Events
Jenny Speck to Speak at Lockton U.S. Energy Risk Summit
Partner Jenny Speck will speak at Lockton’s U.S. Energy Risk Summit on November 12, 2026, in Houston, Texas. The summit …
November 12, 2026
November 12, 2026 • 1-minute read
Insight
Client Alerts
April 29, 2026 • 7-minute read
On April 24, 2026, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued its final rule in Docket No. RM26-6-000 establishing the oil pipeline index level for the five-year period from July 1, 2026 through June 30, 2031 at Producer Price Index for Finished Goods (“PPI-FG”) minus 0.55%.1 This level is significantly higher than the PPI-FG minus 1.42% proposed in the November 20, 2025 Notice of Proposed Rulemaking (“NOPR”).2
The Commission’s indexing process has been subject to challenge and the last five-year index was vacated on appeal and resulted in a supplemental rulemaking to manage the fallout. Although agreement around the Commission’s basic indexing framework was clear in this latest order, each Commissioner issued a separate statement, including a rare concurrence by the Chairman and one dissent. There are some policy level disagreements among the Commissioners, and each statement provides specific insights into each member’s thinking and rationale. They are important to read.
The order establishing the index level was voted out with solid reasoning and majority support. In addition, the order lacks the procedural issues that doomed the prior index rehearing order during the last five-year review.
The five-year index is used to set the rates of 86% of all FERC-regulated oil pipelines nationwide. The oil pipeline index is FERC’s response to Congress’s mandate in the Energy Policy Act of 1992 (“EPAct 92”) to implement a “simplified and generally applicable” ratemaking methodology.3 The indexing system that FERC created ensures that the index keeps apace with industry cost trends.4
Each year, pipelines adjust their rate ceilings effective July 1 using an index multiplier that the Commission publishes in May, reflecting the past year’s changes in PPI-FG, a government-published index.5 Under the Commission’s regulations, pipelines may increase their transportation rates so long as those rates do not exceed their index ceiling levels.6 Shippers may challenge a pipeline’s proposed index increase if they can demonstrate that an index-based rate substantially diverges from the pipeline’s actual cost changes.7
Although the impact of the index is widespread across pipelines, oil pipeline rates do not have a meaningful impact on gasoline prices at the pump or airfares for ordinary Americans.8 In fact, as Chairman Swett recognized, “ordinary Americans’ interests are not served by excessively low pipeline rates” because that “would risk disincentivizing investment in the infrastructure that provides the least expensive and safest method of transporting the energy products our day-to-day lives and economy depend on.”9
The increase in the index level from the NOPR to the final rule was driven by two departures from the NOPR. First, the Commission accepted the Liquid Energy Pipeline Association’s (“LEPA”) proposal to adjust pipelines’ originally reported 2019 return on equity (“ROE”) data to account for the Commission’s 2020 ROE Policy Change. The Commission found that “adjusting the data used to calculate the index level to account for the ROE Policy Change is consistent with the Commission’s findings addressing changes to the Opinion No. 154-B methodology in the most recent 2020 Index Review.”10 Specifically, LEPA’s experts derived a revised 2019 ROE by averaging each pipeline’s originally filed discounted cash flow (“DCF”) ROE for 2019 with an 8.30% CAPM return calculated by following the proxy group and methodology adopted in Opinion No. 586.11 The Commission explained that this adjustment was necessary “to calculate an index level that accurately tracks actual industry-wide cost changes” because pipelines reported their 2019 and 2024 cost data using different ROE methodologies.12 The Commission concluded that adjusting the data set “enhances the index calculation by allowing an ‘apples-to-apples’ comparison of pipeline cost data measured using a single set of Opinion No. 154-B cost-of-service policies.”13
The Commission recounted shipper objections but found that “the benefits of more accurately measuring actual industry cost changes during the five-year review period by using consistent ratemaking policies support adjusting the reported data.”14 However, the Commission declined to apply the adjustment to the 20 pipelines that reported an identical ROE for every year of 2019–2024, finding the policy change did not affect how those pipelines reported.
Second, the Commission incorporated certain unopposed minor corrections proposed by Joint Commenters and LEPA, like reflecting a pipeline merger and including certain pipelines in the data set used to calculate the index level.
In addition, the final rule followed the NOPR and continued to apply the Kahn Methodology for trimming the data set of pipeline costs reported on Form No. 6, page 700. In doing so, the Commission calculated each pipeline’s per-barrel-mile cost change, trimmed the data set to the middle 80% of cost changes, computed a composite central tendency (averaging the median, mean, and weighted mean), and compared that composite to the change in PPI-FG over the same period. The Commission found that “it is appropriate to consider more data in measuring industry-wide cost changes rather than less,” noting that “the middle 80% incorporates the cost experiences of 155 pipelines out of 195 pipelines in the full data set, representing 94% of industry-wide barrel-miles.”15 The Commission explained that the middle 80% “provides a highly robust sample of industry cost trends during the 2019-2024 period” and that using the more inclusive sample “allows the Commission to accurately identify the central tendency of industry-wide cost changes that represents the ‘normal’ cost changes recoverable through the index.”16 The Commission rejected shipper arguments to trim the data set to the middle 50%, favoring the broader sample, reflecting a “wide spectrum of industry experience while removing data that could distort the index calculation.”17 The Commission noted that “contrary to Shippers’ claims, using the middle 80% […] will not produce an index level that allows pipelines to recover extraordinary costs.”18 The Commission also declined to adopt Designated Carriers’ proposal to use the Ferguson Kurtosis test for trimming, finding that such an approach would risk incorporating data from the left and right tails of the distribution that could distort the index level.19
The Chairman and Commissioners expressed varying degrees of comfort with the final rule’s technical determinations, process, and fulfillment of the Commission’s statutory obligations.
