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Madam Secretary, we are ready to begin.

Good morning, Mr. Chairman. Good morning, commissioners. This is the time and place that has been noticed for the open meeting of the Federal Energy Regulatory Commission to consider the matters that have been duly posted by the Commission. Please join us in the pledge of allegiance.

I pledge allegiance to the flag of the United States of America and to the Republic, for which it stands, one nation, under God, indivisible, with liberty and justice for all.

Commissioners, since the January 23, 2020 open meeting, the Commission has issued 12 notational orders. Thank you, Mr. Chairman.

Thank you, Madam Secretary and good morning to everyone. Thank you to all who are with us this morning. We are holding this second January open meeting due to the importance of the Commission's timely consideration of the PennEast Petition for Declaratory Order. It is hard to overstate the significance of the eminent domain issues raised in PennEast's petition which was filed following the third circuit petition that has the potential to disrupt the Commission's regulation of the natural gas industry. The Commission is charged with the administration of the Natural Gas Act and PennEast sought the Commission's guidance on complex issues that are integral to our work under the Act. So, it is of utmost importance that we have the opportunity to provide that guidance and to do so prior to the Supreme Court's consideration of these issues. The action we are taking today also will provide much needed clarity for other potential litigates. For instance, the Fourth Circuit granted an extension in response to a party's request for additional time so that the party's brief might account for any declaratory order issued by the Commission. In today's order, the Commission finds that the text, legislative history, and precedent regarding NGA section 7H all demonstrate Congress' intent to delegate the authority to condemn state property to certificate holders. The Commission also explains the problems presented by the Third Circuit's proposed work around in which the Commission itself would acquire state owned property through the exercise of eminent domain. The order emphasizes that Congress delegated its eminent domain authority only to certificate holders and not to the Commission. The Commission declined to address the 11th Amendment concerns raised in the petition because as an administrative agency, the Commission is not the ideal forum for making constitutional determinations. However, we underscore that a certificate holders' ultimate authority to condemn state land is an essential element of the comprehensive scheme of federal regulation of all whole sales of natural gas in interstate commerce. Finally, the order refutes protesters' assertions that the Commission lacked authority to issue a declaratory order in this proceeding. As an administrative agency, the Commission has the authority to interpret a statute it administers through a declaratory order. I'll close by emphasizing that we convene today's additional open meeting due to the importance of the issues raised by the petitioners and the imperative for timely Commission action. The Commission does not intend to routinely establish additional meeting dates. But as in this instance, we'll do so when circumstances dictate. With that, I will conclude my remarks and turn back to my colleagues for any additional opening statements or announcements that they may have. Commissioner Glick.

