Commissioner James Danly Statement
January 31, 2022
Docket No. RP22-466-000
On January 3, 2022, Texas Eastern Transmission, LP (Texas Eastern) filed tariff records to reflect revised rates for an electric power cost (EPC) adjustment pursuant to section 15.1 of the General Terms and Conditions (GT&C) of its tariff, to be effective February 1, 2022.[1] Texas Eastern “requests that the Commission grant waiver of the requirement in Section 15.1(C) of its Tariff to file not less than thirty (30) Days prior to the proposed effective date of the rate change.”[2]
I agree with the Commission’s decision to accept Texas Eastern’s filing to be effective on February 1, 2022. This effective date is consistent with section 15.1(C) of the GT&C of Texas Eastern’s tariff, which explicitly states that filings for EPC adjustments “shall be made effective on February 1 and August 1.”[3] The Commission describes the request for waiver as “an attempt to correct an error of a past non-compliance with the provision at issue.”[4] The Commission further explains that “we will exercise our discretion in addressing such matters; and, given the facts before us in this matter, we take no action with respect to the instance of Texas Eastern’s past non-compliance with its tariff.”[5] It is indeed true that the Commission may, in its discretion, decline to remedy violations of a pipeline’s tariff. But it should be made clear that this was a violation of the tariff, and that the Commission has no power to waive the 30-day provision because to do so would be to grant a retroactive waiver in violation of the filed rate doctrine.
Like its counterpart in Federal Power Act section 309,[6] the Commission cannot rely upon Natural Gas Act (NGA) section 16[7] to ignore the express terms of the tariff, even for equitable considerations.[8] With this limitation on the Commission’s authority in mind, I agree with the result reached in today’s order. Under these circumstances, in which (1) Texas Eastern did not satisfy a requirement in its tariff to make a filing not less than 30 days in advance of the effective date, and (2) the tariff specifies the effective date for such filings, the Commission should deny the waiver, allow the filing to take effect on the effective date established by the tariff, and then under NGA section 16,[9] decide in its discretion not to take action in light of Texas Eastern’s violation of its tariff. Today’s order reaches that result.[10]
For these reasons, I respectfully concur in the result.
[1] Texas Eastern submitted its filing on Friday, December 31, 2021, but because that date was a federal holiday, its submission reflects a filing date of Monday, January 3, 2022, which is less than 30 days from the effective date established by its tariff. See Texas Eastern Transmittal at 4. For the purposes of this statement, I am considering the legal effect of the more conservative of the two potential filing dates, the later date assigned by the Office of the Secretary.
[2] Id.
[3] Texas Eastern Tariff, GT&C § 15.1(C).
[4] Tex. E. Transmission, LP, 178 FERC ¶ 61,075, at P 6 (2022).
[5] Id. (citing Niagara Mohawk Power Corp. v. FPC, 379 F.2d 153, 159 (D.C. Cir. 1967) (“the breadth of agency discretion is, if anything, at zenith when the action assailed relates primarily . . . to the fashioning of policies, remedies and sanctions . . . in order to arrive at maximum effectuation of Congressional objectives”); 15 U.S.C. § 717o).
[6] 16 U.S.C. § 825h.
[7] 15 U.S.C. § 717o.
[8] See Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 168 n.12 (D.C. Cir. 1993) (citation omitted); see also Okla. Gas & Elec. Co. v. FERC, 11 F.4th 821, 824-25 (D.C. Cir. 2021) (“Once a tariff is filed, the Commission has no statutory authority to provide equitable exceptions or retroactive modifications to the tariff.”); id. at 832 (recognizing that although “[t]he Commission may craft a variety of remedies under Section 309 of the Federal Power Act[,] [t]he filed rate doctrine . . . limits that remedial authority”) (citing Verso Corp. v. FERC, 898 F.3d 1, 10 (D.C. Cir. 2018); Pub. Utils. Comm’n of Cal., 988 F.2d at 168 n.12).
[9] 15 U.S.C. § 717o.
[10] See Tex. E. Transmission, LP, 178 FERC ¶ 61,075 at P 6.