Judge dismisses TOTAL declaratory judgment action against FERC

On July 15, U.S. District Judge Nancy F. Atlas issued an order dismissing TOTAL’s declaratory judgment action FERC.  This case was TOTAL’s effort “to bring the fight to FERC” by filing a declaratory judgment action in federal court in Texas claiming FERC lacked jurisdiction to adjudicate the manipulation claims against TOTAL.  Judge Atlas rejected TOTAL’s arguments and granted FERC’s motion to dismiss the action.

Judge Atlas ruled that, absent extraordinary circumstances, Article III courts should not interfere with ongoing administrative proceedings, especially where the challenge is to agency processes still in their early stages.  Judge Atlas also rejected TOTAL’s claim that Natural Gas Act (NGA), as amended by the Energy Policy Act of 2005, did not grant FERC the authority to impose civil penalties.  According to Judge Atlas, FERC retains authority to issue a final order adjudicating whether an entity violated its anti-manipulation rule and impose civil penalties and disgorgement under the NGA.  The order includes some discussion about the de novo review provision in the Federal Power Act (FPA), and the judge contrasts that right under the FPA to the NGA to conclude that the NGA does not offer TOTAL a right to proceed in court like they wanted.   Rather, judicial review would only come after a FERC ruling and order on rehearing via an appeal to the proper court of appeals.

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