Thank you, Mr. Chairman. You know, I've been hoping that I could get through one Commission meeting without having to dissent at all. And I figured the odds were pretty good in this meeting because there's only one item. But unfortunately, I can't. I just can't sign on to what the majority's trying to do today. I've heard a number of times that regulatory humility requires this Commission to limit the scope of our decisions to what the law requires and nothing more. But no one can argue that the declaratory order the majority is rushing out today is the act of a humble regulator. The only reason we're here today is because the majority disagrees with the Third Circuit's decision that the 11th Amendment of the Constitution prevents the use of eminent domain on the Natural Gas Act to acquire state lands. So, the majority is trying to use this petition for declaratory order to try to influence the Supreme Court's -- or this PennEast effort to get the Supreme Court to grant cert to review a Third Circuit's decision. Now, the reason we're doing this so quickly, as the Chairman mentioned, is because this Tuesday is the deadline for cert petitions to be filed. And the majority wants to get this order out so the PennEast and other parties seeking cert can reference our order, our declaratory order today, in their petitions. In my opinion, I don't think we should be pushing out an order just to bolster a private party's litigation position. As we have seen in other Supreme Court proceedings, if the Supreme Court wants our opinion, they'll ask for it. They have in the past. They can certainly do so in this case. The majority's strategy is transparent in this case. They believe that the Supreme Court's going to give us deference. And if we declare that Congress intended for eminent domain that eminent domain provision of the Natural Gas Act to apply to state land as well as privately owned land. Now, the majority cites to one case only for this proposition. It cites the famous Chevron case, which anyone who's taken administrative law certainly has learned about the Chevron case and the Chevron precedent, which is basically Chevron -- according to the Supreme Court, Chevron says, "If an agency has authority to administer a particular provision, a statutory provision, then our interpretation of that provision is given deference." And that makes some sense. I know it's controversial. But in general, that's what I think the majority's relying on here today. But I think what we fail to notice -- what the majority order fails to notice is that we don't actually administer section 7H of the Natural Gas Act which deals with eminent domain. In fact, the authority for that lies directly with the courts and the party that holds the certificate in terms of certificating the court for eminent domain. And it's interesting to me because, you know, on numerous occasions this Commission -- when someone comes to us either in a proceeding here or even on appeal in the D.C. circuit or elsewhere to one of our Natural Gas Act orders, people are constantly complaining about the eminent domain provision. And we throw up our hands all the time and we say, "That's not our authority. We don't have anything to do with it. If you have a problem with it, go to Congress or go to the courts. It's not for us. We don't administer that particular provision." Now, all of a sudden, we're saying, "Well, let's interpret the provision section 7H of the Natural Gas Act, which was enacted approximately 70 -- a little over 70 years ago." Now all of a sudden, we have the expertise and we're constantly telling people we have nothing to do with it. I don't think we can have it both ways. Now, let's be honest, none of us -- none of us three, no one in this room -- knows what Congress intended in 1947 when it enacted the eminent domain provision of the Natural Gas Act as to whether it applies to state land or not. And the majority, you know, to its credit, makes an argument -- an interesting argument in looking at the legislative history -- and says, "Well, there was a provision in the Federal Power Act that's similar that deals with hydropower projects and eminent domain." And Congress in 1992 said, "Well, that particular provision, if it does apply to state land, it doesn't apply to state land's associated with wildlife refuges and parks and some other protected lands." So, in that case, one could argue that at least for the Federal Power Act that particular provision suggests that Congress intended for eminent domain to apply for hydropower projects. Eminent domain in terms of being able to use eminent domain to acquire state lands for hydropower projects. You know, you can make that argument. I'm not necessarily -- I don't necessarily see how that particular provision applies to the Natural Gas Act. But, you know, one could make that argument. And reasonable minds certainly can disagree. But I want to quote Justice Scalia here because I think it's directly on point. He said, "Arguments based on subsequent legislative history like arguments based on antecedent futurity should not be taken seriously." Now, Mr. Chairman, I bet you didn't think when I came about two years ago that I was going to be the one quoting Justice Scalia here. But in fact, it's very much on point. But then the majority's order goes off in a very strange direction. It cites to several Supreme Court and appellate court decisions to bolster its case. But, you know, when we actually went back and read those cases, none of them, not one of them, decided anything directly remotely related to the facts of this particular case. It had -- none of those cases had anything to do in terms of the appellate court and Supreme Court decisions -- had nothing to do with whether the eminent domain provision in the Natural Gas Act applies to state land or not. It just -- none of them come even close. Now, if we're going to view things in the light most favorable or more charitable, I should say to the majority, all today's order proves is that the majority believes that the certificate holders should be able to condemn state lands, not that Congress intended for that to be the case. Now, at the end, there's a part of the order that I think's the most honest part of the order in which it says that, the majority is concerned that if the Third Circuit opinion is allowed to stand, it's going to be more difficult for pipeline projects to be built. And, you know, one can make the argument it certainly going to be more difficult. I'm not sure it's going to be the deathcore of the pipeline projects. But, maybe a little more difficult if you have to negotiate further with the states as opposed to going to the court in seeking eminent domain with regard to that particular project. But you know what? There's a resolution for that. If you think it's a problem, you think that it doesn't go along with what the Natural Gas Act provides for in terms of encouraging the development of pipelines, go to Congress. Congress can fix this issue and declare that Congress intends for this provision -- this eminent domain provision to apply to Natural Gas Act cases for state lands. It's irresponsible for this Commission to use our declaratory order process to attempt to help a private litigant to persuade the Supreme Court to review and strike down an appellate court decision on a constitutional matter. This outcome-oriented approach is both deeply troubling and frankly, a discredit to this agency. Thank you, Mr. Chairman. Mr. McNamee.

