Gulfport Energy Corporation v. FERC

Case: 21-60017 Document: 00516398943 Page: 1 Date Filed: 07/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 19, 2022
No. 21-60017
Lyle W. Cayce
consolidated with
Clerk
No. 21-60200
Gulfport Energy Corporation,
Petitioner,
versus
Federal Energy Regulatory Commission,
Respondent.
Petitions for Review of Orders of
the Federal Energy Regulatory Commission
Nos. RP20-1204, RP20-1236,
RP20-1206, RP20-1233
Before Davis, Smith, and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
The Bankruptcy Code allows debtors to breach and cease performing
executory contracts if the bankruptcy court approves. We thus have held that
debtors may “reject” regulated energy contracts even if the Federal Energy
Regulatory Commission (“FERC”) would not like them to. Off. Comm. of
Unsecured Creditors of Mirant Corp. v. Potomac Elec. Power Co. (In re Mirant
Corp.), 378 F.3d 511, 515 (5th Cir. 2004). A sister circuit agrees, FERC v.
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FirstEnergy Sols. Corp. (In re FirstEnergy Sols., Corp.), 945 F.3d 431, 446 (6th
Cir. 2019), and we confirmed our view mere months ago, FERC v. Ultra Res.,
Inc. (In re Ultra Petroleum Corp.), 28 F.4th 629, 634 (5th Cir. 2022).
Nevertheless, FERC persisted. Anticipating the petitioner’s insol-
vency, FERC issued four orders purporting to bind the petitioner to continue
performing its gas transit contracts even if it rejected them during bankruptcy.
The petitioner asks us to vacate those orders. Because FERC cannot coun-
termand a debtor’s bankruptcy-law rights or the bankruptcy court’s powers,
we grant the petitions for review and vacate the orders.
I.
We start with legal background. We then turn to the facts. After ad-
dressing the facts developed in the agency proceedings, we review the history
of Gulfport’s bankruptcy, which began after FERC issued the subject orders.
A.
The parties dispute how two legal regimes—the Bankruptcy Code and
the Natural Gas Act—interact. But their dispute is narrow. The question is
how a bankrupt debtor’s power to reject executory contracts interacts with
FERC’s power to decide whether a party may change or cancel filed-rate con-
tracts, which the agency regulates. To answer that question, we must review
what rejection does and then explain how it relates to the Natural Gas Act.
The Bankruptcy Code empowers debtors, “subject to the court’s ap-
proval,” to “assume or reject any executory contract.” 11 U.S.C. § 365(a).1
That means that a debtor may choose either to perform (assume) or “breach”
(reject), § 365(g), any contract “that neither party has finished performing,”
1
Technically, the Code vests that power in “the trustee,” 11 U.S.C. § 365(a), but a
reorganizing “debtor in possession” has “all the . . . powers . . . of a trustee,” § 1107.
2
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Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1657 (2019).
That tool might seem unhelpful. Breaching a contract does not erase
that contract; it entitles the contract’s counterparty to seek damages for the
debtor’s nonperformance. Id. at 1658. But here’s the rub: Most debtors are
broke and cannot pay in full that damages claim. Ibid. So “in a typical bank-
ruptcy,” the counterparty to a rejected contract “may receive only cents on
the dollar” for its claim against the debtor, yet the debtor will retain the ben-
efit of having ceased performance. Ibid. In that way, “rejection can release
the debtor’s estate from burdensome obligations that can impede a successful
reorganization.” Ultra, 28 F.4th at 636 (quoting Mirant, 378 F.3d at 517).
The Natural Gas Act (“NGA”) regulates firms that move and sell
natural gas in interstate commerce. 15 U.S.C. § 717(a). When those firms
contract to move or sell gas, they must file the rates they charge with FERC.
§ 717c(c). The NGA conditions any change to those filed rates on FERC’s
approval. § 717c(d), (e); see also § 717d(a). The Federal Power Act (“FPA”)
imposes materially identical requirements on power companies. 2
About two decades ago, FERC tried to assert its rate-setting authority
under the FPA to block Mirant, a power company, from rejecting filed-rate
contracts in bankruptcy. Mirant, 378 F.3d at 514–15. Because the FPA says a
power company cannot “modify” or “abrogate” its rates without FERC’s ap-
proval, FERC declared that Mirant needed its permission to reject any filed-
rate contract. Id. at 519.
This court disagreed. Id. at 515. We explained that FERC had mis-
construed the effect of rejection. Rejection does not change or cancel a
2
Compare § 717d(a), with 16 U.S.C. § 824e(a); see also Ark. La. Gas Co. v. Hall,
453 U.S. 571, 577 n.7 (1981) (the FPA and NGA “are in all material respects substantially
identical” (quoting FPC v. Sierra Pac. Power Co., 350 U.S. 348, 353 (1956)).
3
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contract; it breaches that contract, id. at 519, giving the debtor’s counterparty
a damages claim for the value of the debtor’s continued performance, id.
at 520. The contract itself does not change; nor does the filed rate. No
change is wrought where the counterparty’s claim for damages is “calculated
using the filed rate,” id. at 519, even if the debtor cannot pay that claim in full,
id. at 521. Thus, the panel concluded, Mirant did not need FERC’s consent
to reject its filed-rate contracts, and FERC could not “negat[e]” a rejection
by requiring Mirant to continue performance. Id. at 523.
At first, FERC acknowledged Mirant. 3 But three years ago, FERC
decided that Mirant need not be followed. FERC declared that Pacific Gas &
Electric would need its approval before rejecting its filed-rate power purchase
agreements in bankruptcy. 4 FERC did the same in other cases, including
ETC Tiger Pipeline, LLC, 171 FERC ¶ 61,248, at ¶ 20, reh’g denied, 172 FERC
¶ 61,155 (2020), which addressed contracts filed per the NGA, like the gas
transit contracts in this case.
FERC’s decrees pressed the rationale that Mirant repudiated: namely,
that rejection “modif[ies] or abrogate[s]” a filed-rate contract. ETC Tiger,
172 FERC ¶ 61,155, at ¶ 4. To justify that position, FERC claimed that the
effect of rejection on filed-rate contracts is legally “unsettled,” citing a 2006
district-court opinion from New York 5 and, curiously, Mission Product
3
See Cal. Elec. Oversight Bd. ex rel. Lockyer v. Calpine Energy Servs., L.P., 114 FERC
¶ 61,003, at ¶ 11 (2006) (“[Mirant] has now spoken to the issue . . . and we intend to follow
that authority. Under [Mirant], the Commission is precluded from taking action under the
FPA that impacts a debtor’s ability to reject an executory contract.”).
