In re Transcon. Gas Pipe Line Co.
| Decision Date | 17 March 2023 |
| Docket Number | CP21-94-001 |
| Citation | 182 FERC ¶ 61, 148 |
| Parties | Transcontinental Gas Pipe Line Company, LLC |
| Court | Federal Energy Regulatory Commission |
Before Commissioners: Willie L. Phillips, Acting Chairman; James P Danly, Allison Clements, and Mark C. Christie.
ORDER ON REHEARING, GRANTING CLARIFICATION, DENYING STAY, AND DISMISSING WAIVER
1. On January 11, 2023, the Commission issued an order authorizing Transcontinental Gas Pipe Line Company, LLC (Transco) to construct and operate the Regional Energy Access Expansion Project (REAE or project).[1] On February 10, 2023, the following groups filed timely requests for rehearing of the Certificate Order: (1) New Jersey Conservation Foundation, New Jersey League of Conservation Voters, Aquashicola Pohopoco Watershed Conservancy, and affected landowner Catherine Folio (together, NJCF); (2) Delaware Riverkeeper Network and Maya K. van Rossum (together, Riverkeeper); and Food &Water Watch and Sierra Club (together, Sierra Club).[2] On February 10 2023, the New Jersey Board of Public Utilities (NJ BPU) and the New Jersey Division of the Rate Counsel (Rate Counsel) (together, New Jersey Agencies) filed a motion for clarification of certain aspects of the Certificate Order. On February 10, 2023, the New Jersey Division of the Rate Counsel submitted a letter expressing support for, and purporting to join, NJCF's rehearing request and motion for a stay of the Certificate Order.
2. Pursuant to Allegheny Defense Project v FERC,[3] the rehearing request filed in this proceeding may be deemed denied by operation of law. However as permitted by section 19(a) of the Natural Gas Act (NGA),[4] we are modifying the discussion in the Certificate Order and continue to reach the same result in this proceeding, as discussed below.[5] Additionally,we grant the motion for clarification and deny the motions for stay.
I. Background
3. On March 26, 2021, Transco filed an application, pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA)[6] and Part 157 of the Commission's regulations,[7]requesting authorization to construct and operate the REAE.[8] The REAE is an incremental expansion of Transco's existing pipeline system consisting of two components: (1) modernization of certain compression facilities; and (2) the construction of new facilities to provide 829,400 dekatherms per day (Dth/d) of firm transportation capability from northeastern Pennsylvania to multiple delivery points in New Jersey, Pennsylvania, and Maryland.[9]
4. Transco proposes to construct and operate approximately 22.3 miles of 30-inch-diameter lateral pipeline (the Regional Energy Lateral) and 13.8 miles of 42-inch-diameter loop pipeline (the Effort Loop) in Pennsylvania; one new compressor station in New Jersey; modifications to five existing compressor stations in Pennsylvania and New Jersey; modifications to existing pipeline tie-ins, valves, regulators, and meter regulating stations in Pennsylvania, New Jersey, and Maryland; additional ancillary facilities such as regulation controls, valves, cathodic protection, communication facilities, and pig launchers and receivers in Pennsylvania; and to abandon and replace certain existing compression facilities with higher horsepower compression at Compressor Stations 505 and 515.[10]
5. Transco held an open season for the project on March 8, 2019, a supplemental open season from April 28, 2020 to May 28, 2020, and a reverse open season from April 24, 2020 to May 25, 2020.[11] Additionally, Transco conducted a supplemental open season in May 2021 for an increment of firm transportation capacity that was not offered in Transco's previous open seasons. As a result of the open seasons, Transco executed binding precedent agreements for the full project capacity with eight project shippers for primary terms ranging from 15 to 17 years.[12] The majority of the project's capacity (approximately 56%) is subscribed by New Jersey local distribution companies (LDC): New Jersey Natural Gas Co., South Jersey Gas Co., PSEG Power LLC, and Elizabethtown Gas Co., LLC. PECO Energy Company, a Pennsylvania LDC, and Baltimore Gas and Electric Company, a Maryland LDC, have contracted for 12% and 5%, respectively, of the project capacity.[13] The remaining capacity is subscribed by Williams Energy Resources, LLC (18%),[14] a natural gas marketer with a portfolio of various types of customers, and South Jersey Resources, LLC (9%), a natural gas marketer operating primarily in New Jersey but with wholesale customers throughout the region.[15]
II. Procedural Issues
A. Deficient Request for Rehearing
