American Whitewater v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2026 Decided July 24, 2026
No. 25-1092
AMERICAN WHITEWATER,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Haley Nicholson argued the cause for petitioner. With her
on the briefs were Robert A. Nasdor and Kevin Cassidy.
J. Houston Shaner, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were James T. Dawson, General Counsel, and Robert
H. Solomon, Solicitor.
Before: MILLETT and PAN, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
Opinion concurring in part and dissenting in part by
Circuit Judge PAN.

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ROGERS, Senior Circuit Judge: American Whitewater
petitions for review of the orders of the Federal Energy
Regulatory Commission denying its motion to intervene out of
time in a license surrender proceeding pursuant to 18 C.F.R.
§ 385.214(b)(3) (“Rule 214”), and its request for rehearing.
Petitioner contends that the Commission’s action was arbitrary
and capricious for two reasons: First, the Commission erred
by conflating the Rule’s good cause provisions because
Petitioner’s motion satisfied the requirements of the Rule,
which by its plain terms only requires a late intervenor to
establish good cause for why the time limitation on filing
should be waived under subsection (b)(3), and not good cause
for filing late under subsection (d)(1)(i). Petitioner’s Br. 7–8.
Second, the Commission compounded the error in denying
rehearing by failing to reconcile its decision with its precedent
on late intervention. Id. at 8.
For the following reasons, the court concludes that
Petitioner fails to show that the Commission erred by
interpreting Rule 214 to require more than administrative
oversight under subsection (d)(1)(i) to show good cause under
subsection (b)(3), and absent that mandatory requirement, the
Commission had discretion whether to consider other factors
under subsection (d)(1). But Petitioner has shown that the
Commission acted arbitrarily and capriciously in denying
rehearing by inconsistently applying its precedent on late
intervention without a reasoned explanation, contrary to a
fundamental principle of administrative law that agencies must
treat similarly situated parties similarly. Accordingly, the court
vacates the orders and remands the case to the Commission.
The Commission retains jurisdiction, notwithstanding the
conditional approval of surrender of license and
decommissioning leaving the dam in place, to reconsider
petitioner’s motion to intervene and provide a reasoned
explanation for its determination consistent with its precedent.

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I.
Petitioner is a national non-profit river conservation and
recreation organization whose members include whitewater
paddlers of kayaks and canoes, many of whom live or engage
in recreational boating in Missouri. It recently intervened in a
license surrender proceeding of a hydroelectric project on a
river between Maine and New Hampshire, urging that two
dams be removed to restore whitewater boating and related
recreational activities. Am. Whitewater v. FERC, 125 F.4th
1139, 1145, 1153 (D.C. Cir. 2025). Here, too, Petitioner sought
to intervene, filing a motion for intervention out of time in the
license surrender proceeding for the Niangua Hydroelectric
Project in Missouri that was proceeding without requiring
removal of a dam. The Niangua Project was completed in
1930, impounded the Niangua River, creating Lake Niangua,
and had been operated by the Missouri Electric Power
Company before it was acquired by the Sho-Me Power Electric
Cooperative in the mid-twentieth century.
In 1994, the Commission approved Sho-Me’s application
for relicensing of the Niangua Project for a term of thirty years,
to June 1, 2024. As the end of the license term neared, on May
30, 2019, Sho-Me filed a Notice of Intent to file an application
for a new forty-year license. Sho-Me conducted various
technical studies of the Niangua Project, including studies for
water quality, lake floor mapping, and cultural resources. After
consulting the stakeholders, however, Sho-Me determined that
the Project’s “contribution to their core business commitment
of providing safe, reliable, and low-cost power to rural
Missourians did not justify relicensing.” License Surrender
Application, Ex. A at A-10. On December 3, 2021, Sho-Me
filed a request to withdraw its Notice of Intent. The
Commission received no applications from other licensees to
operate the Niangua Project, see 18 C.F.R. § 16.25(a), and on
May 17, 2022, requested Sho-Me to file a plan and schedule
for a formal license surrender application. On July 15, 2022,

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Sho-Me filed a plan and schedule for the license surrender
application.
On June 29, 2023, Sho-Me filed an application for
surrender of its license, proposing to decommission the project
and leave the dam and surrounding power structures in place to
maintain the impoundment level of Lake Niangua. The
application stated that the proposal “balances various
interests,” acknowledging the preference of various federal and
state resource agencies for dam removal and river restoration,
and “a strong preference” of “the local community surrounding
the Niangua Project . . . for maintaining Lake Niangua and
keeping the dam in place” because of aesthetic and recreational
interests. License Surrender Application, Ex. A at A-11. As a
next step, on July 6, 2023, Sho-Me provided notice of its
application to landowners near the Project by certified mail,
with a deadline for filing comments, motions to intervene, and
protests by August 31, 2023. Notice of Sho-Me’s license
surrender application was placed on the Commission’s website
on August 1, 2023, and in the Federal Register six days later,
88 Fed. Reg. 52,153 (Aug. 7, 2023). Under the Commission’s
regulations, “[o]nly . . . filings made within the time prescribed
in the notice will be considered timely.” 18 C.F.R.
§ 385.210(b).
On March 28, 2024, the Commission published a Notice
of Intent to prepare an Environmental Assessment (“EA”) for
Sho-Me’s application for license surrender pursuant to the
National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
(“NEPA”). See 89 Fed. Reg. 21,510 (Mar. 28, 2024). The
Notice invited federal, state, local, and Tribal agencies affected
by the proposal to cooperate in the preparation of the EA
planned to be issued in July 2024. Id. at 21,510–11. The EA
was to be “made available for review by all interested parties”
and “comments filed on the EA will be reviewed by staff and
considered in the Commission’s final decision on the
proceeding.” Id. at 21,510. The schedule called for completion

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of the EA on September 30, 2024. Id. The Commission set a
comment deadline of August 29, 2024, and later extended it to
September 30, 2024.
Petitioner filed a motion to intervene out of time in the
license surrender proceeding on May 28, 2024, pursuant to
Rule 214(b)(3). The motion identified Petitioner and its
mission to protect and restore the Nation’s whitewater
resources and stated its members included kayakers and
canoers in Missouri; many of whom would be directly affected
by the outcome of the license surrender proceedings. Mot. to
Intervene at 1. The motion described the dependent
relationship between the dam and Lake Niangua, “a shallow
impoundment with limited recreational use,” and the “quiet
stretches” for ample boating activities on 125 miles of Niangua
River. Id. at 2. Pointing to the Commission’s use of a “broad
‘public interest’” standard in assessing hydropower surrender
applications, the motion argued that Petitioner’s “participation
in this proceeding will ensure that the interests of the public are
represented,” id. (citing 16 U.S.C. § 799). Further, the motion
explained: (1) “The organization only recently became aware
of this proceeding and was unaware that the deadline for
intervention had passed,” (2) “No party to this proceeding will
be prejudiced by granting late intervention,” (3) “[N]or will
granting [Petitioner’s] Motion to Intervene Out of Time delay
this proceeding,” and (4) “No other party to this proceeding can
adequately represent [Petitioner’s] interest in this proceeding
as the organization’s primary focus is on recreational boating.”
Id. at 3.
The EA issued on July 30, 2024, shortly after Sho-Me’s
30-year license expired on June 1 and the Project began
operating under annual licenses. It considered full removal and
staged partial removal of the Project’s dam as alternative
actions, ultimately recommending approval of the application
for license surrender with the dam, power tunnel, and
powerhouse left in place. The EA listed Petitioner, Ameren

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Missouri (an electric utility company), and several state and
federal resource and conservation agencies as having filed
notices of intervention or motions to intervene. On September
30, 2024, Petitioner and Great Rivers Environmental Law
Center filed comments on the EA stating, as relevant, the EA
was arbitrary and capricious and violated NEPA and other
statutes because it ignored “foreseeable cumulative effects”
and “relied on speculative conclusions based on incomplete
data” in recommending surrender of license without dam
removal. EA Comments at 15.
Over a year later, while this appeal was pending, the
Commission approved the surrender of Sho-Me’s license with
the dam in place, subject to terms and conditions and having
considered and rejected the arguments in Petitioner’s
comments. Order Approving Surrender of License, Sho-Me
Power Electric Cooperative, 193 F.E.R.C. ¶ 61,216 (Dec. 18,
2025) (“Surrender Order”).
Previously, over a year before, the Commission denied, on
October 15, 2024, Petitioner’s unopposed motion to intervene
out of time because it “failed to demonstrate good cause for its
inability to intervene in a timely manner.” Notice Denying
Late Intervention at 1 (Oct. 15, 2014) (“Motion Order”).
Petitioner sought rehearing of the Commission’s denial, and on
December 13, 2024, the Commission denied Petitioner’s
request by operation of law, 16 U.S.C. § 825l(a), subject to a
further order (“Denial Order”). On January 16, 2025, the
Commission addressed Petitioner’s arguments, reaching the
same result while “modifying the discussion” in the Motion
Order. 190 F.E.R.C. ¶ 61,028, at P 2 (2025) (“Rehearing
Order”).
In denying rehearing, the Commission stated that “[u]nder
the Commission’s regulations, a movant seeking late
intervention must establish that there is good cause for its late
filing,” namely, “any explanation by the movant of why it was
unable to intervene in a timely manner.” Id. at P 8–9 & nn.16–

