Columbia Gulf Transmission, LLC v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 2023 Decided July 12, 2024
No. 22-1151
COLUMBIA GULF TRANSMISSION, LLC,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
TEXAS EASTERN TRANSMISSION, LP,
INTERVENOR
Consolidated with 22-1152, 22-1202, 22-1203
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
John Paul Floom and Matthew J. Higgins argued the
causes for petitioners. With them on the briefs were Sean
Marotta and Kaci W. Poor.
James E. Olson and Charlotte H. Taylor were on the brief
for amicus curiae TotalEnergies Gas & Power North America,
Inc. in support of petitioners.

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Scott R. Ediger, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief was Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
Matthew X. Etchemendy argued the cause for respondent-
intervenor. With him on the brief were P. Martin Teague,
Katherine M. O
=Connor, Jeremy C. Marwell, Andrew N.
Beach, James D. Seegers, and Suzanne E. Clevenger.
Before: PILLARD, WILKINS and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: We consider the Petitions for
Review challenging Federal Energy Regulatory Commission
(“FERC” or “the Commission”) Orders dismissing complaints
by Petitioners Range Resources-Appalachia, LLC (“Range”)
and Columbia Gulf Transmission, LLC (“Columbia Gulf”).
See Order Dismissing Complaints, Range Res.-Appalachia,
LLC & Columbia Gulf Transmission, LLC v. Texas Eastern
Transmission, LP, 178 FERC ¶ 61,217 (2022) (“Initial Order”);
Notice of Denial of Rehearing by Operation of Law and
Providing for Further Consideration, Range Res.-Appalachia,
LLC & Columbia Gulf Transmission, LLC v. Texas Eastern
Transmission, LP, 179 FERC ¶ 62,106 (2022); Order
Addressing Arguments Raised on Rehearing, Range Res.-
Appalachia, LLC & Columbia Gulf Transmission, LLC v.
Texas Eastern Transmission, LP, 180 FERC ¶ 61,079 (2022)
(“Rehearing Order”).
As a natural gas producer, Range has long-term firm
service agreements with two interstate natural gas pipeline
companies, Columbia Gulf and Intervenor ISO Respondent
Texas Eastern (“Texas Eastern”), that give it the right to

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transport 200,000 dekatherms of natural gas through the Adair
Interconnect every day. Range pays reservation charges to
ensure that capacity will be available as needed. Range’s gas
first flows through Texas Eastern’s pipeline system to the
Adair Interconnect in Kentucky, then it continues downstream
through Columbia Gulf’s pipeline system.
Petitioners Columbia Gulf and Range brought
administrative complaints against Texas Eastern under 18
C.F.R. § 385.206, asking FERC to require that Texas Eastern
ensure its pipeline system’s operating pressure is sufficiently
high to move the gas into Columbia Gulf’s pipeline system.
FERC dismissed Petitioners’ complaints and denied their
requests for rehearing because they failed to demonstrate in
their complaints that Texas Eastern had any minimum delivery
pressure obligation. Petitioners now appeal. This Court has
jurisdiction under 15 U.S.C. § 717r(b). For the reasons
explained below, we deny the Petitions for Review.
I.
A.
The Natural Gas Act (“NGA”) gives FERC “exclusive
jurisdiction over the transportation and sale of natural gas in
interstate commerce for resale.” Schneidewind v. ANR Pipeline
Co., 485 U.S. 293, 300–01 (1988) (citing Northern Natural
Gas Co. v. State Corp. Comm’n of Kan., 372 U.S. 84, 89
(1963)).
Under the NGA, a natural gas company’s rates and charges
“for or in connection with the transportation or sale of natural
gas subject to [FERC’s jurisdiction], and all rules and
regulations affecting or pertaining to such rates or charges,
shall be just and reasonable.” 15 U.S.C. § 717c(a). If the
Commission finds a rate to be “unjust, unreasonable, unduly
discriminatory, or preferential, the Commission shall

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determine the just and reasonable rate, charge, classification,
rule, regulation, practice, or contract to be thereafter observed
and in force[.]” Id. § 717d.
B.
In order to move gas from one pipeline system into
another, the delivering pipeline’s pressure must be higher than
that of the receiving pipeline. Pipeline systems generally use
compressor stations to boost the gas’s pressure and help keep
it flowing through the pipeline. See, e.g., Myersville Citizens
for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1312 (D.C.
Cir. 2015) (citation omitted) (explaining the relationship
between a compressor station and flow rates). During two time
periods in 2019 and 2021, Range’s gas could not move from
Texas Eastern’s pipeline system into Columbia Gulf’s pipeline
system because Texas Eastern’s pipeline system had a lower
operating pressure than Columbia Gulf. Range claims that the
lack of gas flow between the two pipeline systems cost it more
than $5.5 million. The question presented by this appeal is
which parties—Range, Texas Eastern, and/or Columbia
Gulf—are responsible for maintaining the relative pipeline
pressures necessary to keep the gas flowing between the two
systems.
Texas Eastern’s pipeline system has three transmission
pipelines (Line No. 10, Line No. 15, and Line No. 25). Their
Maximum Allowable Operating Pressure (“MAOP”) is 936
pounds per square in gauge (“psig”). Columbia Gulf’s pipeline
system is similarly comprised of three pipelines (Line 100,
Line 200, and Line 300). While Line 100 has a MAOP of 935
psig, the lines that receive Range’s gas—Line 200 and Line
300—have a MAOP of 1,007 psig. A pipeline usually operates
at a lower pressure than its MAOP. Columbia Gulf attests, for
example, that its typical prevailing pressure on Line 200 and
Line 300 during the relevant time periods ranged between 650

