TransCanada PipeLines Ltd. said late Friday that it is applying to the Canadian Federal Court of Appeal for leave to appeal the National Energy Board’s (NEB) RH-R-1-2002 Decision issued Feb. 20, which dismissed the company’s request for a review of the board’s June 2002 decision on TransCanada’s 2002 Fair Return Application.

In its February order (see Daily GPI, Feb. 21), the NEB sharply lowered the pipeline company’s proposed toll increase and requested rate of return. While noting that TransCanada in its application obviously disagreed with the board regarding the evidence that should be considered, the weight to be given that evidence and the conclusions reached, the NEB said at that time that, “Disagreement does not indicate that a doubt has been raised as to the correctness of the RH-4-2001 decision.”

TransCanada said it is seeking the appeal because it is concerned with the effect of the NEB Decision on TransCanada’s ability to obtain a fair return on the company’s investment in its Canadian Mainline natural gas transmission system. The company said it is basing its leave application on two questions of law.

“The first question of law is the application of the proper standard that should be used in determining the fair return,” said TransCanada spokeswoman Hejdi Feick. “The second one is the NEB’s ‘fettering’ of its discretion by requiring TransCanada to demonstrate that the NEB’s rate of return on common equity formula produced an unfair return.”

With the filing for appeal, it appears that the two year feud over returns is far from over.

“Right now we just wait for the Federal Court of Appeal — which generally takes three months or so — to decide whether or not we can go on with our appeal,” Feick said.

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