Commissioner James Danly Statement
March 24, 2022
Docket No. CP17-458-015
I dissent from today’s order[1] sustaining the Commission’s December 2021 establishment of an Administrative Law Judge proceeding (ALJ Order) for two reasons.
First, I continue to believe that establishing an ALJ proceeding was misguided and would only further burden the parties with additional expense and uncertainty.[2] Indeed, this proceeding has transmogrified into full-blown litigation involving discovery, depositions, direct and cross examination of witnesses, initial and reply briefs, and an initial decision.[3]
Litigation proceedings before ALJs are neither inexpensive nor quick affairs. The simplest cases threaten to take many months and cost parties millions of dollars. And even if there are no litigation delays, parties must still wait for the Commission to issue an order, which in the last 3 years has—at the earliest—occurred over 14 months after the issuance of an initial decision.[4] Were the Commission to act within a few months of an initial decision, it will still have taken it at least a year to resolve an issue that could have been addressed within the matter of a few months.[5] I see no valid reason to subject the parties to a protracted and inefficient process, and I remain willing to consider the parties’ arguments and make a decision.
Second, I would have rejected Sandy Creek Farms’ request for clarification as an untimely request for rehearing.[6] In my view, the request cannot be interpreted to be a request for clarification as the order was unambiguous in that it only applied to “steps and activities to be performed on the Sandy Creek Farms property (tract GR0338.000).”[7]
For these reasons, I respectfully dissent.
[1] See Midship Pipeline Company, LLC, 178 FERC ¶ 61,202 (2022).
[2] See Midship Pipeline Co., LLC, 177 FERC ¶ 61,186 (2021) (Danly, Comm’r, dissenting).
[3] See Joint Revised Proposed Procedural Schedule, Docket No. CP17-458-012, et al., at 1-2 (Mar. 8, 2022).
[4] See Pac. Gas & Elec. Co., 178 FERC ¶ 61,068 (2022) (issued over 18 months after initial decision); DATC Path 15, LLC, 177 FERC ¶ 61,115 (2021) (issued over 24 months after initial decision); Entergy Ark., Inc., 175 FERC ¶ 61,136 (2021) (issued over 6 years after initial decision); Cal. v. British Columbia Power Exch. Corp., 175 FERC ¶ 61,124 (2021) (issued over 3 years after initial decision); Panda Stonewall LLC, 174 FERC ¶ 61,266 (2021) (issued nearly 2 years after initial decision); Peregrine Oil & Gas II, LLC v. Tex. E. Transmission, LP, 173 FERC ¶ 61,246 (2020) (issued over 19 months after initial decision); White Cliffs Pipeline, L.L.C., 173 FERC ¶ 61,155 (2020) (issued over 14 months after initial decision); Pac. Gas & Elec. Co., 173 FERC ¶ 61,045 (2020) (issued over 2 years after initial decision); Chevron Prods. Co. v. SFPP, L.P., 172 FERC ¶ 61,207 (2020) (issued over 3 years after initial decision); Entergy Gulf States La., L.L.C., 170 FERC ¶ 61,019 (2020) (issued 15 months after initial decision); City & Cnty. of San Francisco v. Pac. Gas & Elec. Co., 169 FERC ¶ 61,128 (2019) (issued over 5 years after initial decision); Aircraft Serv. Int’l Grp., Inc. v. Cent. Fla. Pipeline LLC, 169 FERC ¶ 61,119 (2019) (issued over 21 months after initial decision); TranSource, LLC v. PJM Interconnection, L.L.C., 168 FERC ¶ 61,119 (2019) (issued over 19 months after initial decision).
[5] The parties jointly filed a proposed procedural schedule that listed September 14, 2022, as the date for an initial decision to be issued. While I acknowledge that only the Secretary of the Commission may announce the timing of orders, 18 C.F.R. § 3.2(b), I note that three months after the proposed initial decision date is December 13, 2022, nearly a year after the issuance of the ALJ Order.
[6] See, e.g., San Diego Gas & Elec. Co. v. Sellers of Energy & Ancillary Servs. Into Markets Operated by the Cal. Indep. Sys. Operator Corp., 133 FERC ¶ 61,014, at P 15 (2010) (finding motion for clarification is an untimely request for rehearing).
[7] Midship Pipeline Co., LLC, 177 FERC ¶ 61,186 at Ordering Para. (A); see also id. P 1 (singling out tract GR-0338.00); id. P 7 (same); id. P 9 (same); id. P 11 (same); id. (“Despite the efforts of staff from both the Office of Energy Projects and Dispute Resolution Services and the parties’ stated desire to achieve a resolution, the parties have not been able to agree on restoration methods, and therefore what a reasonable cost to perform the remaining restoration in tract GR-0388.00 would be.”); id. P 13 (“despite general agreement as to the proper scope of the restoration work needed between milepost 71.0 and 71.9, Midship and Sandy Creek Farms have not been able to agree on a specific plan or cost thereof”); id. (“to determine (1) the methods and scope of work activities remaining in order to restore the Sandy Creek Farms property in accordance with the Certificate Order (tract GR-0338.000)”) (footnote omitted).