Commissioner James Danly Statement
October 16, 2020
Docket No. RP20-777-000
The Commission’s order issued today in this docket addresses a request for a retroactive waiver.[1] Nine other orders issued at the Commission’s October Public Meeting address similar waiver requests.[2] In addition, the Commission issued two such orders on September 30, 2020, shortly before the October Public Meeting.[3] In total, that is twelve orders issued in less than three weeks addressing retroactive waiver requests. I have several concerns about these orders which I have discussed in detail in my dissent issued today in the Sunflower proceeding. I will not repeat that discussion here.
I do have an additional concern with respect to the order issued in this proceeding, however. Here, the Commission grants Southern Star Central Gas Pipeline, Inc.’s (Southern Star) April 7, 2020 request for a waiver of section 6.2 of the General Terms and Conditions (GT&C) of its tariff, which provides the posting and bidding timeline and other requirements pertaining to the right of first refusal (ROFR) process. As required by GT&C section 6.2, the deadline for Southern Star’s ROFR posting was six months prior to the expiration of its contract with ONEOK Energy Services Company, L.P. (ONEOK), i.e., April 1, 2020. Its ROFR posting was therefore five calendar days late. Southern Star states that the requested waiver is needed in order to permit the pre-granted abandonment of service under its contract with ONEOK.[4]
I recognize that Southern Star failed to make a timely ROFR posting due to confusion among its employees who were working remotely as a result of the COVID-19 pandemic. However, there is no question that this is a request for a retroactive waiver of Southern Star’s tariff. The Commission finds good cause to grant the waiver and does not acknowledge that the waiver is retroactive. In doing so, the Commission states that the waiver is consistent with Commission precedent granting similar waivers.[5]
I disagree that the Commission may disregard the rule against retroactive ratemaking and the filed rate doctrine.[6] Instead of granting a waiver it is not legally permitted to grant, the Commission should have denied the waiver, but then declined to impose any penalty on Southern Star for starting the ROFR process five days later than permitted by its tariff. The Commission could have achieved the same practical result while not acting outside of its legal authority.
For these reasons, I respectfully dissent.
[1] See S. Star Cent. Gas Pipeline, Inc., 173 FERC ¶ 61,066 (2020) (Southern Star).
[2] See Pac. Gas & Elec. Co., 173 FERC ¶ 61,051 (2020); Borrego Solar Systems, Inc., 173 FERC ¶ 61,052 (2020); Mariposa Energy, LLC, 173 FERC ¶ 61,053 (2020); Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Sunflower); Midcontinent Indep. Sys. Operator, Inc., 173 FERC ¶ 61,055 (2020); Pub. Serv. Elec. & Gas Co., 173 FERC ¶ 61,056 (2020); Upstream Wind Energy LLC, 173 FERC ¶ 61,057 (2020); Vineyard Wind LLC, 173 FERC ¶ 61,058 (2020); Columbia Gas Transmission, LLC, 173 FERC ¶ 61,064 (2020).
[3] See Montana-Dakota Utils. Co., 172 FERC ¶ 61,278 (2020); Lightsource Renewable Energy Dev., LLC, 172 FERC ¶ 61,294 (2020).
[4] See Southern Star Waiver Request at 3.
[5] Southern Star, 173 FERC ¶ 61,066 at P 6 (citing S. Star Cent. Gas Pipeline, Inc., 163 FERC ¶ 61,012 (2018); Maritimes & Ne. Pipeline, L.L.C., 140 FERC ¶ 61,068 (2012)).
[6] As the U.S. Court of Appeals for the District of Columbia Circuit held, “[t]he filed rate doctrine and the rule against retroactive ratemaking leave the Commission no discretion to waive the operation of a filed rate or to retroactively change or adjust a rate for good cause or for any other equitable considerations.” Old Dominion Elec. Coop. v. FERC, 892 F.3d 1223, 1230 (D.C. Cir. 2018) (citing Columbia Gas Transmission Corp. v. FERC, 895 F.2d 791, 794-97 (D.C. Cir. 1990)) (emphasis added).