4
Exelon Corp. v. Pac. Gas & Elec. Co., 166 FERC ¶ 61,053, at ¶ 28 (2019), vacated as
moot sub nom. NextEra Energy, Inc. v. Pac. Gas & Elec. Co., 177 FERC ¶ 61,162 (2021).
5
Cal. Dep’t of Water Res. v. Calpine Corp. (In re Calpine Corp.), 337 B.R. 27 (S.D.N.Y.
2006).
4
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Holdings, Inc. v. Tempnology, LLC, 6 in which the Supreme Court confirmed
that “rejection is breach and has only its consequences.” 7 FERC offers the
same reasons to justify the orders before this court.
B.
Our petitioner, Gulfport Energy Corporation, produces natural gas.
Through transportation service agreements (“TSAs”), Rover Pipeline, who
intervened in this appeal, agreed to transport Gulfport’s gas through its pipe-
lines. The TSAs are executory contracts. They establish the “maximum
daily quantity” of gas that Gulfport may push through Rover’s pipelines, as
well as the rates Rover may charge for that service.
The COVID-19 pandemic crushed demand for energy and, with it, the
price of oil and natural gas. That shock strangled many energy producers,
including Gulfport. By summer 2020, Gulfport’s financial outlook was grim:
In its quarterly financial filing, Gulfport warned that decreased commodity
prices “ha[d] significantly impaired the Company’s ability to access capital
markets and to refinance its existing indebtedness.” Gulfport’s management
doubted “the Company’s ability to continue as a going concern.”
That revelation worried Rover. If Gulfport failed, it might reject the
TSAs and, being insolvent, pay Rover cents on the dollar for its due under
those contracts. Preferring to get paid in full for moving Gulfport’s gas,
Rover petitioned FERC. Rover asked FERC to announce that it had exclusive
jurisdiction over the TSAs, so that Gulfport would have to get FERC’s
approval before rejecting those contracts in bankruptcy. Rover also asked the
6
See, e.g., ETC Tiger, 172 FERC ¶ 61,155, at ¶¶ 23–29 (citing Calpine and Mission
Product).
7
139 S. Ct. at 1663 (cleaned up); see also, e.g., Mirant, 378 F.3d at 519 (“Under the
Bankruptcy Code . . . , Mirant’s rejection . . . is a breach . . . .”).
5
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agency to hold an expedited paper hearing to determine whether continued
performance of the TSAs would harm the public interest.
In two orders, FERC gave Rover everything it wanted.
FERC first granted Rover’s petition for a declaratory order. After not-
ing that the TSAs are filed-rate contracts, FERC asserted “parallel, exclusive
jurisdiction” over them. It then declared, contrary to Mirant, that “rejec-
tion” of a filed-rate contract “in bankruptcy court alters the essential terms
and conditions” of that contract. And because “the Commission’s approval
is required to modify or abrogate [a] filed rate,” FERC continued, Gulfport
would need FERC’s approval before rejecting any TSA during bankruptcy.
FERC also stated that the bankruptcy court could not confirm any reorgani-
zation plan that rejected a TSA “unless and until the Commission agrees, or
the plan . . . is made contingent on Commission approval.” And FERC
agreed to hold an expedited paper hearing “to determine whether the public
interest presently requires that th[e] [TSAs’] filed rates should be abrogated
or modified.”
A month later, after a flurry of filings, FERC issued an order in the
promised paper hearing. FERC found “that the public interest does not pres-
ently require the modification or abrogation of the Gulfport TSAs,” because
the rates “currently on file and in effect remain just and reasonable” under
the Mobile–Sierra standard. 8 Again asserting exclusive jurisdiction to allow
8
The Mobile–Sierra standard comes from FPC v. Sierra Pacific Power Co., 350 U.S.
348 (1956), and United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956).
The standard requires FERC to “presume that a rate set by ʻa freely negotiated wholesale-
energy contract’ meets the statutory ʻjust and reasonable’ requirement.” NRG Power Mktg.,
LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165, 167 (2010) (citation omitted). That pre-
sumption “may be overcome only if FERC concludes that the contract seriously harms the
public interest.” Ibid. (citation omitted). To that inquiry, several considerations are rele-
vant, including whether the filed rate “might impair the financial ability of the public utility
to continue its service, cast upon other consumers an excessive burden, or be unduly
6
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rejection of filed-rate contracts, FERC purported to require Gulfport to
continue performing the TSAs.
FERC then denied rehearing of the first order. The next day, Gulfport
filed for bankruptcy and moved the bankruptcy court to allow it to reject the
TSAs. 9 Two months later, FERC denied rehearing of the second order.
Gulfport timely petitioned this court for review 10 of both orders and the
denials of rehearing. 11 We review those four orders here.
C.
While awaiting our decision on its petitions, Gulfport continued trying
to reject the TSAs in its bankruptcy proceedings. But Rover objected that the
bankruptcy court “lacked exclusive subject matter jurisdiction over [Gulf-
port’s] rejection request” because FERC had already asserted jurisdiction.
Rover also moved to “withdraw the reference”—in other words, to push its
objection to the district court for initial decision. 12
In an emphatic order, the bankruptcy judge urged the district court to
discriminatory.” Sierra Pacific, 350 U.S. at 355.
9
In re Gulfport Energy Corp., No. 20-35562 (Bankr. S.D. Tex. filed Nov. 15, 2020),
ECF No. 59.
10
See 15 U.S.C. § 717r(b) (requiring a petitioner to seek review of a FERC order
“within sixty days after the order of the Commission upon the application for rehearing”).
Gulfport may petition this court because Rover, “the natural-gas company to which the or-
der[s] relate[,] is located or has its principal place of business” in this circuit. 15 U.S.C.
§ 717r(b).
11
Gulfport also sought review of similar orders that FERC had granted for other
pipeline companies, including TC Energy, but those petitions have been dismissed.
12
See 28 U.S.C. § 157(d) (“The district court may withdraw, in whole or in part,
any case or proceeding referred under this section . . . , for cause shown. The district court
shall . . . so withdraw a proceeding if the court determines that resolution of the proceeding
requires consideration of both [the Bankruptcy Code] and other laws of the United States
regulating . . . interstate commerce.”).