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and 850 psig, which, historically, had been low enough to allow
gas to flow from the higher-pressure pipelines on Texas
Eastern’s system.
In 2019 and 2020, Texas Eastern had line failures that led
to releases of gas near the Adair Interconnect. The Pipeline and
Hazardous Materials Safety Administration (“PHMSA”)
responded to both line failures by ordering operating pressure
restrictions. After the first line failure on August 1, 2019,
PHMSA issued an order restricting Texas Eastern from
operating the line segments to the Adair Interconnect above
eighty percent of the actual operating pressure prior to the line
failure event.
PHMSA’s restriction prevented Texas Eastern from
operating its lines above 740 psig. After the second line failure
on May 4, 2020, PHMSA issued an order that kept the same
operating pressure restriction and required Texas Eastern to do
remediation work. After Texas Eastern completed its required
remediation work, PHMSA granted Texas Eastern permission
to conduct operations at full MAOP but required Texas Eastern
to request approval every ninety days. PHMSA did not
approve Texas Eastern’s second ninety-day request, so Texas
Eastern had to operate two of the three lines at again no greater
than 740 psig, starting on June 1, 2021. For efficiency reasons,
Texas Eastern decided to reduce the third line’s operating
pressure as well.
Around the times of Texas Eastern’s line failures and
PHMSA restrictions in 2019 and 2021, Columbia Gulf
curtailed gas flows at the Adair Interconnect because Texas
Eastern could not meet Columbia Gulf’s prevailing pressure,
which averaged 683 psig and reached as low as 553 psig during
the 2019 Curtailment.

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Foreshadowing the first curtailment at issue, Columbia
Gulf sent critical notices in August 2019 about a significant
pressure imbalance between its pipeline system and Texas
Eastern’s pipeline system. On November 5, 2019, Columbia
Gulf reduced nominations, or the amount of gas that moves into
its pipeline system, from 200,000 dekatherms a day to 60,000
dekatherms a day. Six days later, its nominations went back up
to 200,000 dekatherms a day.
Again in 2021, Columbia Gulf and Texas Eastern’s parent
company, TC Energy Corporation, notified Range that
Columbia Gulf would likely need to reduce nominations due to
pressure issues. Columbia Gulf posted a critical notice and
initially reduced the receipt point capacity to 140,000
dekatherms—and eventually all the way down to zero
dekatherms. The second curtailment began on May 27, 2021,
and the following day, Texas Eastern declared force majeure,
an unforeseeable event that prevents a party from performing
its contractual obligations. PHMSA rejected Texas Eastern’s
second ninety-day request to conduct operations at full MAOP
around that time.
For twenty-three days, no gas moved from Texas Eastern’s
pipeline system into Columbia Gulf’s pipeline system. The
receipt point capacity went up to 100,000 dekatherms a day in
the beginning of July and to 140,000 dekatherms a day at the
end of July. By the end of July, PHMSA had approved Texas
Eastern’s request to conduct operations at full MAOP again.
The 2021 curtailment ended on July 29, 2021. Texas Eastern
then lifted the force majeure declaration on August 5, 2021.
C.
Columbia Gulf and Range raised two separate claims in
their joint administrative complaint against Texas Eastern
(“Joint Complaint”). First, they alleged Texas Eastern failed to

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comply with the Natural Gas Act (“NGA”), FERC’s
regulations, and Texas Eastern’s certificate obligations by not
delivering scheduled and confirmed volumes into Columbia
Gulf’s system during the 2019 and 2021 curtailments. Second,
they alleged Texas Eastern violated FERC precedent by not
making any necessary modifications to its system that would
allow it to maintain and operate the pipelines at sufficiently
high pressures.
Range also filed a separate administrative complaint,
seeking additional remedies that apply only to Range and not
to Columbia Gulf. One of the arguments was that Texas
Eastern owes Range credits for the so-called “reservation
charges” that Range paid to guarantee pipeline capacity in
Texas Eastern’s system during the 2019 and 2021 curtailment
periods. Range said Texas Eastern’s failure to do so violated
the reservation charge credit obligations under the Texas
Eastern Tariff, which requires a reservation charge adjustment
where non-force majeure-related outages result in a pipeline
failing to deliver the gas a customer has nominated for that day.
After FERC dismissed the complaints and denied both
requests for rehearing, Petitioners timely sought review of
these FERC orders. Petitioners make three main arguments
before this Court: (1) FERC erred in dismissing their
arguments regarding Section 6.2 of the Texas Eastern Tariff
and Section 4.02(e) of the Adair Interconnection Agreement on
procedural and substantive grounds; (2) FERC departed from
its precedent without providing required justification; and (3)
FERC needed, but failed, to hold an evidentiary hearing on
disputed factual issues.
II.
We must first determine whether petitioners have Article
III standing. The parties do not dispute that Range has

