Commissioner James Danly Statement
February 28, 2022
Docket No. IS22-136-000, et al.
I concur insofar as today’s order accepts tariff filings under the indexing regime established in the Commission’s January 20, 2022 order on rehearing.[1] I write separately to state that I am sympathetic to the concerns animating the filers’ reservations. While retroactive corrections for underrecovery in the event of a successful appeal might not require a specific tariff provision or reservation of rights,[2] the Commission will likely enjoy broad discretion as to how it would fashion remedies on remand, if at all. Enshrining the right to correct past underrecovery should they prevail upon appeal appears to me to be common sense. I do not find the justifications offered by the majority for rejecting the reservations to be compelling. In what other docket would the pipelines submit such revisions if not this one?[3]
For these reasons, I respectfully concur in the judgment.
[1] Energy Transfer GC NGL Pipelines LP, 178 FERC ¶ 61,132 (2022).
[2] See SFPP, L.P., 71 FERC ¶ 61,425, at 62,655 (1995) (“The filed rate doctrine does not prevent the Commission from correcting its legal error. In such circumstances, the Commission would be acting pursuant to the court’s equitable authority to provide relief from the error found by the court. Thus, if the appeal of the Commission’s Final Rule succeeds, the Commission has the authority to allow the remedies mentioned in SFPP’s tariff provision.”) (footnote omitted).
[3] See Energy Transfer GC NGL Pipelines LP, 178 FERC ¶ 61,132 at P 11.