On August 28, 2026, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) denied petitions for review of FERC’s certification of East Tennessee Natural Gas, LLC’s (East Tennessee) System Alignment Program (Project). The D.C. Circuit held that FERC did not violate customers’ due process rights by delaying the disclosure of certain Critical Energy Infrastructure Information (CEII) and that FERC’s orders certificating the Project were supported by substantial evidence.
In 2023, East Tennessee filed with FERC an application under Section 7 of the Natural Gas Act for a certificate of public convenience and necessity (CPCN) to construct and operate the Project. According to East Tennessee, the Project was necessary to address changes in its customers’ usage of its system, which had resulted in insufficient natural gas available on certain parts of the East Tennessee system. Additionally, because East Tennessee asserted that the Project was “designed” to benefit “existing customers,” East Tennessee requested that FERC grant a pre-determination of rolled-in rate treatment for Project costs.
During the discovery phase of the CPCN proceeding, the East Tennessee Group (ETG), a group of East Tennessee customers, submitted a data request seeking East Tennessee’s 2022 Form 567 system flow diagram. An interstate pipeline’s annual Form 567 is designated as CEII and therefore can only be produced non-publicly and upon proper showing of need. In response to the ETG’s data request, East Tennessee stated that the ETG should request East Tennessee’s 2022 Form 567 directly from FERC’s CEII Coordinator. The ETG reached out to FERC’s CEII Coordinator but asserted it never received a response. The ETG also reached out to East Tennessee asking if East Tennessee had been directed to provide its 2022 Form 567, and East Tennessee stated it had not. The ETG did not communicate further with FERC’s CEII Coordinator or East Tennessee, nor did ETG raise the issue in the CPCN proceeding docket.
In March 2024, FERC issued an order granting a CPCN for the Project and granting a predetermination of rolled-in rate treatment (CPCN Order). The ETG sought rehearing of the CPCN Order, which FERC denied (Rehearing Order). Later the same year, FERC’s CEII Coordinator provided the ETG access to the previously requested 2022 Form 567 and eventually East Tennessee’s 2023 Form 567. FERC’s Office of Energy Projects made a filing in the CPCN proceeding requesting that the ETG comment on East Tennessee’s annual flow data, but the ETG declined to comment, arguing that only if the group had received such information in 2023 would they have the necessary time and resources to analyze the data and provide comment. FERC subsequently issued an order (Modified CPCN Order) upholding its grant of a CPCN and declining to consider the ETG’s argument that the ETG’s due process rights had been violated because FERC ultimately provided the ETG with the flow diagram information it sought.
The ETG appealed FERC’s CPCN Order, Rehearing Order, and Modified CPCN Order to the D.C. Circuit. The ETG argued that FERC erred by prematurely granting a CPCN for the Project before the ETG was “provided access to critical information and documents essential to [their] ability to meaningfully participate” in the CPCN proceeding and that FERC erred in concluding that substantial evidence supported its decision because “not all information had been made available for the parties to examine and test the validity” of East Tennessee’s application for the Project.
The D.C. Circuit denied the ETG’s petition for review. Citing two previous cases in which the D.C. Circuit rejected due process challenges based on delayed CEII disclosure (Minisink Residents for Environmental Preservation & Safety v. FERC and Myersville Citizens for a Rural Community, Inc. v. FERC), the Court held that due process only requires that the challenger have “a meaningful opportunity to challenge new evidence,” and FERC gave the ETG multiple opportunities and ample time to comment on the flow diagram data after it was disclosed, but the ETG declined. The Court acknowledged that “there may be cases where the tardy provision of the requested information is shown to come too late,” but the ETG failed to demonstrate how the delay in disclosure caused any actual prejudice to their challenge. The D.C. Circuit also held that FERC’s orders were supported by substantial evidence, including flow data, supplemental data, and purchase agreements.
The D.C. Circuit’s order, issued in Case Nos. 24-1253 and 25-1072 (consolidated), is available here.