Commissioner James Danly Statement
January 29, 2021
Docket No. RP21-351-000
The Commission’s order in this docket accepts the revised tariff records filed by Columbia Gas Transmission, LLC (Columbia) to reflect the annual adjustment of its Capital Cost Recovery Mechanism rates and subjects its acceptance to “further review subsequent to the outcome of the hearing procedures established in Docket No. RP20-1060-000.”[1] I am dissenting because the Commission does not have the statutory authority to take such action. The decision to accept Columbia’s filing subject to further review contravenes section 4 of the Natural Gas Act (NGA), and renders NGA section 5 mere surplusage, violating an elementary canon of construction—no part of a statute should be interpreted so as to render another part inoperative.[2]
NGA section 4 authorizes the Commission to accept a rate for filing, suspend it for up to five months and then “enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service.”[3] The NGA does not authorize the Commission to accept a rate, ignoring all protests, and then reserve the ability to later determine at some indefinite time in the future whether that rate was just and reasonable.[4] If the Commission does not set a rate for hearing, it can revisit that rate only under NGA section 5 and must do so under a heavier burden: first by determining that the rate at issue is unjust, unreasonable, unduly discriminatory, or preferential, and second by determining a just and reasonable replacement rate.[5]
To make matters worse, this violation of the NGA is needless. The Commission could have easily achieved the same result by accepting the revised tariff records subject to hearing and holding the hearing in abeyance. For some unknown reason, the Commission has declined to do so.
I strongly encourage parties to request rehearing of this order. Failure to challenge this holding will effectively endorse the establishment of precedent allowing the Commission to accept a rate and then later, at its convenience, revisit the question of whether a rate is just and reasonable without having to carry NGA section 5’s greater burden.
For these reasons, I respectfully dissent.
[1] Columbia Gas Transmission, LLC, 174 FERC ¶ 61,070, at ordering paragraph (A) (2021) (emphasis added).
[2] See Colautti v. Franklin, 439 U.S. 379, 392 (1979).
[3] 15 U.S.C. § 717c(e) (emphasis added).
[4] The Commission has in the past accepted rates subject to further review. Those orders, however, provide no explanation of the Commission’s authority to do so.
[5] See 15 U.S.C. § 717d(a).