7
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deny Rover’s motion to withdraw the reference. The bankruptcy court
blasted Rover for “obtaining an advisory order from FERC” to obstruct and
“avoid the Court’s proper exercise of its jurisdiction over [the] pure bank-
ruptcy matter” of rejection. “Th[at] tactic and associated arguments,” the
bankruptcy judge continued, “have been repeatedly rejected and are contrary
to established Fifth Circuit precedent.”
The bankruptcy judge issued his recommendation in January 2021 and
asked the district court to consider it quickly. The district court promptly
withdrew the reference. The bankruptcy court then confirmed Gulfport’s
reorganization plan, subject to the ruling on Rover’s objections.
Then Ultra, 28 F.4th 629 (5th Cir. 2022), reaffirmed our position in
Mirant. Ultra’s facts are nearly the same as ours: An energy company, Ultra,
filed for bankruptcy and moved to reject its NGA filed-rate contracts with
REX, a pipeline company. REX and FERC objected to the bankruptcy court’s
jurisdiction on the ground that FERC had not approved rejection.
Declaring the jurisdictional question “settled,” this court affirmed the
bankruptcy court. Id. at 639. Under Mirant, we explained, “a bankruptcy
court can authorize rejection of a filed-rate contract and, post-rejection,
FERC cannot require continued performance on the rejected contract.” Ibid.
(cleaned up). We observed that accepting FERC’s position would create a
circuit split. Id. at 641 (citing FirstEnergy, 945 F.3d at 451). And we rejected
FERC’s claim that only “full proceedings before the Commission” could
satisfy the bankruptcy court’s duty to solicit FERC’s views before approving
rejection. Id. at 642–43. We also reiterated that rejection, being just a breach,
does not change or cancel a filed-rate contract. Id. at 643.
After Ultra came two relevant developments. First, the agency now
claims, for the first time, that Gulfport’s petitions for review are nonjusticia-
ble. Either Ultra moots Gulfport’s petition for review, FERC says, or Gulf-
8
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port lacks standing to challenge the agency’s orders. Second, on July 13, the
district court dismissed Rover’s objections and returned Gulfport’s rejection
motions to the bankruptcy court. 13 Applying Ultra and Mirant, the district
court stated that “the bankruptcy court has authority to reject [Gulfport’s]
agreement[s] with Rover without conflicting with FERC’s authority to regu-
late filed rates.” The court then instructed the bankruptcy court “to calculate
damages resulting from [Gulfport’s] breach of contract using the filed rates.”
II.
Gulfport challenges FERC’s orders on two grounds. The first is that
FERC lacked statutory authority to issue them. The second is that the orders
are unlawful. But before we reach those questions, we must decide whether
Gulfport’s challenge is justiciable, and we conclude that it is. The challenge
is neither unripe nor moot, and Gulfport has standing.
A.
Jurisdiction comes first, 14 and we review it de novo. 15
We first note that Congress has authorized us to review FERC orders.
The Administrative Procedure Act empowers this court to review “[a]gency
action made reviewable by statute.” 5 U.S.C. § 704. And “[u]pon the filing
of [a] petition” for review, the NGA gives this court “jurisdiction . . . to
affirm, modify, or set aside” FERC orders, 15 U.S.C. § 717r(b), so long as the
petitioner sought rehearing before the Commission and is a “party” whom
the orders “aggrieve[ ],” § 717r(a). Gulfport timely petitioned for review of
13
In re Gulfport Energy Corp., No. 4:21-cv-232 (S.D. Tex. Jul. 13, 2022), ECF
No. 36.
14
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
15
Edge Petroleum Operating Co. v. GPR Holdings, LLC (In re TXNB Internal Case),
483 F.3d 292, 298 (5th Cir. 2007).
9
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all four orders. But we still must decide whether those orders “aggrieved”
Gulfport. Ibid. Though that requisite implicates the doctrines of standing
and ripeness, see Brooklyn Union Gas v. FERC, 190 F.3d 369, 373–74 (5th
Cir. 1999), we start with standing.
The aggrievement requisite all but duplicates the traditional requisites
for Article III standing. 16 A party is not “ʻaggrieved’ by a FERC decision un-
less its injury is ʻpresent and immediate.’” Brooklyn Union Gas, 190 F.3d
at 373 (citation omitted). The order must “definitively” affect the peti-
tioner’s rights and “threaten the petitioner with irreparable harm,” ibid.(cleaned up), which is harm that “cannot be altered by subsequent adminis-
trative action,” Energy Transfer Partners, L.P. v. FERC, 567 F.3d 134, 139 (5th
Cir. 2009) (citation omitted). Aggrieving orders thus include those that
“command the petitioner to do or refrain from doing something,” “signifi-
cantly change the petitioner’s status or condition to his detriment, or pres-
ently deprive him of his property.” Tenneco, Inc. v. FERC, 688 F.2d 1018, 1021
(5th Cir. 1982) (cleaned up). They also include orders that “impos[e] . . . a
Hobson’s choice” by threat of “criminal and civil penalties.” Pennzoil Co. v.
FERC, 645 F.2d 394, 400 (5th Cir. May 1981). But mere delay or inconven-
ience from having to endure or await further proceedings generally does not
aggrieve a party. See, e.g., id. at 399–400; Tenneco, 688 F.2d at 1022–23.
Gulfport contends that it is “undeniably ʻaggrieved’” in three ways.
First, Gulfport has had to “defend itself” in the bankruptcy proceedings from
Rover’s contentions that FERC’s orders prevent the court from authorizing
16
PNGTS Shippers’ Grp. v. FERC, 592 F.3d 132, 136–39 (D.C. Cir. 2010) (“A party
is aggrieved [per § 717r] only if it can establish . . . constitutional . . . standing.” (citation
omitted)); see also, e.g., Kan. City S. Indus., Inc. v. ICC, 902 F.2d 423, 429 (5th Cir. 1990)
(applying the traditional Article III analysis to the aggrievement requirement in 28 U.S.C.
§ 2344, which generally governs review of agency orders).
10
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rejection of the TSAs. Gulfport stresses that Rover presented FERC’s orders
to that court as “ʻbinding’ and ʻentitled to preclusive effect,’ thereby prohib-
iting Gulfport from rejecting the TSAs and finalizing its restructuring.” Sec-
ond, Gulfport says that it has had to defend itself from orders and proceedings
that FERC did not have the power to impose. Third, Gulfport protests the
threatened legal consequences of FERC’s orders—namely, the denial of its
bankruptcy-law right to reject its contracts.
