Buckeye Partners v. FERC ( 2022 )


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  • Case: 22-60100       Document: 00516315236             Page: 1      Date Filed: 05/11/2022
    United States Court of Appeals
    for the Fifth Circuit                                United States Court of Appeals
    Fifth Circuit
    FILED
    May 11, 2022
    No. 22-60100                        Lyle W. Cayce
    Clerk
    Buckeye Partners, L.P.; Energy Transfer, L.P.;
    Enterprise Products Partners, L.P.; Plains All
    American Pipeline, L.P.; Colonial Pipeline Company;
    Association of Oil Pipe Lines,
    Petitioners,
    versus
    Federal Energy Regulatory Commission; United States
    of America,
    Respondents.
    Petition for Review of an Order of the
    Federal Energy Regulatory Commission
    Before Stewart, Haynes, and Ho, Circuit Judges.
    Per Curiam:*
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited circumstances set
    forth in 5th Circuit Rule 47.5.4.
    Case: 22-60100        Document: 00516315236              Page: 2       Date Filed: 05/11/2022
    No. 22-60100
    In 1993, the Federal Energy Regulatory Commission (“FERC”)
    established an indexing program that oil pipelines use to set the rates they
    charge for the interstate transport of crude oil and refined petroleum
    products. Revisions to Oil Pipeline Regulations, Order No. 561, 
    58 Fed. Reg. 58,753
     (Nov. 4, 1993) (“Order No. 561”). To ensure that the rates stay “just
    and reasonable” over time, Order No. 561 required FERC to reevaluate the
    index every five years. 
    Id. at 58,754
    .
    In January 2022, FERC issued its latest order in this five-year review
    scheme. Five-Year Review of the Oil Pipeline Index, Order on Rehearing, 
    87 Fed. Reg. 4476
     (Jan 28, 2022) (“Rehearing Order”). The Rehearing Order
    reduced the oil pipeline index for the five-year period beginning July 1, 2021,
    from the Producer Price Index for Finished Goods (“PPI-FG”) plus 0.78
    percent to PPI-FG minus 0.21 percent. 
    Id.
     The decrease required oil
    pipelines to reduce their rate ceiling levels and accordingly reduce the
    amount they could charge for oil transportation. Aggrieved by the Rehearing
    Order, five Petitioners sought review in our court. A sixth Petitioner filed a
    petition for review in the D.C. Circuit—where it has its principal place of
    business and thus where it was required to file.1 See 
    28 U.S.C. § 2343
    .
    Because the other petitions for review had already been filed in our court, the
    D.C. Circuit transferred the sixth petition here. See 
    id.
     § 2112(a)(1), (5).
    Joint Intervenors—entities supporting the FERC order under
    review—moved to transfer this case to the D.C. Circuit, asserting that
    transfer “is necessary to maintain continuity and consistency in judicial
    1
    The five Petitioners who initially filed in this court are Buckeye Partners, L.P.,
    Energy Transfer L.P., Enterprise Products Partners, L.P., Plains All American Pipeline,
    L.P., and Colonial Pipeline Company. The Petitioner who initially filed in the D.C. Circuit
    is the Association of Oil Pipe Lines.
    2
    Case: 22-60100      Document: 00516315236            Page: 3    Date Filed: 05/11/2022
    No. 22-60100
    review of FERC’s rate Indexing program.” We agree and accordingly
    GRANT the Joint Intervenors’ motion to transfer.
    I.
    We may transfer proceedings related to an order under review to any
    other court of appeals “[f]or the convenience of the parties in the interest of
    justice.” See 
    28 U.S.C. § 2112
    (a)(5). Though we generally refrain from
    transferring a case and disturbing an aggrieved party’s choice of forum,
    transfer is appropriate if it “serve[s] the purposes of judicial economy.” See
    Tenneco Oil Co. v. EPA, 
    592 F.2d 897
    , 900 (5th Cir. 1979) (per curiam); see
    also E. Air Lines, Inc. v. Civ. Aeronautics Bd., 
    354 F.2d 507
    , 510 (D.C. Cir.
    1965). In evaluating whether transfer is warranted, “one factor that has
    considerable weight . . . is the desirability of transfer to a circuit whose judges
    are familiar with the background of the controversy through review of the
    same or related proceedings.” E. Air Lines, 
    354 F.2d at 510
    . Accordingly,
    “where the same or inter-related proceeding was previously under review in
    a court of appeals, and is now brought for review of an order entered after
    remand, or in a follow-on phase,” transfer to the original appellate court “is
    necessary to maintain continuity in the total proceeding.”             Pub. Serv.
    Comm’n v. Fed. Power Comm’n, 
    472 F.2d 1270
    , 1272 (D.C. Cir. 1972) (per
    curiam) (internal quotation marks and citation omitted).