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19 (citing 18 C.F.R. § 385.214(b)(3), (d)(1)(i); Broadview
Solar LLC, 174 F.E.R.C. ¶ 61,199, at P 16 (2021); Double E
Pipeline, LLC, 173 F.E.R.C. ¶ 61,074, at P 18 (2020)).
Petitioner had failed to establish good cause because under
Commission precedent a “[l]ack of awareness of a publicly-
noticed proceeding, without more, does not constitute good
cause.” Id. at P 10 & n.25 (citing Dakota Nat. Gas, LLC,
Notice Denying Late Interventions, Dkt. No. CP18-511-000
(Oct. 30, 2018)). Rejecting Petitioner’s argument that “even if
it failed to demonstrate good cause, other factors under Rule
214(d) weigh in favor of granting its motion,” the Commission
stated that “failure to establish good cause is a sufficient
condition to deny intervention and no other factors need be
examined where good cause does not exist.” Id. at P 11 & n.27
(citing Double E Pipeline, 173 F.E.R.C. ¶ 61,074, at P 23;
Power Co. of Am. v. FERC, 245 F.3d 839, 843 (D.C. Cir. 2001);
Cal. Trout v. FERC, 572 F.3d 1003, 1023 (9th Cir. 2009)). The
Commission acknowledged that although it “has granted
petitions for late intervention with differing rationale, in each
instance it has weighed the requirements of Rule 214 only after
focusing on whether good cause has been shown for the late
filing.” Id. at P 13 & n.36 (citing Venture Glob. CP2 LNG,
LLC, 189 F.E.R.C. ¶ 61,148, at P 13 (2024); STS Hydropower,
LLC, Notice Denying Late Intervention, Project No. P-7242-
060 (Oct. 16, 2024); Double E Pipeline, 173 F.E.R.C. ¶ 61,074,
at PP 17–23)). The Commission added: “In each case, the
Commission makes a fact-specific determination.” Id. at P 13
& n.37 (citing Woodland Pulp, LLC, Notice Granting Late
Intervention, Project No. P-2660-038 (Aug. 22, 2024)
(unreported)).
Petitioner seeks review of the Motion Order, Denial Order,
and Rehearing Order pursuant to 16 U.S.C. § 825l(b).
II.
The Federal Power Act authorizes the Commission to
regulate the licensing of hydropower projects on “navigable

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waters of the United States.” 16 U.S.C. § 817(1). Once
granted, a license may be “surrendered only upon mutual
agreement between the licensee and the Commission.” Id.
§ 799; see 18 C.F.R. § 6.2. To initiate surrender, a licensee
must file an application stating the reasons for surrender, 18
C.F.R. § 6.1, and the Commission may condition surrender of
the license, including with respect to decommissioning any
project works that have been built, id. § 6.2. Under
Commission policy, decommissioning can range from “simply
shutting down the power operations” to “tearing out all parts of
the project, including the dam, and restoring the site to its pre-
project condition.” Project Decommissioning at Relicensing;
Policy Statement, 60 Fed. Reg. 339, 340 (Jan. 4, 1995)
(“Decommissioning Policy”). Once a project is “no longer
licensed,” and the Commission considers its jurisdiction over
the project to end, “future operation of any remaining works is
then the responsibility of whoever next assumes regulatory
authority,” typically, the State in which the project is located.
Id. at 346.
On review, Petitioner presents textual and procedural
challenges to the Commission’s orders on intervention in the
Niangua Project license surrender proceedings. Petitioner
contends, first, the denial of its motion to intervene was
arbitrary and capricious because it was based on a
misinterpretation of the plain text of Rule 214, contrary to the
regulatory history, and insufficiently explained, Petitioner’s Br.
8, 18, and second, in denying rehearing the Commission
compounded its error by “grossly inconsistent and fluctuating
interpretations of Rule 214,” id. at 8; see id. at 11, 20.
Petitioner presents no separate argument regarding the Denial
Order.
The court’s review of these challenges under the
Administrative Procedure Act is limited. The court is to
determine whether the Commission’s action was “arbitrary,
capricious, an abuse of discretion, or otherwise not in

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accordance with law.” Am. Whitewater, 125 F.4th at 1150
(quoting 5 U.S.C. § 706(2)(A)). A decision to deny a motion
to intervene is neither arbitrary nor capricious so long as it is
“reasonable and reasonably explained.” FCC v. Prometheus
Radio Project, 592 U.S. 414, 423 (2021). And the Commission
“enjoys broad discretion” when managing its own docket.
Mobil Oil Expl. & Producing Se. Inc. v. United Distrib. Cos.,
498 U.S. 211, 230 (1991). Additionally, when the Commission
applies procedural Rule 214(d)(1), the court inquires only
whether “the Commission abused its discretion,” i.e., “whether
the [Commission’s] decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment.” City of Orrville v. FERC, 147 F.3d 979, 991 (D.C.
Cir. 1998) (quoting Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971)). The Commission, however,
“cannot depart from [its] rulings without ‘provid[ing] a
reasoned analysis indicating that prior policies and standards
are being deliberately changed.’” W. Deptford Energy, LLC v.
FERC, 766 F.3d 10, 17 (D.C. Cir. 2014) (second alteration in
original) (quoting Alcoa Inc. v. FERC, 564 F.3d 1342, 1347
(D.C. Cir. 2009)).
A.
A threshold question concerns the court’s jurisdiction now
that the Commission has issued the Surrender Order granting
Sho-Me’s application for license surrender and
decommissioning. The court, in accord with “an independent
duty to assure [itself] that the petitioners and their claims
satisfy the requirements of Article III” of the Constitution,
TikTok Inc. v. Garland, 122 F.4th 930, 947 (D.C. Cir. 2024)
(citing Exelon Corp. v. FERC, 911 F.3d 1236, 1240 (D.C. Cir.
2018)), considers whether Petitioner has standing to bring its
case and whether the case is moot.
To establish standing, a petitioner must show that (i) it
“suffered an injury in fact that is concrete, particularized, and
actual or imminent”; (ii) the “injury was likely caused by the

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defendant”; and (iii) the injury “would likely be redressed by
judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423
(2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
561 (1992)). The declarations filed by Petitioner’s members
state that they would engage in recreational activities on the
Niangua River if the dam was removed from the Project area.
See, e.g., Decl. of Laura Sievert ¶¶ 19–24; Decl. of Casey
Tortorige ¶ 18. Petitioner’s inability to intervene in the license
surrender proceedings to seek removal of the dam is an injury
in fact caused by the challenged orders that would be
redressable by an opinion from the court instructing the
Commission to reconsider the intervention motion. See City of
Orrville, 147 F.3d at 990 n.12; Beyond Nuclear, Inc. v. Nuclear
Regul. Comm’n, 113 F.4th 956, 962–63 (D.C. Cir. 2024), cert.
denied sub nom. Beyond Nuclear, Inc. v. NRC, 223 L. Ed. 2d
513 (Jan. 12, 2026). Further, Petitioner satisfies the
requirements of associational standing: (1) its members would
have standing to sue in their own right, (2) the interest
Petitioner seeks to protect are “germane to [its] purpose” as a
nonprofit organization advocating for river conservation and
recreation, and (3) individualized participation is not necessary
for the challenge to denial of intervention or for the court to
provide relief. Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977).
This case also is not moot even though the Commission
has approved Sho-Me’s application to surrender the Project
license with the dam in place. A case is moot if “the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478,
481 (1982)). The Commission typically loses jurisdiction over
a project once the party surrendering its license completes the
decommissioning in compliance with the Surrender Order.
See Am. Whitewater, 125 F.4th at 1147, 1152;
Decommissioning Policy at 346. Here, the Surrender Order
states that the license continues in effect “until the

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Commission’s Division of Dam Safety and Inspections –
Chicago Regional Engineer has issued a letter stating that the
project facilities have been decommissioned in accordance
with this surrender order.” Surrender Order at P 66(E).
According to the Commission’s docket, that letter had not yet
issued as of the date of this opinion. See Sho-Me
Power Elec. Cooperative, Fed. Energy Reg. Comm’n Dkt. No.
P-2561-000. Nor have the parties advised the court otherwise.
The Commission, therefore, has jurisdiction to grant the relief
sought: to reconsider the denial of Petitioner’s motion to
intervene out of time. See Pub. Serv. Comm’n of State of N.Y.
v. Fed. Power Comm’n, 284 F.2d 200, 205–206 (D.C. Cir.
1960); cf. Am. Whitewater, 125 F.4th at 1152. Were
intervention granted, then Petitioner could move for reopening
or reconsideration of the Surrender Order. See Fla. Gas
Transmission Co., 100 F.E.R.C. ¶ 61,282, at 62,225 (2002); cf.
Pub. Serv. Comm’n, 284 F.2d at 205–206.
B.
Turning to Petitioner’s challenges to the Commission’s
denial of its motion to intervene out of time, Petitioner
contends that the Commission misinterpreted the plain text of
Rule 214(b)(3), acted contrary to its regulatory history, and
insufficiently explained its interpretation. Petitioner’s Br. 18.
This contention is unpersuasive.
Section 313(b) of the Federal Power Act provides that only
“part[ies]” to Commission proceedings may seek
administrative or judicial review of the Commission’s final
orders. 16 U.S.C. § 825l(b). Pursuant to its rulemaking
authority, id. § 825g(a), the Commission promulgated Rule
214 on intervention, see 47 Fed. Reg. 19,014 (May 3, 1982),
whereby anyone (with the exception of certain governmental
and tribal entities) seeking to become a party “must file a
motion to intervene.” 18 C.F.R. § 385.214(a)(3).

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Rule 214 establishes different requirements for timely and
untimely motions to intervene. A timely motion must state “the
position taken by the movant and the basis in fact and law for
that position,” id. § 385.214(b)(1), and demonstrate sufficient
facts showing that the movant either has a statutory or
regulatory right to participate, “represents an interest which
may be directly affected by the outcome of the proceeding,” or
that its participation would be “in the public
interest.” Id. § 385.214(b)(2). An untimely motion must
additionally show “good cause why the time limitation should
be waived.” Id. § 385.214(b)(3). A movant filing a timely
unopposed motion to intervene automatically becomes a party
fifteen days after the motion is filed. Id. § 385.214(c)(1). An
opposed or untimely motion to intervene must be approved by
the Commission. Id. § 385.214(c)(2). Subsection (d) provides:
(1) In acting on any motion to intervene filed after
the period prescribed under Rule 210, the decisional
authority may consider whether:
(i) The movant had good cause for failing to file
the motion within the time prescribed;
(ii) Any disruption of the proceeding might
result from permitting intervention;
(iii) The movant’s interest is not adequately
represented by other parties in the proceeding;
(iv) Any prejudice to, or additional burdens
upon, the existing parties might result from permitting
the intervention; and
(v) The motion conforms to the requirements of
paragraph (b) of this section.
Id. § 385.214(d) (emphasis added).

