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USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 1 of 295 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________________________ CASE NO. 17-1236 FERC DOCKET NO. CP16-22 _________________________________ SIERRA CLUB, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. On Petition for Review of Order of the Federal Energy Regulatory Commission, 160 FERC ¶ 61,022 (Aug. 25, 2017) PETETIONER’S EMERGENY MOTION FOR STAY PENDING REVIEW Benjamin A. Luckett D.C. Circuit Bar No. 54227 Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV 24901 (304) 645-0125 [email protected] Counsel for Petitioner USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 2 of 295 INTRODUCTION Pursuant to Federal Rule of Appellate Procedure 18(a) and Circuit Rule 18, Petitioner Sierra Club seeks an emergency stay pending review of the August 25, 2017 Federal Energy Regulatory Commission (FERC or the Commission) Order issuing a Certificate of Convenience and Necessity (Order) in NEXUS Gas Transmission, LLC, 160 FERC ¶ 61,022 (2017), Ex. C (Order), and the October 11, 2017 Notice to Proceed (Notice), Letter order granting request to proceed, Docket No. CP16-22, 20171011-3009 (Oct. 11, 2017), Ex. D (Notice), issued pursuant to it, authorizing NEXUS Gas Transmission, LLC (NEXUS) to immediately begin construction of an interstate natural gas pipeline. Petitioner, a non-profit organization whose members reside near, recreate on, or own property in the areas that will be affected by the NEXUS Pipeline, seeks the stay to prevent irreparable injury to its members pending the Court’s review. The NEXUS Pipeline is a 257-mile natural gas pipeline that will connect Columbiana County, Ohio, to Ypsilanti Township, Michigan. Construction on NEXUS has already begun and will soon cause irreparable harm to Petitioner’s 1 members. Petitioner requests a stay within nine days of this filing. 1 As required by Federal Rule of Appellate Procedure 18(a)(1), Petitioner moved for a stay of the Order before FERC on September 22, 2017. USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 3 of 295 ARGUMENT I. Petitioner Satisfies the Requirements for an Emergency Stay. An emergency stay of an agency’s proceedings is warranted where a movant establishes that it is (1) likely to prevail on the merits, (2) likely to suffer irreparable harm absent a stay, (3) other parties will be unlikely to suffer substantial harm if the stay is granted; and (4) the public interest lies in granting the stay. Circuit Rule 18(a)(1). The moving party “has the burden to show that all four factors, taken together, weigh in favor of the [stay].” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Petitioner satisfies those requirements here for the following reasons. A. Petitioners Demonstrate a High Likelihood of Success on the Merits. 1. This Court has Jurisdiction Over the Petition for Review of the Certificate to and Issue the Stay Requested by this Motion. Petitioner anticipates that FERC, as is its custom, will challenge the Court’s jurisdiction to hear the petition for review of the Certificate and to issue the stay requested by this motion on the ground that Petitioner’s Request for Rehearing of the Certificate remains pending before the Commission. Notwithstanding, the petition for review of the Certificate and this motion to stay are timely because Petitioner’s request for rehearing has been denied by operation of law under Section § 717r(a) of the Natural Gas Act (the Act). 15 U.S.C. § 717r(a). 2 USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 4 of 295 The Act requires the Commission to act on a request for rehearing within thirty days of its submission to prevent denial by operation of law: Unless the Commission acts upon the application for rehearing within thirty days ..., such application may be deemed to have been denied. § 717r(a) (emphasis added). Petitioner filed a timely rehearing request to FERC’s Order. See Request for Rehearing, Docket No. CP16-22, 20170922-5030 (Sept. 22, 2017), Ex. F (Request). Thirty days passed and FERC took no lawful action on the request. Rather, the Deputy Secretary of FERC issued an order purporting to grant rehearing “for the limited purposes of further consideration.” Order Granting Rehearing for Further Consideration, Docket No. CP16-22, 20171023-3012 (Oct. 23, 2017), Ex. J (Tolling Order). The Deputy Secretary relied on 18 C.F.R. § 375.302(v) to issue the tolling Order, (these FERC orders have come to be known as “tolling orders”). That regulation purports to delegate to FERC’s Secretary authorization to toll requests for rehearing. Id. FERC, however, has not and may not delegate such authority to the Secretary. Additionally, FERC does not have the statutory authority to issue tolling orders. Although FERC believes otherwise, the legal effect of the Secretary’s tolling order was to deny by silence the Request. The Tolling Order was not an “act” within the statutory meaning by the Commission on Petitioner’s Request. Accordingly, the Tolling Order is void ab initio. Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936). Petitioner’s request was, 3 USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 5 of 295 therefore, effectively denied by FERC by operation of law. § 717r(a). Consequently, this Court has jurisdiction. a. FERC has Purported to Delegate Authority to its Secretary to Issue Tolling Orders Only on Stand- Alone Requests for Rehearing. The Tolling Order exceeded the scope of authority of the Deputy Secretary under Section 375.302(v) because Petitioner’s rehearing request was not for rehearing alone. Petitioner also sought a stay of the Order in the Request. See Request 32-33. Even if FERC’s delegation of authority to issue a tolling order had been valid, that authority to delegate would not extend to motions to stay FERC’s Order when it is paired with a request for rehearing. When FERC issued the order promulgating the regulation, FERC explicitly limited the scope of the Secretary’s delegation, stating [t]his authority will apply only to stand-alone rehearing requests. In other words, if a rehearing request is combined with any other request for Commission action, such as a request ... for a stay ..., the Commission will continue to act ... according to current procedures. Delegation of Authority to the Secretary, the Director of the Office Electric Power Regulation and the General Counsel, 60 Fed. Reg. 62,326, 62,327 (Dec. 6, 1995). Here, Petitioner’s rehearing request was combined with a motion for stay of the Order pending rehearing. Request 32-33. Consequently, the Deputy Secretary was not authorized to toll the time for action on that request, and his tolling order is, therefore, void. Manhattan Gen. Equip. Co., 297 U.S. at 134. 4 USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 6 of 295 b. FERC Cannot Delegate the Authority to “Act” on Rehearing Requests. The Tolling Order is also insufficient to constitute an act on Petitioner’s rehearing request itself because Congress did not authorize FERC to delegate its authority to act on such requests. The statute expressly required the Commission to act on rehearing requests. § 717r(a). The Commission’s delegation was thus unlawful and any action pursuant to that delegation has no legal effect. Congress explicitly authorized the Commission to delegate other specific functions. See 42 U.S.C. § 7171(g) (authorizing delegation of authority to conduct hearings); § 717m(c) (authorizing delegation of authority to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of documents.); § 717n(e) (authorizing delegation of authority to hold hearings). Congress, of course, can be understood to say what it means and mean what it says. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (“The plain meaning of legislation should be conclusive[.]”). Congress has authorized the Commission to delegate some of its authority, but obviously not all of it. “Congress does not always contemplate that the duties assigned to [an agency] may be freely delegated.” United States v. Giordano, 416 U.S. 505, 514 (1974). There is no reason to read more into the statute than is written plainly in it. Cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992) (“No 5 USCA Case #17-1236 Document #1704129 Filed: 11/13/2017 Page 7 of 295 sensible person accustomed to the use of words in laws would speak so narrowly and precisely of particular statutory provisions, while meaning to imply a more general and broad coverage than the statute[] designated.”). The specificity with which Congress listed the duties that are delegable suggests that Congress did not intend for the Commission to delegate other duties than those specifically enumerated. In this case, expressio unius est, indeed, exclusio alterius. See NLRB v. SW General, Inc., 137 S. Ct. 929, 940 (2017) (“The force of any negative implication … depends on context.”). Furthermore, the Act defines the scope of what actions the Commission may take when presented with a request for rehearing: (1) grant the rehearing; (2) deny the rehearing; (3) abrogate the underlying order; or (4) modify the underlying order. § 717r(a). Those authorized actions are not ministerial; they require discretion. It “can hardly be accepted unless plainly required by its words” that the Act permits delegation of discretionary functions. Cudahy Packing Co. of La. v. Holland, 315 U.S. 357, 361 (1942). When a statute grants the authority to delegate some functions but omits the grant as to others it “shows a legislative intention to withhold the latter.” Id.

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