Thank you, Mr. Chairman. I think it's important to recognize that the reason that we're issuing this decision in this response is to request to use to provide a declaratory order, which is permitted under our rules and which is appropriate to be done in this case. Now, I think that we need to address some of the issues that Commissioner Glick has brought up. He starts his argument by saying that the reason we're doing this is because we disagree with the Third Circuit's 11th Amendment argument. But it's clear in our order, we say we have no authority to address the 11th Amendment. That's our whole point. We do not have the authority and do not claim to exercise the authority to address Constitutional issues. But then, let's address what we really address, which is what is the purpose of the NGA. I think it's important to start with Commissioner Glick's last point. And that was his statement is, "Well, Congress can fix the problem," if there's a problem with eminent domain not being authorized under the Natural Gas Act for -- to use against state enmities. The point of our order is that Congress has already addressed that issue. And it's not based on legislative intent. It's based on the text of the language. And that's where when Commissioner Glick quotes Justice Scalia, he's absolutely correct. Justice Scalia always says, "Look at," -- along with Justice Thomas, who's a textualist -- "Look at the text." And if you'll see in our order, we go directly to the text of the Natural Gas Act, which is section 7H, to understand what is the authority of the Natural Gas Act. It is then appropriate, when that is challenged, to address whether or not if there's ambiguity in it -- which we don't believe there was -- but clearly the Third Circuit thought there was -- then you go to try to determine, well, if there was ambiguity, how do you address it. You look at some of the legislative intent and it is clear than Congress at the time said that section 7H provided the certificate holder, not the Commission, with the authority to exercise eminent domain. And that included against state interests. And so, there was not contradiction in the legislative philosophy in which we're issuing this order. I think it's also important to look at some of the fundamental elements here. When you look at the Natural Gas Act, it was promulgated pursuant to the Court's commerce clause power, which was, you know, obviously in article one section eight. Now, it's interesting to think about that. The reason that that was included in the Constitution is because the failure the Articles of Confederation on many fronts, particularly the problem between states having competition and interfering with interstate commerce. You can look at the Federalist Papers such as Federalist Paper Number 42 that addresses this. But then you can also look at Justice Marshall's opinion and Gibbons V Ogden, which made it clear that Congress has the ability to regulate interstate commerce. This is a classic in the Natural Gas Act where Congress attempted to make sure that consumers had access to natural gas and that they were trying to address the opportunity in order to engage interstate natural gas transportation. And they did so. And our order addresses -- and it's somewhat lengthy and I won't go into it -- but about why both the text and the intent of the Natural Gas Act is to ensure that private entities that are certificate holders can exercise and stand in the shoes of the sovereign and exercise eminent domain. Now, these are complicated issues. It's appropriate that the Commission, which has the authority to exercise the authority for administering the Natural Gas Act, to articulate its position on this. And I believe that it will be interesting to see how this plays out. But, for the very specific point, this is about the Natural Gas Act. Our orders and we focused on the Natural Gas Act which we are the entity which is required to issue such -- required to interpret and to apply. And we have done so. Thank you. Madam Secretary.

Since the issuance of the Sunshine Act notice on January 23, 2020, no items have been struck from this morning's agenda. Your consent agenda is as follows, certificate item C1. As to C1, Commissioner Glick is dissenting with a separate statement. We are now ready to take a vote on this morning's consent agenda. The vote begins with Commissioner McNamee.

I vote aye.

Commissioner Glick.

Nay.

Chairman Chatterjee.

I vote aye.

There are no further items on this morning's agenda.

Thank you, Madam Secretary. And with that, this meeting is adjourned.