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Commissioner Tony Clark Statement
March 21, 2013
Docket No. OR12-17-000
Item No. G-4

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High Prairie Pipeline v. Enbridge Energy

“The outcome of this case strikes me as rather unsatisfactory as a matter of public policy. Nevertheless, I believe the order is correct as a matter of law and precedent.

“High Prairie alleges Enbridge Energy, Limited Partnership has unduly discriminated against it and its shippers by refusing to grant an interconnection at the Clearbrook, Minnesota origin point. Today’s order finds that negotiations are ongoing and that, without knowing whether High Prairie will interconnect, we cannot yet establish whether High Prairie faces disparate treatment. This outcome admittedly results in a “Catch 22” for High Prairie.

“However, the Commission simply does not have the statutory tools to adequately address the issues raised in High Prairie’s complaint. We do not have explicit jurisdiction over the abandonment and interconnection of oil pipeline facilities. Without this authority, we cannot render effectual decisions regarding the justness and reasonableness of interconnection negotiations. As a matter of course, it is possible that the outcome of this regulatory gap could be inefficient pipeline construction or, perhaps worse, no investment at all. While today’s order offers no consolation to High Prairie, it is the reality that arises under the existing statutory construct.

“Going forward, I strongly encourage High Prairie and Enbridge to continue negotiating in good faith in an attempt to arrive at just and reasonable rates and terms for this interconnection. I also encourage High Prairie and Enbridge to keep an open mind during these negotiations. Additional investment is clearly needed in the Bakken region and I would be remiss if I did not express a sincere hope that competing entities like High Prairie and Enbridge could come to a mutually beneficial agreement resulting in the installation of much needed infrastructure in this region.

“For these reasons, I respectfully concur with this order.”