Landmark Publications

The Filed Rate Doctrine Landmark Publications

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the filed-rate doctrine. * * * Section 206 defines FERC's authority when an existing rate is found unjust, unreasonable, unduly discriminatory, or preferential. 16 U. S. C. § 824e. This includes two main tools at FERC's disposal. First, Section 206(a) authorizes FERC to "fix" rates prospectively, after it concludes that a rate is inappropriate upon a complaint by a market participant or on FERC's own impetus. See id. § 824e(a); Xcel, 815 F.3d at 950. Second, Section 206(b) permits FERC to order refunds where the previous rate was unfairly high, effectively setting the rate as of the date that the Section 206 proceeding began - either when FERC instituted an investigation or the date of the complaint, if instigated by a third party. 16 U. S. C. § 824e(b). However, no concomitant authority exists to retroactively correct rates that were too low. See Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U. S. 348, 353, 76 S. Ct. 368, 100 L. Ed. 388 (1956) (noting that "[the Section 206] power is limited to prescribing the rate 'to be thereafter observed' and thus can effect no change prior to the date of the order"). This rule against retroactive rate increases precludes FERC from ordering remedies that accomplish a higher rate for a past period. In turn, the filed-rate doctrine requires market participants to abide by the rates set: "utilities are forbidden to charge any rate other than the one on file with the Commission." W. Deptford Energy, LLC v. Fed. Energy Regulatory Comm'n, 766 F.3d 10, 12 (D. C. Cir. 2014). The "rule against retroactive ratemaking" and the filed-rate doctrine may thus be understood as "corollar[ies]" that make static the rates paid for energy, once established. NSTAR Elec. & Gas Corp. v. Fed. Energy Regulatory Comm'n, 481 F.3d 794, 800 (D. C. Cir. 2007). See also Ark. La. Gas Co. v. Hall, 453 U. S. 571, 577, 101 S. Ct. 2925, 69 L. Ed.2d 856 (1981) (explaining the development of the filed-rate doctrine in the context of the Natural Gas Act). * * * Verso Corp. v. FERC, 898 F. 3d 1 (DC Cir. 2018)