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standing, and we agree. Range seeks money damages for an
alleged $5.5 million in losses from past curtailments, and avers
that it stands to lose more from future curtailments likely to
occur due to Texas Eastern’s chronically low pressure levels.
FERC argues that Columbia Gulf lacks standing to seek
prospective relief—here, a FERC order requiring Texas
Eastern to “meet its firm service obligations” and “modify or
build additional compression” as necessary to keep gas flowing
between Texas Eastern and Columbia Gulf’s systems. J.A. 49–
50 (Joint Compl. ¶ 91). But we conclude that Columbia Gulf,
along with Range, has standing to seek such relief.
“To establish Article III standing, an injury must be
‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a
favorable ruling.’” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 149 (2010)). In order for an injury to be
fairly traceable to the challenged conduct, Petitioner must
demonstrate that the challenged conduct “triggered additional .
. . harm or additional . . . responsibility.” CTS Corp. v. EPA,
759 F.3d 52, 58 (D.C. Cir. 2014) (emphases removed).
Courts assess standing based on the facts as they existed at
the time the action commenced. Entergy Servs., Inc. v. FERC,
391 F.3d 1240, 1245 (D.C. Cir. 2004); Advanced Mgmt. Tech.,
Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir. 2000). In this case,
the action commenced when Columbia Gulf sought relief from
this Court.
Along with its initial brief before this Court, Columbia
Gulf submitted an affidavit by Edgar Trillo, who has been
managing the pipeline pressure issues at the Adair Interconnect
on behalf of Columbia Gulf. The affidavit details Columbia
Gulf’s injuries, both from the past curtailments and future

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curtailments. Per the affidavit, the 2019 and 2021 curtailments
at issue in this case resulted in operational, administrative, and
financial injuries for Columbia Gulf. As part of this process,
Columbia Gulf had to take additional gas from other
interconnected pipelines, use third-party gas storage, and
constantly communicate with customers and other pipelines.
Columbia Gulf also had to issue administrative notices to its
customers as to its impending underperformance and possible
reduction in scheduled deliveries. Contrary to Texas Eastern’s
later claim that Columbia Gulf did not experience financial
injuries from the past curtailments, Columbia Gulf avers that it
has been dealing with late charges and collection of unpaid
invoices from the past curtailments. As of December 27, 2022,
Range had “close to $1.5 million in unpaid invoices to
Columbia Gulf for its inability to use the capacity during the
curtailments.” Trillo’s Affidavit at P 8.
Drawing on its experiences with past curtailments,
Columbia Gulf alleges that similar curtailments are likely to
occur in the future and that, when they do, Columbia Gulf will
again suffer operational, administrative, and financial injuries,
as it did in 2019 and 2021. Columbia Gulf also alleges that it
is experiencing present, or ongoing, injuries from its costly
efforts to mitigate the imminent risk of additional curtailments,
such as by compressing Texas Eastern’s gas before it enters
Columbia Gulf’s system. To do that, Columbia Gulf has to
operate its system in an abnormal mode and isolate a section of
its Line 200 to act as a low-pressure receiver of Texas Eastern’s
low-pressure gas before raising the received gas to Columbia
Gulf’s prevailing line pressures through the system’s
compressor units. Abnormal mode operations impose burdens
on the gas controller, who must monitor the gas flows and
manually flip the valve switch. When operating in the
abnormal mode, compressor units have longer run times and,
as a result, require “more frequent service intervals, additional

