Commissioner James Danly Statement
March 18, 2021
Docket No. RP21-153-000
Order: G-2
I agree with the order’s finding that no further action is required. I write separately to express my concern that the order issued November 30, 2020, improvidently suspended the revised tariff records filed by Texas Eastern Transmission, LP “subject to refund, conditions, further review and order of the Commission.”[1] As I have previously indicated,[2] section 4 of the Natural Gas Act (NGA) does not permit the Commission to accept a tariff revision subject to further review and order of the Commission. Instead, the NGA requires the Commission to first set the revised tariff records for hearing in order to suspend a rate filing and subject it to refund.[3] Congress “says in a statute what it means and means in a statute what it says there.”[4] In the future, the Commission should draft its orders using terms consistent with the statute in order to ensure clarity and to satisfy the requirements of the NGA.
For these reasons, I respectfully concur.
[1] Tex. E. Transmission, LP, 173 FERC ¶ 61,189, at PP 1, 15 (2020) (emphasis added).
[2] See my separate statements in Dominion Energy Cove Point LNG, LP, 174 FERC ¶ 61,139 (2021) and Columbia Gas Transmission, LLC, 174 FERC ¶ 61,070 (2021).
[3] Section 4 provides that:
Whenever any such new schedule is filed the Commission shall have authority . . . to enter upon a hearing concerning the lawfulness of such rate, . . . and, pending such hearing . . . the Commission . . . may suspend the operation of such schedule . . . but not for a longer period than five months . . . . If the proceeding has not been concluded and an order made at the expiration of the suspension period, . . . the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, . . . upon completion of the hearing and decision, . . . order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified.
15 U.S.C. § 717c(e) (emphasis added).
[4] Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).