Public Utilities Comm'n of v. Fed Energy Regulatory Comm'n
| Decision Date | 19 September 1996 |
| Docket Number | PETITIONERS-INTERVENOR,RESPONDENT-INTERVENOR,PARTICIPANT-INTERVENOR,No. 95-70611,No. 96-70104,RESPONDENTS-INTERVENORS,AND,N,95-70611,96-70104 |
| Citation | 100 F.3d 1451 |
| Parties | PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, PETITIONER, AND SOUTHERN CALIFORNIA UTILITY POWER POOL; IMPERIAL IRRIGATION DISTRICT; MERIDIAN OIL INC.; PACIFIC GAS AND ELECTRIC COMPANY; SOUTHERN CALIFORNIA GAS COMPANY; PROCESS GAS CONSUMERS GROUP; FOOTHILLS PIPE LINES LTD.; KERN RIVER GAS TRANSMISSION COMPANY; ASSOCIATED GAS DISTRIBUTORS; TOWARD UTILITY RATE NORMALIZATION; SAN DIEGO GAS AND ELECTRIC COMPANY; NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS; CITY AND COUNTY OF SAN FRANCISCO,NEW MEXICO ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT,, v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, AND MOJAVE PIPELINE COMPANY, PACIFIC GAS AND ELECTRIC COMPANY, PETITIONER, AND EL PASO NATURAL GAS COMPANY; FOOTHILLS PIPE LINES LTD.; CITY AND COUNTY OF SAN FRANCISCO,SACRAMENTO MUNICIPAL UTILITY DISTRICT, INTERVENOR, V. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, AND MERIDIAN OIL INC.; PROCESS GAS CONSUMERS GROUP; MOJAVE PIPELINE COMPANY, PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, PETITIONER, V. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT. o. 95-70917, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter Arth, Jr., Edward W. O'Neill and Mark Fogelman, California Public Utilities Commission, San Francisco, California, for petitioner Public Utilities Commission of the State of California.
Daniel G. Clement, Randall R. Morrow, Los Angeles, California, for petitioner-intervenor Southern California Gas Co.
Donald K. Dankner and Frederick J. Killion, Winston & Strawn, Washington, D.C.; Patrick G. Golden, San Francisco, California, for petitioner and petitioner-intervenor Pacific Gas & Electric Company.
Susan Tomasky, Jerome M. Feit, Joseph S. Davies, and Eric L. Christensen, Federal Energy Regulatory Commission, Washington, D.C., for respondent Federal Energy Regulatory Commission.
Michael D. Ferguson, Bakersfield, California, Mary Anne Mason, Kenneth L. Wiseman, and Kenneth M. Minesinger, Andrews & Kurth, Washington, D.C., for petitioner-intervenor and intervenor Mojave Pipeline company.
Frederick Moring and Ann H. Kim, Crowell & Moring, Washington, D.C., for petitioner-intervenor Associated Gas Distributors.
Thomas R. Kline, Andrews & Kurth, Washington, D.C., for petitioner-intervenor El Paso Natural Gas Company.
Michael J. Thompson, Wright & Talisman, Washington, D.C.; Mark C. Moench, Salt Lake City, Utah, for petitioner-intervenor Kern River Gas Transmission Company.
Paul Rodgers and Charles D. Gray, Washington, D.C., for petitioner-intervenor National Association of Regulatory Utility Commissioners.
Norman A. Pedersen, Jones Day Reavis & Pogue, Washington, D.C., for petitioners-intervenors Southern California Utility Power Pool and Imperial Irrigation District.
James F. Walsh, III, San Diego, California, for petitioner-intervenor San Diego Gas & Electric Company.
Theresa Mueller and Michel Peter Florio, San Francisco, California for petitioner-intervenor Toward Utility Rate Normalization.
Theresa I. Zolet, Van Ness, Feldman & Curtis, Washington, D.C., for petitioner-intervenor Foothills Pipe Lines, Ltd.
Donald P. Margolis, Deputy City Attorney, San Francisco, California, for petitioners-intervenors City and County of San Francisco.
Kim M. Clark, John, Hengerer & Esposito, Washington, D.C., for petitioner-intervenor and respondent-intervenor Meridian Oil Inc.
Edward J. Grenier, Jr., William H. Penniman, Glen S. Howard, and Daniel E. Frank, Sutherland, Asbill & Brennan, Washington, D.C., for petitioner-intervenor and respondent-intervenor Process Gas Consumers Group.
Steven M. Cohn, Sacramento, California, for intervenor Sacramento Municipal Utility District.
Dwight C. Donovan and Edward G. Poole, San Francisco, California, for participant-intervenor New Mexico Energy, Minerals and Natural Resources Department.
Petitions to Review Decisions of the Federal Energy Regulatory Commission. FERC No. CP93-258-000.