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The Commission concluded that Petitioner did not
establish good cause under Rule 214(b)(3) because its motion
to intervene merely stated that Petitioner “recently became
aware of the proceeding and was unaware the deadline to
intervene had passed” and “administrative oversight” was “not
persuasive.” Motion Order at 1. On rehearing, the
Commission elaborated, additionally stating that “[t]o
determine whether a late intervenor established good cause
[under Rule 214(b)(3)], the Commission considers any
explanation by the movant of why it was unable to intervene in
a timely manner [under Rule 214(d)(1)(i)].” Rehearing Order
at P 9 & n.19 (citing Double E Pipeline, 173 F.E.R.C. ¶ 61,074,
at P 18); see id. at P 8 & n.16 (citing 18 C.F.R. § 385.214(b)(3),
(d)(1)). Because “[l]ack of awareness of a publicly-noticed
proceeding, without more, does not constitute good cause,” the
Commission denied the motion. Id. at P 10 & n.25 (citing
Dakota Nat. Gas, LLC, Notice Denying Late Interventions,
Dkt. No. CP18-511-000 (Oct. 30, 2018)).
Petitioner’s plain text challenge stands or falls on whether
the Commission “conflated” the mandatory good-cause
requirement under subsection (b)(3) with the discretionary
good-cause factor under subsection (d)(1)(i) by deeming the
latter mandatory. Petitioner’s Br. 16. In Petitioner’s view, the
“plain text” of Rule 214 did “not require[] [it] to show good
cause for failing to file within the time prescribed [under
subsection (d)(1)(i)],” but only “good cause for why the time
limitation should be waived [under subsection (b)(3)].” Id. at
17. Petitioner thus contends that the Commission erred by
deeming the failure to satisfy subsection (d)(1)(i) fatal to its
intervention motion. Id. at 15–17.
This interpretation overlooks the relationship between the
subsections (b)(3) and (d)(1) of Rule 214. See Respondent’s
Br. 26. Petitioner acknowledges that subsection (b)(3) requires
a movant to establish “good cause why the time limitation
should be waived,” and is thereby mandatory. Petitioner’s Br.

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18. It does not follow, however, that a movant can disregard
any of the (d)(1) factors at will. Good cause is not defined in
the Rule, and subsection (d) provides notice that in acting on
an untimely motion, “the decisional authority may consider”
any of the five listed factors, including good cause for failing
to file within the prescribed time, 18 C.F.R. § 385.214(d)(1)(i)
(emphasis added). See Rehearing Order at P 11 n.29 (citing
Tenn. Gas Pipeline Co., 162 F.E.R.C. ¶ 61,167, at P 50 (2018)).
“The word ‘may’ customarily connotes discretion,” Jama v.
Immigr. & Customs Enf’t, 543 U.S. 335, 346 (2005), and this
court has held that “the text of 18 C.F.R. § 385.214(d)(1) does
not compel consideration of each of the factors.” City of
Orrville, 147 F.3d at 991 (citing Citizens to Pres. Overton Park,
401 U.S. at 416). The plain text of the Rule does not bar the
Commission from relying solely on the first (d)(1)(i) factor –
“good cause for failing to file the motion within the time
prescribed” – to the exclusion of the rest to determine whether
a movant “show[ed] good cause why the time limitation should
be waived” under subsection (b)(3). 18 C.F.R. § 385.214(b)(3),
(d)(1)(i); see City of Orrville, 147 F.3d at 991; Cal. Trout v.
FERC, 572 F.3d 1003, 1014–1015 (9th Cir. 2009); cf. Power
Co. of Am., 245 F.3d at 843.
The Commission’s interpretation does not make the two
good cause provisions “superfluous,” as Petitioner maintains.
Petitioner’s Br. 17. The subsections serve different purposes.
Subsection (b)(3) requires a movant to establish good cause
why the filing time limitation should be waived. Subsection
(d)(1) specifies the factors that the Commission may, but is not
required to, rely on in evaluating whether the movant
established good cause under subsection (b)(3), including
whether the movant provided a persuasive explanation of why
it missed the deadline in the first place under factor (d)(1)(i).
Further, contrary to Petitioner’s view, the regulatory
history of Rule 214 is consistent with the Commission’s
interpretation. Petitioner’s Br. 17–18. The regulatory history

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merely states that “Rule 214(d) sets forth . . . general criteria to
be applied by the decisional authority in exercising discretion
to grant late intervention.” 47 Fed. Reg. at 19018 (emphasis
added). Nothing in the text or regulatory history of Rule 214
requires the Commission to consider any or all of the (d)(1)
factors in assessing “good cause.” Nor, as Petitioner suggests,
is Swanson Mining Corp. v. FERC, 790 F.2d 96 (D.C. Cir.
1986), to the contrary. Petitioner’s Br. 22–23. There, the court
upheld the Commission’s reliance on the other (d)(1) factors to
find good cause to grant intervention but did not hold that the
Commission was required to consider these factors. Swanson,
790 F.2d at 105.
As is clear, Petitioner is incorrect that the Commission
failed “to cite prior orders that deny late intervention based on
a failure to prove good cause under Rule 214(d)(1)(i).”
Petitioner’s Br. 18. In the Rehearing Order, the Commission
relied on Double E Pipeline, 173 F.E.R.C. ¶ 61,074 (2020),
explaining that “[t]o determine whether a late intervenor
established good cause, the Commission considers whether the
movant explains why it was unable to intervene in a timely
manner” – a factor under Rule 214(d)(1)(i). Rehearing Order
at P 9 & n.19 (quoting Double E Pipeline, 173 F.E.R.C.
¶ 61,074, at P 18). As here, because the intervenors in Double
E Pipeline failed to provide justification for their late filing, the
Commission concluded they failed to demonstrate “that good
cause existed to justify waiving the time limitation for
interventions” under Rule 214(b)(3) without considering “the
other factors in Rule 214(d).” 173 F.E.R.C. ¶ 61,074, at P 25.
Petitioner fails, therefore, to show that the Commission
arbitrarily and capriciously interpreted Rule 214 in denying
Petitioner’s motion to intervene.
C.
But Petitioner also contends that the Commission was
arbitrary and capricious when it applied “inconsistent and

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fluctuating interpretation of Rule 214” in denying Petitioner’s
request for rehearing of the denial of the motion to intervene
out of time. Petitioner’s Br. 15. Petitioner is correct.
The Commission concluded on rehearing that Petitioner
“failed to demonstrate that good cause exists to grant its motion
to intervene out of time” because administrative oversight is
insufficient to establish good cause, and “failure to establish
good cause is a sufficient condition to deny intervention and no
other factors need be examined.” Rehearing Order at PP 6, 10–
11. The Commission added: “Although [it] has relied on
differing rationales to grant late intervention petitions, in each
instance the Commission has weighed the requirements of Rule
214 only after focusing on whether good cause has been shown
for the late filing.” Id. at P 13 (emphasis added). In so
concluding, the Commission relied on Tennessee Gas, LLC,
162 F.E.R.C. ¶ 61,167 (2018), where it announced that “going
forward” it would be “less lenient in the grant of late
interventions” due to a “pattern” of “failures” by movants to
address Rule 214’s requirements, id. at PP 49–51; see
Rehearing Order at 11 & n.27.
In Double E Pipeline, LLC, 173 F.E.R.C. ¶ 61,074 (2020),
the Commission explained, in reliance on Tennessee Gas, that
“[t]o determine whether a late intervenor established good
cause, the Commission considers whether the movant explains
why it was unable to intervene in a timely manner” and that
“good cause must be established before the other factors in
Rule 214(d) will be considered.” Id. at PP 18, 25. The
Commission re-affirmed in Venture Global CP2 LNG, LLC,
189 F.E.R.C. ¶ 61,148 (2024), that “the Tennessee Gas decision
. . . represents current Commission policy.” Id. at P 14. Even
though in Venture Global the Commission distinguished
Tennessee Gas as only applying to certain Natural Gas Act
proceedings, id., that distinction does not make a difference
here because the Commission relied on Tennessee Gas and its

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17
progeny in the Rehearing Order at P 11 & n.27 (citing Double
E Pipeline, 173 F.E.R.C. ¶ 61,074, at P 18).
“It is textbook administrative law that an agency must
‘provide[] a reasoned explanation for departing from precedent
or treating similar situations differently,’” W. Deptford Energy,
766 F.3d at 20 (quoting ANR Pipeline Co. v. FERC, 71 F.3d
897, 901 (D.C. Cir. 1995)) (alteration in original). “If the
agency makes an exception in one case, then it must either
make an exception in a similar case or point to a relevant
distinction between the two cases.” Westar Energy, Inc. v.
FERC, 473 F.3d 1239, 1241 (D.C. Cir. 2007) (citations
omitted). “Without any explicit recognition by the
Commission that the standard has been changed, or any attempt
to forthrightly distinguish or outrightly reject apparently
inconsistent precedent, [the court is] left with no guideposts for
determining the consistency of administrative action in similar
cases, or for accurately predicting future action by the
Commission.” Hatch v. FERC, 654 F.2d 825, 834–35 (D.C.
Cir. 1981).
Petitioner maintains that the Commission’s interpretation
of Rule 214 has been “inconsistent” in three ways: (1) the
Commission has not always required a showing of “good cause
. . . for the late filing.” (2) Relatedly, the Commission “has not
consistently determined that administrative oversight will be
fatal to a late intervention motion under Rule 214.” (3) And the
Commission “has found ‘good cause’ based on an evaluation
of the Rule 214(d) factors” beyond good cause for filing late
under (d)(1)(i). Petitioner’s Br. 20–22. Petitioner’s third
example is, in essence, duplicative of its textual challenge to
the Commission’s interpretation that if (d)(1)(i) “‘good cause’
is not established, it need not consider the factors listed under
Rule 214(d),” Petitioner’s Br. 22, which the court has rejected
in Part II.B, supra. The additional regulatory history involving
the Natural Gas Policy Act advanced by the Petitioner,
Petitioner’s Br. 23, is not to the contrary, offering an

