Commissioner James Danly Statement
April 23, 2021
Docket No. RP21-639-000
The Commission’s order grants Northern Natural Gas Company’s (Northern) request for a retroactive waiver of section 32(F) of the General Terms and Conditions of its tariff to allow CenterPoint Energy (CenterPoint) to resolve an imbalance by using the imbalance-to-storage mechanism in violation of the timeline set forth in Northern’s tariff. Because CenterPoint made its election for the imbalance-to-storage option after the tariff-established deadline, unless the Commission grants the requested waiver, the February 2021 imbalance of 27,307 dekatherms will be cashed out at a value of $2,379,912.[1] Northern has presented sympathetic facts in support of its waiver request. Nevertheless, as I explained in detail in my dissent in Sunflower, the approval of such retroactive waivers exceeds our legal authority.[2] The Commission is prohibited from granting retroactive waivers in violation of the filed rate doctrine and the rule against retroactive ratemaking.
For these reasons, I respectfully dissent.
[1] See Northern March 19, 2021 Waiver Request at 2 & n.1.
[2] See Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5) (Sunflower). Although Sunflower is a Federal Power Act (FPA) case, the courts have treated the NGA and FPA as analogous in substance. See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981) (following its “established practice of citing interchangeably decisions interpreting the pertinent sections of the [FPA and NGA]” due to the relevant provisions being “substantially identical”) (citations omitted).