Transco Gas Pipel v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2007 Decided May 11, 2007

No. 04-1234

TRANSCONTINENTAL GAS PIPE LINE CORPORATION,
PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT

SUNOCO, INC. (R&M), ET AL.,
INTERVENORS

Consolidated with
06-1143

On Petitions for Review of Orders of the
Federal Energy Regulatory Commission

Gregory Grady argued the cause for petitioner. With him
on the briefs were Michael Thompson and David A. Glenn.

Lona T. Perry, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were John S. Moot, General Counsel, and Robert H.
Solomon, Solicitor.
 2

Richard G. Morgan was on the brief for intervenor Sunoco,
Inc. (R&M).

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: Transco owns a natural gas
pipeline; Sunoco ships gas on Transco’s pipeline. In 1992, to
settle a lawsuit by Sunoco against Transco, Transco agreed to
provide natural gas gathering and transportation services to
Sunoco for 20 years. In 2000, Transco decided to sell facilities
used to provide the gathering services covered in that agreement
to a Transco affiliate, Williams Gas Processing. The Federal
Energy Regulatory Commission approved the transfer to
Williams, but also ruled that Transco breached its 1992
agreement with Sunoco. As a remedy, FERC ordered Transco
to reimburse Sunoco for the extra amount that Sunoco has to pay
to obtain gathering services from Williams.

Transco’s principal contention is that FERC lacked
jurisdiction to impose this remedy because the gathering
services become non-jurisdictional once transferred to Williams.
We disagree. At the time of the contract, FERC had authority
to regulate the gathering services. FERC therefore had authority
to order Transco to pay compensation for terminating those
services in violation of the contract. Transco’s remaining
challenges also lack merit, and we therefore deny Transco’s
petitions for review.
 3

I

In 1991, Transco (formally known as Transcontinental Gas
Pipe Line Corporation) divided its natural gas transportation
services from its natural gas sales services. That “unbundling”
enabled customers to purchase either gas or transportation from
Transco, rather than requiring customers to buy both the gas and
the transportation from Transco. See Exxon Mobil Corp. v.
FERC, 430 F.3d 1166, 1169 (D.C. Cir. 2005). Transco
unbundled its transportation and sales services in preparation for
FERC’s issuance of Order 636. Issued in 1992, Order 636
promoted competition within the natural gas industry in two
ways. It required pipelines to unbundle transportation services
from sales services. And it permitted customers to access new
sources of gas by abrogating their prior commitments to
purchase gas from particular pipeline companies. See United
Distribution Cos. v. FERC, 88 F.3d 1105, 1126 (D.C. Cir. 1996).

As a consequence of Transco’s unbundling, one of its
customers, Sunoco, stopped purchasing natural gas from
Transco (instead, Sunoco would purchase only the transportation
services from Transco). The decision by Sunoco (and other
Transco customers) to abrogate their agreements to purchase gas
from Transco in turn caused Transco to incur liability to the
producers from whom Transco had agreed to purchase natural
gas. See id. at 1176-77. Under Transco’s arrangement with its
natural gas producers – a fairly typical arrangement for a natural
gas pipeline – Transco had already agreed to “take or pay” for
natural gas from those producers to satisfy the demands of
Transco’s customers. Therefore, after unbundling, Transco
owed significant money to its natural gas producers – an amount
for which Transco no longer received reimbursement from
Sunoco and other customers. See id. Like other pipelines,
Transco reached settlements with most of its former natural gas
customers and divided the “take or pay” liability between
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Transco and those customers.

Unlike Transco’s other customers, Sunoco objected to
Transco’s proposed recovery of “take or pay” costs from
Sunoco, and five years of litigation ensued. Transco and Sunoco
resolved that conflict on February 14, 1992, in a Settlement and
Firm Transportation Service Agreement.

In the 1992 settlement, Sunoco agreed to terminate the
litigation against Transco. In exchange, Transco agreed to
provide Sunoco with 20 years of transportation service from
numerous specified points along the Outer Continental Shelf to
the Sunoco refinery in Pennsylvania. Transco agreed to provide
the entirety of that service (including gathering and
transportation) at a single rate – Transco’s maximum firm
transportation (“FT”) rate, which is subject to periodic change
by Transco. See J.A. 55 (Stipulation: “Appendix A to the
Agreement contains the Form of Service Agreement under Rate
Schedule FT to be effective between Transco and Sun at such
time as the FERC has approved the Agreement . . . .”); id. at 98
(Art. V, Service Agreement: “Buyer shall pay Seller for natural
gas delivered to Buyer hereunder in accordance with Seller’s
Rate Schedule FT and the applicable provisions of the General
Terms and Conditions of Seller’s FERC Gas Tariff . . . .”).

