The Interstate Natural Gas Association of America (INGAA) moves to intervene in the Texas Eastern Transmission, LP proceeding, Docket Nos. RP12-318-001, -002, out of time and requests rehearing of the Commission’s September 20, 2012, “Order on Rehearing and Compliance Filing” (September 20 Order). [Texas Eastern Transmission, LP, 140 FERC ¶ 61,216 (2012).]
The September 20 Order declares that the Commission’s position on reservation charge crediting, as articulated in the Commission’s April 21, 2011, “Order on Petition” in Natural Gas Supply Association (NGSA Order on Petition), is “a binding policy having the force of law.” When the Commission issued the NGSA Order on Petition, INGAA requested rehearing [Docket No. RP11-1538-000, filed May 23, 2011] both to challenge the legality and substance of the Commission’s reservation charge crediting policy, and to lay the statutorily required predicate so INGAA could, if necessary, submit the NGSA Order on Petition to judicial review.
Among the many grounds INGAA identified for rehearing, INGAA plead that the Commission’s restatement of reservation charge crediting policy and the threat of audit and enforcement action essentially constituted action under NGA section 5 without satisfying the requisite burdens. INGAA also argued that the NGSA Order on Petition violated the Administrative Procedure Act (APA) by imposing a rule of general applicability— in effect, a regulation — without notice and comment rulemaking.
The Commission dismissed INGAA’s request, claiming that the NGSA Order on Petition did not constitute action under NGA section 5, and that the Commission did not violate the APA rulemaking requirements, because the NGSA Order on Petition constituted a statement of policy rather than generic agency action. Moreover, the Commission responded that since the NGSA Order on Petition was a policy statement, no party, including INGAA, was “aggrieved” in the sense required for filing a rehearing request under NGA section 19(a). After determining that none of the NGSA parties had standing to file rehearing requests (and therefore had no standing to seek judicial review of the NGSA Order on Petition), the Commission concluded that parties may raise their issues “in future adjudications concerning the reservation charge crediting provisions of specific pipelines.”
In this request for rehearing, INGAA argues that:
(1) The September 20 Order takes section 5 action adverse to Texas Eastern without making the statutorily required findings and meeting the statutorily required standards;
(2) The September 20 Order violates the APA by imposing a rule of general applicability, in effect, a regulation, without notice and comment rulemaking; and
(3) The September 20 Order departs from a longstanding Commission policy – resolving reservation charge crediting through individual pipeline cases – without reasonable explanation or substantial evidence in the record.
With respect to the emergency motion to intervene, INGAA asks the Commission to waive the response period for this motion, to grant this motion immediately, and to permit INGAA to intervene out of time in this proceeding. With respect to the request for rehearing, INGAA asks the Commission to reverse and modify the September 20 Order.