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work hours for operations personnel, and [more fuel.]” Trillo’s
Affidavit at P 11.
The injuries related to mitigating the risk of future
curtailments constitute injuries in fact. See Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014) (explaining that
“[a]n allegation of future injury may suffice if the threatened
injury is certainly impending, or there is a substantial risk that
the harm will occur” (quoting Clapper, 568 U.S. at 414 n.5)
(internal quotation marks omitted)); In re U.S. Off. of Pers.
Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 59 (D.C. Cir.
2019) (“Because . . . Plaintiffs adequately allege a substantial
risk of future [harm], any expenses they have reasonably
incurred to mitigate that risk likewise qualify as injury in
fact.”); Clapper, 568 U.S. at 414 n.5 (“[W]e have found
standing based on a ‘substantial risk’ that the harm will occur,
which may prompt plaintiffs to reasonably incur costs to
mitigate or avoid that harm.” (quoting Monsanto Co., 561 U.S.
at 153)).
Given the recurring past problems with Texas Eastern’s
pressure levels and lack of any material change to suggest they
are resolved, there is a substantial risk of additional
curtailments in the future. This makes the ongoing injuries
incurred to mitigate that risk, as well as the imminent future
risks associated with future curtailments, cognizable as injuries
in fact. See In re U.S. Off. of Pers. Mgmt. Data Sec. Breach
Litig., 928 F.3d at 59. A recent change in circumstances has
further increased the risk of future curtailments. Columbia
Gulf’s Louisiana Xpress Project, which FERC approved in
2020, began operating in October 2022. As a result of that
project, which added new compressor stations for Columbia
Gulf’s pipeline system at the Adair Interconnect, Columbia
Gulf does not have as much excess capacity to consistently
conduct operations in the abnormal mode. To conduct
abnormal mode operations, and related mitigating efforts,

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Columbia Gulf must transport a much lower volume of gas in
the southbound direction than the actual volume it is designed
to transport in that direction. In July–August 2022, when the
Petitions for Review were filed, Columbia Gulf knew that,
within a few months, because of the Columbia Gulf Xpress
Project, it would no longer be able to operate its system in the
abnormal mode consistently “without shorting customers who
do not require special help to get into our pipeline.” Trillo’s
Affidavit at P 12.
As Texas Eastern’s low pressure levels will likely cause
additional curtailments and have resulted in costly efforts by
Columbia Gulf to mitigate the risk of additional curtailments,
the traceability requirement is met here. See Orangeburg, S.C.
v. FERC, 862 F.3d 1071, 1080 (D.C. Cir. 2017) (explaining
that the traceability element “examines whether it is
substantially probable that the challenged acts of the defendant,
not of some absent third party, will cause the particularized
injury of the plaintiff”).
If we determine that Texas Eastern is obligated to increase
its pressure levels in order to move the gas into Columbia
Gulf’s pipeline system—and if FERC orders Texas Eastern to
increase its pressure levels—that would reduce the likelihood
of future curtailments and redress Columbia Gulf’s and
Range’s injuries relating to the current risk of future
curtailments. See Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,
663–64 (D.C. Cir. 1996) (“Redressability examines whether
the relief sought, assuming that the court chooses to grant it,
will likely alleviate the particularized injury alleged by the
plaintiff.”).
III.
As both Petitioners have standing, we now turn to the
challenged FERC orders. The Court reviews FERC orders and

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actions under the Administrative Procedure Act’s arbitrary and
capricious standard. 5 U.S.C. § 706(2)(A). The scope of
review under that standard is narrow, and the Court may not
substitute its own judgment for that of the agency. FERC v.
Elec. Power Supply Ass’n, 577 U.S. 260, 292 (2016). “Rather,
the court must uphold [an agency action] if the agency has
‘examine [d] the relevant [considerations] and articulate[d] a
satisfactory explanation for its action[,] including a rational
connection between the facts found and the choice made.’” Id.
(alterations in original) (quoting Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
A.
Petitioners claim that Texas Eastern is obligated to deliver
gas to the Adair Interconnect at sufficient pressure to allow the
gas to flow, without further assistance or compression, into
Columbia Gulf’s pipeline. They ground that claim in a
provision of the Texas Eastern Tariff and a separate provision
of the Adair Interconnection Agreement governing Texas
Eastern’s and Columbia Gulf’s responsibilities at the Adair
Interconnect.1
1 For this claim, Petitioners also relied on Section 13(b) of the
Columbia Gulf Tariff, which states the following:
Shipper shall deliver gas or cause gas to be delivered to
Transporter at the receipt points at a pressure sufficient to
allow the gas to enter Transporter’s pipeline as such
pressure shall vary from time to time. Transporter shall not
be required to compress into its pipeline gas transported
under any Rate Schedule or otherwise change its normal
pipeline operations.
J.A. 33. However, Petitioners do not ask us to review FERC's
conclusion on Section 13(b)—that the provision does not apply
because it concerns shippers and Texas Eastern is not a shipper.
Instead of challenging that conclusion, Petitioners argue that FERC