On June 4, 1992, FERC approved the agreement. On
August 1, 1992, the agreement became effective.

From August 1, 1992, to November 20, 2000, Transco
provided Sunoco the transportation services as required by the
1992 agreement. Those transportation services included
“gathering” in which Transco took natural gas from wellheads
in Texas and transported the gas to a collection point for further
movement through Transco’s principal transmission system.
See Williams Gas Processing – Gulf Coast Co. v. FERC, 331
 5

F.3d 1011, 1013 (D.C. Cir. 2003) (internal quotation omitted);
see Transcon. Gas Pipe Line Corp., 96 FERC ¶ 61,115, at
61,429-30, 61,434-35, order on reh’g, 97 FERC ¶ 61,296
(2001), pets. denied, Williams Gas Processing, 331 F.3d at
1013, cert. denied, sub nom., Producer Coal. v. FERC, 540 U.S.
1141 (2004) (“Transco I”).

On November 20, 2000, Transco applied to FERC for
permission to sell facilities used to provide those gathering
services to an affiliated company, Williams Gas Processing –
permission that FERC granted. See Transco I, 96 FERC ¶
61,115, at 61,429. The transfer to Williams has not yet
occurred; when it does, Transco will have completed a process
known as a “spin down.” Transco’s spin down of the seven
gathering facilities in Texas will remove those facilities from
FERC’s jurisdiction. Gathering services typically are outside
the scope of FERC’s jurisdiction unless the services are
provided in connection with an interstate pipeline’s transmission
of gas. See 15 U.S.C. § 717(b) (“The provisions of this
chapter . . . shall not apply . . . to the production or gathering of
natural gas.”). At the time of the 1992 settlement between
Transco and Sunoco, Transco’s gathering services were within
FERC’s jurisdiction because Transco provided those services in
connection with Transco’s interstate transmission of gas. See
Williams Gas Processing – Gulf Coast Co. v. FERC, 373 F.3d
1335, 1337 (D.C. Cir. 2004) (FERC regulates gathering services
if gathering services provided by interstate pipelines that resell
services in interstate commerce); Conoco, Inc. v. FERC, 90 F.3d
536, 540, 545 (D.C. Cir. 1996) (same).

Because the gathering facilities will be non-jurisdictional
once sold to Williams, FERC lacked authority to prevent
Transco from selling those facilities. And in part for that reason,
in 2001, FERC approved Transco’s application to transfer the
facilities to Williams. See Transco I, 96 FERC ¶ 61,115, at
 6

61,435; see also Williams Gas Processing, 331 F.3d at 1022.

In 2002, Sunoco filed a complaint with FERC that
challenged Transco’s spin down, arguing that the costs for the
services previously received from Transco would be $15-28
million higher when Sunoco purchased the transportation and
gathering services from Transco and Williams. See Sunoco, Inc.
(R&M) v. Transcon. Gas Pipe Line Corp., 100 FERC ¶ 61,252,
at 61,889-91 (2002). In response to Sunoco’s 2002 complaint,
FERC required Transco to acquire natural gas capacity from
Williams and to assign that capacity to Sunoco at a rate
consistent with the 1992 settlement – this would ensure that
Sunoco continued to receive the services included in the
settlement at the agreed-to price. Id. at 61,892, 61,894. As a
result of this Court’s decisions in cases such as Williams Gas
Processing, 373 F.3d at 1342-44, which confirmed that FERC
lacked jurisdiction to regulate gathering services, FERC vacated
the remedy from its 2002 order and imposed a new remedy.
FERC decided that Transco must “reimburse Sunoco for any
additional costs Sunoco may incur as a result of Transco’s
violation of the 1992 Settlement rate.” Sunoco, Inc. (R&M) v.
Transcon. Gas Pipe Line Corp., 111 FERC ¶ 61,400, at 62,675
(2005). Transco now challenges that order in this Court.

II

As the parties agree, all of the natural gas services that
Transco committed to provide in the original 1992 settlement
were services then within FERC’s jurisdiction. Section 16 of
the Natural Gas Act authorizes FERC, moreover, “to perform
any and all acts, and to prescribe, issue, make, amend, and
rescind such orders, rules, and regulations as it may find
necessary or appropriate to carry out the provisions of [that
Act].” 15 U.S.C. § 717o. And the Natural Gas Act gives FERC
broad power to remedy violations of the Act. Columbia Gas
 7

Transmission Corp. v. FERC, 750 F.2d 105, 109 (D.C. Cir.
1984). That authority includes the power to order monetary
remedies for violations of contractual obligations.

