Commissioner James Danly Statement
May 6, 2022
Docket No. RP22-709-000
On March 18, 2022, TransCameron Pipeline, LLC (TransCameron) filed its first annual fuel reimbursement filing pursuant to section 13 of its General Terms & Conditions (GT&C). As part of its filing, TransCameron requests that the Commission “grant a one-time waiver of the tariff requirements as necessary to accept [its] filing,”[1] because it failed to adhere to the requirement in its tariff that it shall file its Annual Fuel Gas and Lost and Unaccounted for Gas Adjustment Mechanism Filing (Annual FAM Filing) “with the Commission . . . annually on or before March 1 to become effective April 1.”[2]
The Commission describes the request for waiver as “an attempt to correct an error of a past non-compliance with the provision at issue.”[3] 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 TransCameron’s past non-compliance with its tariff.”[4] 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 requirement that TransCameron’s Annual FAM Filing be made “on or before March 1” because to do so would be to grant a retroactive waiver in violation of the filed rate doctrine.[5]
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) TransCameron did not satisfy a requirement in its tariff to make its Annual FAM Filing “on or before March 1”;[9] and (2) the tariff specifies the effective date for such filing, i.e., April 1,[10] 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,[11] decide in its discretion not to take action in response to TransCameron’s tariff violation. Today’s order reaches that result.[12]
For these reasons, I respectfully concur in the result.
[1] TransCameron Pipeline, LLC March 18, 2022 Filing at 2.
[2] TransCameron Pipeline, LLC FERC Gas Tariff, Original Vol. No. 1 (Tariff), GT&C § 13.3.
[3] TransCameron Pipeline, LLC, 179 FERC ¶ 61,101, at P 6 (2022).
[4] 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).
[5] Tariff, GT&C § 13.3.
[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] Tariff, GT&C § 13.3.
[10] Id.
[11] 15 U.S.C. § 717o.
[12] See TransCameron Pipeline, LLC, 179 FERC ¶ 61,101 at P 6.