American Whitewater v. FERC

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.  2 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.  3 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,  4 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  5 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  6 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–  7 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  8 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  9 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  10 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  11 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).  12 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).  13 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.  14 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  15 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  16 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  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  18 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-  19 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  20 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  21 is a sufficient condition to deny intervention and no other factors [presumably including