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unremarkable observation that one of the (d)(1) factors “may
[but does not have to] be considered when” the Commission
“rules on late interventions.” 49 Fed. Reg. 21,701, 21,702
(May 23, 1984). Neither are the FEDERAL RULES OF CIVIL
PROCEDURE authoritative in interpreting the Commission’s
intervention rule. Petitioner’s Br. 24. Because Petitioner
raised its textual challenge to interpretation of Rule 214, the
Commission’s position that this argument is forfeit,
Respondent’s Br. 33, lacks merit.
The question remains whether the Commission has
applied Tennessee Gas and its progeny inconsistently to
similarly situated movants seeking to intervene pursuant to
Rule 214. In this regard, the Commission maintains that
Petitioner “identifies no conflict with Commission precedent”
because four of the decisions noted by Petitioner are
“distinguishable” as either post-dating the Rehearing Order,
see, e.g., Valley Link Transmission Maryland, LLC, 191
F.E.R.C. ¶ 61,113, at P 22 (2025), or as non-precedential
decisions of administrative law judges, see, e.g., Basin Elec.
Power Coop., Order Granting Late Intervention, Dkt. No.
ER22-137-000 (Apr. 15, 2025) (unreported). Respondent’s Br.
27–32. Further, the Commission maintains that in two cases
the movants demonstrated good cause for filing late because
they were not located in the United States or because they filed
timely in one proceeding and only later did it become clear that
intervention was necessary in a related proceeding.
Respondent’s Br. 29–31 (citing Woodland Pulp, LLC, Notice
Granting Late Intervention, Project No. P-2660-038 (Aug. 22,
2024); Erie Boulevard Hydropower, L.P., 188 F.E.R.C.
¶ 61,057, at P 11 (2024)). And the Commission intimates that
it made “fact-specific determination[s]” to grant out-of-time
intervention where the parties moved “more quickly than”
Petitioner. Respondent’s Br. 29–30 (citing Woodland Pulp).
Petitioner responds with even more cases demonstrating
the Commission’s inconsistent application of its late-

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intervention precedent. Specifically, Petitioner points to four
cases where the Commission granted out-of-time motions to
intervene despite the movants’ failure to specify good cause for
late filing beyond administrative oversight. See Athens Utils.
Bd. v. TVA, 177 F.E.R.C. ¶ 61,021, at P 87 (2021) (failing to
consider good cause for filing late); DTE Energy Trading, Inc.,
182 F.E.R.C. ¶ 61,207, at P 21 (2023) (same); Duquesne Light
Co. v. PJM Interconnection, LLC, 176 F.E.R.C. ¶ 61052, at
P 13 (2021) (same); W. Tex. LPG Pipeline Ltd. P’ship, 162
F.E.R.C. ¶ 61,252, at P 34 (2018) (considering other (d)(1)
factors despite asserted good cause based on administrative
oversight). Reply Br. 21–22, 24. In these cases, the
Commission departed from its precedent in Tennessee Gas and
its progeny requiring that “good cause must be established
before the other factors in Rule 214(d) will be considered,”
Double E Pipeline, 173 F.E.R.C. ¶ 61,074, at P 25, by ignoring
whether movants demonstrated good cause for filing late, and
considering instead whether they met some of the other (d)(1)
factors — the same factors that Petitioner urged the
Commission to consider in moving to intervene. Mot. to
Intervene at 3. The Commission never explained why
Petitioner’s out-of-time motion to intervene should be treated
differently.
The inconsistency in the application of Rule 214 is no
news to the Commission. Former Commissioners disagree
about whether Tennessee Gas still applies and to whom. For
example, in Northern Natural, 175 F.E.R.C. ¶ 61,052 (2021),
predating Petitioner’s motion, the Commission granted a
motion to intervene filed seven months after the deadline
without addressing any good cause. Id. at 61,341. Then-
Chairman Glick “wr[o]te separately to highlight the extent to
which [the] order abandons the harsh approach to late
interventions in natural gas proceedings that the Commission
adopted in Tennessee Gas.” Id. at 61,342. Former
Commissioner Clements concurred on similar grounds. Id. at
61,344. Former Commissioner Danly dissented from the grant

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of the motion, stating that “the Commission is still dependably
inconsistent in the application of its regulations, routinely
granting late interventions in natural gas rate, electric, and oil
proceedings without requiring a showing of good cause, while
demanding that good cause be shown in hydropower and
natural gas certificate proceedings.” Id. at 61,343. (The
Commission later distinguished Northern Natural because the
petitioners responded to a potentially large shift in
Commission-wide policy not apparent at the beginning of the
proceedings. Broadview Solar, LLC, 175 F.E.R.C. ¶ 61,228, at
P 9–10 (2021)). Nowhere in Northern Natural or other cases
cited by Petitioner does the Commission explain why it
allowed these exceptions in light of its strict intervention
precedent.
Moreover, decisions of the Commission’s administrative
law judges cited in Petitioner’s opening brief as well as
multiple decisions of the Commission post-dating the
Rehearing Order, although not alone persuasive, are illustrative
of the inconsistency in the Commission’s intervention practice
that apparently permeate multiple levels of its decision-
making. The Commission does not address the ALJ decisions
except by summarily stating that they do not “control[].”
Respondent’s Br. 30.
Instead, the Commission attempts to “distinguish” certain
cases adduced by Petitioner because they “involve[d] much
less egregious delay.” Respondent’s Br. 32. Perhaps, but the
Commission has not shown that it has adopted an “official
policy or practice regarding the length of time in between the
intervention deadline and the late intervention motion,” Reply
Br. 21, nor was the length of delay a stated reason for denying
Petitioner’s intervention. “[A]n agency’s action must be
upheld, if at all, on the basis articulated by the agency itself,”
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 50 (1983). Here, the Commission
denied intervention because the “failure to establish good cause

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21
is a sufficient condition to deny intervention and no other
factors [presumably including the length of the movant’s delay
in filing a motion] need be examined where good cause does
not exist.” Rehearing Order at P 11 & n.27 (citing Double E
Pipeline, 173 F.E.R.C. ¶ 61,074, at P 23); id. at P 13 (requiring
a showing of whether good cause has been shown for the late
filing); see Respondent’s Br. 21. The attempt by the
Commission to distinguish the cases where out-of-time
motions to intervene were granted because they were filed in a
shorter period of time after the deadline, without more,
necessarily fails.
That is all the more true because the Commission has in
subsequent cases granted intervention to parties that exceeded
the intervention deadline by longer than did Petitioner, which
reconfirms that the Commission has yet to adopt a strict or
consistent applied cutoff time for late intervention. See, e.g.,
Transcont’l Gas Pipe Line Co., LLC, 182 F.E.R.C. ¶ 61,006, at
PP 11, 86 (2023), vacated on other grounds by New Jersey
Conservation Found. v. FERC, 111 F.4th 42 (D.C. Cir. 2024)
(granting motions filed over 14 months and 19 months late);
Mountain Valley Pipeline, LLC Equitrans L.P., 161 F.E.R.C.
¶ 61,043, at PP 21–22 (2017) (over 19 months late).
Furthermore, the Commission provides an additional
intervention opportunity during the comment period for an
Environmental Impact Statement, which is sometimes
prepared after an EA. See 18 C.F.R. §§ 157.10(a), 380.6,
380.10(a)(i). Indeed, where the Commission has addressed
the length of delay in filing a motion to intervene, it has tied
consideration of the passage of time to the increased burden on
the Commission or the other parties, neither of which has been
pressed as an objection to Petitioner’s intervention. For
example, in Tennessee Gas, the Commission imposed a stricter
intervention standard after the issuance of a dispositive order
“because the prejudice to other parties and the burden on the
Commission of granting late intervention” at the post-
decisional stage “are substantial.” 162 F.E.R.C. ¶ 61,167, at

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22
P 10; Broadview Solar, 174 F.E.R.C. ¶ 61,199, at P 14 (same);
see also Ampersand Christine Falls Hydro, LLC, 194 F.E.R.C.
¶ 61,048, at P 8 (2026) (same).
And the Commission’s reliance on the Ninth Circuit’s
decision in California Trout, as support for its assertion that
“the Commission has steadfastly and consistently held that a
person who has . . . notice that his interests might be adversely
affected by a proceeding, but who fails to intervene in a timely
manner, lacks good cause under Rule 214” misses Petitioner’s
point that the Commission has repeatedly departed from its
precedent. Respondent’s Br. 19 (quoting Cal. Trout, 572 F.3d
at 1025). Furthermore, California Trout is factually
distinguishable because it predated Tennessee Gas, and the
Ninth Circuit thus had no occasion to consider whether the
Commission’s subsequent decisions on motions to intervene
were inconsistent in light of it.
Our dissenting colleague concludes that the inconsistency
in the Commission’s decision-making is permissible “because
intervention motions are inherently fact-bound, and the cases
cited by [the court] are readily distinguishable.” Dissent Op. 1.
This misconstrues the court’s holding. The inconsistency is not
in outcomes, but in the legal rules adopted and as applied by
the Commission in ruling on intervention motions. The court
faults the Commission not for denying a motion to intervene
because the motion was simply late, see id. at 14, but for
denying the motion on the basis of a sole (and different) rule
than it adopted as a matter of official agency policy – that
Petitioner did not assert good cause for filing late under
subsection (d)(1)(i) – while permitting other out-of-time
movants to intervene without making such a showing,
including with much greater delay. The Dissent also relies on
rationales that the Commission never provided and that would
reduce its stated intervention approach under Tennessee Gas to
a nullity.