    The Rehearing Order at issue here is part of FERC’s index-review
    scheme that was originally promulgated in Order No. 561 and that has been
    reviewed exclusively by the D.C. Circuit for the last twenty-six years. See
    Ass’n of Oil Pipe Lines v. FERC (AOPL I), 
    83 F.3d 1424
     (D.C. Cir. 1996);
    Ass’n of Oil Pipe Lines v. FERC (AOPL II), 
    281 F.3d 239
     (D.C. Cir. 2002);
    Flying J Inc. v. FERC, 
    363 F.3d 495
     (D.C. Cir. 2004); Ass’n of Oil Pipe Lines
    v. FERC (AOPL III), 
    876 F.3d 336
     (D.C. Cir. 2017). Each order issued as
    part of this review scheme reexamines the indexing rate set the previous five
    years and makes necessary adjustments to account for “the actual cost
    3
    Case: 22-60100        Document: 00516315236              Page: 4       Date Filed: 05/11/2022
    No. 22-60100
    changes experienced by the oil pipeline industry.” See, e.g., 58 Fed. Reg. at
    58,754.2 Because each order reexamines the order issued five years prior,
    each is necessarily a “follow-on” to its predecessor. What’s more, all of
    FERC’s orders regarding the oil pipeline pricing index (including the
    Rehearing Order at issue here) are inter-related—they are all derivatives of
    FERC’s original Order No. 561.
    True, the Rehearing Order does not raise issues “completely
    identical” to those previously reviewed by the D.C. Circuit; but that does not
    bar transfer.3 See Midwest Television, Inc. v. FCC, 
    364 F.2d 674
    , 675–76 (D.C.
    Cir. 1966) (per curiam). Each order in this scheme is part of the same
    regulatory action—the creation and review of the oil pipeline pricing index.4
    Thus, we view the Rehearing Order as part of a “single total proceeding,”
    see Pub. Serv. Comm’n, 
    472 F.2d at
    1272 & n.4 (internal quotation marks and
    citation omitted); not merely a “companion” order issued in a “cohesive
    scheme of regulation,” see Mobil Oil Expl. Co. v. FERC, 
    814 F.2d 1001
    , 1003
    2
    See also Five-Year Review of Oil Pipeline Pricing Index, 
    65 Fed. Reg. 79,711
     (Dec.
    20, 2000), modified on remand by 
    102 FERC ¶ 61,195
     (Feb. 24, 2003); Five-Year Review of
    Oil Pricing Index, 
    71 Fed. Reg. 15,329
     (Mar. 21, 2006); Five-Year Review of Oil Pricing
    Index, 
    75 Fed. Reg. 80,300
     (Dec. 16, 2010); Five-Year Review of the Oil Pipeline Index, 
    80 Fed. Reg. 81,744
     (Dec. 17, 2015). Notably, all the orders have the same or similar names.
    3
    At least one issue, however, is substantially similar. In 2015, FERC used the
    middle fifty percent of cost data from the 2009–2014 period, and, on review, the D.C.
    Circuit held that FERC provided a reasonable explanation for doing so. AOPL III, 876 F.3d
    at 343–44. Though based on a new record and a different time period, FERC’s decision on
    whether to rely on the middle fifty percent of cost data—as opposed to the middle eighty
    percent—is again at issue in the instant matter. See 87 Fed. Reg. at 4476.
    4
    Indeed, the D.C. Circuit’s review of the 2000 and 2015 index orders refer to and
    reference the previously issued orders multiple times. See AOPL II, 
    281 F.3d at 241, 245
    (noting that FERC’s 2000 order impermissibly deviated from the methodology used in
    Order No. 561); AOPL III, 876 F.3d at 342–43 (referencing the 2003, 2006, and 2010 orders
    in determining that FERC’s 2015 order provided the required reasoned explanation for its
    change in methodology).
    4
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    No. 22-60100
    (5th Cir. 1987) (per curiam). It “would not further the principles of ‘sound
    judicial administration’ . . . to have two courts of appeals review such closely
    related agency proceedings.” Midwest Television, 
    364 F.2d at 675
    .
    Moreover, because the Rehearing Order is related to the orders
    previously reviewed by the D.C. Circuit, that court has “already passed on
    some controversies between and among the contending parties” regarding
    the calculation of the oil pipeline pricing index. See Farah Mfg. Co. v. NLRB,
    
    481 F.2d 1143
    , 1145 (8th Cir. 1973) (per curiam); see also AOPL III, 876 F.3d
    at 338 (“With limited exceptions, [FERC] has applied a generally consistent
    methodology, approved by this court, to calculate the change in normal
    industry costs at each five-year interval.” (emphasis added)). That, of
    course, does not prevent us from deciding the relevant issues in the first
    instance. But the D.C. Circuit’s background and experience with these
    specific issues further supports our conclusion that transfer will facilitate
    sound judicial administration and is accordingly warranted. See Mun. Distrib.
    Grp. v. Fed. Power Comm’n, 
    359 F.2d 1367
    , 1368 (D.C. Cir. 1972) (per
    curiam); see also ITT World Commc’ns, Inc. v. FCC, 
    621 F.2d 1201
    , 1208 (2d
    Cir. 1980).
    ***
    We GRANT Joint Intervenors’ motion to transfer this case to the
    D.C. Circuit. FERC’s motion to extend the time to file the administrative
    record and hold the petitions in abeyance is CARRIED WITH THE
    CASE for consideration by the D.C. Circuit.
    5