On May 19, 2021, FERC issued an order dismissing requests for rehearing of an order directing briefing (“Briefing Order”) about the operation of Algonquin Gas Transmission, LLC’s Atlantic Bridge project after finding that requesting parties were not “aggrieved” under court precedent interpreting Section 19(a) of the Natural Gas Act (“NGA”). Commissioner James Danly wrote separately in dissent explaining his view that FERC’s request for briefing means that the determinations made in the Atlantic Bridge certificate order are no longer settled and that the certificate order is in fact no longer final.
FERC explained that the NGA permits “aggrieved” parties to file for rehearing of a FERC order, and that courts have routinely held that parties are not aggrieved by an agency’s interlocutory order establishing a hearing, investigation or other fact-finding proceeding. In this case, FERC issued the Briefing Order in response to groups raising concerns about the Atlantic Bridge project years after issuing its certificate order. In the Briefing Order, FERC directed parties to consider emissions and operation safety issues pursuant to FERC’s continuing oversight of the project.
FERC also explained that the Briefing Order is interlocutory because it constitutes a procedural step that does not impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process. Moreover, because the parties requesting rehearing of the Briefing Order only speculated about generalized harm, could not demonstrate irreparable injury, and also would have the opportunity to raise their arguments after a final decision issued, FERC determined the requests for rehearing were premature.
Commissioner Danly disagreed with the characterization of the Briefing Order as interlocutory and would have found that the parties are aggrieved whether FERC later modifies the certificate order or not, because they suffer present and immediate injury from the reopening of a final, non-appealable certificate order. Danly also argued that it would have been wise for FERC to respond to the jurisdictional arguments raised in the rehearing requests rather than continuing with the proceeding.
A copy of the order is available here.