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23
The main flaw underlying the dissent’s reasoning is that it
permits the Commission to adopt an official approach of only
considering one (d)(1) factor (good cause for failure to file late
under subsection (i)) and simultaneously to make a “fact-
specific determination,” Dissent Op. 10, that evaluates
considerations beyond that single factor, such as the length of
delay in filing a motion or familiarity with the Commission’s
proceedings. Id. at 6. In effect, then, the Commission would
never need to consider what a would-be intervenor argues
under the remaining (d)(1) factors (including critical factors
such as whether the movant’s interests are adequately
represented and whether prejudice exists) once the putative
intervenor fails to establish good cause, and the Commission’s
decision would nonetheless be insulated from judicial review
based on some other, always-changing “fact-specific”
consideration.
In the dissent’s view that is permissible because
“intervention motions are inherently fact-bound.” Dissent Op.
1. But that logic would excuse the Commission, or any other
agency, from the requirements of reasoned decision-making
because every motion to intervene will be fact-bound, i.e.,
presenting a specific set of circumstances germane to each
movant. Indeed, the dissent’s view would obviate the need for
Rule 214(d)(1)’s statement of what factors the Commission
considers in evaluating an out-of-time motion to intervene,
which the Commission presumably adopted to clarify, rather
than obscure, its decision-making process. Nor is it necessarily
true that “the length of delay is an inextricable feature of the
tardiness that the movant seeks to excuse,” Dissent Op. 14,
because the Commission has in the past considered the length
of delay as part of its consideration of prejudice to parties,
which are separate (d)(1) factors. See, e.g., Broadview Solar,
174 F.E.R.C. ¶ 61,199, at P 14; Ampersand, 194 F.E.R.C.
¶ 61,048, at P 8. The point is that here the Commission
purported to consider a certain set of facts – those relevant to

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24
Petitioner’s failure to timely file – while not requiring the same
of other movants without an explanation.
In effect, the dissent would allow the Commission to
create a moving goalpost for out-of-time intervention whereby
it will almost always be able to reject a movant on the basis of
a distinguishing fact, creating an appearance of favoritism and
partiality incongruous with the Commission’s public interest
mandate. Cf. 16 U.S.C. §§ 797, 799. In this regard, former
Chairman Glick stated that “[w]here a would-be party
demonstrates good cause for intervening late [under any
factor],” the Commission would “better serve the public
interest by considering its views and stating on the record why
we agree or disagree than by erecting procedural barriers just
to keep the would-be party out of the proceeding.” Northern
Natural, 175 F.E.R.C. ¶ 61,052, at 61,342.
The dissent also cannot be reconciled with the basic tenet
of administrative law that an “agency’s action must be upheld,
if at all, on the basis articulated by the agency itself.” State
Farm, 463 U.S. at 50. The Commission stated that Petitioner’s
failure to show “good cause for failing to file” timely under
(d)(1)(i) was “sufficient to support the Commission’s
decision,” Rehearing Order PP 14, explaining that “[t]o
determine whether a late intervenor established good cause, the
Commission considers any explanation by the movant of why
it was unable to intervene in a timely manner.” Id. at P 9
(emphasis added) (citation omitted); see id. at P 13. Missing
from the Commission’s explanation of what it considers to be
good cause for filing late in this case are the considerations that
the dissent perceives as justifying the denial of intervention,
such as the length of delay or “familiarity with [the
Commission’s] procedures.” Dissent Op. at 11.
Similarly, in addressing several instances where the
Commission granted out-of-time motions to intervene, the
dissent concludes with an intervention approach of its own
making “that a minimal [and undefined] delay at a proceeding’s

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25
early stages, or circumstances beyond a movant’s mere
oversight, may justify granting late intervention.” Dissent Op.
12. Although that may be a sensible approach to intervention,
the Commission has not shown that it is an approach that it has
adopted. To the contrary, on several occasions the Commission
has granted intervention where the movants’ delay in filing was
much longer, without even discussing good cause. Transcont’l
Gas Pipe Line, 182 F.E.R.C. ¶ 61,006, at PP 11, 86; Mountain
Valley Pipeline, 161 F.E.R.C. ¶ 61,043, at PP 21–22.
Moreover, the throughline in the dissent is that once a movant
is too late (unclear how late), the Commission would always
be justified in denying intervention, no matter how unique or
important the movant’s point of view is or minimal the
prejudice or what the Commission’s publicly stated approach
to intervention is.
Nor is the dissent correct that the court’s “holding
unjustifiably cabins the Commission’s discretion by requiring
it to consider factors beyond good cause when deciding a late
intervention motion.” Dissent Op. at 10. Here, the
Commission’s own actions are its undoing — the Commission
declared to have adopted a strict intervention approach in
Tennessee Gas and Double E Pipeline of only considering the
(d)(1)(i) factor for filing late, but acted contrary to its own
purported approach in a number of other cases without a
reasoned explanation. This does not mean, as the dissent
maintains, that the Commission must always “consider other
factors listed in Rule 214(d)(1) [] because it has done so in
other cases,” Dissent Op. at 10; the Commission must,
however, at least explain why it is declining to do so in
Petitioner’s case when it has considered those factors in
similar situations. Simply put, the Commission is not excused
from the requirements of “[e]lementary even-handedness.”
See Airmark Corp. v. FAA, 758 F.2d 685, 692 (D.C. Cir. 1985).
It is also irrelevant that the Commission’s prior departures
from the Tennessee Gas approach were not part of “an

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26
established practice.” Dissent Op. at 10 (citing Aliceville
Hydro Assocs. v. FERC, 800 F.2d 1147, 1152 (D.C. Cir. 1986)).
The court has not required that petitioners establish deviation
from an agency’s self-proclaimed “current [] policy”, Venture
Glob., 189 F.E.R.C. ¶ 61,148, at P 14, with evidence of another
established practice or policy. And, of course, the Commission
is “free to alter its past rulings and practices,” Hatch, 654 F.2d
at 834.
In sum, the Commission on multiple occasions has treated,
without explanation, similarly-situated movants for out-of-
time intervention differently by considering the remaining Rule
214(d)(1) factors irrespective of whether the sole justification
for filing out of time was administrative oversight or whether
the movants alleged good cause for filing out of time under
(d)(1)(i) at all, exacerbated by the Commission’s lack of clarity
about its intervention policy. The Commission was not
required to rely on Tennessee Gas and its progeny as “a
sufficient condition to deny [Petitioner’s] intervention.”
Rehearing Order at 11. But because it did, a “sometimes-yes,
sometimes-no, sometimes-maybe policy of [deadlines] cannot
. . . be squared with [the court’s] obligation to preclude
arbitrary and capricious management of [the Commission’s]
mandate.” NLRB v. Wash. Star Co., 732 F.2d 974, 977 (D.C.
Cir. 1984).
The Commission does not suggest that any error is
harmless or that a remand would be futile because it would
deny Petitioner intervention under the remaining Rule
214(d)(1) factors. See PDK Lab’ys Inc. v. DEA, 362 F.3d 786,
799 (D.C. Cir. 2004). The Commission identified no
opposition to Petitioner’s motion to intervene, or disruption to
its proceedings, or burden to the Commission or the other
parties resulting from granting Petitioner’s motion. Absent the
grant of its motion, Petitioner, on the other hand, lacks “party”
status to move for reopening or judicial review of the Surrender
Order. See 16 U.S.C. § 825l(b).

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27
Accordingly, the court vacates the challenged orders and
remands the case for the Commission to reconsider the motion
to intervene and provide a reasoned explanation for its
determination consistent with its precedent.

-- 27 of 47 --

PAN, Circuit Judge, concurring in part and dissenting in part:
I concur in the court’s holding that American Whitewater
has standing to challenge the Federal Energy Regulatory
Commission’s orders denying intervention, and that the
Commission’s approval of the surrender application does not
moot this case. See Maj. Op. Part II.A. I also concur in the
court’s holding that a lack of “good cause” for an untimely
motion to intervene may, in itself, justify denial of the motion.
See id. Part II.B (interpreting 18 C.F.R. § 385.214(b)(3),
(d)(1)). But I respectfully dissent from the court’s holding that
FERC’s denial of American Whitewater’s intervention motion
in this case was arbitrary and capricious. See id. Part II.C.
* * *
American Whitewater moved to intervene in a proceeding
before the Commission nearly nine months after the deadline
to intervene had passed. American Whitewater’s only
explanation for its tardiness was that it was unaware of the
proceeding, despite the Commission’s publication of two
notices about the proceeding in the Federal Register. The
Commission exercised its discretion to deny the motion to
intervene, finding that American Whitewater had not shown
“good cause for failing to file the motion within the time
prescribed.” 18 C.F.R. § 385.214(d)(1)(i).
My colleagues hold that the Commission’s decision was
arbitrary and capricious. Although FERC’s denial of the
motion was clearly explained, reasonable, and consistent with
the Commission’s announced policy of being “less lenient in
the grant of late interventions,” my colleagues hold that FERC
arbitrarily denied intervention here because it has allowed
parties in other cases to intervene under similar circumstances.
Maj. Op. 16. That holding is erroneous because intervention
motions are inherently fact-bound, and the cases cited by my
colleagues are readily distinguishable. And by reversing the

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2
Commission in a case where it followed its policy of strictly
applying the good-cause standard, my colleagues appear to
make it impossible for the Commission to adhere to that policy
in the future: The court’s opinion seems to proclaim that it is
(and always will be) arbitrary and capricious for the
Commission to deny a late-filed motion to intervene based
solely on a determination that the moving party has failed to
demonstrate good cause for its delay in filing.
I cannot agree with my colleagues’ holding that the
Commission may not exercise its discretion to deny a nine-
months-late motion when the movant’s only excuse for its
lateness was that it was unaware of a publicly noticed
proceeding. Nor can I agree with the majority’s apparent
holding that the Commission cannot consider how long the
movant waited to file its motion when deciding whether there
is “good cause” to excuse the late filing. Maj. Op. 21. And
most importantly, I disagree with the court’s apparent holding
that the Commission can never deny late intervention based
solely on the moving party’s unjustified and extreme
dilatoriness. That is an undue constraint on the Commission’s
broad discretion to manage its proceedings. I would affirm the
Commission’s orders and therefore respectfully dissent.
I.
A.
The Federal Power Act (FPA) charges FERC with
regulating hydropower licensing. 16 U.S.C. § 817(1). A
licensee seeking to surrender its license must apply to FERC
for approval. FERC must publish notice of the license-
surrender proceeding — typically in the Federal
Register — and must set deadlines for comments, protests, and
motions to intervene. Id. § 799; 18 C.F.R. §§ 385.2009,
385.210(b).

