Commissioner James Danly Statement
June 1, 2023
Docket No. RP23-593-000
I dissent from today’s order[1] granting a retroactive waiver to spare shippers from the consequences of failing to comply with an Operational Flow Order (OFO) that ANR Pipeline Company (ANR) issued to “alleviate conditions that threatened the operational integrity” of its system.[2]
I have spent years trying to discipline this agency as to the limits of our legal authority.[3] The Commission is legally barred by the filed rate doctrine and the rule against retroactive ratemaking from granting the requested waiver, regardless of the equities at stake.[4]
Pursuant to ANR’s Tariff on file, shippers incurred penalties on the date that they violated the OFO, that is, in December 2022. ANR’s Tariff provides that “[i]f shipper . . . fails to comply with the terms of a validly issued OFO . . . such Shipper shall be: (a) liable for any damages . . . and (b) subject to a penalty.”[5] No exceptions. OFO penalties do not fall within the two types of penalties that the Tariff allows ANR to waive on a not unduly discriminatory basis.[6] And likely for good reason. ANR issues OFOs “when in its judgment it is necessary to maintain or restore the operational integrity” of its system.[7] Moreover, the Commission is powerless to grant this waiver to ensure that shippers do not suffer the consequences of their actions (whether intentional or inadvertent) or travel back in time so that they comply.
For these reasons, I respectfully dissent.
[1] ANR Pipeline Co., 183 FERC ¶ 61,162 (2023).
[2] ANR Filing at 2.
[3] See Neb. Pub. Power Dist., 181 FERC ¶ 61,077 (2022) (Danly, Comm’r, concurring at P 2 & n.4).
[4] See Okla. Gas & Elec. Co. v. FERC, 11 F.4th 821, 829-30 (D.C. Cir. 2021) (Oklahoma Gas) (The so-called “doctrine” is shorthand for the interconnected statutory requirements that bind regulated entities to charge only the rates filed with FERC and to change their rates only prospectively. When it applies, the filed rate doctrine is ‘a nearly impenetrable shield’ and does not yield, ‘no matter how compelling the equities.’”) (quoting Old Dominion Elec. Coop. v. FERC, 892 F.3d 1223, 1230 (D.C. Cir. 2018)).
[5] ANR Tariff, GT&C, § 6.8.10, Failure to Comply with OFO.
[6] See id. § 6.18.13, Waiver of Penalties.
[7] Id. § 6.8.1, General.