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THE INDUSTRIALS v. F.E.R.C.

Nos. 04-1250, 04-1253, 04-1257.

426 F.3d 405 (2005)

THE INDUSTRIALS, et al., Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Northern Natural Gas Company and Semco Energy Gas Company, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided October 14, 2005.

Attorney(s) appearing for the Case

Thomas C. Gorak argued the cause for petitioners. With him on the briefs were Paul F. Forshay, Kirstin E. Gibbs, Katherine B. Edwards, and John Paul Floom. Frederick T. Kolb entered an appearance.

Beth G. Pacella, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor.

Frank X. Kelly, Steve Stojic, J. Gregory Porter, and Maria K. Pavlou were on the brief for intervenor Northern Natural Gas Company in support of respondent.

Before: SENTELLE and RANDOLPH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge SENTELLE.

STEPHEN F. WILLIAMS, Senior Circuit Judge.

Firms that ship gas on pipelines sometimes take more—or less—gas out of the pipeline at the end of the shipment than they had delivered upstream. Periodically (usually monthly), the resulting imbalances are adjusted by a "cash-out." But the cash-out price may create perverse incentives. Specifically it may create an incentive to "game" the system, deliberately...

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