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3
The FPA also authorizes FERC to promulgate regulations
governing how an interested entity may intervene and become
a “party” in an administrative proceeding. 16 U.S.C.
§ 825g(a). The relevant regulation here is Rule 214. 18 C.F.R.
§ 385.214. Paragraph (b) of Rule 214 requires a movant to
state its position and explain its interest in the proceeding’s
outcome. Id. § 385.214(b)(1)–(2). And if the motion to
intervene is untimely, the movant must “show good cause [for]
why the time limitation should be waived.” Id.
§ 385.214(b)(3). In determining whether the movant has made
that showing, the Commission “may” consider several factors,
including whether:
(i) the movant had good cause for failing to
file the motion within the time prescribed;
(ii) any disruption of the proceeding might
result from permitting intervention;
(iii) the movant’s interest is not adequately
represented by other parties in the proceeding;
(iv) any prejudice to, or additional burdens
upon, the existing parties might result from
permitting the intervention; and
(v) the motion conforms to the requirements
of paragraph (b) of this section.
Id. § 385.214(d)(1).
B.
In 2023, Sho-Me Power Electric Cooperative (Sho-Me)
applied to surrender its license for the Niangua Hydroelectric

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4
Project and stated its intent to leave the Project’s facilities,
including its dam, in place.
In early August 2023, FERC published notice of Sho-Me’s
surrender application and set August 31, 2023, as the deadline
for non-parties to intervene in the surrender proceeding. Sho-
Me Power Elec. Coop., 88 Fed. Reg. 52153 (Aug. 7, 2023).
Seven months later, in March 2024, FERC published a notice
of intent to prepare an environmental assessment (EA) of Sho-
Me’s license surrender. 89 Fed. Reg. 21510 (Mar. 28, 2024).
Notably, the notice of intent referenced the earlier publication
that announced the intervention procedures and deadline. See
id. (“A Notice of Application Accepted for Filing and
Soliciting Comments, Motions to Intervene, and Protest was
issued on August 1, 2023.”). Thus, the Commission made not
one but two public announcements about the surrender
proceeding.
American Whitewater moved to intervene in the surrender
proceeding in May 2024 — nearly nine months after the
intervention deadline and two months after publication of the
EA notice. American Whitewater sought intervention to
advocate for the removal of the Project’s dam because, the
organization claimed, the dam impairs recreational use of the
Niangua River. To establish “good cause” for its failure to
timely intervene, American Whitewater asserted that the
“organization only recently became aware of this proceeding
and was unaware that the deadline for intervention had passed.”
J.A. 28. American Whitewater also argued that the parties in
the surrender proceeding could not adequately represent the
organization’s recreational interests, and that its intervention
would not prejudice the parties or disrupt the proceeding.
FERC denied American Whitewater’s untimely motion to
intervene, finding that the organization had “failed to

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5
demonstrate good cause for its inability to intervene in a timely
manner.” J.A. 214.
American Whitewater sought rehearing and argued, in
relevant part, that FERC had “departed [from] its own
precedent” by denying the intervention motion based solely on
the absence of good cause. J.A. 225. In support of its
argument, American Whitewater cited prior decisions in which
the Commission “granted late intervention to parties who did
not have a strong basis under Rule 214(d)’s [good-cause]
factor.” J.A. 222 (collecting FERC decisions). Based on that
asserted prior practice, American Whitewater argued that the
Commission could not deny its motion solely for failure to
establish good cause under Rule 214(d)(1)(i), and that the
remaining Rule 214(d)(1) factors warranted granting its
motion.
The Commission denied the rehearing request and
elaborated on its reasoning for denying the untimely
intervention motion. Sho-Me Power Elec. Coop., 190 FERC
¶ 61,028 (2025) (Rehearing Order).
The Commission grounded its analysis in Tennessee Gas
Pipeline Co., 162 FERC ¶ 61,167 (2018) — its seminal
decision governing the agency’s late-intervention policy.
Rehearing Order at P 11 n.29. In Tennessee Gas, FERC
observed a “pattern” of movants failing to address Rule 214’s
“requirements for late interventions” and announced that
“going forward,” it would “be less lenient in the grant of late
interventions.” 162 FERC ¶ 61,167, at P 50. Late intervenors
are “required to show good cause why the time limitation
should be waived” under Rule 214(b)(3) “by reference to
factors set forth in Rule 214(d).” Id. (cleaned up). Those
requirements ensure that late intervenors “explain why they
should not be held to the Commission’s expectation that

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6
entities should intervene ‘in a timely manner based on
reasonably foreseeable issues arising from the applicant’s
filing and the Commission’s notice of the proceeding.’” Id. at
P 51 (quoting Alcoa Power Generating, Inc., 144 FERC
¶ 61,218, at P 13 (2013), aff’d sub nom., New Energy Cap.
Partners v. FERC, 671 F. App’x 802 (D.C. Cir. 2016)).
Applying Tennessee Gas, the Commission found
unpersuasive American Whitewater’s assertion that it met the
good-cause standard because it “was not aware of the
proceeding until after the deadline to intervene passed.”
Rehearing Order at P 10. The Commission emphasized that it
had published two notices about the surrender proceeding, and
under its precedent, publication in the Federal Register
provided American Whitewater with constructive notice of the
proceeding. Id. & n.22 (citing San Diego Gas & Elec. Co., 112
FERC ¶ 61,330 (2005)). American Whitewater nevertheless
waited to intervene until “over nine months after the initial
notice and over two months after the notice of intent.” Id. at
P 10. The Commission also noted that American Whitewater
“has long been involved in Commission proceedings and thus
is familiar with the notice and intervention process and
requirements.” Id.; see also J.A. 26 (American Whitewater
acknowledging that it “has long been involved with [FERC-
licensed] hydropower projects”).
Under the circumstances presented, the Commission
concluded that American Whitewater’s “[l]ack of awareness of
a publicly-noticed proceeding, without more, d[id] not
constitute good cause.” Rehearing Order at P 10. That
conclusion was consistent with precedents before and after
Tennessee Gas, which “ha[ve] steadfastly and consistently held
that a person who has actual or constructive notice that his
interests might be adversely affected by a proceeding, but who
fails to intervene in a timely manner, lacks good cause under

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Rule 214.” Id. at P 9 (quoting Cal. Trout v. FERC, 572 F.3d
1003, 1022 (9th Cir. 2009)); see also Transcon. Gas Pipe Line
Co., 172 FERC ¶ 61,281, at P 6 n.13 (2020) (“[T]he
Commission has not accepted administrative oversight as a
valid reason for an untimely motion to intervene.”); PJM
Interconnection, LLC Appalachian Power Co., 169 FERC
¶ 63,031, at P 18 (2019) (“Administrative oversight as the
reason that [the movants] failed to timely intervene is
insufficient.” (cleaned up)).
Having found no good cause, the Commission declined to
consider the remaining Rule 214(d)(1) factors because “failure
to establish good cause is a sufficient condition to deny
intervention and no other factors need be examined where good
cause does not exist.” Rehearing Order at P 11; see also
Double E Pipeline, 173 FERC ¶ 61,074, at P 23 (2020) (“When
it has been determined that good cause does not exist, the
Commission is not obligated to consider . . . Rule 214’s
remaining factors.”).
The Commission also rejected American Whitewater’s
argument that its prior decisions granting intervention
compelled a different result. As the Commission explained,
each decision turned on case-specific facts, and its
consideration of “certain Rule 214 factors in one case” does not
“bind the Commission to apply those same factors [in] every
case.” Rehearing Order at PP 12–13. The Commission thus
denied the rehearing request and affirmed its denial of
American Whitewater’s motion to intervene. Id. at P 15.
On petition for review, American Whitewater argues that
the Commission misinterpreted the plain text of Rule 214 when
it determined that the absence of “good cause” for an untimely
filing is, in itself, a sufficient basis to deny intervention.
According to American Whitewater, the text of Rule 214(b)(3)

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requires a movant to show “good cause [for] why the time
limitation should be waived,” 18 C.F.R. § 385.214(b)(3), and
the Commission may not rely solely on the single factor in
subsection (d)(1)(i) to determine whether a movant has
satisfied that requirement, Pet. Br. 17. I fully concur with the
court’s rejection of that argument. The court holds in Part II.B
of its opinion that the Commission may exercise its discretion
to deny late intervention when the movant has not
demonstrated “good cause for failing to file the motion within
the time prescribed,” without considering any other Rule
214(d)(1) factors. Maj. Op. 14 (interpreting Rule 214(b)(3),
(d)(1)).
But the court does not stop there. The court goes on to
vacate the Commission’s orders for doing exactly what the
Rule permits it to do: The majority holds that in this case, when
the Commission denied the intervention motion based on
American Whitewater’s failure to show “good cause” for its
late filing, the Commission’s action was arbitrary and
capricious — even though the Commission correctly applied
Rule 214 and complied with the late-intervention policies that
it announced in Tennessee Gas and Double E Pipeline. Maj.
Op. 16–26. I respectfully disagree with my colleagues’
analysis in Part II.C of the court’s opinion.
II.
A bedrock principle of administrative law requires a
government agency to “provide a reasoned explanation for
departing from precedent or treating similar situations
differently.” W. Deptford Energy, LLC v. FERC, 766 F.3d 10,
20 (D.C. Cir. 2014) (cleaned up). An agency, however, “does
not act arbitrarily” when its action comports with precedent and
“it treats dissimilar parties differently.” Intellistop Inc. v. U.S.
Dep’t of Transp., 72 F.4th 344, 351 (D.C. Cir. 2023) (per

