Commissioner James Danly Statement
May 6, 2022
Docket No. RP21-525-006
I agree with the Commission’s decision to approve Midwestern Gas Transmission Company’s Stipulation and Settlement Agreement (Settlement).[1] As I stated in my separate statement in Kinetica Deepwater Express, LLC, I suggest to anyone participating in the natural gas industry that it might be prudent to be clearer in your settlement agreements as to whether you are actually a party to that agreement.[2] Though I understand that the use of an attachment listing parties supporting or not opposing a settlement is common in the industry,[3] situations will almost certainly arise in which an entity’s status as party or non‑party to a settlement will be dispositive. This will be even more important should the issue be presented to a body less indifferent to fundamentals of contract law than this Commission.
I also write to express that I am not keen on Article VII which states “[t]he Commission’s approval of this Settlement shall constitute grant of any and all waivers . . . that may be necessary for Midwestern to implement the Settlement in accordance with all of its terms.”[4] While I recognize such language is common in natural gas rate settlement agreements,[5] in my view it is overly broad and ambiguous and without discernable limit. Though the order speaks in terms of “any and all” waivers, [6] I am rather reluctant to employ language that could be read to imply that we might have waived, for example, the Commission’s requirement that filings be “true as stated,” simply for the purpose of effectuating the settlement.[7] I take comfort only in the fact that the Commission’s approval here “does not constitute approval of, or precedent regarding, any principle or issue in this proceeding.”[8]
For these reasons, I respectfully concur.
[1] Midwestern Gas Transmission Co., 179 FERC ¶ 61,079 (2022).
[2] Kinetic Deepwater Express, LLC, 175 FERC ¶ 61,048 (2021) (Danly, Comm’r, concurring in part and dissenting in part at P 10 n.12).
[3] See Settlement at App. C.
[4] Id. at 13 (emphasis added).
[5] See, e.g., Alliance Pipeline L.P. March 30, 2021 Stipulation and Agreement, Docket No. RP20-908, et al., at Art. 7.2 (“Even if not specifically stated, Commission approval of this Settlement shall constitute granting the request contained in this Settlement for any and all waivers of the Commission’s rules and regulations that may be necessary to effectuate the Settlement in accordance with its terms, including a waiver of Section 154.207 of the Commission’s regulations, to the extent necessary to implement the terms and provisions agreed to in this Settlement.”) (citation omitted). The Commission approved Alliance Pipeline L.P.’s uncontested settlement; however, the order did not summarize Article 7.2. See Alliance Pipeline L.P., 176 FERC ¶ 61,028 (2021) (Danly, Comm’r, concurring).
[6] Midwestern Gas Transmission Co., 179 FERC ¶ 61,079 at P 3.
[7] 18 C.F.R. § 385.2005(a)(2)(ii).
[8] Midwestern Gas Transmission Co., 179 FERC ¶ 61,079 at P 5.