Transco does not dispute that FERC possesses the authority
to remedy breaches of settlement agreements. Instead, Transco
suggests that FERC has attempted to indirectly (and
impermissibly) regulate Williams’s provision of non-
jurisdictional gathering services by forcing Transco to reimburse
Sunoco for the costs of the gathering services. In Transco’s
view, such regulation exceeds FERC’s authority under Section
1(b) of the Natural Gas Act because FERC cannot regulate
gathering services. See 15 U.S.C. § 717(b) (“The provisions of
this chapter . . . shall not apply to . . . the production or gathering
of natural gas.”).

We disagree. FERC’s reimbursement order does not
regulate Williams’s provision of gathering services in any way.
FERC’s order is expressly directed against Transco, not
Williams. It requires Transco to reimburse Sunoco for causing
Sunoco’s costs to increase – in other words, for forcing Sunoco
to pay Transco and Williams more than the FT Rate that Sunoco
would owe to Transco under the settlement. FERC’s order has
no effect on Williams’s gathering services or the rate that
Williams charges Sunoco for gathering. See Sunoco, Inc.
(R&M) v. Transcon. Gas Pipe Line Corp., 114 FERC ¶ 61,180,
at 61,575-77 (2006) (“Sunoco VI”).

FERC traditionally has required reimbursement in
circumstances such as these. For example, in Office of the
Consumers’ Counsel v. FERC, 808 F.2d 125 (D.C. Cir. 1987),
a company abandoned a stretch of pipeline used to provide
jurisdictional natural gas service; FERC ordered the company to
reimburse customers for the costs of replacing the terminated
service with propane service (a non-jurisdictional energy
 8

service). See id. at 127, 129-30. This Court upheld FERC’s
order. See id. at 129-30, 133. Although the order in
Consumers’ Counsel arose in the form of a condition on
abandonment, rather than as a remedy for the breach of a
contract, the ultimate impact of FERC’s order in that case is
equivalent to FERC’s order here. Both orders required a FERC-
regulated company to reimburse customers when the company
increased customers’ costs by altering its earlier commitment to
provide certain specified services.

The Fifth Circuit approved FERC’s imposition of a similar
remedy in Coastal Oil & Gas Corp. v. FERC, 782 F.2d 1249
(5th Cir. 1986). Coastal delivered gas to its wholly owned
subsidiary, Lo-Vaca Gas Gathering Company, an intrastate
pipeline. Coastal had previously contracted to deliver that gas
to a FERC-regulated interstate pipeline belonging to the Florida
Gas Transmission Company. See id. at 1250-52. The Fifth
Circuit approved FERC’s order requiring Coastal to reimburse
Florida Gas for the extra costs that Florida Gas had to pay
following Coastal’s abandonment of FERC-regulated services.
See id. at 1253.

In an effort to counter these two decisions, Transco points
to other precedents of this Court. But the cases cited by Transco
do not address the issue before us and therefore do not help
Transco’s cause.

In one of the cases, as a remedy for Columbia Gas’s alleged
breach of a tariff agreement, FERC required Columbia to
provide and pay for services that were outside the scope of
FERC’s jurisdiction. See Columbia Gas Transmission Corp. v.
FERC, 404 F.3d 459, 460, 463 (D.C. Cir. 2005). FERC lacked
jurisdiction to impose the order in that case because Columbia’s
tariff governed non-jurisdictional gathering services from the
time of the tariff’s inception. See id. at 460-61. Therefore,
 9

regulation of the services in Columbia’s tariff was never within
the scope of FERC’s jurisdiction.

Here, by contrast, Transco’s settlement agreement with
Sunoco covered gathering services that were within FERC’s
jurisdiction at that time. Because FERC’s order in this case
(unlike in Columbia Gas) remedied the violation of a contract
regarding jurisdictional services, Columbia Gas does not
support Transco.

