed and
grounded in a mode of statutory construction that has been
34
foreclosed by the Supreme Court, stare decisis principles do
not stand in the way of the en banc court holding that
Section 717r(a)’s deemed-denied provision means what it says.
*****
In sum, we hold that, after thirty days elapsed from the
filing of a rehearing application without Commission action,
the Tolling Order could neither prevent a deemed denial nor
alter the jurisdictional consequences of agency inaction. To the
extent our prior decisions upheld the use of tolling orders in
that manner, they are overruled in relevant part.
III
Because the Commission’s Tolling Order could not
prevent the Homeowners and Environmental Associations
from seeking judicial review, the initial petitions for review
that they filed challenging the Certificate Order in
Nos. 17-1098 and 17-1128 are properly before this court for
review, and the motions to dismiss those petitions for lack of
jurisdiction are denied.
In those petitions, as well as two later-filed ones, the
Homeowners and Environmental Associations challenged the
Commission’s finding of a market need for the pipeline. To
obtain a certificate of public convenience and necessity,
Transco had to demonstrate, among other things, market need
for its proposed transportation of natural gas. See Sierra
Club v. FERC, 867 F.3d 1357, 1379 (D.C. Cir. 2017);
Myersville, 783 F.3d at 1309 (citing Certification of New
Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227
(1999), clarified, 90 FERC ¶ 61,128 (2000), further clarified,
92 FERC ¶ 61,094 (2000)).
35
The Commission found that the market-need requirement
was satisfied here, relying in part on “precedent agreements.”
Precedent agreements are long-term contracts in which gas
shippers agree to buy the proposed pipeline’s transportation
services. Myersville, 783 F.3d at 1310.
The Homeowners and Environmental Associations argue
that reliance on the precedent agreements was arbitrary and
capricious because those contracts evidenced demand for
export capacity, not domestic use of the natural gas being
transported.
We have reconsidered and agree with the panel’s decision
that the Commission reasonably found market need in this case.
In doing so, we need not address the Homeowners’ and
Environmental Associations’ objections to reliance on
precedent agreements because, in this case, the Commission
also grounded its finding of market need on “comments by two
shippers and one end-user, as well as a study submitted by one
of the Environmental Associations, all of which reinforced the
[domestic] demand for the natural gas shipments.” 932 F.3d at
947.
IV
In conclusion, the Tolling Order—which did nothing more
than purport to override the statutorily prescribed jurisdictional
consequences of the Commission’s inaction on the pending
rehearing applications—was not an “act[ion] upon” the
Homeowners’ and Environmental Associations’ rehearing
applications within the meaning of Section 717r(a). As a result
of the Commission’s inaction, the applications were deemed
denied, and this court had jurisdiction over the initial petitions
for review. On the merits of those petitions as well as the later
petitions, the Homeowners’ and Environmental Associations’
challenge to the Certificate Order falls short because the
36
Commission did not rely on precedent agreements alone to find
that the pipeline would be a matter of public convenience and
necessity. We therefore deny all four petitions for review, as
well as the Commission’s and Transco’s motions to dismiss the
petitions for review in Nos. 17-1098 and 17-1128.
So ordered.
GRIFFITH, Circuit Judge, with whom KATSAS and RAO,
Circuit Judges, join, concurring: I join the opinion for the
court. The Commission “acts upon” an application for
rehearing by taking one of the four enumerated actions in 15
U.S.C. § 717r(a). And the Commission has all but conceded
that the order in this case was not a “grant [of] rehearing” under
the statute but merely “some action” designed to forestall a
deemed denial. See Oral Arg. Tr. 90:9-12; Maj. Op. at 24. But
“tolling orders” are just one part of the legal web that can
ensnare landowners in pipeline cases. Even after today’s
decision, that web consists of three strands: delayed judicial
review, uninterrupted construction, and district courts’ swift
transfer of property. I write separately to clarify that the first
factor, delayed review, is not the primary driver of unfairness,
and to note possibilities for curtailing the remaining factors.
* * *
One cannot review the procedural history of this case, and
others like it, without concluding that something is amiss.
Landowners watch as their property is handed over to pipeline
companies and irreparably transformed, all without judicial
consideration of the crucial question: Should the pipeline exist?
As I see it, this injustice is the unintentional result of the way
three factors sometimes combine. First, the Natural Gas Act
allows the Commission to postpone judicial review by
“grant[ing] . . . rehearing” short of deciding the merits. 15
U.S.C. § 717r(a); see Moreau v. FERC, 982 F.2d 556, 564
(D.C. Cir. 1993). Second, the Commission, as a matter of
policy, has often given the green light to irreversible
construction before any court has reviewed the certificate
order. Third, exercising their discretion, district courts
considering eminent-domain suits sometimes transfer property
to pipeline companies regardless of the Commission’s decision
to grant rehearing.