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FERC reasonably dismissed Range’s argument regarding
Section 6.2 of the Texas Eastern Tariff (“Section 6.2”) and both
Petitioners’ argument regarding Section 4.02(e) of the Adair
Interconnection Agreement (“Section 4.02(e)”) due to pleading
deficiencies. FERC regulations require an administrative
complaint to “[c]learly identify the action or inaction which is
alleged to violate applicable statutory standards or regulatory
requirements” and “[e]xplain how the action or inaction
violates applicable statutory standards or regulatory
requirements[.]” 18 C.F.R. § 385.206(b) (2021). As explained
below, Petitioners failed to satisfy these requirements for their
Section 6.2 and Section 4.02(e) arguments.
Even though Petitioners discussed Section 6.2 and Section
4.02(e) at the rehearing stage, FERC reasonably concluded that
those discussions came too late. FERC “has long held that it
will reject new arguments on rehearing that could have been
made originally but were not.” La. Pub. Serv. Comm’n, 172
FERC ¶ 61,056, P 38 (2020) (internal quotations and citations
omitted). Because FERC rules prohibit other parties from
filing answers at the rehearing stage, “new arguments at the
rehearing stage raises concerns of fairness and due process.”
Id.; see also 18 C.F.R. § 385.713(d)(1) (2019).
1.
Range’s Complaint mentions Section 6.2 of the Texas
Eastern Tariff twice. The background section contains a quote
of the full text of Section 6.2. J.A. 288 (quoting Section 6.2 of
the Texas Eastern Tariff). In the argument section, Range
referred to Section 6.2 again once in the following paragraph:
failed to distinguish or knowingly abandon its precedent in Northern
Natural Gas Co. v. ANR Pipeline Co., 109 FERC ¶ 61,201 (2004),
which they read to stand for the proposition that the term “shipper”
includes delivering pipelines. We discuss this argument more below.

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Texas Eastern breached its obligations under
Contract No. 911376-R2 when Texas Eastern
failed to deliver gas to the Adair Interconnect at
minimum pressures sufficient for gas to enter
into Columbia Gulf. Contract No. 911376-R2
requires Texas Eastern to deliver gas “at such
pressure available at pipeline’s facilities at the
point of delivery not to exceed the maximum
allowable pressure of the pipeline.” Moreover,
Section 6.2 of the [General Terms and
Conditions] of Texas Eastern’s tariff requires
Texas Eastern to deliver gas at pressures that
‘are available at the Point of Delivery and
resulting from Pipeline maintaining a discharge
pressure of 750 pounds per square inch gauge
pressure at the nearest upstream compressor
station.’ As noted in the Paragraph 37 of the
Facts Section of the Joint Complaint (Appendix
A), at no point during the Curtailments did the
average of Columbia Gulf’s system pressure at
the Adair Interconnect exceed Texas Eastern’s
MAOP for the 30-Inch System, even assuming
that all three lines were reduced to 80 percent of
MAOP (748.8 psig). Accordingly, Texas
Eastern’s inability to deliver scheduled and
confirmed volumes at Adair during the
Curtailments violated the express provisions of
Contract No. 911376-R2 and Texas Eastern’s
tariff.
J.A. 291–92 (emphasis added) (quoting Section 6.2 of the
Texas Eastern Tariff).
FERC found in its Initial Order that Section 6.2 required
Texas Eastern to deliver gas at its own available line pressures,

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and did not require delivery at pressures sufficient to enter
Columbia Gulf’s system. According to FERC, Section 6.2
gives Range the ability to include minimum delivery pressure
obligations in the service agreement, but Range did not do so.
Range argued on rehearing that FERC failed to examine
whether Texas Eastern satisfied the requirement in Section 6.2
that it “maintain[] a discharge pressure of 750 pounds per
square inch gauge at the nearest upstream compressor
station[.]” J.A. 893 (emphases removed) (quoting Section 6.2
of the Texas Eastern Tariff). FERC said it was not required to
do so because Range had not sufficiently pleaded its Section
6.2 argument in its complaint.
FERC reasonably decided that it was not sufficient for
Range to simply quote the text of Section 6.2 and allege a
general violation of the Texas Eastern Tariff. Under 18 C.F.R.
§ 385.206, Range needed to explain in its complaint how Texas
Eastern violated Section 6.2 of its tariff. Range did none of
that.
Throughout its complaint, Range focused on the pressure
obligations that Texas Eastern has at the Adair Interconnect.
But Section 6.2’s 750 psig requirement does not apply to the
Adair Interconnect. Instead, it concerns pressure levels at the
Danville Compressor Station, the nearest upstream compressor
station. Not once did Range’s Complaint allege that Texas
Eastern failed to satisfy its pressure obligations at the Danville
Compressor Station. Nor did Range’s Complaint explain the
connection between Texas Eastern’s obligations at the Danville
Compressor Station, as outlined in Section 6.2, and at the Adair
Interconnect. Given Range’s failure to discuss these details
and to plead its Section 6.2 argument adequately, FERC
permissibly declined to consider Range’s Section 6.2 argument
on the merits.

