On March 25, 2013, FERC rejected a rate complaint brought by an individual, Gordon Gooch, against oil pipeline Colonial Pipeline Company (“Colonial”). FERC dismissed the complaint because Mr. Gooch failed to show he was adversely affected by Colonial’s rates for pipeline service. Notably, while the Commission unanimously dismissed the complaint, Commissioners Phillip Moeller and John Norris issued separate statements expressing concern with the lack of guidance in the order for future individual complainants.
On August 14, 2012, Mr. Gooch brought a compliant under section 13(1) of the Interstate Commerce Act (“ICA”), alleging that Colonial had over-recovered approximately $250,000,000 in 2011. Based on this alleged over-earning, Mr. Gooch estimated that, as an end-user of petroleum products, he suffered damages of $5.02 in 2011. Dismissing the complaint, FERC noted that while ICA section 13(1) and section 385.206 of FERC’s regulations allow “any person” to file a complaint, a complainant must demonstrate that he is “adversely affected” by the challenged rate. FERC concluded that Mr. Gooch’s alleged damages were too speculative to prove he was adversely affected by Colonial’s rates.
Writing separately, Commissioner Moeller agreed that the case was properly dismissed, but stated that it appears to be an impossible task for a private individual “to prove that he has been adversely affected by the pipeline’s rates.” Commissioner Moeller argued that FERC must do more to provide guidance and reasoning so that the public understands the “evidentiary burden” an individual must satisfy to sustain a complaint. Commissioner Moeller concluded that “by failing to offer such guidance, this order may have the effect of discouraging future complaints from retail customers and other non-shippers.” Commissioner Norris echoed these sentiments in his own separate statement, noting “that today’s order could serve to effectively bar consumers from successfully bringing a complaint against an oil pipeline that may be charging unjust and unreasonable rates.”
A copy of the order is available here.