On January 20, 2022, FERC granted Adelphia Gateway, LLC’s (“Adelphia”) request for an 18-month extension of time, until June 20, 2023, to construct and place into service the proposed Adelphia Gateway Project. The order also announces FERC’s new policy on interventions in extension of time proceedings for pipeline projects. The new policy allows interventions in extension of time proceedings regardless of intervenor status in the underlying certificate docket, but untimely motions to intervene in the extension of time proceedings will still be reviewed under the FERC’s criteria for late-filed interventions. Commissioners James Danly and Mark C. Christie issued separate partial dissents arguing against the change in policy for interventions in extension of time proceedings.
On December 20, 2019, the Commission approved Adelphia’s request to acquire, construct, and operate the proposed Adelphia Gateway Project and required Adelphia to make the project available for service by December 20, 2021. On November 1, 2021, Adelphia requested an 18-month extension of time, until June 20, 2023 to complete construction and place the remaining portions of the project into service, due to delays relating to environmental permits, the ongoing COVID-19 pandemic, and supply chain issues. Several individuals, landowners, and environmental groups moved to intervene in the request for extension of time sub-docket, including some individuals and landowners who were not a party to the underlying certificate proceeding. In addition, certain of these individuals and landowners submitted postcard comments through the mail that were postmarked before the intervention deadline, although FERC did not receive the comments until after the intervention deadline had passed.
In the order accepting Adelphia’s request for extension of time, FERC also reconsidered their policy on interventions in extension of time proceedings. Under FERC’s prior policy, FERC would only grant interventions filed by parties to the underlying certificate proceeding. Under its new policy, FERC will accept timely motions to intervene in extension of time proceedings from any person, including those that were not a party to the underlying proceeding. In changing its policy, FERC reasoned that in certain instances the extension of time request is filed years after the underlying certificate proceeding, such that circumstances may have changed for landowners and other stakeholders or the request may impact landowners or stakeholders who were not originally affected by the project (e.g., landowners may have moved near or along the project route since the underlying certificate proceeding). FERC further stated that “[e]ntities who did not intervene in the initial proceeding but whose interests may have changed since that time or were not affected by it . . . should have the opportunity to be heard and have the ability to challenge our decisions on such matters.” FERC clarified, however, that “a person who is permitted to intervene in an extension of time proceeding despite not having intervened in the initial proceeding may not relitigate the Commission’s decision to issue a certificate, including whether the Commission properly found the project to be in the public convenience and necessity.” FERC also stated that interventions filed after the deadline established in the notice issued following a request for extension of time will be reviewed under FERC’s criteria for late-filed interventions.
Commissioners Danly and Christie separately concurred and dissented in part. Both Commissioners concurred with the ultimate decision to grant Adelphia’s request for extension of time. However, they both dissented from FERC’s revised policy allowing interventions in extension of time proceedings regardless of intervenor status in the underlying certificate docket. Commissioner Danly stated that he “believe[s] this order represents an unwise and unnecessary exercise of our discretion to formulate procedural rules.” Commissioner Christie stated in his dissent that this new rule “will undeniably drive up the legal costs associated with building gas facilities, creating yet another disincentive to the construction of vitally needed infrastructure.” Further, he stated that “[t]his order’s blank check for late interventions is not a legal standard, but a legal weapon.”
The order can be found here.