February 4, 2021
Docket No. RP21-189-000
I concur with the result of the Commission’s decision to grant the request by Chesapeake Energy Marketing, L.L.C. (Chesapeake) for a limited and temporary prospective waiver of certain Commission capacity release regulations, policies, and Midcontinent Express Pipeline LLC’s related tariff provisions. I write separately to express my concern that the Bankruptcy Court for the Southern District of Texas interfered with the Commission’s exclusive jurisdiction when the court approved Chesapeake’s agreement and request for bidding procedures (Agreement).
Chesapeake states that under the Agreement it would conduct an Auction “to determine the buyer for [Chesapeake’s] Mid-Continent assets, which include oil and gas assets and mineral leases located in Oklahoma and Hemphill County, Texas . . . as well as appurtenant facilities and the Related Capacity.”[1] This could be read as the Bankruptcy Court’s approval of the allocation of interstate pipeline capacity. Such a reading, however, is contrary to the Natural Gas Act which vests the Commission with exclusive jurisdiction over the allocation of interstate pipeline capacity.[2]
For these reasons, I respectfully concur in the result.
________________________
James P. Danly
Commissioner
[1] Chesapeake Petition at 4 (emphasis added).
[2] See United Distrib. Co. v. FERC, 88 F.3d 1105, 1152 (D.C. Cir. 1996) (“It thereby occupied the field, which necessarily includes both the sale and resale of interstate transportation rights.”); Ga. Pub. Serv. Comm’n, 107 FERC ¶ 61,024, at P 29 (2004), order on reh’g, 110 FERC ¶ 61,048, at P 17, reh’g denied, 111 FERC ¶ 61,178, at P 11 (2005).