Antitrust Pitfalls in the Natural Gas Industry

The natural gas industry — historically, a heavily regulated industry — has never been immune from application of federal antitrust law.1 But prior to deregulation of the industry, antitrust complaint, both private and public, was sporadic and limited in content.

Since deregulation, that circumstance has changed.2 Since deregulation, both the frequency and content of antitrust actions have expanded.3 In particular, private antitrust actions, in all permutations, have increased, sometimes with severe consequence. Pipelines and producers have been sued for price-fixing. Producers have attempted to add antitrust claims to their arsenal in take-or-pay litigation. Selected pipelines have defended producer take-or-pay claims with their own antitrust allegations. End-users and, in one instance a gas broker, have sued pipelines invoking monopolization, monopoly leveraging and essential facilities claims. Competing LDC's have asserted territorial restriction claims against each other. It can be said with some certainty that any active participant in this deregulated market environment who proceeds unattuned to the potential antitrust consequences of its conduct does so at its peril.

The purpose of this paper is to provide industry representatives a current and relatively detailed understanding of the major antitrust implications (i.e. “pitfalls”) arising from the gathe