The first injury does not suffice. Gulfport complains that it has had to
confront Rover’s references to FERC’s orders during its bankruptcy proceed-
ing, but “being forced to confront questions in a future legal proceeding does
not rise to the level of injury required for Article III standing.” 17 Even if that
injury could support standing, Gulfport has not shown that “it would be un-
able to attack the basis of any adverse finding in th[e bankruptcy] proceeding.”
N.C. Util. Comm’n, 653 F.2d at 662. As Ultra shows, Rover did not need an
order from FERC to try blocking Gulfport from rejecting the TSAs. 18 So it
is not clear that any injury from sparring with Rover at the bankruptcy court
is “fairly traceable” to FERC, as standing requires. California v. Texas,
141 S. Ct. 2104, 2113 (2021) (quotation and citation omitted).
A similar problem afflicts the second injury. Gulfport frames that in-
jury as the cost of the proceedings that FERC has imposed—the “time and
resources” Gulfport has expended to “defend itself” in unlawful agency pro-
ceedings. That injury is traceable to FERC’s orders. Yet time and again, the
17
PNGTS Shippers, 592 F.3d at 138; see also Energy Transfer Partners, 567 F.3d at 141(“[C]oncern about expected litigation expenses does not constitute irreparable injury . . . .”
(quotation and citation omitted)); N.C. Util. Comm’n v. FERC, 653 F.2d 655, 662 (D.C.
Cir. 1981) (holding NCUC hadn’t shown aggrievement despite its contention that the chal-
lenged order “was used to its disadvantage in [other legal] proceedings”).
18
See Ultra, 28 F.4th at 635 (pipeline company asserted that Ultra could not reject
its filed-rate contracts without FERC’s approval, even though FERC had issued no order).
11
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Supreme Court and this court have said that mere “expense and annoyance”
inflicted by agency proceedings does not aggrieve a party. 19
Throughout its briefing, however, Gulfport asserts a third injury: the
legal effects of FERC’s orders. 20 It contends that the orders purport to block
it from ceasing performance of rejected filed-rate contracts, which the law
entitles Gulfport to do. Gulfport also attacks FERC’s position that “the act
of filing a contract with FERC creates a separate and independent ʻfiled rate’
obligation that enshrines the terms of the contract into federal law,” nullifying
the effects of rejection. 21 If FERC’s orders stand, Gulfport will have to
choose between renouncing its legal rights under the Code or flouting
19
Energy Transfer Partners, 567 F.3d at 141 (citation omitted); see also, e.g., FTC v.
Standard Oil Co., 449 U.S. 232, 242 (1980) (filing of complaint by agency did not aggrieve
a petitioner); Tenneco, 688 F.2d at 1022.
20
See, e.g., Appellant’s Br. at 50 (“The filed-rate doctrine gives FERC no authority
to demand continued performance from all parties under a filed-rate contract as a matter of
federal law, or to prevent a party from breaching a filed-rate contract and paying damages
based on the filed rate.”); Appellant’s Br. at 42 (“FERC cannot effectively nullify the bank-
ruptcy court’s exclusive authority over rejection by attempting to force the debtor to con-
tinue performing under the terms of its filed rate.”); Appellant’s Br. at 39 (“[T]he orders
. . . assert that FERC has the authority to effectively negate a bankruptcy court’s decision
to approve rejection, on the theory that rejection ʻmodifies’ or ʻabrogates’ the filed rate and
therefore the debtor cannot cease performing under a rejected contract unless FERC pro-
vides separate approval.” (alterations adopted)); Appellant’s Br. at 62 (“[N]either the
Bankruptcy Code nor any other legal authority empowers FERC to prevent the confirma-
tion of a bankruptcy plan solely because it involves the rejection of a filed-rate contract. To
the extent that the FERC orders here claim that power, they are unlawful and must be set
aside on that ground as well.”).
21
Appellant’s Br. at 48 (citing ETC Tiger, 171 FERC ¶ 61,248, at ¶ 22); accord ETC
Tiger, 171 FERC ¶ 61,248, at ¶ 22 (“[Filed-rate] contracts are not typical commercial con-
tracts but rather establish public obligations that carry the force of law. . . . [F]iled rate ob-
ligations exist independently of private contractual duties and continue to bind the counter-
parties, regardless of one party’s breach of contract . . . . [A] debtor does not extinguish its filed
rate obligations under the NGA by rejecting a contract in bankruptcy.” (emphasis added)
(footnotes omitted)).
12
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FERC’s commands either by not performing the TSAs or by seeking to reject
those contracts without FERC’s consent.
That injury sustains Gulfport’s standing. FERC’s orders left no doubt
that Gulfport could not reject the TSAs or cease performing them without its
approval—no matter what the bankruptcy court decided. Because the “re-
jection of a [filed-rate] contract in bankruptcy court alters the essential terms
and conditions” of that contract, the orders explained, “the Commission’s
approval is required to modify or abrogate the filed rate.” The orders even
purported to bind the bankruptcy court, warning that the court could not con-
firm a reorganization plan “that purports to authorize the . . . rejection of the
Gulfport TSAs . . . unless and until the Commission agrees.”
The paper-hearing order reiterated those findings and concluded that
continued performance under the TSAs would not harm Gulfport. If af-
firmed, those orders would confine Gulfport’s bankruptcy-law rights and the
bankruptcy court’s power to permit their exercise. That injury to a peti-
tioner’s legal rights is classic aggrievement. Atlanta Gas Light Co. v. FPC,
476 F.2d 142, 147–48 (5th Cir. 1973).
That injury might not matter if FERC’s orders suggested only how the
agency might act in some later case, see, e.g., Sun Oil Co. v. FPC, 304 F.2d 290,
292 (5th Cir. 1962), or if the agency had no power to enforce its orders. 22 But
neither circumstance is present here.
To the first point, FERC insists that its orders have legal force. FERC
even says that we must defer to the orders, see Chevron U.S.A. v. Nat. Res. Def.
Council, 467 U.S. 837, 842–43 (1984), so far as they interpret FERC’s “juris-
22
See California, 141 S. Ct. at 2115 (there was no standing because “textually unen-
forceable language” in the challenged statute could not injure the plaintiffs).
13
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diction and responsibilities” under the statutes the agency administers. 23
And Congress doubtless expects FERC’s formal adjudications to carry the
force of law. See United States v. Mead Corp., 533 U.S. 218, 229–31 (2001);
5 U.S.C. § 554(e). Legal consequences flow from the orders. See, e.g., Cent.
Freight Lines v. ICC, 899 F.2d 413, 417–18 (5th Cir. 1990).