In Williams Gas Processing – Gulf Coast Co. v. FERC, 373
F.3d 1335 (D.C. Cir. 2004), Williams Field Services began
providing numerous energy companies with gathering services
from facilities that Transco previously owned. See id. at 1338-
40. FERC concluded that Williams Field Services had been
charging an unfair rate for those services, so FERC ordered
Williams Field Services to change its rate. See id. at 1340-41.
Although FERC argued that Williams Field Services and
Transco were so closely connected that FERC’s regulation of
Williams’s rate was really just a regulation of Transco (a
company within FERC’s jurisdiction), this Court concluded that
Williams acted independently from Transco when it established
its rates. Therefore, we found that FERC had no authority to
regulate the rate that Williams charged for entirely non-
jurisdictional gathering services. See id. at 1343.

The difference in the case here, of course, is that FERC’s
orders have no effect on the rate that Williams Gas Processing
will charge Sunoco for the provision of non-jurisdictional
gathering services. Rather, FERC’s orders simply require
Transco to reimburse Sunoco for the extra gathering costs that
Sunoco will bear after the spin down. See Sunoco VI, 114 FERC
¶ 61,180, at 61,575-77.

The decision in Conoco Inc. v. FERC, 90 F.3d 536 (D.C.
 10

Cir. 1996), likewise does not support Transco’s argument. In
that case, FERC had issued orders related to NorAm Gas’s spin
down of gathering facilities to NorAm Field. See id. at 539,
541, 553. FERC ordered both NorAm Gas and NorAm Field to
provide NorAm Gas’s former customers with two years of
gathering services from NorAm Field following the spin down.
See id. at 541-42, 550. This Court concluded that FERC lacked
jurisdiction to issue the order because it indirectly regulated
services provided by NorAm Field, a non-jurisdictional
gathering facility. See id. at 552-53.

In the orders on appeal in this case, by contrast, FERC has
not required Williams to provide Sunoco with gathering
services. Therefore, FERC’s orders neither directly nor
indirectly regulate Williams’s provision of non-jurisdictional
gathering services. Cf. Richmond Power & Light v. FERC, 574
F.2d 610, 620 (D.C. Cir. 1978) (“What the Commission is
prohibited from doing directly it may not achieve by
indirection.”).

In sum, as the case law demonstrates, FERC possesses
jurisdiction to order Transco to reimburse Sunoco for the extra
costs that Sunoco will bear after Transco transfers facilities used
to provide gathering services to Williams.

III

In its petitions, Transco raises eight additional arguments,
none of which is persuasive, particularly given the “high degree
of deference” we give to “the Commission’s interpretation of a
settlement agreement.” Transcon. Gas Pipe Line Corp. v.
FERC, 922 F.2d 865, 869 (D.C. Cir. 1991).

First, Transco contends that the 1992 agreement governed
only jurisdictional services and points out that gathering services
 11

from the seven Texas facilities will cease to fall within that
category following the spin down. Because the agreement was
intended to apply only to jurisdictional services (so Transco
argues), Transco contends that its termination of what are now
non-jurisdictional services cannot possibly breach its agreement
with Sunoco.

This is incorrect because the agreement included a flat
commitment by Transco to provide certain specified services for
20 years. FERC reasonably concluded that Transco’s new
arrangement breaches that agreement.

Second, Transco also argues that its spin-down proposal did
not violate the 1992 agreement because Article IV, paragraph 3
of the Settlement and Article V, paragraph 1 of the Service
Agreement constitute so-called Memphis Clauses. The Clauses
provide that nothing in the agreement “is intended, nor shall it
be construed, as limiting or affecting in any way Transco’s
rights under the Natural Gas Act to file and place into effect any
changes in rates or modifications, additions, or deletions to its
FERC Gas Tariff.” J.A. 66 (Settlement); see also id. at 98
(Service Agreement). Transco contends that the Clauses permit
Transco to unilaterally alter the FT Rate it charges to Sunoco or
to abandon gathering services. FERC reasonably found
Transco’s contention to be both factually and legally flawed.

As a factual matter, the agreement permits Transco to
modify only the rate it charges to Sunoco or the general terms
and conditions of the service that Transco provides to Sunoco.
The Memphis Clauses do not purport to provide Transco with
any authority to eliminate portions of the services that it
provides to Sunoco.

As a legal matter, moreover, the Supreme Court and this
Court have confirmed that Memphis Clauses ordinarily do not
 12

authorize companies to unilaterally alter the amount of services
they have agreed to provide their customers. The Memphis
Light case from which the Clauses originated involved a
contract clause that permitted a change merely in energy rates –
not a change in the amount of energy services covered by the
relevant contract. See United Gas Pipe Line Co. v. Memphis
Light, 358 U.S. 103, 105 (1958). This Court has determined that
changes in services are not permitted under Memphis Clauses.
See Exxon Mobil Corp. v. FERC, 430 F.3d 1166, 1173 (D.C.
Cir. 2005); id. at 1168 (“[P]rices may be increased, terms may
be altered, but contracts may not be unilaterally amended to
effectively add new service.”). Transco’s Memphis Clause
argument therefore fails.