2
Today’s decision doesn’t uproot these factors. Nor could
it: As the court’s opinion explains, the case before us presents
“a focused question of statutory construction.” Maj. Op. at 15.
But the court is rightly concerned about procedural fairness—
or lack thereof—in the Commission’s approach to pipeline
cases. It’s worth considering which aspects of that approach
come with benefits and which impose the highest costs.
Postponing judicial review until the Commission completes its
rehearing process is both compelled by existing law and, in my
view, quite sensible. Landowners suffer injustice only when
that delay is unreasonable, or when it is accompanied by
irreversible construction or the condemnation of their property.
The good news is that our court, district courts, and the
Commission itself have the necessary tools to guarantee fair
proceedings.
Start with delayed judicial review. All agree that the
Natural Gas Act permits us to review a Commission certificate
order in one of two scenarios. First, we take jurisdiction when
the Commission fails to “act[] upon the application for
rehearing within thirty days after it is filed.” 15 U.S.C.
§ 717r(a). And the court holds today that a tolling order cannot
prevent a deemed denial because it isn’t an “act[] upon” the
application. Maj. Op. at 34.
Second, we can hear challenges to a certificate order once
the Commission completes its substantive review. Phrased in
the negative, we lack jurisdiction “until FERC rules on the
merits of a granted petition for rehearing.” Moreau, 982 F.2d
at 564 (emphasis added). That caveat is important because the
Commission can grant rehearing without making a merits
decision. Nothing in the statute suggests that Congress really
meant “decide the merits” when it said “grant . . . rehearing.”
15 U.S.C. § 717r(a). To the contrary, the Act tells us that the
Commission may, within the thirty-day window, “abrogate or
3
modify [the underlying] order without further hearing.” Id.
(emphasis added). This negative language confirms that a
rehearing grant, by contrast, is nothing more than a decision to
engage in “further hearing.” Cf. Maj. Op. at 24-25.
By its own logic, the court’s opinion has nothing to say
about this route to judicial review. Nor does it offer guidance
on what counts as a Commission “grant” of rehearing. In fact,
it expressly declines to weigh in on orders that “grant rehearing
for the express purpose of revisiting and substantively
reconsidering a prior decision” and provide “further hearing
processes.” Id. at 29-30. That limitation on today’s decision
leaves the Commission free to grant rehearing by agreeing to
consider the applicant’s arguments for modifying or revoking
its previous action—i.e., by deciding to decide. Going forward,
the Commission should receive the benefit of the doubt when
it issues an order that announces a clear intention to reconsider
the merits of the underlying order and a concrete step
operationalizing that intent. For example, the Commission
would easily satisfy the Act by setting a briefing schedule or
by ordering the pipeline company to respond to the claims
made in the application.
The upshot: When the Commission actually grants
rehearing—as opposed to issuing a tolling order—it secures
additional time to consider whether to alter or revoke the
underlying order. The Commission’s leeway to postpone
judicial review isn’t an aberration born of agency trickery; it’s
a consequence of the statutory text and sound circuit precedent.
A different approach would subvert Congress’s expectation
that generalist judges will, in the ordinary course, consider
complex pipeline cases only after expert review. See Nw.
Pipeline Corp. v. FERC, 863 F.2d 73, 77-78 (D.C. Cir. 1988);
Public Serv. Comm’n v. Federal Power Comm’n, 543 F.2d 757,
774 n.116 (D.C. Cir. 1974). “[M]andatory petition-for-
4
rehearing requirement[s],” although “virtually unheard-of” in
other contexts, “happen to exist in all three of the major statutes
administered by FERC.” ASARCO, Inc. v. FERC, 777 F.2d
764, 774 (D.C. Cir. 1985) (Scalia, J.). These provisions,
including section 717r, are “the product of an awareness that
FERC’s complex and multi-party proceedings would soon
overwhelm the system if agreed-upon settlements and
acquiesced-in agency dispositions were not the rule rather than
the exception.” Id.
Artificially restricting the Commission’s time for
reconsideration would undermine its ability to evaluate the
arguments and evidence presented by aggrieved parties and
burden federal courts of appeal. But we shouldn’t let down our
guard—an agency given an inch might be tempted to take a
mile. If the Commission promises rehearing proceedings but in
fact provides nothing more than undue delay, we should
entertain the possibility of mandamus relief. See Del.
