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In an order addressing Enbridge Energy, L.P.'s
(Enbridge's) nomination procedures, FERC held that it lacks
authority to order an oil pipeline carrier to provide an
interconnection with another carrier.1 High Prairie
Pipeline LLC (High Prairie) had protested Enbridge's filing,
arguing that the proposed language could allow Enbridge to deny new
shippers access to transportation. High Prairie also asserted that
while Enbridge has granted interconnections for its affiliates,
Enbridge denied High Prairie's request for a similar
interconnection without providing a nondiscriminatory basis for the
denial. High Prairie argued that under the Interstate Commerce Act
(ICA), FERC can order a pipeline to grant an interconnection if the
denial of the interconnection is unjust, unreasonable, or unduly
discriminatory, regardless of whether FERC is notified by complaint
or protest.
FERC rejected High Prairie's protest, citing its prior
decision in Plantation Pipe Line Co. v. Colonial Pipeline
Co.2 and noting that while High Prairie is a
potential connecting pipeline, it "is not a current or
prospective shipper that would be protected by the
anti-discrimination provisions of the ICA."3 In
Plantation, FERC dismissed the argument that because the
ICA allowed the Interstate Commerce Commission to order
interconnections between railroads, FERC similarly should be
permitted to order interconnections between oil pipelines. The
plain language of the ICA requires carriers to provide facilities
to allow for the interchange of traffic between existing lines and
existing connecting lines and requires carriers to refrain from
discriminating among connecting lines. FERC stated that it imposes
a "light-handed regulation" over oil pipelines and that
its jurisdiction is limited to the authorization granted under the
ICA and any precedent.4 As it did in
Plantation, FERC again held that the ICA does not grant
FERC the authority to order an interconnection.
2. Plantation Pipe Line Co. v. Colonial Pipeline
Co., 104 FERC ¶ 61,271 (2003).
3. Enbridge Energy, L.P., 139 FERC ¶ 61,134
at P 20. On May 17, 2012, High Prairie filed a complaint against
Enbridge Energy alleging violations of Sections 3(6), 1(6), 6(1),
1(4), and (6)7 of the ICA and Sections 341.0 and 341.8 of
FERC's regulations. Notice of this complaint was released on
May 18, 2012, in Docket No. OR12-17-000.
4. Id. at P 27.
Copyright 2012. Morgan, Lewis & Bockius LLP. All Rights
Reserved.
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Discussion With FERC Chairman Jon Wellinghoff
