CHARLESTON — The West Virginia Supreme Court found that the Public Service Commission of West Virginia properly exercised jurisdiction over Equitrans' gathering facilities and affirmed a lower court's order from earlier this year.
Equitrans appealed a March 16 order of the Public Service Commission of West Virginia which ordered Equitrans to permit Hope Gas to connect a natural gas field tap on the property of Ronald Hall and Ashton Hall to Equitrans’ gathering line.
On appeal, Equitrans argued the PSC lacked subject matter jurisdiction over this action insofar as the PSC had divested itself of jurisdiction over gathering facilities by legislative rule, according to a Nov. 15 opinion by the West Virginia Supreme Court.
"The collective respondents counter—asserting several differing legal theories—that the PSC properly exercised jurisdiction over Equitrans’ gathering facilities," the opinion states. "Because we agree that the PSC properly exercised jurisdiction in this matter, we affirm the PSC’s March 16, 2022, order."
Justice Bill Wooton delivered the majority opinion. Justice Tim Armstead concurred and wrote a separate opinion. Justice Haley Bunn recused herself from the case and Judge William Sadler heard the case in her place.
Equitrans is a natural gas interstate pipeline company that transports natural gas from various wells to a central facility and then to an interstate pipeline, but it does not own the gas transported through the lines. It also does not provide utility gas distribution services, but other public utilities, like Hope Gas and Mountaineer Gas, tap into Equitrans' gathering lines, buy gas and distribute it to their customers.
The Halls have a home in Reader and the property previously had natural gas service. Hope Gas denied the Halls' request for resumption of services, stating that Equitrans had denied its request to re-establish a service connection to the Halls' residence.
The Halls then filed a complaint with the PSC against Hope Gas and on March 12, 2021, the PSC added Equitrans to the complaint.
The PSC found that it did have jurisdiction over the lines, despite Equitrans saying it did not. Equitrans then appealed that order.
"Here, the record readily reveals that the gathering line at issue has been used to serve rural West Virginia consumers for several decades, including more than twenty-five years under Equitrans’ ownership, and several decades prior under Equitrans’ predecessors, Equitable Resources and Equitable Gas Company," Wooton wrote. " Because the line was historically (and continues to be) used to serve rural consumers, it is dedicated to public service under Boggs. As such, the owner thereof continues to operate it as a public utility until the PSC terminates its public utility status."
To date, there has been no action by the PSC terminating this jurisdiction, nor have any circumstances “clearly and unequivocally” demonstrated its intent to relinquish that jurisdiction, Wooton wrote.
"Therefore, we conclude that the PSC properly exercised jurisdiction over this matter under Boggs, and will continue to do so until it relinquishes such jurisdiction or the line is no longer dedicated to public service. Having concluded that the PSC properly exercised jurisdiction over the gathering facility at issue in this matter below, we affirm," he wrote."
In his separate opinion, Armstead wrote that he reached the same conclusion as the majority, but in a different manner.
Armstead wrote that while he concurred in the ultimate disposition reached by the court that the PSC had jurisdiction over the provision of natural gas services to tap consumers from the gathering lines in question, he reached that decision for different reasons.
"The majority opinion fails to apply the clear meaning of the statutory provisions governing PSC jurisdiction, but instead misinterprets the statutory provisions governing the applicability of Section 3a," Armstead wrote. "The majority incorrectly asserts that West Virginia Code 24-3-3a(c) applies to Equitrans by finding that the gathering line is not 'solely dedicated to … gathering … of natural gas.' The mere allowance of farm taps on a pipeline is insufficient to convert the line to a 'mixed-use' line."
As acknowledged by the majority, it is actually a separate and distinct LDC, in this case, Hope Gas, that serves the natural gas customer in this case, Armstead writes.
"Such LDCs clearly fall within the jurisdiction of the PSC," he writes. "Equitrans does not assume dual roles as a gathering line and an LDC simply because it permits taps on a line which clearly serves as a gathering line."
West Virginia Supreme Court of Appeals case number: 22-0293