To the second point, FERC can enforce its orders. The NGA author-
izes civil penalties against “[a]ny person” who “violates . . . any . . . [Com-
mission] order,” 15 U.S.C. § 717t-1(a), as well as criminal penalties against
persons who violate such an order “willfully and knowingly,” § 717t(b). To
chance those penalties is to chance ruin. The civil-penalty statute caps pen-
alties at “$1,000,000 per day per violation for as long as the violation contin-
ues.” § 717t-1(a). Suffice to say, FERC’s orders are no paper tigers.
Where a petitioner is himself “an object of the [government] action”
he says is illegal, “there is ordinarily little question that the action . . . caused
him injury, and that a judgment preventing . . . the action will redress it.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992). So here.
Gulfport has standing.
B.
Likewise, the orders are ripe for review.
“Ripeness doctrine reflects Article III limitations on judicial power.”
Cochran v. SEC, 20 F.4th 194, 212 (5th Cir. 2021) (en banc) (cleaned up), cert.
granted, 142 S. Ct. 2707 (2022). “At its core, ripeness is a matter of timing
that serves to prevent courts from entangling themselves in cases prema-
turely.” Walmart Inc. v. U.S. Dep’t of Just., 21 F.4th 300, 312 (5th
23
Appellee’s Br. at 25 (citing City of Arlington v. FCC, 569 U.S. 290, 301–04
(2013)).
14
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Cir. 2021). 24 “The ripeness inquiry hinges on two factors: (1) the fitness of
the issues for judicial decision; and (2) the hardship to the parties of
withholding court consideration.” Cochran, 20 F.4th at 212 (cleaned up). 25
Both factors point toward justiciability here.
The orders are fit for review. A matter is fit for review when it presents
pure legal questions that require no additional factual development. Ibid.
That’s true here. According to Gulfport, FERC lacked statutory jurisdiction
to issue the orders and, by misapprehending the effect of rejection in bank-
ruptcy, flouted our caselaw and the Bankruptcy Code. Those are pure legal
questions that require no further factual development. The challenged orders
are final, the record is complete, and FERC has stated its views. It’s clear
“exactly what obligations” FERC purports to impose on Gulfport, so the or-
ders are fit for our review. Walmart, 21 F.4th at 311.
Gulfport also suffers hardship from the orders. To assess hardship, we
examine the effect of the agency decision on the petitioner. Abbott Lab’ys,
387 U.S. at 152. If it is “sufficiently direct and immediate,” review is appro-
priate. Ibid. Finality is again relevant. If the risk that the order poses to the
petitioner will ripen into injury only after the agency takes, or does not take,
some further action, then the matter “remain[s] open for contest” and thus is
“not ripe for decision.” Brooklyn Union Gas, 190 F.3d at 374. But here,
FERC’s orders are final and unequivocal. No further action is necessary for
those orders to bind Gulfport. That purported legal effect, plus the agency’s
24
See also Abbott Lab’ys v. Gardner, 387 U.S. 136, 148 (1967) (ripeness ensures that
courts don’t “entangl[e] themselves in abstract disagreements”).
25
This court has considered two other factors: whether the agency action is final
and whether resolving the disputed issues will “have a direct and immediate impact upon
the petitioners.” Energy Transfer Partners, 567 F.3d at 140 (citation omitted). But those
factors collapse into fitness and hardship, so we need not address them separately.
15
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allegedly wrongful assertion of jurisdiction, harms Gulfport today. If we can’t
review the orders now, they will be unreviewable.
The pendency of Gulfport’s rejection motions before the bankruptcy
court does not render this dispute unripe. Ripeness does not demand that an
injury be certain. Instead, the feared injury need only be “sufficiently likely
to happen to justify judicial intervention,” and not “abstract or hypothetical.”
Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)
(citation omitted). That standard is met here. As the district court explained,
Ultra forecloses Rover’s objections to rejection. And the bankruptcy court’s
opinion on withdrawal of the reference leaves little doubt that the court will
allow Gulfport to reject the disputed contracts.
But even if the bankruptcy court did not allow rejection, this court still
would have to decide whether FERC had statutory authority to issue the or-
ders. We have said before that FERC’s failure to exercise jurisdiction is re-
viewable where the agency “considered its jurisdiction” and where the peti-
tioner “would suffer hardship by not having access to a judicial forum to re-
view” the agency’s decision. W. Refin. Sw., Inc. v. FERC, 636 F.3d 719, 722
(5th Cir. 2011).
Both points hold true here. Only this court can review FERC’s statu-
tory authority to issue the orders, and only this court can vacate the orders.
Though the bankruptcy court could block FERC from “negat[ing] [Gulf-
port’s] rejection,” Ultra, 28 F.4th at 638 (citation omitted), it could not do
more than opine on the agency’s assertion of jurisdiction—lest it exceed its
own jurisdiction. 26 Unless we review the orders, Gulfport could not challenge
26
See ibid. (“[A]ny injunction [must] be limited to protecting [the debtor] from
FERC’s attempts to compel [it] to perform under the particular contract that the court en-
abled [the debtor] to reject.”); see also 11 U.S.C. § 105(a) (limiting the bankruptcy court’s
power to actions “necessary or appropriate to carry out the provisions of [the Bankruptcy
16
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them.
Cochran confirms that this dispute is ripe. There, the en banc court
allowed a challenge to the “entire legitimacy” of proceedings before an ad-
ministrative law judge even though the agency proceedings had yet to con-
clude. 20 F.4th at 209. The challenge was ripe because withholding review
would have forced the petitioner to endure an unlawful proceeding, which, if
resolved in her favor on the merits, would destroy her ability to contest its
legality. Id. at 212–13. Surely if a challenge is ripe during the unlawful pro-
ceedings, it is ripe after they occur.
FERC’s orders are definitive, and they injure Gulfport. They are ripe
for review in this court.
C.
Mootness is our last stop. FERC contends that Ultra mooted Gulf-
port’s petitions for review by clarifying that bankruptcy courts “may author-
ize a valid rejection of FERC-jurisdictional contracts” without the agency’s
approval. Though FERC correctly states Ultra’s holding, it does not moot
Gulfport’s petitions.
“A case becomes moot only when it is impossible for a court to grant
any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568
U.S. 165, 172 (2013) (cleaned up). Thus, mootness results when a party
receives complete relief in another judicial proceeding. 27
But Ultra gave Gulfport no relief at all; it relieved different debtors
Code]” (emphasis added)).
