United States Court of Appeals, District of Columbia Circuit
September 10, 2019
Petitions for Review of Orders of the Federal Energy
Richard B. Phillips Jr. argued the cause for petitioner. On
the brief were Victoria M. Lauterbach and Wendy B. Warren.
Sidney Fowler entered an appearance.
M. Kennedy Jr., Senior Attorney, Federal Energy Regulatory
Commission, argued the cause for respondents. With him on the
brief were Michael F. Murray, Deputy Assistant Attorney
General, U.S. Department of Justice, Robert B. Nicholson and
Robert J. Wiggers, Attorneys, James P. Danly, General
Counsel, Federal Energy Regulatory Commission, and Robert H.
Charles F. Caldwell and Elizabeth B. Kohlhausen were on the
brief for intervenors Leveret Pipeline Company, LLC, et al.
in support of respondents.
Before: Rogers and Wilkins, Circuit Judges, and Randolph,
Senior Circuit Judge.
USA LLC ("INEOS"), a chemical producer, petitions
for review of the decision of the Federal Energy Regulatory
Commission to accept tariff filings without an investigation
pursuant to Section 15(7) of the Interstate Commerce Act
("ICA"), 49 U.S.C. app. § 15(7) (1988). INEOS
wishes to connect its fractionator to the South Eddy Lateral,
a natural gas liquids pipeline. Ownership of the South Eddy
Lateral recently changed hands from Mid-America Pipeline
Company, LLC ("Mid-America"), to Leveret Pipeline
Company LLC ("Leveret"), both subsidiaries of
Enterprise Products Partners L.P. ("Enterprise").
Mid-America and Leveret filed tariffs with the Commission
reflecting the transfer of ownership. INEOS protested the
tariff filings and argued that the transfer was intended to
deny INEOS' access to the South Eddy Lateral and, more
generally, to unduly discriminate in favor of Enterprise
affiliates at the expense of third-party shippers. INEOS
requested the Commission reject the filings or,
alternatively, suspend them and investigate the ownership
change. The Commission denied INEOS' protest and accepted
the tariff filings without investigation. INEOS now seeks
judicial review, and the Commission responds that the court
lacks jurisdiction. Because INEOS failed to establish Article
III standing, we dismiss the petitions for lack of
March 2017, INEOS sent Mid-America a written request to
connect its fractionator to the South Eddy Lateral, which
Mid-America then owned. While the connection request was
pending, Leveret gained ownership of the South Eddy Lateral,
and Mid-America and Leveret filed with the Commission
cancellation and adoption tariffs, respectively.
protested the tariff filings, arguing that the transfer of
ownership was intended to thwart its pending connection
request. INEOS requested the Commission summarily reject the
filings or suspend them for the maximum statutory seven-month
period and hold a hearing. Leveret and Mid-America filed a
joint answer to the protest, arguing that INEOS lacked
standing as to abandonment of one route and the Commission
lacked jurisdiction of the transfer of ownership. Leveret and
Mid-America also denied that the transfer was intended to
limit access to the South Eddy Lateral and stated that
Leveret was still considering INEOS' connection request.
time of the tariff filings and protest, the Commission lacked
a quorum and had delegated authority to Commission staff.
Pursuant to this authority, Commission staff accepted Leveret
and Mid-America's proposed tariffs for filing, subject to
refund and further Commission order. Leveret Pipeline Co.
LLC, Order Accepting and Suspending Filings, Subject to
Refund, and Further Commission Order ("Staff
Order"), 160 FERC ¶ 62, 020, at P 5 (2017).
INEOS petitioned for rehearing. Having regained its quorum,
the Commission then denied INEOS' rehearing request and
accepted Leveret and Mid-America's tariff filings, to
become effective on their proposed effective dates.
Leveret Pipeline Co. LLC, Order on Tariff Filings and
Denying Rehearing ("Commission Order
I"), 162 FERC ¶ 61, 038, at PP 4-5 (2018). The
Commission stated that it lacked jurisdiction of pipeline
service abandonments and therefore could not grant INEOS'
request to suspend the cancellation tariffs. Id. at
P 14 (citing ARCO Pipe Line Co., 55 FERC ¶ 61,
420 (1991)); see also Farmers Union Cent. Exch. v.
FERC, 734 F.2d 1486, 1509 n.51 (D.C. Cir. 1984). It also
stated that the adoption tariffs involved purely
administrative exercises, because Leveret would offer the
same transportation service at the same rates as Mid-America
previously offered. Commission Order I at P 15.
Therefore, the Commission declined to suspend the tariffs and
order a hearing. Id. at P 17.
again petitioned for rehearing. The Commission denied the
petition, which it found procedurally improper as a
successive petition. Leveret Pipeline Co. LLC, Order
Denying Rehearing ("Commission Order
II"), 163 FERC ¶ 61, 180, at PP 13-15 (2018).
The Commission also stated that even if the petition were
procedurally proper, there was no reason to suspend the
tariffs and order a hearing, because the Commission had found
"no evidence that Mid-America and Leveret's actions
were unduly beneficial to affiliates." Id. at
PP 23, 30.
petitioned this court for review of the Staff Order,
Commission Order I, and Commission Order II, and the
Commission filed a motion to dismiss on the ground that the
court lacks jurisdiction. A special panel of the court
referred the motion to a merits panel. Per Curiam