On October 7, 2025, FERC rescinded the regulation that precluded natural gas pipeline companies from receiving authorization to proceed with construction of their new projects during the period for filing requests for rehearing of certificate orders, or while rehearing is pending. In doing so, FERC stated that its rescission will advance its “principal statutory mission under the Natural Gas Act [NGA] to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”

In Order No. 871, FERC issued a final rule that added a new Section 157.23 to FERC’s regulations. The new regulation precluded FERC from issuing constructions authorizations for new natural gas transportation, import, or export projects during the period for filing requests for rehearing of FERC’s orders authorizing the projects, or while rehearing is pending if a rehearing request is filed. FERC subsequently modified the regulation in Order No. 871-B to provide that the restriction on 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. The restriction would expire when the rehearing request was no longer pending, the record of the proceeding had been filed with the court of appeals, or 90 days had passed from the date that the request might be deemed denied by operation of law.

In April 2025, the Interstate Natural Gas Association of America (INGAA) filed a petition for rulemaking requesting that FERC rescind Order No. 871, thereby removing Section 157.23 from the regulations. INGAA argued that the D.C. Circuit’s decision in Allegheny Defense Project v. FERC (Allegheny) (see July 1, 2020 edition of the WER) rendered the regulations promulgated under Order No. 871 unnecessary because Allegheny allows parties to “seek and receive a judicial stay of a certificate [or authorization] order as soon as 30 days after a request for rehearing” has been filed. INGAA also argued that the Order No. 871 framework assumes that FERC erred in authorizing a project and has become a tool to delay authorized projects that are needed to develop reliable energy infrastructure. In June 2025, FERC issued an order temporarily waiving Section 157.23 for one year and issued a Notice of Proposed Rulemaking (NOPR) proposing to permanently remove it from FERC’s regulations.

FERC’s final rulemaking largely adopted the reasoning in the NOPR. FERC stated that adequate natural gas infrastructure is critical to meet the increasing natural gas and electric system demand, and unnecessary construction delays could jeopardize a project’s capacity or reliability benefits during the timeframe in which they are needed, frustrating the objectives of approved projects. FERC also posited that Allegheny safeguards stakeholders’ interests in permitting parties that may seek to halt commencement of construction during the pendency of a rehearing request. Lastly, FERC explained that Section 157.23 is inconsistent with federal policy, including President Trump’s Executive Order 14154, which seeks to streamline the permitting process for energy infrastructure projects, and Executive Order 14156, which declared a national energy emergency (see January 22, 2025 edition of the WER).

FERC’s full order, issued in Docket No. RM25-9-000, can be accessed here.