27
See, e.g., Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962–63
(5th Cir. 2014) (state supreme court decision that invalidated the contested statute mooted
plaintiffs’ federal challenge to it).
17
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from different filed-rate contracts. Gulfport asks us to vacate agency orders
regarding its own filed-rate contracts. So long as those orders remain in force,
Gulfport retains “a concrete interest . . . in the outcome of the litigation,” and
that means “the case is not moot.” Chafin, 568 U.S. at 172 (citation omitted).
Nor has FERC conceded the merits of this dispute, such that no case
or controversy remains. Though its supplemental briefing acknowledges that
Ultra confines the agency’s power in some respects, FERC has not dis-
claimed its asserted power to require continued performance of filed-rate
contracts after a valid rejection. Nor does it concede that it lacked statutory
authority to issue the orders before us. Instead, FERC persists in defending
its “uniform, nationwide approach” to the rejection of filed-rate contracts—
an approach that the agency says “reflects a reasonable interpretation” of Su-
preme Court precedent and its regulatory duties. And at oral argument,
FERC’s counsel asked this court to affirm the agency’s paper-hearing order
on the merits, instead of vacating it as moot. Oral Arg. at 16:10–17:45, 23:45–
24:36.
Those are not concessions. This dispute is live.
III.
Having confirmed our jurisdiction, we proceed to the merits.
Gulfport attacks FERC’s orders on two fronts. Gulfport first says that
FERC lacked authority to issue them. It then contends that the orders are
unlawful because they violate the Bankruptcy Code and purport to restrain
Gulfport’s bankruptcy-law rights and the powers of the bankruptcy court.
FERC did have authority to issue the orders. But because the orders
rested on an inexplicable misunderstanding of rejection, we vacate them all.
A.
Gulfport’s challenge to FERC’s authority goes like this: The agency,
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“in its sound discretion, may issue a declaratory order to terminate a contro-
versy or remove uncertainty.” 5 U.S.C. § 554(e); see also 18 C.F.R.
§ 385.207(a)(2). FERC issued its declaratory order to remove “uncertainty
. . . regarding the status of” the TSAs with Gulfport and the treatment of
those Gulfport TSAs “should Gulfport file for bankruptcy.” 28 But the order
did not remove any uncertainty; it instead created uncertainty regarding Gulf-
port’s bankruptcy-law rights. So FERC lacked authority to issue the declara-
tory order, requiring that we vacate that order and the paper-hearing order it
spawned. 5 U.S.C. § 706(2)(C).
But whether FERC’s order in fact created uncertainty is not the ques-
tion. We must decide whether the agency abused its discretion. Merchs. Fast
Motor Lines v. ICC, 5 F.3d 911, 915–16 (5th Cir. 1993). 29 In other words, did
FERC “articulate a satisfactory explanation for its decision, including a ra-
tional connection between the facts found and the choice” to issue the order?
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019) (cleaned up). 30 That
bar is low, and FERC clears it.
Gulfport points to some facts that suggest otherwise. When FERC
issued the declaratory order, “Gulfport had not filed for bankruptcy, much
less moved to reject any TSA.” Plus, FERC had stated its views on the rejec-
tion of filed-rate contracts in at least two other administrative adjudications.
The declaratory order set a paper hearing regarding whether the TSAs’ filed
28
Because FERC has not argued that the orders “terminate[d] a controversy,”
5 U.S.C. § 554(e), this court may not consider that justification for the contested orders, see
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[W]e
may not supply a reasoned basis for the agency’s action that the agency itself has not given.”
(citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))).
29
See also Intercity Transp. Co. v. United States, 737 F.2d 103, 106–07 (D.C. Cir. 1984)
(reviewing an agency’s declaratory orders for abuse of discretion).
30
See also State Farm, 463 U.S. at 43 (citing Chenery, 332 U.S. at 196).
19
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rates should be modified or abrogated. But that hearing could not remove
uncertainty, Gulfport says, because no one had sought to change or cancel
those filed rates. And because FERC “left the door wide open for different
determinations in the future,” its paper-hearing order could not remove any
future uncertainty about the filed rates.
True, Gulfport had not sought bankruptcy protection when the agency
issued its order. And we agree that a declaratory order unmoored from any
real-world controversy would exceed the agency’s power. 31 But FERC did
not issue its orders because someone, someday might file for bankruptcy. Cf.
Hollister Ranch Owners’ Ass’n v. FERC, 759 F.2d 898, 903 (D.C. Cir. 1985). It
issued them because Gulfport had announced to the world that it might file
for bankruptcy. In a public financial filing, Gulfport had warned that market
conditions had “significantly impaired its ability to access capital markets”
and created “ʻsubstantial doubt’ about [its] ability to continue” operating.
That admission suggested that the legal status of Gulfport’s filed-rate con-
tracts might soon be disputed in bankruptcy. FERC did not abuse its discre-
tion by trying—however clumsily—to assuage that uncertainty.
We attribute no significance to the fact that FERC had stated its views
on rejection in other administrative proceedings. Those proceedings did not
bind Gulfport or address Gulfport’s filed-rate contracts. And they did not
dictate the orders here: Before issuing those orders, FERC could have
changed its views or declined to extend them to Gulfport and its contracts.
FERC gave rational reasons for finding that its orders would remove
uncertainty, so it had authority to issue them. We find no abuse of discretion
there. Cf. Dep’t of Com., 139 S. Ct. at 2569.
31
Cf. City of Arlington v. FCC, 668 F.3d 229, 243 (5th Cir. 2012), aff’d on other
grounds, 569 U.S. 290 (2013).
20
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B.
But the orders are unlawful. Each rests on the premise that rejecting
a filed-rate contract in bankruptcy is something more than a breach of con-
tract. That premise is wrong, so we must vacate the orders.
Let’s first review what the principal orders had to say.
FERC’s declaratory order asserted “parallel, exclusive jurisdiction”
over Gulfport’s filed-rate contracts. By that oxymoron, the agency meant that
only it could decide whether to effect a rejection that a bankruptcy court had
authorized. “The rejection of a [filed-rate] contract in bankruptcy court,” the
order explained, “alters” that contract’s “essential terms and conditions.”
And because the NGA empowers the agency to decide whether to “modify
or abrogate [a] filed rate,” see 15 U.S.C. §§ 717c, 717d(a), FERC concluded
that “any . . . action in a bankruptcy proceeding that purports to authorize the
. . . rejection of the Gulfport TSAs” cannot proceed “unless and until the
Commission agrees.” 32 The order then set a paper hearing to determine
whether modifying or abrogating the filed rate—as it claimed rejection would
do—would serve the public interest.
