Vinson & Elkins Secures Per Curiam Judgment for Texas Eastern Transmission at D.C. Circuit Court Defending FERC Dismissal of Administrative Complaint

The case involved claims that Texas Eastern violated the Natural Gas Act, its FERC Gas Tariff and FERC regulations by not timely repairing outages in 2014 and 2016 on Texas Eastern’s offshore pipeline system in the Gulf of Mexico. FERC set the complaint for hearing before an administrative law judge (ALJ) who, following a seven-day evidentiary hearing and briefing, issued an initial decision finding that Texas Eastern’s response to the outages was reasonable and that Texas Eastern did not violate the NGA, its FERC Gas Tariff or the Commission’s regulations.  Based on Vinson & Elkins’ cross-examination of the complainant’s expert witness, the ALJ found that the witness was not an expert, “his credibility is significantly undermined by his lack of attention to detail, confusion about simple concepts, and contradictions of his own testimony,” and that his testimony was only reliable “to the extent he unwittingly corroborates other witnesses.”

FERC then issued its Order affirming the ALJ’s initial decision and adopted its reasoning with limited modification. FERC, agreeing with briefs filed by Texas Eastern and Commission Trial Staff, found that the ALJ’s determinations on the credibility of witnesses and admission of evidence were adequately supported by the record and that the complainant’s failure to meet its burden “was not a close call.”

In its appeal, the producer reiterated its claims that the ALJ erred and further challenged the adequacy of FERC’s reasoning in affirming the ALJ’s initial decision.  Texas Eastern’s brief successfully argued that the Court should not consider certain claims raised on appeal, and that the producer’s remaining claims were not supported by the administrative record. The D.C. Circuit dismissed in part and denied in part the petition for review, a complete victory for Texas Eastern.

The V&E team was led by partner Jay Seegers and counsel Andy Beach, with Katherine O’Connor of Enbridge as co-counsel. Counsel Max Etchemendy briefed and argued for Texas Eastern in the appeal with assistance from partner Jeremy Marwell.