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2.
Section 4.02(e) of the Adair Interconnection Agreement
permits either party to “operate their respective pipelines up to
its MAOP at any time” and states that “both Parties must, in
order to be assured of having the physical capacity to deliver/
receive gas through the Interconnection, have the capacity of
delivering/ receiving gas to such MAOP.” J.A. 429.
In the background section of their Joint Complaint,
Petitioners quoted excerpts of the Adair Interconnection
Agreement, including Section 4.02(e), but made no arguments
as to its application. FERC noted in passing in its Initial Order
that the Adair Interconnection Agreement does not impose an
obligation on Texas Eastern to transport gas at a specific
pressure. On rehearing, Columbia Gulf argued that FERC only
looked to the first sentence of Section 4.02(e) and disregarded
the rest of it, including the requirement for Texas Eastern to
have the capacity to deliver gas at Columbia Gulf’s MAOP. As
with Section 6.2 of the Texas Eastern Tariff, FERC said it did
not need to examine this argument because Petitioners did not
raise it in the Joint Complaint. FERC also reiterated its position
that Section 4.02(E) “does not require that Texas Eastern
operate at any minimum pressure in order to ensure that
Columbia Gulf will accept receipt of Texas Eastern’s deliveries
(or that it deliver gas at Columbia Gulf's MAOP)[.]” J.A. 966.
FERC permissibly declined to consider Petitioners’
Section 4.02(e) argument on rehearing. In the Joint Complaint,
Petitioners only touched on Section 4.02(e) once in the
background section and did not mention it in the argument
section when they identified the actions that allegedly violated
applicable statutory or regulatory requirements. Nowhere in
the Joint Complaint did Petitioners allege that Texas Eastern
violated Section 4.02(e) of the Adair Interconnection
Agreement.

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Nevertheless, Petitioners now argue that the Court should
put aside the pleading defect and decide the merits of the
Section 4.02(e) argument, then have FERC decide on remand
whether to allow Petitioners to fix the procedural defect.
Petitioners hope that this Court’s hypothetical reversal—of
FERC’s decision to reject the Section 4.02(e) argument on the
merits—would lead FERC to change course and refrain from
dismissing the argument on a procedural basis. According to
Petitioners, FERC should not be able to use procedural defects
that could be easily cured to dodge judicial review of its other
conclusions on the merits.
Those arguments are at odds with our precedent. We have
made it clear that we “will not grant ‘relief on the merits’ when
the Commission has ‘properly dismissed the pleading on
procedural grounds.’” NTCH, Inc. v. FCC, 950 F.3d 871, 883
(D.C. Cir. 2020) (quoting BDPCS, Inc. v. FCC, 351 F.3d 1177,
1183 (D.C. Cir. 2003)).
Here, FERC dismissed Petitioners’ Section 4.02(e)
argument on both procedural and substantive grounds. FERC
reached both conclusions separately. FERC found on
rehearing that Petitioners did not timely raise their Section
4.02(e) argument, then explained why the argument also fails
on the merits. FERC did not suggest that the procedural
grounds dismissal was in any way contingent on its dismissal
of the Section 4.02(e) argument on the merits. Petitioners have
not otherwise demonstrated why that is the case. As FERC
properly dismissed Petitioners’ Section 4.02(e) argument on
separate procedural grounds, this Court has no reason to
consider the argument on the merits.
B.
Petitioners next argue that FERC made an unexplained
departure from its precedent in Northern Natural Gas Co. v.

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ANR Pipeline Co., 109 FERC ¶ 61,201 (2004), by dismissing
Petitioners’ allegations that Texas Eastern violated its own
pressure obligations.
In that case, Northern Natural, the delivering pipeline,
asked FERC to order ANR, the receiving pipeline, to fix the
impending pressure issue after ANR underwent a project
expansion that would increase its pipelines’ operating pressure
levels. FERC denied Northern Natural’s request, and pointed
to the ANR Tariff, which requires “Northern Natural, the
shipper, to deliver gas to ANR, the transporter, ‘at a pressure
sufficient to allow the Gas to enter Transporter’s existing
pipeline system[.]’” Id. ¶ 61,958, P 14 (quoting the ANR
Tariff). Ultimately, FERC found that ANR’s expansion, and
increase in operating pressure levels, did not violate the ANR
Tariff. Id. ¶ 61,960.
Petitioners claim that Northern Natural set a default rule
that a delivering pipeline, such as Texas Eastern, has a legal
obligation to deliver gas at a sufficient pressure to enter the
receiving pipeline. They also argue that under Northern
Natural, Texas Eastern is a shipper and bound by the Columbia
Gulf Tariff’s similar language on minimum pressure
obligations for shippers. FERC reasonably concluded that both
arguments are without merit. Northern Natural does not
require FERC to find that Texas Eastern has minimum pressure
obligations at the Adair Interconnect.
FERC adequately explained that Northern Natural did not
establish a default rule on a delivering pipeline’s obligations.
There, the delivering pipeline asked FERC to issue an order to
the receiving pipeline. Disagreeing with the request, FERC
declined to do so. FERC only examined the receiving
pipeline’s obligations and did not decide on the delivering
pipeline’s obligations, nor did it order the delivering pipeline
to modify its system to fix the pressure issue. Here, Columbia

