Docket No. RP22-804-000
On April 1, 2022, High Point Gas Transmission, LLC (High Point) filed its annual Unaccounted for Gas Retention Percentage filing pursuant to section 6.31 of its General Terms & Conditions (GT&C) of its FERC Gas Tariff. As part of its filing, High Point requests that the Commission “grant any waivers that may be required to accept the instant filing,”[1] because it failed to adhere to the requirement in its tariff that it shall file its annual Unaccounted for Gas Retention Percentage filing “with FERC at least thirty (30) days before the effective date of April 1 of each year.”[2]
The Commission describes the request for waiver as “an attempt to correct an error of a past non-compliance with the provision at issue.”[3] 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 High Point’s past non-compliance with its tariff.”[4] 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 requirement that High Point’s annual filing be made “at least thirty (30) days before the effective date of April 1 of each year” because to do so would be to grant a retroactive waiver in violation of the filed rate doctrine.[5]
Like its counterpart in Federal Power Act section 309,[6] the Commission cannot rely upon Natural Gas Act (NGA) section 16[7] to ignore the express terms of the tariff, even for equitable considerations.[8] 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) High Point did not satisfy a requirement in its tariff to submit its filing “at least thirty (30) days before the effective date of April 1 of each year”;[9] and (2) the tariff specifies the effective date for such filing, i.e., April 1,[10] 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 response to High Point’s tariff violation. Today’s order reaches that result.
For these reasons, I respectfully concur.
[1] High Point Gas Transmission, LLC April 1, 2022 Filing at 2.
[2] High Point Gas Transmission, LLC FERC Gas Tariff, Original Vol. No. 1 (Tariff), GT&C § 6.31.2.
[3] High Point Gas Transmission, LLC, 179 FERC ¶ 61,097, at P 6 (2022).
[4] 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”).
[5] Tariff, GT&C § 6.31.2.
[6] 16 U.S.C. § 825h.
[7] 15 U.S.C. § 717o.
[8] 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).
[9] Tariff, GT&C § 6.31.2.
[10] Id.
[11] 15 U.S.C. § 717o.