Riverkeeper Network v. FERC, 895 F.3d 102, 113 (D.C. Cir.
2018).
That brings us to the next major contributor to unfairness
in pipeline cases: approval of irreversible construction while
rehearing is pending. Deferred judicial review, on its own,
doesn’t necessarily harm landowners. That harm stems from
the Commission’s actions in the interim. And the Commission
has long issued construction orders—essentially qualified
permission slips to begin bulldozing—while its “rehearing” is
ongoing and before an Article III court has weighed in. See
Maj. Op. at 17. In recent weeks, however, the Commission has
proven capable of changing course in the face of public
criticism. After oral argument, the Commission formally
amended its rehearing regulations to “preclude[] the issuance”
of construction orders “while rehearing of the initial order[] is
pending.” Order No. 871, Limiting Authorizations to Proceed
5
with Construction Activities Pending Rehearing, 171 FERC
¶ 61,201, at 5 (June 9, 2020). This welcome change defangs
much of the injustice associated with deferred judicial review.
But if the Commission ever reverts to its old policy, that
approach would be ripe for a challenge under the
Administrative Procedure Act. Approving irreversible
construction in the midst of a properly substantive rehearing
might qualify as arbitrary and capricious.
However, as the court notes, the Commission’s “new rule
does not . . . prevent eminent domain proceedings from going
forward based on the underlying certificate order.” Maj. Op. at
18 n.2. Those proceedings are the final piece of the puzzle. In
this case, the district court relied on the Certificate Order to
support condemnation even though the Commission had
(purportedly) “granted” rehearing. See Transcon. Gas Pipe
Line Co. v. Permanent Easements for 2.14 Acres & Temp.
Easements for 3.59 Acres in Conestoga Township, Lancaster
County, Pa., Tax Parcel No. 1201606900000, 2017 WL
3624250, at *3-4 (E.D. Pa. Aug. 23, 2017). But that practice
doesn’t follow from the district court’s conclusion that it lacked
jurisdiction to review the merits of the underlying Certificate
Order. See id. at *3 (collecting cases and explaining that “the
validity of a FERC Order can only be challenged in front of
FERC, and then in the [D.C. Circuit]”).
In any event, the district court should not plow ahead in
the face of a true grant of rehearing. Nothing in the Natural Gas
Act prevents a district court from holding an eminent-domain
action in abeyance until the Commission completes its
reconsideration of the underlying certificate order. Although
“[t]he filing of an application for rehearing . . . shall not, unless
specifically ordered by the Commission, operate as a stay of
the Commission’s order,” 15 U.S.C. § 717r(c) (emphasis
added), that provision doesn’t limit a district court’s authority
6
to stay its hand after the Commission grants a substantive
application for rehearing. And now that the era of tolling orders
is over, a district court shouldn’t assume that a grant of
rehearing is merely a dilatory ploy. Alternatively, one of my
colleagues suggested at oral argument that once the
Commission grants rehearing of a certificate order, that order
should be regarded as nonfinal, see Oral Arg. Tr. 113:9-21
(comments of KATSAS, J.); see also Bennett v. Spear, 520 U.S.
154, 177-78 (1997), and a nonfinal order is presumably an
invalid basis for transferring property by eminent domain. That
suggestion merits a closer look.
* * *
The court’s decision rightly jettisons the Commission’s
signature stalling tactic. But it doesn’t alter the fact that the
Commission can postpone review by granting rehearing. Those
concerned about potential abuse of that power should take
heart: The Commission’s recent rule change is a major step in
the right direction, and courts possess other tools to protect
landowners.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment and dissenting in part: With little regard for
stare decisis, my colleagues overrule a statutory construction
that our court has employed for over fifty years. Because “stare
decisis . . . is a ‘foundation stone of the rule of law,’” Allen v.
Cooper, 140 S. Ct. 994, 1003 (2020) (quoting Michigan v. Bay
Mills Indian Cmty., 572 U.S. 782, 798 (2014)), and reversing
our precedent “demand[s] a ‘special justification,’ over and
above the belief ‘that the precedent was wrongly decided,’” id.
(quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.
258, 266 (2014)), and because I believe no special justification
exists here, I would leave it to the political branches to
determine whether and how to limit FERC’s use of tolling
orders.
Even for the en banc court, stare decisis is the rule and
overturning precedent the rare exception. This is especially true
in the context of a statutory construction, where
“[c]onsiderations of stare decisis have special force.”
Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989).
Put differently,
[t]he burden borne by a party urging the
disavowal of an established precedent is greater
“where the Court is asked to overrule a point of
statutory construction . . . for here, unlike in the
context of constitutional interpretation, . . .
Congress remains free to alter what we have
done.”
United States v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012)
(en banc) (quoting Patterson, 491 U.S. at 172–73); see also
Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 205 (1991)
(stare decisis “is most compelling” in “pure question of
statutory construction”); Kimble v. Marvel Entm’t, LLC,
135 S. Ct. 2401, 2409 (2015) (“[U]nlike in a constitutional
case, critics of our [prior] ruling can take their objections across
2
the street, and Congress can correct any mistake it sees.”). We
therefore overturn an earlier statutory interpretation only
“under a very narrow range of circumstances.” Burwell,
690 F.3d at 504.
The majority states that “[w]e took this case en banc to
address a focused question of statutory construction,” Majority
Op. 15 (emphasis added), and that it reviews this “pure
question of law” de novo, id. at 19. It errs in both regards. In
fact, we are readdressing our construction of 15 U.S.C.
§ 717r(a) and our review, far from de novo, is constricted by
the “special force” of stare decisis, Patterson, 491 U.S. at 172,
which bars overruling precedent without “special
justification,” Allen, 140 S. Ct. at 1003 (citation omitted). We
emphatically do not write on a blank slate.
The majority concludes that “[t]o the extent our prior
decisions upheld [FERC’s] use of tolling orders . . . , they are
overruled in relevant part,” Majority Op. 34 (emphasis added),
but reaches this conclusion without proper regard for the
“extent” to which tolling orders have been upheld. Since 1969
we have consistently held that FERC’s tolling orders “act
upon” a petition for rehearing under § 717r(a). See, e.g.,
Cal. Co. v. Fed. Power Comm’n, 411 F.2d 720, 722 (D.C. Cir.
1969) (per curiam) (section 717r(a) merely “establish[es] a
presumption from agency silence”); Del. Riverkeeper Network
v. FERC, 895 F.3d 102, 113 (D.C. Cir. 2018) (“We have long
held that FERC’s use of tolling orders is permissible under the
Natural Gas Act . . . .”). And we did so with good reason.
Now—fifty years after we first spoke on the issue and two
years since we last did—we reverse caselaw on which the
public, the government, our sister circuits and the Bar have
long relied.
3
My colleagues do not skirt stare decisis for want of an
applicable standard. The Supreme Court has “articulated in
some detail the circumstances in which it may find sufficient
justification for overturning a statutory precedent,” Critical
Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d
871, 875 (D.C. Cir. 1992) (en banc), with “the primary reason
for the Court’s shift in position [being] the intervening
development of the law, through either the growth of judicial
doctrine or further action taken by Congress,” id. at 875–76
(quoting Patterson, 491 U.S. at 173). The Supreme Court will
also overrule precedent that is “a positive detriment to
coherence and consistency in the law.” Id. at 876 (quoting
Patterson, 491 U.S. at 173). As a circuit court, we “may
reexamine [our] own established interpretation of a statute if
[we] find[] that other circuits have persuasively argued a
contrary construction” or when the en banc court “decides that
[a] panel’s holding on an important question of law was
fundamentally flawed.” Id. None of these factors support our
reversal of California Co. and its progeny.
The “growth of judicial doctrine” since we decided
California Co. cuts against reversal. Indeed, the majority
breaks new ground as the first court of appeals to disapprove
FERC’s use of tolling orders since the Natural Gas Act became
law in 1938. See Berkley v. Mountain Valley Pipeline, LLC,
896 F.3d 624, 631 (4th Cir. 2018), cert. denied, 139 S. Ct. 941
(2019); Kokajko v. FERC, 837 F.2d 524, 525 (1st Cir. 1988)
(per curiam); Gen. Am. Oil Co. of Tex. v. Fed. Power Comm’n,
409 F.2d 597, 599 (5th Cir. 1969) (per curiam). And it does so
despite the Congress’s long-standing awareness that multiple
courts of appeals have approved FERC’s tolling orders.
See Jackson v. Modly, 949 F.3d 763, 772–73 (D.C. Cir. 2020)
(“The Supreme Court has held that ‘Congress’ failure to disturb
a consistent judicial interpretation of a statute may provide
some indication that “Congress at least acquiesces in, and
4
apparently affirms, that interpretation.”’”) (quoting Monessen
Sw. Ry. Co. v. Morgan, 486 U.S. 330, 338 (1988) (brackets
omitted)). In other words, it is not our precedent but today’s
decision that is a “positive detriment to coherence and
consistency in the law.” Patterson, 491 U.S. at 173. The
majority initiates the type of “erratic” change in the law that
stare decisis is designed to prevent.