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Gulf, the receiving pipeline, asked FERC to issue an order to
the delivering pipeline, Texas Eastern, to increase its delivery
pressure. FERC reasonably distinguished Northern Natural
from the instant case on that basis. The key holding in
Northern Natural was only that the receiving pipeline did not
have an obligation to lower its pressure in order to receive gas
from the delivering pipeline.
Furthermore, petitioners have not established that Texas
Eastern is bound by the Columbia Gulf Tariff’s language on
minimum pressure obligations for shippers. In Northern
Natural, FERC looked to the receiving pipeline’s tariff
language on shippers’ pressure obligations to conclude that the
receiving pipeline did not violate any pressure obligations.
Although the receiving pipeline argued that the delivering
pipeline is a shipper and thus is subject to shippers’ pressure
obligations in the receiving pipeline’s tariff, id. ¶ 61,957–58, P
14, FERC did not adopt that reasoning. FERC reasonably
found that its holding in Northern Natural was limited to the
receiving pipeline’s obligations and reasonably concluded that
Texas Eastern is not a shipper subject to pressure obligations
under the Columbia Gulf Tariff.
As FERC explained in its Initial Order, when it stated in
Northern Natural that “the responsibility to deliver gas at a
pressure sufficient to allow the gas to enter [the receiving
pipeline’s] system rests with [the delivering pipeline,]” id. ¶
61,960, P 23, it was merely saying that “in the absence of any
contractual obligations between the parties concerning line
pressure, the financial burden was on the party who required
delivery at a specific line pressure,” J.A. 870–71. We agree.
It did not, either explicitly or implicitly, hold that a delivery
pipeline is obligated to deliver at a pressure above that of the
receiving pipeline.

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C.
The next question for this Court is whether FERC needed,
but failed, to hold an evidentiary hearing to resolve two factual
disputes: Whether Texas Eastern provided Range and other
shippers on Texas Eastern’s system equal service and whether
a force majeure event actually occurred in 2021.
In general, FERC has broad discretion to determine
whether to hold an evidentiary hearing. Blumenthal v. FERC,
613 F.3d 1142, 1144 (D.C. Cir. 2010). “It is well established
… that ‘mere allegations of disputed facts are insufficient to
mandate a hearing; petitioners must make an adequate proffer
of evidence to support’ their claim.” Id. at 1144 (quoting Cerro
Wire & Cable v. FERC, 677 F.2d 124, 128 (D.C. Cir. 1982)).
No evidentiary hearing is required if FERC can adequately
resolve the disputed issues on the written record. See
Sacramento Mun. Util. Dist. v. FERC, 474 F.3d 797, 804 (D.C.
Cir. 2007).
As explained below, FERC did not arbitrarily and
capriciously fail to conduct an evidentiary hearing to resolve
either factual dispute.
1.
In their joint administrative complaint, Petitioners alleged
a violation of 18 C.F.R. § 284.7(b)(2), which requires pipelines
providing “transportation service on a firm basis . . . [to]
provide each service on a basis that is equal in quality for all
gas supplies transported under that service[.]” 18 C.F.R. §
284.7(b)(2). Petitioners argued that Texas Eastern provided “a
lower priority of service” to Range at the Adair Interconnect
“while providing significantly greater service to
geographically proximate delivery points.” J.A. 39. Range did
not know of “similar pressure issues at other pipeline
interconnects on the Texas Eastern system during the 2019

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Curtailment.” J.A. 39. Its analysis also showed that volumes
at three points immediately upstream and downstream of the
Adair Interconnect (Owingsville, Danville, and Tompkinsville)
did not drop below 75 percent of MAOP during the 2021
curtailment.
FERC explained in its Initial Order that Range could not
have received lower priority service in violation of 18 C.F.R. §
284.7(b)(2) when Range is the only shipper at the Adair
Interconnect and has a contract for all the capacity there.
Petitioners also compared the Adair Interconnect with
geographically proximate meter stations, not interconnects. As
meter stations and interconnects are different, FERC found the
comparison to be unconvincing.
Range contended on rehearing that FERC ignored its
precedent in El Paso Natural Gas Co., 99 FERC ¶ 61,244
(2002), where it treated firm shippers with different
transportation paths as similarly situated. Arguing that this
precedent conflicts with FERC’s conclusion that Range did not
receive lower priority service and FERC’s related decision to
disregard other firm shippers receiving greater service from
Texas Eastern, Range said FERC should hold an evidentiary
hearing to examine similarities between Range and other
shippers receiving service from Texas Eastern.
In its Rehearing Order, FERC declined Range’s request
and clarified that it did not reject Range’s lower priority
argument and find that other shippers are not similarly situated
because of other shippers’ different transportation paths.
Instead, FERC concluded that other shippers’ delivery points
being “geographically proximate” to the Adair Interconnect is
insufficient to make these shippers similarly situated as Range.
According to Petitioners, FERC erred in “requiring Range
to provide—without the benefit of an evidentiary hearing and