Before: William C. Canby, Jr., Senior Circuit Judge, Ferdinand F. Fernandez, Circuit Judge, and Robert E. Jones, District Judge*
The Public Utilities Commission of the State of California (CPUC) and the Pacific Gas and Electric Company (PG&E), plus numerous intervenors, have petitioned for review of the Federal Energy Regulatory Commission's (FERC's) determination that it has exclusive jurisdiction, under the federal Natural Gas Act (NGA), 15 U.S.C. 717 et seq., over Mojave Pipeline Company's application to expand its existing natural gas facilities in California.
The NGA, administered by FERC, governs the transportation and sale of natural gas in interstate commerce. 15 U.S.C. 717(b). The Act does not apply to "any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas." Id. The NGA also does not apply to persons engaged in certain kinds of interstate transportation of natural gas when all the gas is consumed within the receiving state. 15 U.S.C. 717(c). FERC has no regulatory jurisdiction in these situations, and instead the appropriate state agency regulates such projects.
If the NGA applies to a natural gas project, section 7 requires the natural gas company to have a FERC-issued certificate of public convenience and necessity. 15 U.S.C. 717f(c). FERC grants applications for such certificates if it finds:
that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of [the Act] and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise, such application shall be denied.
Id. 717f(d). FERC can also attach "reasonable terms and conditions as the public convenience and necessity may require." Id.
Mojave Pipeline is a natural gas company currently operating in California and Arizona. It holds a FERC-issued section 7 certificate of public convenience and necessity to operate approximately 384 miles of natural gas pipeline that have been in service since 1992. On March 17, 1993, Mojave Pipeline applied to FERC for another section 7 certificate to construct its proposed Northward Expansion.
The Northward Expansion would extend Mojave's existing system approximately 290 miles northward from its East Lateral near Bakersfield, California to Martinez, California. A branch from this line would extend northward approximately 59 miles to a point just southeast of Sacramento, California. Mojave also would construct approximately 222 miles of high pressure extensions and laterals of varying lengths and diameters that would connect to the receipt facilities of the Northward Expansion shippers.
"Preliminary Determination on Nonenvironmental Issues," Mojave Pipeline Co., 69 F.E.R.C. P61,244, at 61,918 (Nov. 18, 1994).
The natural gas Mojave Pipeline proposed to transport would "be received from El Paso Natural Gas Company and Transwestern Pipeline Company in Arizona, and [would] be transported across state lines into California." "Order on Jurisdictional Issue," Mojave Pipeline Co., 66 F.E.R.C. 61,194, at 61,433 (Feb. 15, 1994). However, "except for the additional compression proposed at Topock, Arizona, all of the proposed facilities and potential customers would be located in California." Id. at 61,431.
Notices of Mojave Pipeline's application and its November 1993 amendment to that application were published in the Federal Register. 58 Fed. Reg. 17224 (April 1, 1993); 58 Fed. Reg. 61085 (Nov. 19, 1993). Sixty-nine timely motions and ten late motions to intervene were filed in the proceeding, all of which FERC granted.
CPUC and PG&E, as intervenors, protested Mojave Pipeline's proposal on several grounds but argued in particular that CPUC, not FERC, had jurisdiction over Mojave Pipeline's proposed expansion. FERC found that it had exclusive jurisdiction over the proposal. "Order on Jurisdictional Issue," 66 F.E.R.C. at 61,440-41. CPUC and PG&E submitted timely requests for rehearing, which FERC denied. "Order Issuing Certificate, Ruling on Deferred Issues, Denying Rehearing and Reconsideration and Granting and Denying Clarification," Mojave Pipeline Co., 72 F.E.R.C. P61,167, at * 25 (Aug. 4, 1995) [hereinafter Final Order]. In the same order, FERC issued a NGA section 7 certificate of public convenience and necessity to Mojave Pipeline, authorizing it to construct and operate its Northward Expansion. Id. at * 24. PG&E filed a timely request for rehearing of the Final Order, which FERC denied. "Order Denying Rehearing and Clarifying Prior Order," Mojave Pipeline Co., 73 F.E.R.C. P61,300, at * 17 (Dec. 13, 1995).
The NGA allows a person aggrieved by FERC's orders to petition the court of appeals for any circuit "wherein the natural-gas company to which the order relates is located or has its principal place of business" for review within 60 days after FERC has issued an order addressing that person's petition for rehearing. 15 U.S.C. 717r(b). CPUC filed timely petitions for review of FERC's Final Order and "Order on Jurisdictional Issue" (No. 95-70611) and of FERC's "Order Denying Rehearing and Clarifying Prior Order" (No. 96-70104). PG&E filed a timely petition for review of FERC's "Order Denying Rehearing and Clarifying Prior Order" and also for review of the Final Order and Order on Jurisdictional Issue (No. 95-70917). Therefore, jurisdiction over these cases is proper in this court.
Since these appeals were filed, however, Mojave...
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