[T]he important doctrine of stare decisis, the
means by which we ensure that the law will not
merely change erratically, but will develop in a
principled and intelligible fashion[,] . . . permits
society to presume that bedrock principles are
founded in the law rather than in the proclivities
of individuals, and thereby contributes to the
integrity of our constitutional system of
government, both in appearance and in fact.
While stare decisis is not an inexorable
command, . . . any detours from the straight path
of stare decisis . . . have occurred for articulable
reasons, and only when the Court has felt
obliged to bring its opinions into agreement
with experience and with facts newly
ascertained.
Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986) (citation and
quotation marks omitted).
And although I share the majority’s commitment to
textualism, see Majority Op. 33, I would exercise a degree of
judicial humility before deciding that every court to consider
FERC’s use of tolling orders since § 717r was enacted eighty-
two years ago failed to understand what the statute plainly
commands. And regardless whether FERC’s current
interpretation of § 717r(a) is entitled to Chevron deference,
5
see id. at 20, questions of deference answered decades ago, see,
e.g., Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–50 (1990),
are not a “compelling justification” to depart from precedent
this far down the road, Hilton, 502 U.S. at 202.
The majority emphasizes that FERC’s use of tolling orders
“has become virtually automatic.” Majority Op. 15. But the
frequency with which FERC issues tolling orders is entirely
unrelated to whether California Co. was correctly decided.
Moreover, we should hesitate to premise our reversal on
FERC’s having relied on our cases, as our holdings should be
reliable. “Stare decisis is the preferred course because it
promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity
of the judicial process.” Janus v. Am. Fed’n of State, County,
& Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018)
(emphasis added) (citation omitted). Under today’s approach,
government agencies may rely on our cases up to a point—
which only we know—before their reliance goes too far and we
pull the rug from under them. The better course is to stand by
our decisions and allow the political process to resolve the
issue.
Section 717r(a) has not changed since Natural Gas Act was
enacted in 1938. Overruling California Co. and its progeny
because a majority of our court now believes those cases
misconstrued § 717r(a) renders stare decisis meaningless and
draws the Judiciary into a policymaking role that is the
province of the elected branches.1 Our decision could short-
1
The widely held view that tolling orders are valid under
§ 717r(a) makes sense. Given that “we afford FERC an extreme
degree of deference” with regard to its “technical expertise,”
Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301,
1308 (D.C. Cir. 2015) (citation and quotation marks omitted), and
6
circuit action by both FERC, see Majority Op. 17 n.2, and the
Congress, see Letter from Jamie Raskin, Chairman, House
Subcomm. on Civil Rights & Civil Liberties, to Neil
Chatterjee, Chairman, Fed. Energy Regulatory
Comm’n (Feb. 18, 2020), that seeks to alleviate the negative
results of tolling orders and creates a circuit split that could
force the Supreme Court to weigh in and further enmesh the
Judiciary in a matter better left to elected officials.
I share my colleagues’ concern for the predicament that
tolling orders create for some homeowners. But I continue to
agree with my esteemed colleague, Judge Buckley, writing for
the en banc court in 1992, and “accept the wisdom of Justice
Brandeis’s observation . . . that ‘[s]tare decisis is usually the
wise policy, because in most matters it is more important that
the applicable rule of law be settled than that it be settled
right.’” Critical Mass Energy Project, 975 F.2d at 877 (quoting
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)
(Brandeis, J., dissenting)). Notwithstanding our constitutional
duty to “say what the law is,” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803), we should not obliterate solid
precedent with only a perfunctory “by your leave.” And, in
declaring the law governing FERC’s application of its
expertise, I believe we should exhibit Third Branch modesty in
deciding how our country handles a complex undertaking like
the construction of natural gas pipelines. Accordingly, I
that aggrieved homeowners have a constitutionally mandated
remedy—i.e., just compensation under the Takings Clause, U.S.
CONST. amend. V—it is reasonable that the Congress worded
§ 717r(a) merely to “establish a presumption from agency silence,”
Cal. Co., 411 F.2d at 722. But regardless whether my colleagues
agree with the California Co. court, the salient point today is our lack
of any special justification to depart from stare decisis. See Allen,
140 S. Ct. at 1003.
7
respectfully dissent pro tanto from the overruling of California
Co. and its progeny.