Third, Transco points to a phrase in Article II(A), paragraph
2, of the settlement that provides: “[A]bandonment of this FT
service shall occur only in accordance with the procedures and
standards set forth in Section 7(b) of the Natural Gas Act.” See
Petr.’s Br. at 28 (internal quotation omitted). Because the only
restriction is the requirement that abandonment comply with the
Natural Gas Act, Transco suggests that some abandonment of its
services must be permissible.

But the context of the contractual provision in which the
“abandonment” phrase appears is as follows: “FERC approval
of this Stipulation and Agreement shall provide that pregranted
abandonment under Section 284.221(d) of the Regulations will
not be applicable to this FT service. As a result, abandonment
of this FT service shall occur only in accordance with the
procedures and standards set forth in Section 7(b) of the Natural
Gas Act.” J.A. 61-62 (Art. II(A), ¶ 2, Settlement). This
provision does not establish that abandonment of services is
permitted if it complies with the Natural Gas Act. The
“pregranted abandonment” to which paragraph 2 refers is a
specific right to abandon transportation services upon the
 13

expiration of an energy company’s contract to provide
transportation services. See 18 C.F.R. § 284.221(d). Paragraph
2 denies that particular abandonment procedure to Transco; it
does not suggest, however, that Transco can abandon energy
services before the expiration of Transco’s 20-year contract
term.

Furthermore, interpreting Article II as permission for
Transco to abandon some of the services specified in Exhibit A
of the agreement would make no sense. It would contravene the
provisions in the agreement that require Transco to provide
services for a period of at least 20 years. Why would Transco
and Sunoco have agreed to a 20-year contract term if the 1992
agreement really meant that Transco had to provide the services
only until Transco unilaterally decided to abandon some of those
services? Transco has no answer.

Fourth, Transco claims that certain provisions in the 1992
agreement regarding successors show that Transco and Sunoco
envisioned Transco’s selling facilities used to provide some of
its services to other companies, such as Williams. Therefore,
according to Transco, FERC should no longer hold Transco
responsible for gathering services because Sunoco was aware
that Transco might stop providing some of the services. The
problem with Transco’s argument is that the text of the 1992
agreement explicitly binds Transco’s and Sunoco’s successors
to the agreement. Therefore, either Transco must adhere to the
agreement, or Transco’s successor must provide the services
governed by the 1992 agreement. Because Williams is not such
a successor (as Transco has previously argued to FERC), FERC
reasonably concluded that Article IV of the Settlement and
Article VI of the Service Agreement bind Transco to its 1992
commitment. See Sunoco, Inc. (R&M) v. Transcon. Gas Pipe
Line Corp., 114 FERC ¶ 61,180, at 61,575 (2006) (“Sunoco
VI”).
 14

Fifth, Transco argues that FERC mischaracterized the FT
Rate that Transco must charge Sunoco as a flat rate rather than
a cost-based rate. Therefore, according to Transco, Transco
could have charged Sunoco an extra fee for gathering services
– in addition to the FT Rate – even if Transco continued to
provide gathering services to Sunoco rather than abandoning
those services. If the 1992 agreement permitted Transco to
provide an extra charge for gathering services, Transco contends
it certainly cannot be a breach of the agreement for Transco to
choose instead to terminate its gathering services while
continuing to charge just the FT Rate to Sunoco.

The problem for Transco here is that the terms of the
agreement establish that Sunoco would pay a single rate for all
of the services that it received from Transco for 20 years –
services that initially included Transco’s gathering services.
Furthermore, Article IV, paragraph 2 of the settlement provides
that various portions of the settlement are non-severable –
suggesting that Transco could not separate its gathering services
and subject them to a distinct charge. As a result, there is no
contractual authority for Transco to impose a gathering charge
on Sunoco above and beyond the FT Rate that Sunoco pays for
the remaining settlement charges. And there is no contractual
basis, therefore, for Transco to continue charging Sunoco the
full FT Rate without ensuring that Sunoco receives all of the
services listed in the agreement at the agreed-upon rate.

