Commissioner James Danly Statement
March 25, 2021
Docket No. RP21-616-000
I concur with today’s order finding the proposed waiver filed by Panhandle Eastern Pipe Line Company, LP (Panhandle) to be consistent with section 27.3 of the General Terms and Conditions (GT&C) of Panhandle’s tariff. I write separately, however, to express my misgivings that GT&C section 27.3 is overly broad.[1] As the Commission found in Northern Border Pipeline Co., GT&C section 27.3 has “the potential for unreasonable and unjust application” and “could be interpreted as giving [the pipeline] almost unfettered discretion to include non-conforming material terms and conditions into its transportation agreements without seeking Commission approval for those changes or without including language specifically authorizing such provisions in its tariff.”[2] Consistent with past practice, and to ensure that tariff provisions are just, reasonable, and not unduly discriminatory or preferential, I believe the Commission should exercise its authority under section 5 of the Natural Gas Act (NGA) to direct Panhandle to modify GT&C section 27.3 or explain why it should not be required to do so.[3]
For these reasons, I respectfully concur.
[1] See Golden Triangle Storage, Inc., 160 FERC ¶ 61,031, at PP 13-14 (2017), order on compliance, 162 FERC ¶ 61,171 (2018) (unanimous order finding waiver provision overly broad and contrary to Commission policy, and directing modification or explanation); Trailblazer Pipeline Co., LLC, 145 FERC ¶ 61,299, at PP 10, 13 (2013) (finding waiver provision overly broad and contrary to Commission policy); Tenn. Gas Pipeline Co., 135 FERC ¶ 61,208, at PP 153-156 (2011) (same); Floridian Nat. Gas Storage Co. LLC, 124 FERC ¶ 61,214, at P 69 (2008) (same); Discovery Gas Transmission LLC, 110 FERC ¶ 61,401, at P 5, order on reh’g, 111 FERC ¶ 61,377 (2005) (same); N. Border Pipeline Co., 110 FERC ¶ 61,203, at P 4 (2005) (same).
[2] 110 FERC ¶ 61,203 at P 4.
[3] See Golden Triangle Storage, Inc., 160 FERC ¶ 61,031 at P 14 (directing natural gas company to modify broad waiver provision pursuant to NGA section 5 in an order on a non-conforming agreement); Tenn. Gas Pipeline Co., 135 FERC ¶ 61,208 at P 156 (directing natural gas company to modify broad waiver provision pursuant to NGA section 5).