FERC Acts Under Its Emergency Waiver Authorities to Ease Regulatory Burdens on Natural Gas Infrastructure Projects While Initiating Rulemakings to Enact Permanent Changes

On June 18, 2025, the Federal Energy Regulatory Commission (FERC) took four actions to ease regulatory burdens for constructing interstate pipeline and liquefied natural gas (LNG) facilities authorized under the Natural Gas Act (NGA). The actions are:

• Approval of a one-year temporary waiver of Order No. 871 (871 Waiver Order), which codified regulations to delay construction of permitted natural gas facilities until the period for seeking rehearing of an underlying order authorizing the facilities’ construction has elapsed. The waiver is effective immediately, with the regulations waived through June 30, 2026.
• Issuance of a Notice of Proposed Rulemaking proposing to permanently rescind Order No. 871 (871 NOPR).
• Approval of a two-year temporary waiver of FERC regulations (Part 157 Waiver Order) setting the maximum cost threshold for activities conducted under a pipeline’s NGA blanket construction certificate, raising the threshold from $41,100,000 to $61,650,000 effective immediately, for projects placed in service by May 31, 2027.
• Issuance of a Notice of Inquiry to consider permanent revisions to the $41,100,000 cost limit for the blanket certificate program (Part 157 NOI).

FERC’s statutory authority under NGA section 7 and its regulations implementing that section authorize it to grant temporary waivers during emergencies. It is notable that FERC is referencing its temporary waiver authority in the 871 Waiver Order and Part 157 Waiver Order as it is unusual for the agency to waive its regulations pending an anticipated rulemaking, as opposed to granting a waiver to ensure continuity of service following a natural disaster, such as a hurricane, or to prevent degradation of service to existing pipeline customers. While the orders do not profess to rely on any executive orders to support their decisions, FERC cites Executive Order No. 14154 and Executive Order No. 14156 in the 871 NOPR and Part 157 NOI as reasons for undertaking the rulemakings, which will align with Trump administration priorities to expedite the development and construction of energy infrastructure. Executive Order No. 14154 prioritizes eliminating delays in permitting energy projects and Executive Order No. 14156 declares a national energy emergency and designates construction of energy infrastructure a matter of critical national and economic security. Akin has previously analyzed the effects of these executive orders here.

Temporary Waiver and Potential Recission of Order No. 871

The Commission’s 871 Waiver Order and 871 NOPR follow a petition for rulemaking filed by the Interstate Natural Gas Association of America (INGAA) in April 2025 seeking recission of the Order No. 871 regulations without notice and comment procedures. These regulations are located at 18 C.F.R. §§ 153.4 (governing LNG facility construction) and 157.23 (governing interstate natural gas pipeline construction).

INGAA had argued that implementation of Order No. 871 delays construction of critical infrastructure, and increases costs, by forcing developers to factor in additional construction delays of 150 days, even absent a rehearing request filing, and that the regulations enacted under the order were unnecessary following the D.C. Circuit’s 2020 en banc decision in Allegheny Defense Project v. FERC (“Allegheny”). Allegheny prohibits FERC from tolling the time permitted under the NGA to issue orders on rehearing. FERC’s decades-old tolling practice had delayed the ability for impacted landowners and other intervenors to seek judicial review of underlying orders authorizing such infrastructure projects through delaying the issuance of a “final order.” FERC issued Order No. 871 shortly before Allegheny issued in an effort to salvage its tolling order practice, which it used to extend the time to consider rehearing requests under both the NGA and Federal Power Act. However, Order No. 871 did not assuage the court from finding that if FERC did not act on a rehearing request within the NGA’s 30-day deadline, the rehearing request would be deemed denied and the initial order would be ripe for judicial review.

In the 871 Waiver Order, FERC found good cause to temporarily waive the Order No. 871 regulations, citing pressing nationwide near-term demand for expanded natural gas transportation capacity and reliability concerns associated with maintaining the existing natural gas system. It cited reports published by the North American Electric Reliability Corporation (NERC), which oversees the reliability of the nation’s bulk power system and the U.S. Energy Information Agency (EIA) to support its good cause findings. While it acknowledged Executive Order Nos. 14154 and 14156, FERC does not use them as the underlying reasoning for granting the waiver. Requests for rehearing are expected to be filed. They will be due July 18, 2025.

In the 871 NOPR, FERC acknowledged the arguments raised by INGAA and the policy set forth in the executive orders as motivating factors for its decision to consider rescission of the regulations promulgated under Order No. 871. It stated that the potential 150-day delay, under real world conditions, could balloon into a much longer and less certain delay, jeopardizing a project’s ability to provide the capacity or reliability benefits deemed necessary by FERC. FERC also repeated the NERC findings about need for additional pipeline infrastructure in the 871 Order and expected natural gas demand forecast increases found by U.S. EIA both for domestic gas generation and export purposes. In light of Allegheny’s extinction of the tolling order practice, FERC also questioned whether the regulations remained necessary to protect landowners and communities from harm through NGA section 3 or 7 authorizations. FERC seeks public comment on the proposal by July 24, 2025.

Temporary Waiver and Possible Increase to Cost Thresholds Under Blanket Certificate Program

An INGAA petition was also the instigator for FERC’s Part 157 Waiver Order and Part 157 NOI. The petition sought a two-year waiver of the blanket certificate cost limitation regulations for prior notice projects located at 18 C.F.R. § 157.208(d), and to double the prior authorization cost limit during the waiver period from its current limit of $41,100,000 to $82,200,000.

FERC’s blanket certificate program allows interstate pipelines that hold a certificate of public convenience and necessity under section 7(c) of the NGA to conduct certain construction activities without first seeking an authorization under section 7(c) if they fall below a certain cost threshold. For certain projects, because the costs are so low, they are authorized automatically. Another category called “prior notice” exists for projects with higher costs. While not automatically authorized, a pipeline can begin constructing “prior notice” projects 60 days after they are publicly noticed by FERC, without an individual order, provided they are not protested. The cost threshold is adjusted annually for inflation and was last increased to $41,100,000 in 2024.

In the Part 157 Waiver Order, FERC cited many of the same statistics about near-term natural gas and electricity demand growth, and reliability concerns, that motivated its Order No. 871 actions. It also acknowledged that it had not evaluated the underlying cost thresholds for blanket certificate cost limits since 2006, noting that an initial review of publicly available data indicated that the inflation indices relied upon by FERC to set the cost threshold increases may not be appropriate. FERC found it appropriate to waive the cost limit and increase the amount to $61,650,000 for projects constructed and placed in service by May 31, 2027. No other changes to the blanket certificate program were proposed. Rehearing requests of the Part 157 Waiver Order will also be due on July 18, 2025.

The Part 157 NOI was issued to consider whether, and if so how, FERC cost limitation regulations should be modified to address potential increases in the cost of constructing pipeline facilities. It acknowledges statements by INGAA that inflation alone cannot account for cost increases for pipeline construction. The NOI asks for comments on eight questions, from the types of projects that should be included in the “prior notice” category, impacts on ratepayers, deviations between actual costs and FERC’s existing cost escalator calculations, and ratemaking for incremental prior notice projects. FERC seeks public comment on the blanket certificate cost limit by August 25, 2025.

Akin stands ready to assist clients with comments on either FERC rulemaking proceeding.