Energy & Environmental Law Blog : Energy & Environmental Lawyer & Attorney : Vorys, Sater, Seymour and Pease Law Firm : Oil, Gas & Green Technology

The Pennsylvania Public Utility Commission (PUC), in a narrow 3-2 decision, has remanded the application of Laser Northeast Gathering Company, LLC, to an administrative law judge (ALJ) for a determination on whether the granting of a certificate of public convenience is necessary or proper for the service, accommodation, convenience or safety of the public (see this press release).  This overturns an earlier decision of the ALJ finding that Laser Marcellus was not a public utility under Pennsylvania law, which had focused on whether the pipeline should have the power of eminent domain (see our earlier discussions here and here, e.g.).

For a copy of the relevant motion and related opinions, see here.

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We have reported previously on the Laser Marcellus proceeding before the Pennsylvania Public Utility Commission (see here "PA Gathering Update," e.g.).  The Administrative Law Judge has issued her recommended decision in the matter, finding that the application for a certificate of public convenience should be denied - despite the joint stipulation filed by several of the parties.  Her reasoning:  There is no reason - nor any statutory authority in Pennsylvania - for granting gathering companies the power of eminent domain.  For example:

A gathering system is not analogous to a local distribution company. Eminent domain is not an appropriate tool for a gathering company to have when those citizens burdened by the pipeline do not benefit from it.

For a copy of the decision, see here.

Now it's up to the Commission.

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We reported previously on the petition filed by Laser Marcellus Gathering Company, LLC, for a declaratory order that pipeline facilities it intends to construct from Pennsylvania into New York are functionally gathering and therefore exempt from Federal Energy Regulatory Commission jurisdiction under Section 1(b) of the Natural Gas Act.  The Commission recently granted that petition, noting that the fact that the facilities crossed the Pennsylvania-New York border did not affect the exemption:

The history of Commission and court interpretation of Section 1(b), … makes clear that there is a distinction between gathering and transportation, such that the two functions are mutually exclusive. Consequently, otherwise non-jurisdictional production or gathering does not become jurisdictional on the basis that the facilities employed therefor cross a state line.

For a copy of the Commission's decision, see here (search Docket No. CP10-35).

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The Houston Chronicle is reporting that a group of New Mexico producers have filed a complaint with the New Mexico Public Regulation Commission claiming that the gathering rates charged by Enterprise Field Services LLP are excessive and asking the Commission to set the rates itself.  Interesting.

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