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the discovery process that goes along with it—facts about
operational circumstances on Texas Eastern’s pipeline that
were solely within Texas Eastern’s possession” in order to
demonstrate its similarities to other shippers at nearby meter
stations. Petitioners’ Opening Br. 53; Petitioners’ Reply Br.
26.
We disagree. FERC reasonably concluded that geographic
proximity alone is insufficient to make other shippers similarly
situated and that Range failed to meet its burden to show why
it is similarly situated to other firm shippers. Shippers with
geographically proximate delivery points can still be different
from each other. Even though only Texas Eastern has specific
information about its pipeline, Range still needed to make a
prima facie case for an evidentiary hearing and did not do so.
Range did not identify what it hoped to obtain from discovery,
explain how such findings would help support its similarly-
situated argument, or discuss the likelihood of such findings.
See, e.g., Braintree Elec. Light Dep’t v. FERC, 550 F.3d 6, 13
(D.C. Cir. 2008) (explaining that “[t]he mere possibility” of a
claim “neither undermines FERC's conclusions nor calls for
additional procedures beyond the ‘paper hearing’”).
Range also relies on the following language by FERC in
El Paso: “It is inconsistent with [18 C.F.R. § 284.7(b)(2)] for
firm shippers to be charged for firm service and have service
reduced through pro rata allocations on a non-emergency basis
so that the pipeline can provide service to another shipper.” 99
FERC at ¶ 62,001. Reading El Paso broadly, Range says it
stands for the proposition that “a firm shipper must be able to
reliably schedule its firm contractual entitlements without
service interruptions.” Petitioners’ Opening Br. 53. But El
Paso does not contain such broad language. Instead, it focused
on the issue of routine service reductions that a pipeline
implemented to deal with insufficient capacity for all of its firm
service obligations. El Paso, 99 FERC at ¶ 62,001. That is not

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the issue here. Service reductions occurred here due to the
pressure issue, instead of insufficient capacity. FERC
reasonably distinguished El Paso, which tied its prohibition on
service reductions to those that take place in order to provide
service to other shippers.
2.
In its administrative complaint, Range argued that Texas
Eastern must provide full reservation charge credits to Range
for both curtailment periods. Range said Texas Eastern’s
failure to do so violated the reservation charge credit
obligations in the Texas Eastern Tariff.
FERC clarified in its Initial Order that Texas Eastern did
provide reservation charge credits to Range for the volumes
that Texas Eastern did not schedule and could not deliver due
to force majeure restrictions. The issue was whether Texas
Eastern also had to provide credits for scheduled volumes
during curtailment periods that Columbia Gulf did not confirm
due to the pressure issue. According to FERC, Range was not
entitled to those credits. FERC held that, under Section 31.3
of the Texas Eastern Tariff, Range is generally not entitled to
reservation charge credits for the times Texas Eastern fails to
deliver the gas if the failure is due to Columbia Gulf’s conduct,
including its refusal to receive the gas, and such conduct is
outside Texas Eastern’s control. FERC also noted that Range
has withheld the payment of reservation charges for which it is
requesting credits.
Range then argued on rehearing that FERC needed, but
failed, to sufficiently examine the legitimacy of Texas
Eastern’s force majeure declaration in 2021. According to
Range, because a force majeure event is the only available
basis for reservation charge credits under Section 31.2 of the
Texas Eastern Tariff, FERC needed to examine Texas

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Eastern’s 2021 force majeure declaration to determine whether
Texas Eastern properly invoked Section 31.2. Range alleged
that Texas Eastern improperly declared force majeure. In
response, FERC reiterated that the 2021 force majeure
declaration is irrelevant to the question of whether Range is
entitled to additional reservation charge credits because Texas
Eastern was willing to deliver the volumes, for which Range is
now seeking credits, during the force majeure event, but
Columbia Gulf declined to confirm them due to the pressure
issue.
Range requested an evidentiary hearing on the 2021 force
majeure event for the first time in their briefs before us, instead
of during administrative proceedings. Range also explained for
the first time that Section 31.2 has a ten-day safe harbor for
force majeure events and so the legitimacy of the 2021 force
majeure declaration impacts Range’s ability to collect ten extra
days of reservation credits. As Range failed to raise this
argument before FERC, we lack jurisdiction to consider it. See
15 U.S.C. § 717r(b) (“No objection to the order of the
Commission shall be considered by the court unless such
objection shall have been urged before the Commission in the
application for rehearing unless there is reasonable ground for
failure so to do.”).
FERC reasonably rejected Range’s more general force
majeure argument that it made during administrative
proceedings. Putting aside Range’s later explanation to us
about the ten-day safe harbor in Section 31.2, which we lack
jurisdiction to consider, FERC reasonably determined that
Range failed to demonstrate why the 2021 force majeure
declaration, even if invalid, would have made a difference
regarding the relief to which Range claimed to be entitled.
IV.

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For the foregoing reasons, we deny the Petitions for
Review.
So ordered.

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