Sixth, Transco argues that FERC’s remedy is inequitable
and unreasonable under Section 5 of the Natural Gas Act. See
15 U.S.C. § 717d(a) (when FERC finds natural gas rate unjust
or unreasonable, “Commission shall determine the just and
reasonable rate . . . to be thereafter observed and in force, and
shall fix the same by order”). According to Transco, FERC’s
order is unjust because FERC had already conditioned its
approval of Transco’s spin down on Transco’s decreasing its FT
 15

Rate. See Transcon. Gas Pipe Line Corp., 97 FERC ¶ 61,296,
at 62,388-89 (2001). Therefore, as a result of FERC’s latest
orders, Transco notes that it must both (i) reduce its FT Rate to
reflect its lower operating costs without the gathering facilities
and (ii) reimburse Sunoco for the extra amount above the FT
Rate that Sunoco will have to pay for gathering services after the
spin down. According to Transco, that combination of FERC
orders causes Transco to face a double burden, which is unjust.

Transco’s argument does not account for the fact that
Transco never charged Sunoco a rate for services that is broken
down to reflect the separate costs of the gathering services.
Since 1992, Transco always charged one FT Rate to Sunoco.
Therefore, the reduction in Transco’s FT Rate to reflect the costs
that Transco will save after the spin down is unlikely to equal
the extra fees (above the pre-spin down FT Rate) that Sunoco
will pay to receive gathering services from Williams. In fact,
FERC calculates that Transco’s reduction in costs due to
abandonment is likely to be de minimis, in contrast to the $15-
28 million in extra costs that Sunoco has contended it will bear
after the spin down. See Sunoco VI, 114 FERC ¶ 61,180, at
61,581-82. Therefore, the mere reduction in Transco’s FT Rate
that FERC ordered as a condition of Transco’s abandonment
plainly will not compensate Sunoco for the loss of gathering
services that Transco committed to provide in the 1992
agreement. FERC has “broad authority to fashion equitable
remedies.” Columbia Gas Transmission Corp. v. FERC, 750
F.2d 105, 109 (D.C. Cir. 1984). Within that “broad authority,”
FERC appropriately determined that Sunoco will receive fair
treatment under the 1992 agreement only if Transco reimburses
Sunoco for the extra gathering costs that Sunoco will pay to
Williams after Transco’s spin down.

Seventh, Transco broadly argues that FERC’s order is
contrary to FERC’s long-standing pro-competitive policies in
 16

favor of unbundling energy services. To be sure, Order 636
encouraged natural gas companies to unbundle their
transportation and sales services to promote competition within
the natural gas industry. And FERC has concluded that the spin
down of gathering facilities furthers FERC’s policy in favor of
unbundling. See Transcon. Gas Pipe Line Corp., 96 FERC
¶ 61,115, at 61,429-30, 61,434-35, order on reh’g, 97 FERC
¶ 61,296 (2001), pets. denied, Williams Gas Processing – Gulf
Coast Co. v. FERC, 331 F.3d 1011, 1013 (D.C. Cir. 2003), cert.
denied, sub nom., Producer Coal. v. FERC, 540 U.S. 1141
(2004).

In addition to its pro-competitive policies, however, FERC
also has had a long-term policy in favor of enforcing
settlements. See Brooklyn Union Gas Co. v. FERC, 409 F.3d
404, 405, 407 (D.C. Cir. 2005); United Mun. Distribs. Group v.
FERC, 732 F.2d 202, 209 (D.C. Cir. 1984). And FERC’s orders
in this case simply enforce the 1992 settlement between Transco
and Sunoco.

Eighth, Transco contends that Sunoco’s 2002 challenge to
Transco’s alleged settlement breach was an improper collateral
attack on FERC’s 2001 approval of Transco’s abandonment of
facilities used to provide gathering services. This argument is
entirely unpersuasive. In the orders before this Court, FERC did
not revisit whether it properly approved Transco’s abandonment
of gathering facilities. Instead, FERC tried to determine how to
fairly remedy Transco’s breach of its 1992 agreement in light of
Transco’s already-approved abandonment. See Sunoco, Inc.
(R&M) v. Transcon. Gas Pipe Line Corp., 100 FERC ¶ 61,252,
at 61,889 (2002). By contrast, the cases that Transco cites
regarding collateral attack involved repeated requests for FERC
to consider the same issue. See, e.g., McCulloch Interstate Gas
Corp. v. FPC, 536 F.2d 910, 912-13 (10th Cir. 1976). Those
cases are irrelevant to the issue here.
 17

***

We deny Transco’s petitions for review.

So ordered.