Next came the paper-hearing order. To no one’s surprise, FERC ac-
cepted Rover’s claim that “continued performance under the Gulfport
[TSAs] does not seriously harm the public interest.” Just like the declaratory
order, the paper-hearing order assumed that rejection would modify or abro-
gate the filed rates and, accordingly, that FERC could require Gulfport to con-
tinue performing its contracts. The order acknowledged Gulfport’s fear that
“a Commission order finding that the [filed-rate contracts] should be per-
32
Despite those assertions, the order stressed—and FERC still maintains—that
the agency “neither presumes to sit in judgment of rejection motions nor seeks to arrogate
the role of adjudicating bankruptcy proceedings.” We cannot square those statements.
21
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formed” would worsen its financial distress. But the record, FERC said, did
not “support a conclusion that Gulfport will suffer sufficient financial harm”
from “the contracts remaining in effect.”
Both orders thus purport to require Gulfport to continue performing
contracts that it would reject in bankruptcy. They even purport to bar the
bankruptcy court from allowing rejection. Those ambitious holdings assume
that rejecting a contract changes or cancels the obligations under that con-
tract. That assumption is wrong. It flouts the Bankruptcy Code, Supreme
Court precedent, and the caselaw of every federal circuit.
Rejection does not change or rescind a contract. It breaches that con-
tract, excusing the debtor’s future performance but converting it into a claim
for damages. The Bankruptcy Code says that: “[T]he rejection of an execu-
tory contract . . . of the debtor constitutes a breach of such contract or lease.”
11 U.S.C. § 365(g). The Supreme Court says that: “Rejection is breach, and
has only its consequences.” Mission Prod., 139 S. Ct. at 1663. “Rejection of
a contract—any contract—in bankruptcy operates not as a rescission but as a
breach.” Id. at 1661 (emphasis added). And so say every federal circuit, the
leading bankruptcy treatises, and respected bankruptcy scholars. 33 Against
33
E.g., Douglas G. Baird, The Elements of Bankruptcy 114 (6th
ed. 2014) (“For most purposes, you can safely assume that rejection of an executory con-
tract in bankruptcy has the same consequences as breach of the same contract outside of
bankruptcy.”); 3 Collier on Bankruptcy ¶ 365.10[3] (16th ed. 2022) (“Rejection is
a breach, not a rescission.”); 2 Norton Bankruptcy Law & Practice § 46:24 (3d
ed.), Westlaw (database updated Apr. 2022) (“The Bankruptcy Code instructs us that re-
jection is a breach of the executory contract. It is not avoidance, rescission, or termination.”
(footnotes omitted)); see also, e.g., Pub. Serv. Co. v. N.H. Elec. Coop., Inc. (In re Pub. Serv.
Co.), 884 F.2d 11, 14 (1st Cir. 1989) (“[R]ejection ʻconstitutes a breach of such contract.’”
(citation omitted)); Lehman Bros. Special Fin. Inc. v. Branch Banking & Tr. Co. (In re Lehman
Bros. Holdings Inc.), 970 F.3d 91, 102 (2d Cir. 2020) (“If the contract is a bad deal for the
debtor, the Code enables the debtor to reject it, repudiating any further performance of its
duties. The Code explains that the rejection of an executory contract constitutes a breach
of such contract.” (cleaned up)); Enter. Energy Corp. v. United States (In re Columbia Gas
22
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that crush of contrary authority, FERC cited only itself—for the notion that
rejection of a filed-rate contract “alters [its] essential terms and conditions.”
Not once did its declaratory order cite the rejection statute, 11 U.S.C.
Sys.), 50 F.3d 233, 239 n.8 (3d Cir. 1995) (“Rejection . . . is equivalent to a nonbankruptcy
breach. Rejection leaves the nonbankrupt with a claim against the estate just as would a
breach in the nonbankruptcy context . . . .” (citation omitted)); Stewart Foods v. Broecker (In
re Stewart Foods), 64 F.3d 141, 144 (4th Cir. 1995) (“The rejection of an executory contract
constitutes a breach of the contract, and a party’s damages resulting from that rejection are
treated as a pre-petition claim and receive the priority provided to general unsecured cred-
itors.”); O’Neill v. Cont’l Airlines, Inc. (In re Cont’l Airlines), 981 F.2d 1450, 1459 (5th
Cir. 1993) (“[The rejection statute] speaks only in terms of ʻbreach.’ The statute does not
invalidate the contract, or treat the contract as if it did not exist.”); EPLET, LLC v. DTE
Pontiac N., LLC, 984 F.3d 493, 503 (6th Cir. 2021) (“Rejection does not terminate the con-
tract. Instead, the contract is considered breached.” (citation omitted)); Sunbeam Prods.,
Inc. v. Chi. Am. Mfg., LLC, 686 F.3d 372, 377 (7th Cir. 2012) (Easterbrook, C.J.) (“What
§ 365(g) does by classifying rejection as breach is establish that in bankruptcy, as outside of
it, the other party’s rights remain in place. After rejecting a contract, a debtor is not subject
to an order of specific performance. The debtor’s unfulfilled obligations are converted to
damages . . . . [R]ejection is not the functional equivalent of a rescission . . . . It merely
frees the estate from the obligation to perform . . . .” (quotations and citations omitted)),
followed by Mission Prod., 139 S. Ct. at 1659; Lewis Bros. Bakeries, Inc. v. Interstate Brands
Corp. (In re Interstate Bakeries Corp.), 751 F.3d 955, 961 (8th Cir. 2014) (en banc) (“If . . . the
debtor-in-possession rejects a contract, § 365(g) provides that the rejection ʻconstitutes a
breach of such contract.’ Rejection ʻfrees the estate from the obligation to perform’ under
the contract by converting the debtor’s unfulfilled obligations to damages.” (citation omit-
ted)); First Ave. W. Bldg., LLC v. James (In re Onecast Media), 439 F.3d 558, 563 (9th
Cir. 2006) (“Rejection . . . . constitutes a breach of a contract which permits the other party
to file a creditor’s claim.” (citations omitted)); Landsing Diversified Props. v. First Nat’l Bank
& Trust Co. of Tulsa (In re W. Real Est. Fund), 922 F.2d 592, 595 (10th Cir. 1990) (per curiam)
(“[T]he rejection of an executory contract constitutes a breach of that contract, for which
damages ordinarily allowed in contract are available.” (cleaned up)); Medley v. Dish Network,
LLC, 958 F.3d 1063, 1068 (11th Cir. 2020) (“Rejection of a contract constitutes a breach of
the contract immediately before the filing of the bankruptcy petition. Rejection does not
dissolve or nullify the contract.” (citation omitted)); Auction Co. of Am. v. FDIC, 141 F.3d
1198, 1201 n.3 (D.C. Cir. 1998) (acknowledging that “rejection of an executory contract . . .
is treated as [a] breach”); Fraunhofer-Gesellschaft Zur Förderung Der Angewandten Forschung
E.V. v. Sirius XM Radio Inc., 940 F.3d 1372, 1376 (Fed. Cir. 2019) (“Worldspace’s rejection
was equivalent to a breach occurring immediately before the date of the filing of the bank-
ruptcy petition.” (cleaned up)).