The oil pipelines will soon make their index ceiling filings with FERC to be effective July 1, 2026. We will be monitoring for any protests. The order is well-reasoned and supported by substantial evidence, but some entities may still seek rehearing or appellate court review.
1Five-Year Rev. of the Oil Pipeline Index, 195 FERC ¶ 61,062 (2026).
2Five-Year Rev. of the Oil Pipeline Index, 193 FERC ¶ 61,145 (2025) (NOPR).
3Pub. L. No. 102-486, 1801(a), 106 Stat. 3010 (Oct. 24, 1992), codified at 42 U.S.C. 7172 note.
4See Five-Year Rev. of the Oil Pipeline Index, Docket No. RM26-6-000, Concurrence of Chairman Swett, at P 8 (issued Apr. 24, 2026) (“Swett Concurrence”), citing Revisions to Oil Pipeline Reguls. Pursuant to Energy Pol’y Act of 1992, Order No. 561, 58 FR 58753 (Nov. 4, 1993), FERC Stats. & Regs. ¶ 30,985 (1993) (cross-referenced at 65 FERC ¶ 61,109), order on reh’g, Order No. 561-A, 59 FR 40243 (Aug. 8, 1994), FERC Stats. & Regs. ¶ 31,000 (1994) (cross-referenced at 68 FERC ¶ 61,138), aff’d sub nom. Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424 (D.C. Cir. 1996) (AOPL I).
518 C.F.R. § 342.3(d)(1) (2025).
618 C.F.R. § 342.3(a).
718 C.F.R. § 343.2(c).
8See Swett Concurrenceat P 1 (“Today’s order should not raise gas prices at the pump, or the price of airfare for ordinary Americans. The reality is that pipeline transportation costs represent a tiny fraction of the total price of fuel from an end-use consumer’s perspective.”).
9Id. at P 7 (emphasis in original).
10Order at P 21.
11Epsilon Trading, LLC v. Colonial Pipeline Co., 185 FERC ¶ 61,126, at PP 125-126 (2023).
12Id. at P 22.
13Id.
14Id. at P 27.
15Id. at P 50.
16Id. at PP 50-51.
17Id. at P 52.
18Id. at P 53.
19Id. at PP 62-63. For more information on the Ferguson Kurtosis test, see id. at n.148.
20Swett Concurrence at P 1.
2149 U.S.C. app. § 1 et seq. (1988).
22Id. at P 5.
23Id. at PP 2-3.
24Id. at P 8.
25Id.
26See Five-Year Rev. of the Oil Pipeline Index, Docket No. RM26-6-000, Concurrence of Comm’r Rosner, at P 1 (issued Apr. 24, 2026) (“Rosner Concurrence”).
27Id. at P 4.
28See Five-Year Rev. of the Oil Pipeline Index, Docket No. RM26-6-000, Concurrence of Comm’r See, at PP 3-4 (issued Apr. 24, 2026) (“See Concurrence”).
29Id.
30See Five-Year Rev. of the Oil Pipeline Index, Docket No. RM26-6-000, Concurrence of Comm’r LaCerte, at P 1 (issued Apr. 24, 2026) (“LaCerte Concurrence”).
31Id. at P 5.
32Id. at P 6.
33Id.
34See Five-Year Rev. of the Oil Pipeline Index, Docket No. RM26-6-000, Dissent of Comm’r Chang, at P 13 (issued Apr. 24, 2026) (“Chang Dissent”).
35Id. at PP 37-38.
36Id. at P 41.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.
Discover our latest:
Events
Jenny Speck to Speak at Lockton U.S. Energy Risk Summit
Partner Jenny Speck will speak at Lockton’s U.S. Energy Risk Summit on November 12, 2026, in Houston, Texas. The summit …
November 12, 2026
November 12, 2026 • 1-minute read
CLE Events
Sixth Annual Navigating the Annual Meeting and Reporting Season
Join leading practitioners and industry voices for a timely discussion of the legal, regulatory, and governance developments shaping the next proxy season.
November 11, 2026
November 11, 2026 • 2-minute read
Articles
Enviro Marketing Lessons From NY Greenwashing Ruling
Partners Alex Bahn, Jon Solorzano, and Senior Associate Reese Poncia examined the implications of a New York appellate court decision …
November 9, 2026
November 9, 2026 • 1-minute read
Client Alerts
After the Midterms: Preparing for a New Era of Congressional Oversight
Following the November 2026 midterm elections, Democrats will control both the House and the Senate when the 120th Congress convenes …
November 5, 2026
November 5, 2026 • 5-minute read
Client Alerts
Texas Business Court Quarterly Update – 2026 Q3 Summaries
In the third quarter of 2026, the Texas Business Court continued its progress on an ever-growing docket, issuing a number …
November 4, 2026
November 4, 2026 • 44-minute read
Thoughts or questions? Send us a note, and we’ll connect you with the right person.