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9
curiam); see also Grayscale Invs., LLC v. SEC, 82 F.4th 1239,
1245 (D.C. Cir. 2023) (explaining that an agency “must justify
different results reached on similar facts”). A petitioner who
claims to be a victim of arbitrary, disparate treatment by an
agency must “bring before the reviewing court sufficient
particulars of how the [petitioner] was situated, how the
allegedly favored party was situated, and how such similarities
as may exist dictate similar treatment and how such
dissimilarities as may exist are irrelevant or outweighed.”
P.I.A. Mich. City Inc. v. Thompson, 292 F.3d 820, 826 (D.C.
Cir. 2002); see also Lomak Petroleum, Inc. v. FERC, 206 F.3d
1193, 1198 (D.C. Cir. 2000) (rejecting an arbitrary-and-
capricious claim because the petitioner “failed to establish
convincing inconsistencies between FERC’s treatment of” its
facility “and other facilities”).
Relatedly, if an agency “announces and follows — by rule
or by settled course of adjudication — a general policy by
which its exercise of discretion will be governed,” it may be
bound to that policy in future cases. INS v. Yang, 519 U.S. 26,
32 (1996). And when an agency departs from an existing
policy, it must “provide a reasoned explanation.” FDA v.
Wages & White Lion Invs., LLC, 604 U.S. 542, 568 (2025)
(cleaned up) (quoting Encino Motorcars, LLC v. Navarro, 579
U.S. 211, 221 (2016)).
III.
My colleagues in the majority hold that FERC departed
from precedent and treated American Whitewater differently
from other late-filing intervenors when it denied the instant
motion to intervene. According to my colleagues, FERC has
previously granted late intervention motions “by considering
the remaining Rule 214(d)(1) factors irrespective of whether
the sole justification for filing out of time was administrative

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10
oversight or whether the movants alleged good cause for filing
out of time under (d)(1)(i) at all.” Maj. Op. 26. My colleagues
also fault the Commission for relying on American
Whitewater’s nine-month delay in filing its intervention
motion, noting that the Commission has not “adopted an
‘official policy or practice regarding the length of time in
between the intervention deadline and the late intervention
motion.’” Id. at 21 (quoting Reply Br. 21). And although the
Commission in this case followed its publicly announced
policy of strictly enforcing the good-cause standard, my
colleagues vacate the Commission’s order because they
perceive that the Commission has not adhered to that policy in
other cases that are not before the court. See id. at 22 (holding
that “the Commission has repeatedly departed from its
precedent” that the absence of good cause is a sufficient basis
to deny late intervention).
In my view, the majority’s holding unjustifiably cabins the
Commission’s discretion by requiring it to consider factors
beyond good cause when deciding a late intervention motion.
The court appears to insist that the Commission consider other
factors listed in Rule 214(d)(1) here because it has done so in
other cases. But the Commission’s prior decisions granting late
intervention do not define “an established practice” binding the
Commission to decide every intervention motion based on
factors beyond good cause. Aliceville Hydro Assocs. v. FERC,
800 F.2d 1147, 1152 (D.C. Cir. 1986). Instead, the
“Commission makes a fact-specific determination” on each
late intervention motion, Rehearing Order at P 13, and when it
exercises its broad discretion to grant or deny an intervention
motion, it does not — and need not — always apply the Rule
214(d)(1) factors in the same way, see Aliceville Hydro
Assocs., 800 F.2d at 1152 (rejecting an argument that FERC’s
prior acceptances of untimely permit applications amounted to
a binding policy, where the “practice was not repeated enough

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11
times, or over a long enough period, or at a high enough level
for it to become binding on the Commission”). When a rule or
regulation lists several factors that an agency “may” consider
in making a discretionary decision (like Rule 214 does), the
agency does not act arbitrarily when it relies on different listed
factors in cases that present distinct facts. See Maj. Op. 15
(“Nothing in the text or regulatory history of Rule 214 requires
the Commission to consider any or all of the (d)(1) factors.”);
see also Cal. Trout, 572 F.3d at 1025–26 (“Where, as here, the
agency’s rule gives it the discretion either to consider or to
ignore certain factors, we would be remiss to eliminate this
discretion by requiring the agency to always [consider or]
ignore certain factors just because it has often” done so “in the
past.” (emphasis in original) (cleaned up)).
In sum, this is not a case where the Commission must
either conform to a prior practice of granting late intervention
without regard to the good-cause factor, or explain its failure to
do so. Instead, it is a case where the Commission permissibly
exercised its discretion to decide a motion based on the
particular facts before it, and did so in accordance with an
announced policy.
Although the court’s opinion is premised on a finding of
inconsistent treatment of similarly situated parties, my
colleagues fail to identify any prior successful intervenor that
was similarly situated to American Whitewater in the ways that
are relevant: None of the decisions cited by the majority (or by
American Whitewater) involved an intervenor who — despite
having constructive notice of the proceeding and familiarity
with FERC’s procedures — filed its motion nine months late
and offered administrative oversight as the sole basis to excuse
its significant delay. Rather, the decisions cited by the majority
involved much shorter delays or other circumstances that
justified granting intervention despite a longer delay.

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12
In Athens Utilities Board v. TVA, for example, FERC
granted a motion to intervene filed only two weeks late because
intervention posed little risk of disrupting the proceeding at its
early stage. 177 FERC ¶ 61,021, at PP 34–35, 87 (2021); see
also DTE Energy Trading, Inc., 182 FERC ¶ 61,207, at PP 11,
21 (2023) (same, where the movants filed sixteen days late);
Duquesne Light Co. v. PJM Interconnection, LLC, 176 FERC
¶ 61,052, at PP 9, 11, 13 (2021) (same, where the movant filed
eighteen days late and “the scope and potential impact of this
proceeding were not evident to [the movant] at the time that the
Complaint was filed”). And in West Texas LPG Pipeline L.P.,
FERC concluded that the proposed intervenor’s
“administrative oversight [was] not the most convincing of
reasons to allow late intervention.” 162 FERC ¶ 61,252, at
P 34 (2018). But FERC nonetheless granted intervention,
reasoning that the motion was filed “only a few days” late, and
Hurricane Harvey had “impact[ed] . . . personnel in the
Houston area.” Id.
The throughline of those decisions is that a minimal delay
at a proceeding’s early stages, or circumstances beyond a
movant’s mere oversight, may justify granting late
intervention. The cited cases are materially different from this
one. Here, a sophisticated participant with constructive notice
of the proceeding waited nine months to intervene and
attributed its delay solely to administrative oversight. Thus, the
Commission’s denial of intervention here does not demonstrate
disparate treatment of similarly situated intervenors.1
1 Other cases cited by American Whitewater are just as far afield.
In Woodland Pulp, FERC granted a Canadian Tribe’s motion to
intervene filed one month after the deadline and before publication
of a notice of intent to prepare an EA. Notice Granting Late
Intervention, Project No. P-2660-038 (Aug. 22, 2024) (unreported).
The Commission explained that, unlike here, the agency “had

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13
I also respectfully disagree with my colleagues’ apparent
holding that the length of delay was not a pertinent factor in the
Commission’s denial of American Whitewater’s motion. Maj.
Op. 21. Here, the Commission reasonably determined that
American Whitewater lacked good cause to excuse its
“fail[ure] to file [its] motion until nine months after the
deadline.” Rehearing Order at P 14. In distinguishing a prior
decision that granted late intervention, the Commission
emphasized that “American Whitewater moved to intervene
considerably later” than a movant who had “less access to U.S.
information” and had “never previously appeared in a
reached out only to United States Tribes,” and the movant Canadian
Tribe had “less access to U.S. information” and had never
participated in FERC proceedings. Rehearing Order at P 13 n.37.
Nor does Erie Boulevard Hydropower, L.P. assist American
Whitewater. 188 FERC ¶ 61,057 (2024). In Erie, FERC found good
cause to grant a motion filed eleven months late because the agency’s
two interrelated proceedings led the movant to intervene in one
proceeding while mistakenly failing to do so in the other. See id. at
P 11 (“The possible interrelated nature of the two relicensing
proceedings, which may not have been entirely clear early on,
provides good cause for the late intervention.”).
I am also unpersuaded by the majority’s reliance on Northern
Natural Gas Co., 175 FERC ¶ 61,052 (2021), where the Commission
summarily granted a seven-month-late motion to intervene, without
discussing good cause. As the Commission later explained, good
cause existed in that case because the movant sought to respond to
the agency’s unexpected plan to “change [an] industry-wide policy.”
Broadview Solar, LLC, 175 FERC ¶ 61,228, at P 10 (2021)
(discussing Northern Natural Gas); see also N. Nat. Gas, 175 FERC
¶ 61,052, at P 1 (Glick, Chairman, concurring) (noting that FERC’s
“significant policy change” prompted late intervention).
Importantly, the Commission did not announce this unexpected
policy change until months after the intervention deadline, so the
movant had no reason to intervene before then.