6. The NGA requires that a request for rehearing set forth the specific grounds on which it is based.[16] Additionally, the Commission's regulations provide that requests for rehearing must "[s]tate concisely the alleged error in the final decision" and "include a separate section entitled 'Statement of Issues,' listing each issue in a separately enumerated paragraph" that includes precedent relied upon.[17] Consistent with these requirements, the Commission "has rejected attempts to incorporate by reference arguments from a prior pleading because such incorporation fails to inform the Commission as to which arguments from the referenced pleading are relevant and how they are relevant."[18]
7. On February 10, 2023, the Rate Counsel submitted a letter expressing support for, and purporting to join, NJCF's rehearing request and motion for a stay of the Certificate Order. The letter identifies two purported errors in the Certificate Order: (1) the Commission should have given more weight to a London Economics Institute capacity study proffered by the New Jersey Agencies because approximately 76% of the capacity from the REAE project will flow into New Jersey, rather than the Commission's estimate of 56%; and (2) the Commission failed to account for New Jersey's statutory requirement that natural gas facilities reduce their demand by 1.1% by 2026.[19]
8. We reject the Rate Counsel's filing to the extent it purports to join NJCF's request for rehearing because it does not satisfy the applicable pleading standards. First, the Rate Counsel fails to "include[] representative Commission and court precedent" upon which it relies to demonstrate an error in the Certificate Order.[20] Next, the Rate Counsel's rehearing request is deficient because it fails to include a Statement of Issues, as required by Rule 713 of the Commission's Rules of Practice and Procedure.[21] Finally, the Commission has repeatedly rejected attempts to incorporate by reference arguments from another pleading because such incorporation fails to inform the Commission as to which arguments from the referenced pleading are relevant and how they are relevant.[22]Accordingly, we reject the Rate Counsel's request for rehearing.
B. Motions for Stay
9. NJCF and Sierra Club request that the Commission stay the Certificate Order pending issuance of an order on rehearing.[23] Additionally, NJCF requests stay of the Certificate Order "until the conclusion of judicial review."[24] This order addresses and denies or dismisses the requests for rehearing; accordingly, we dismiss Sierra Club's motion for stay as moot.
10. The Commission reviews requests for stay under the standard established by the Administrative Procedure Act: a stay will be granted if the Commission finds that "justice so requires."[25] Under this standard, the Commission considers such factors as whether the moving party will suffer irreparable injury without a stay, whether a stay would substantially harm other parties, and whether the stay is in the public interest.[26] If the party requesting the stay is unable to demonstrate that it will suffer irreparable harm absent a stay, we need not examine other factors.[27]
11. In order to support a stay, the movant must substantiate that irreparable injury is "likely" to occur.[28] The injury must be both certain and great and it must be actual, not theoretical. Bare allegations of what is likely to occur do not suffice.[29] The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future.[30] Further, the movant must show that the alleged harm will directly result from the action which the movant seeks to enjoin.[31] A stay generally "will not be granted against something merely feared as liable to occur at some indefinite time in the future."[32]
12. In support of its claim of irreparable harm, NJCF states that it represents landowner Catherine Folio, whose land could be irreversibly damaged before the Commission and the courts can fully evaluate the significant evidence showing lack of need for the project.[33] Specifically, NJCF asserts that without a stay Ms. Folio's land could suffer from increased flooding; contamination of a creek, water table, and well on her property due to construction of a pipeline crossing; adverse impacts to her storage sheds;[34] and damage due to tree felling and pipeline construction.[35] We find that NJCF's asserted impacts are speculative and NJCF has not shown that irreparable injury is "likely" to occur. Further, the Commission included protective conditions in the Certificate Order and the final Environmental Impact Statement (Final EIS) to mitigate construction impacts on landowner property.[36]
13. Additionally, NJCF states that, absent a stay, any project construction activities or permanent land alterations pending appeal will cause irreparable environmental harm to intervenors.[37] Specifically, NJCF asserts that construction will irreparably harm wetlands by converting previously forested and scrub-shrub wetlands to emergent wetlands; removing trees,...
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