Commissioner James Danly Statement
January 31, 2022
Docket No. RP22-476-000
On January 5, 2022, Sea Robin Pipeline Company, LLC (Sea Robin) filed revised tariff records to become effective on February 1, 2022.[1] As part of its filing, Sea Robin requests waiver of section 22.3(c) of the General Terms & Conditions (GT&C) of its tariff, which requires Sea Robin to file its adjustment at least 30 days in advance of the February 1 effective date.[2]
I agree with the Commission’s decision to accept and suspend the tariff records to be effective February 1, 2022, subject to refund and the outcome of a hearing, and subject to the outcome of the ongoing settlement and hearing proceedings in Docket No. RP21-937-000.[3] Although Sea Robin failed to adhere to the tariff’s requirement that it file its adjustment at least 30 days before the effective date, this effective date is nevertheless consistent with Sea Robin’s tariff, because it explicitly states that adjustments “become effective February 1.”[4] The Commission describes the request for waiver as “an attempt to correct an error of a past non-compliance with the provision at issue.”[5] 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 Sea Robin’s past non-compliance with its tariff.”[6] 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,[7] the Commission cannot rely upon Natural Gas Act (NGA) section 16[8] to ignore the express terms of the tariff, even for equitable considerations.[9] 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) Sea Robin did not satisfy a requirement in its tariff to make a filing “at least 30 days in advance of February 1,”[10] 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,[11] decide in its discretion not to take action in light of Sea Robin’s violation of its tariff. Today’s order reaches that result.[12]
For these reasons, I respectfully concur in the result.
[1] See Sea Robin Transmittal at 1.
[2] See id. at 1-2.
[3] See Sea Robin Pipeline Co., LLC, 178 FERC ¶ 61,076, at Ordering Paragraph (A) (2022).
[4] Sea Robin Tariff, GT&C § 22.3(c).
[5] Sea Robin Pipeline Co., LLC, 178 FERC ¶ 61,076 at P 12.
[6] 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).
[7] 16 U.S.C. § 825h.
[8] 15 U.S.C. § 717o.
[9] 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).
[10] Sea Robin Tariff, GT&C § 22.3(c).
[11] 15 U.S.C. § 717o.
[12] See Sea Robin Pipeline Co., LLC, 178 FERC ¶ 61,076 at P 12.