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14
Commission proceeding.” Id. at P 13 n.37; see also Resp. Br.
32 (distinguishing prior decisions granting intervention that
“involve[d] much less egregious delay”).
But the majority reasons that, because the Commission has
not “adopted an ‘official policy or practice’” concerning length
of delay, it could not rely on the fact that American
Whitewater’s intervention motion was nine months late. Maj.
Op. 21 (quoting Reply Br. 21). In my view, any motion that
seeks to excuse a late filing necessarily puts the extent of the
lateness before the adjudicator — the length of delay is an
inextricable feature of the tardiness that the movant seeks to
excuse. Thus, an agency need not announce an “official
policy” to consider the length of delay when ruling on whether
there is “good cause for failing to file the motion within the
time prescribed.” 18 C.F.R. § 385.214(d)(1)(i). It was plainly
appropriate and permissible for the Commission to consider
how long American Whitewater waited to file its motion to
intervene when evaluating good cause for the delay.
Notably, in decisions pre- and post-Tennessee Gas, the
Commission has often treated the length of delay as a relevant
fact in its good-cause analysis. See Double E Pipeline, 173
FERC ¶ 61,074, at P 19 (finding no good cause where the
movant filed “seven months” late); see also Basin Elec. Power
Coop., Order of Chief Judge Denying Motion to Intervene Out-
of-Time, Dkt. No. ER20-2441-000, at P 20 (Mar. 19, 2021)
(unreported) (rejecting administrative oversight as good cause
for a seven-month delay, while noting that the Commission had
granted intervention to a movant who also claimed
administrative oversight but filed only a day late); Pub. Util.
Dist. No. 1 of Snohomish Cnty., Notice Denying Motion to
Intervene, Project No. 12690-005 (Sep. 16, 2013) (unreported)
(denying a “motion for late intervention [filed] nearly 15
months after the deadline lapsed,” where FERC “published

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15
notice in the Federal Register” and the movant’s
“administrative oversight” did not establish good cause).2 It is
unclear why my colleagues do not view those prior cases as
establishing a practice of considering the length of delay when
deciding a late intervention motion, even as they apparently
infer that the Commission has adopted a practice of not
considering good cause for delay at all. See Maj. Op. 21.
My colleagues have chosen the wrong case to address their
perception that the Commission has inconsistently decided late
intervention motions. This is a case where the Commission
complied with the policies that it announced in Tennessee Gas
and Double E Pipeline — i.e., that it would “be less lenient in
the grant of late interventions,” Tenn. Gas, 162 FERC ¶ 61,167,
2 The majority cites additional decisions in which FERC granted
late intervention motions filed by parties whose delays exceeded
American Whitewater’s. See Maj. Op. 21–22 (citing Transcon. Gas
Pipe Line Co., 182 FERC ¶ 61,006, at PP 11, 86 (2023), vacated on
other grounds by N.J. Conservation Found. v. FERC, 111 F.4th 42
(D.C. Cir. 2024), and Mountain Valley Pipeline, LLC Equitrans L.P.,
161 FERC ¶ 61,043 (2017)). American Whitewater failed to cite
those decisions to the Commission or to this court in its opening
brief, and they are nevertheless inapposite. In Transcontinental Gas,
the movant asserted that good cause existed because, as a “small
volunteer-based organization” without “any lawyers,” it “did not
know about the requirements of becoming a party” in FERC
proceedings. Intervenor’s Motion at 2, Transcon. Gas, Dkt. No.
CP21-94-000 (Nov. 18, 2022); see also Oral Arg. 39:30–40:44
(Commission’s counsel describing the movant’s basis for good cause
in Transcontinental Gas). Moreover, Mountain Valley Pipeline
predates Tennessee Gas and therefore does not support the majority’s
conclusion that the Commission has “departed from its precedent in
Tennessee Gas and its progeny.” Maj. Op. 19. Indeed, when FERC
announced its current late-intervention policy in Tennessee Gas, it
cited Mountain Valley as an example of the very “pattern” that it
resolved to abandon. 162 FERC ¶ 61,167, at P 50 & n.116.

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16
at P 50, and that when “good cause does not exist, the
Commission is not obligated to consider . . . Rule 214’s
remaining factors,” Double E Pipeline, 173 FERC ¶ 61,074, at
P 23. If the court believes that the Commission has not
consistently adhered to those strict policies about late
intervention, the court should reverse the Commission in a case
where the agency has violated its policies, not where it has
followed them. By vacating the Commission’s decision here,
and thereby holding that the Commission’s compliance with
the good-cause policies was arbitrary and capricious, the court
appears to make it impossible for the Commission to abide by
those policies in the future. From now on, the Commission will
be required to abandon the good-cause policies that it has
publicly announced and will instead be forced to adopt an
opposite policy: It must not treat lack of “good cause” as a
sufficient basis to deny intervention, and instead it must
provide reasons beyond good cause to explain any denial of a
late motion to intervene. The court’s opinion thus interferes
with the Commission’s ability to manage its proceedings and
impinges on the Commission’s policy-making prerogative.
My colleagues’ response to this dissenting opinion reveals
the problems with their reasoning. Maj. Op. 23–26. They
identify and seek to enforce perceived “legal rules” that
constrain the Commission’s broad discretion in considering
late-filed intervention motions. Id. at 23 (“The inconsistency
is . . . in the legal rules applied by the Commission in ruling on
intervention motions.”). In fact, the only rule that we are
interpreting — Rule 214 — is entirely permissive: It merely
states that the Commission “may” take into account various
considerations in deciding whether to allow late intervention,
and we all agree that “[n]othing in the text or regulatory history
of Rule 214 requires the Commission to consider any or all of
[those] (d)(1) factors,” Maj. Op. 15 (citing 18 C.F.R.
§ 385.214(d)(1)). Thus, when the Commission exercises its

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17
discretion under Rule 214, it surely is entitled to consider
different factors under subsection (d)(1) in different cases. See
Ampersand Christine Falls Hydro, LLC, 194 FERC ¶ 61,048,
at P 8 (2026) (“Good cause is not defined in the Commission’s
regulations, [and] it is instead informed by the Commission’s
precedent on a case-by-case basis.”). The only constraint on
FERC’s discretion in this regard is that it may not act in a
manner that is arbitrary and capricious or contrary to law. 5
U.S.C. § 706(2)(A). That deferential standard is especially
appropriate here because American Whitewater has no
entitlement to intervene under the present circumstances — the
organization is behind the eight ball because it slept “on its
rights” and missed its opportunity to intervene as of right by
filing a timely motion. Millennium Pipeline Co., LLC, 161
FERC ¶ 61,136 (2017); see 18 C.F.R. § 385.214(c)(1)
(automatically allowing intervention when a non-party files a
timely, unopposed motion).
In declaring that FERC’s decision in this case was
arbitrary and capricious, my colleagues rely solely on their
view that the Commission has treated similarly situated parties
inconsistently. See generally Maj. Op. Section II.C. But as
discussed, supra, the other cases they identify are not similar
in the ways that matter. Contrary to my colleagues’ assertion,
id. at 25, the Commission clearly explained the considerations
that caused it to reject American Whitewater’s late motion: It
noted that American Whitewater had constructive notice of the
proceedings but waited “over nine months after the initial
notice and over two months after the notice of intent” to move
to intervene, and that American Whitewater “has long been
involved in Commission proceedings and thus is familiar with
the notice and intervention process and requirements.”
Rehearing Order at P 10. To support their holding that the
Commission’s reasoning was arbitrary and capricious, my
colleagues should point to cases where similarly experienced

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18
parties successfully intervened despite waiting many months
before requesting intervention, while citing only administrative
oversight to excuse their tardiness — but my colleagues do not
discuss any cases like that.3
Instead, my colleagues mistakenly assert that the
Commission has “adopt[ed] an official approach of only
considering one (d)(1) factor (good cause for failure to file late
under subsection (i))” and has often violated that policy in other
cases. Maj. Op. 23. In fact, the Commission has merely
determined that a failure to show good cause is sufficient to
justify denying late intervention — it has not bound itself to
always consider just the good-cause factor in every case. See
Rehearing Order at P 11 (“[F]ailure to establish good cause is
a sufficient condition to deny intervention and no other factors
need be examined where good cause does not exist.”). Thus,
contrary to my colleagues’ belief, Maj. Op. 24, the
Commission does not act arbitrarily when it chooses to
consider other (d)(1) factors in dissimilar cases while declining
to do the same thing here.
3 My colleagues also err in stating that “the length of delay in
filing a motion or familiarity with the Commission’s proceedings”
are considerations that go “beyond” the good-cause factor. Maj. Op.
23. The Commission took those considerations into account while
performing its good-cause analysis — it did not treat them as
additional, stand-alone factors. See Rehearing Order at P 14 (“The
lack of good cause for failing to file the motion until nine months
after the deadline supported a lack of good cause to waive the time
limitation.” (emphasis added)); id. at P 13 n.37 (distinguishing a
prior decision granting intervention because “American Whitewater
moved to intervene considerably later” than the prior movant who
had “less access to U.S. information” and had “never previously
appeared in a Commission proceeding”).

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19
Where, as here, the Commission has a reasonable basis for
its decision, expresses it clearly, and does not treat similarly
situated movants differently, it lawfully exercises its broad
discretion. But my colleagues imagine a “rule” that does not
exist and require the Commission to either comply with that
“rule” or explain, in every case, why it fails to do so. It appears
that the court’s holding will add a step for the Commission to
follow in every late-intervention case: The Commission will
have to consider whether its intended decision on each motion
differs from what the court considers a “rule,” and then either
abide by the court’s “rule” or provide a justification for its
action.
* * *
In my view, the Commission properly exercised its
discretion to deny American Whitewater’s late-filed motion to
intervene, finding that the organization’s administrative
oversight of the intervention deadline failed to establish good
cause for its nine-month delay. See 18 C.F.R.
§ 385.214(d)(1)(i). FERC’s prior decisions granting late
intervention based on other Rule 214(d)(1) factors under
materially different circumstances do not compel the
Commission to grant the instant motion or to provide further
explanation for its decision in this case.
The majority’s contrary holding appears to convert the
Commission’s broad discretion to grant or deny intervention
motions into an obligation to overlook a movant’s failure to
establish good cause for delay, or to at least provide reasoning
beyond the good-cause finding. By reversing the Commission
in this case, the court appears to preclude the Commission from
ever relying solely on a failure to show good cause when
denying a motion to intervene. That result is at odds with the
court’s holding in Part II.B of its opinion that Rule 214 permits

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20
FERC to rely on the good-cause factor alone to deny a late
motion. Maj. Op. 14–16. Even more importantly, the court’s
holding forces the Commission to abandon its stated policies
of strictly enforcing intervention deadlines and treating a
movant’s failure to show good cause as a sufficient basis to
deny late intervention. Instead, the court appears to impose a
contrary policy that requires the Commission to always
consider factors other than good cause when exercising its
discretion to grant or deny late intervention motions. I find that
outcome untenable.
Because I disagree with the court’s conclusion that the
Commission’s denial of American Whitewater’s intervention
motion was arbitrary and capricious, I respectfully dissent from
Part II.C of the court’s opinion.

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