DANLY, Chairman, dissenting
January 19, 2021
Docket No. RP21-38-000
Order:  G-1

DANLY, Chairman, dissenting:

The Commission’s order issued in this docket today grants Northern Border Pipeline Company’s (Northern Border) request for a retroactive waiver of its tariff to permit Northern Border to correct an error made in a pre-arranged capacity release transaction.  I recognize that Northern Border has presented sympathetic facts in support of its request.  Nevertheless, as I explained in detail in my dissent in Sunflower, the approval of such a retroactive waiver exceeds our legal authority under the Natural Gas Act (NGA), as constrained by two legal doctrines: the filed rate doctrine and the rule against retroactive ratemaking.[1] 


For these reasons, I respectfully dissent.


[1] Sunflower Elec. Power Corp., 173 FERC ¶ 61,054 (2020) (Danly, Comm’r, dissenting at P 5) (Sunflower).  Although Sunflower is a Federal Power Act (FPA) case, the courts have treated the NGA and FPA as analogous in substance.  See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981) (following its “established practice of citing interchangeably decisions interpreting the pertinent sections of the [FPA and NGA]” due to the relevant provisions being “substantially identical”) (citations omitted).

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