The regulatory landscape for the energy industry has changed significantly in the past few decades, but a century-old Supreme Court canon—the filed rate doctrine—continues to be a valuable tool for regulated parties in litigation. The doctrine can provide a basis for a court to dismiss many types of lawsuits, including antitrust, tort, and contract claims. Evaluating the extent to which a claim may improperly infringe upon a filed rate, whether at the state or federal level, is a critical first step in litigation that may save parties substantial time and money.
From its humble beginnings more than a century ago—the Supreme Court once heard a case brought by a railroad for $58 it allegedly undercharged its customers for train tickets to Salt Lake City, Utah—the filed rate doctrine has become a powerful tool. The doctrine holds that state law (and some federal law) cannot be used to invalidate, or collaterally attack a “rate” on file with an agency. Nor may a court assume, for purposes of calculating damages, that a rate other than the filed rate would have been charged. The doctrine has been applied in many industries—insurance, telecommunications, and rail, among others—but frequently arises in the energy sphere, particularly with regard to entities regulated by the Federal Energy Regulatory Commission (FERC).
In theory, the doctrine is simple and straightforward—if FERC says you can charge a party $5, you charge them $5. If they sue, saying the charge should have been $4, the lawsuit should be thrown out. But given the complexities and ever-changing landscape of energy regulation, what exactly is a “filed rate,” and which legal actions implicate it, are not as straightforward as the Salt Lake City train fare.
Filed Rate Doctrine in a World of Market-Based Rates
What happens when FERC doesn’t approve a numerical rate, but rather lets the market set the rate (either with the help of an ISO/RTO or otherwise)? Despite protests from litigants and academic advocates, courts have generally continued to apply the doctrine even where rates are market-based, rather than a specific numerical rate approved ex ante by an agency. For example, after the Western Energy Crisis of the early 2000s, several parties sued wholesale traders and power suppliers, with the premise that but for fraudulent actions of the defendants, they would not have had to pay so much at wholesale. Courts repeatedly dismissed the lawsuits, noting the “market-based nature of the rates at issue” did not dissuade them from applying the doctrine, even though “market-based rates may not have historically been the type of rate envisioned by the filed rate doctrine.”
Relatedly, courts have found the agency need not have even reviewed and approved the rate in question—simply filing it may be sufficient. As the First Circuit held when denying antitrust and breach-of-contract claims against a utility, “[i]t is the filing of the tariffs, and not any affirmative approval or scrutiny by the agency, that triggers the filed rate doctrine.” As long as the tariffs in question are “filed with the [agency],” they are “duly submitted, lawful rates” for which the doctrine applies.
Broad Sweep Encompasses More Than Just Rates
Frequently, court actions do not (at least on their face) appear to implicate a rate at all. For example, in Medco Energi US, L.L.C. v. Sea Robin Pipeline Co., the Fifth Circuit was faced with what appeared to be a traditional business dispute—a customer alleged that a pipeline had materially misrepresented how long it would take to repair the pipeline after a hurricane, to the customer’s detriment. Recognizing, as the Supreme Court has, that “[a]ny claim for excessive rates can be couched as a claim for inadequate services and vice versa,” the Fifth Circuit nevertheless dismissed the action, finding that because the customer had paid for a rate subject to the tariff provisions—including that the service was interruptible—the customer could neither recover damages nor move forward with the lawsuit.
Courts have repeatedly recognized the doctrine applies not only to rates per se, but to all terms of a filed tariff in a variety of disparate situations, such as in the allocation of transmission capacity or the use of space on a natural gas pipeline. Given its wide breadth and far-reaching effect, it is no surprise courts have relied on the doctrine to dismiss many causes of action raised against regulated companies. These include, but are not limited to, federal and state antitrust claims; RICO (Racketeer Influenced and Corrupt Organizations Act) claims; breach-of-contract claims; state tort claims; and state consumer protection claims. As courts have recognized, “[i]t is a far-reaching doctrine.”
Litigation can be costly and disruptive for any enterprise. Entities subject to FERC regulation, even if limited in scope, can greatly benefit from an early and thorough litigation analysis to determine whether the claims at issue and the relief requested in a lawsuit implicate the doctrine. Given the breadth and power of the doctrine, such an evaluation is crucial in mounting a robust defense and hopefully securing a cost-effective and favorable outcome. ■
—Jennifer Quinn-Barabanov is a partner and co-leader of Steptoe and Johnson’s Energy Litigation practice. Shaun Boedicker is a member of the Energy practice in Steptoe’s Washington, D.C., office.