Allegheny Defense Project v. FERC

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.