Commissioner James Danly Statement
May 18, 2023
Docket No. CP17-458-021
I agree in the main with today’s order but write separately to address the Commission’s response to Midship Pipeline Company, LLC’s (Midship) rehearing request.
In a filing made on May 4, 2023, i.e., after Midship’s rehearing request was filed on March 6, 2023, Midship asserted that “[Central Land Consulting, LLC (CLC)] is actively impeding Midship’s compliance with the Assessment and Remediation Plans.”[1] The Commission acknowledges this filing in today’s order but states that the motion “is outside of the limited scope of this order on rehearing.”[2]
While the Commission is correct when it states that “legal disputes regarding property rights are not within the Commission’s jurisdiction, but instead are a matter of state law for an appropriate court to resolve,”[3] I note that the Commission is not wholly without recourse should a third party purposefully interfere with a certificate holder’s efforts to comply with the restoration and remediation requirements of its certificate. It is within the Commission’s jurisdiction to determine when a certificate holder has satisfied its certificate’s conditions and to determine what circumstances might justify releasing the certificate holder from further compliance obligations.[4] This is not to say that I think this is the proper course of action in this proceeding. I merely pause to point this out because I disagree with today’s order to the extent that it could be read to suggest that the Commission is powerless to redress interference with a certificate holder’s compliance efforts.
For these reasons, I respectfully concur.
[1] Midship May 4, 2023 Motion Requesting Clarification at 5 (May 4, 2023 Motion) (emphasis omitted).
[2] Midship Pipeline Co., LLC, 183 FERC ¶ 61,125, at P 8 n.21 (2023).
[3] Id. P 18 (citations omitted).
[4] See Niagara Mohawk Power Corp. v. Fed. Power Comm’n, 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 not to the issue of ascertaining whether conduct violates the statute, or regulations, but rather to the fashioning of policies, remedies and sanctions, including enforcement and voluntary compliance programs in order to arrive at maximum effectuation of Congressional objectives.”).