23
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§ 365(g).
The hornbook law of rejection yields a clear answer. Rejection is just
a breach of contract; it transforms the debtor’s future performance into an
unsecured claim for damages. Mirant, 378 F.3d at 520 (citing 11 U.S.C.
§§ 365(g), 502(g)). Rejecting the gas transit contracts would breach those
contracts, giving Rover a damages claim. And that claim is valued at the filed
rate; that rate does not change. Though Gulfport may be unlikely to pay that
claim in full, that does not change the contract’s terms or the filed rate itself.
Id. at 520–21. 34
FERC urges that this dispute is different because it involves filed-rate
contracts. But we have twice rejected that contention, and we again reject it
today. Mirant held, and Ultra reaffirmed, that “a bankruptcy court can au-
thorize rejection of a filed-rate contract, and that, post-rejection, FERC can-
not require continued performance on the rejected contract.” Ultra, 28 F.4th
at 639; accord Mirant, 378 F.3d at 523. With filed-rate contracts, as with oth-
ers, rejection is a breach and has only its consequences. Mission Prod.,
139 S. Ct. at 1662.
Nor will we defer to FERC’s bizarre view of rejection. We sometimes
defer to an agency’s “permissible construction” of a statute it administers.
City of Arlington, 569 U.S. at 296 (quoting Chevron, 467 U.S. at 843). But
34
See also In re Extraction Oil & Gas, 622 B.R. 608, 625 (Bankr. D. Del. 2020)
(Sontchi, C.J.) (“[N]othing in this Court’s ruling changes the rates . . . . [T]he Rejection
Counterparties have and will file claims at the rates approved by FERC and this Court is
doing nothing to abrogate those approved rates. How and when those claims will be paid-
out is an issue for the plan and confirmation process.” (footnote omitted)); Bradley G. Os-
ter, Comment, Reigning in Regulatory Overreach: FERC’s Role in Bankruptcy, 82 La. L.
Rev. 625, 674 (2022) (“To be clear, a court’s authorization of rejection does nothing to
affect the rate charged. The counterparty will file its pre-petition claim for damages based
on the FERC-approved rates . . . .” (footnote omitted)).
24
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FERC does not administer the Bankruptcy Code. And even if it did, we
would reject its view of rejection, which patently contradicts the Code’s text
and established interpretation. 35
Rover, the pipeline company, contends that we need not follow Mirant
or Ultra here. It offers three reasons. Each is meritless.
The first is that Gulfport seeks review of FERC orders, not bank-
ruptcy-court orders as in Mirant and Ultra. That distinction is meaningless.
The posture of these petitions for review does not change the effect of rejec-
tion or the agency’s powerlessness to require continued performance of a re-
jected contract.
The second is that FERC “completed its administrative process before
Gulfport filed [for] bankruptcy.” There is no basis for that distinction. FERC
cannot require continued performance of a filed-rate contract that is validly
rejected—whether it purports to do so before, during, or after the bankruptcy
proceeding. The proper forum for FERC’s views is the bankruptcy court,
which must invite those views but is free to reject them. See Ultra, 28 F.4th
at 642–43.
The third reason, Rover says, is that the Supreme Court overruled Mi-
rant and Ultra. Mirant held that rejecting a filed-rate contract just breaches
that contract. Mirant premised that holding, Rover says, on a “negative in-
ference” from the fact that no part of the statute governing rejection requires
the input of regulatory commissions like FERC. But Mission Product, Rover
claims, “rejected this very same negative inference in the very same statute,
holding that § 365 is not ʻa neat, reticulated scheme of narrowly tailored
35
See Djie v. Garland, No. 20-60448, --- F.4th ---, 2022 WL 2339710, at *4 (5th
Cir. June 29, 2022) (“Under Chevron, the statute’s plain meaning controls, whatever the
agency might have to say.” (cleaned up)).
25
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exceptions,’ but a ʻmash-up of legislative interventions.’” (Quoting Mission
Prod., 139 S. Ct. at 1664.)
Rover misreads Mission Product. The rejector in Mission Product had
invoked a different negative inference: that Congress had abandoned the rule
that rejection is just a breach of contract by enumerating exceptions to it. Dis-
missing that view, the Court observed that Congress devised the statute’s
“exceptions” to “whack[ ]” judicial decisions that had treated rejection as
something more than a breach of contract. Mission Prod., 139 S. Ct. at 1664. 36
So Mission Product confirmed Ultra and Mirant; it did not overrule them.
* * * * *
FERC can decide whether actual modification or abrogation of a filed-
rate contract would serve the public interest. It even may do so before a bank-
ruptcy filing. But rejection is just a breach; it does not modify or abrogate the
filed rate, which is used to calculate the counterparty’s damage. So FERC
cannot prevent rejection. It cannot bind a debtor to continue paying the filed
rate after rejection. And it cannot usurp the bankruptcy court’s power to de-
cide Gulfport’s rejection motions.
That leaves the question of remedy. We may “affirm, modify, or set
aside” FERC orders “in whole or in part.” 15 U.S.C. § 717r(b). But we must
“set aside agency action” that is “not in accordance with law,” 5 U.S.C.
§ 706(2)(A), and FERC’s mistaken view of rejection infected every order on
review. We can leave no doubt that those orders won’t bind the petitioner.
So we vacate them all. 15 U.S.C. § 717r(b).
36
See also ibid. (“This mash-up of legislative interventions . . . affirmatively refutes
[the rejector’s] rendition. . . . Whenever Congress has been confronted with the conse-
quences of the view that rejection terminates all contractual rights, it has expressed its dis-
approval.” (cleaned up)).
26
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The petitions for review are GRANTED. The four challenged or-
ders are VACATED.
27