Cia Mexicana de Gas v. Federal Power Commission, 11790
| Decision Date | 07 May 1948 |
| Docket Number | No. 11790,11791.,11790 |
| Citation | 167 F.2d 804 |
| Parties | CIA MEXICANA DE GAS, S. A., v. FEDERAL POWER COMMISSION (REYNOSA PIPE LINE CO., Intervener). STATE OF TEXAS et al. v. FEDERAL POWER COMMISSION. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry F. Holland, of Houston, Tex., for petitioner Cia Mexicana, De Gas, S. A.
Binford Arney, of Corpus Christi, Tex., for intervener, Reynosa Pipe Line Co.
James D. Smullen, Asst. Atty. Gen. of Texas, for petitioners State of Texas et al.
Bradford Ross, Gen. Counsel, and Charles E. McGee, Asst. Gen. Counsel, Federal Power Commission, both of Washington, D. C. (Louis W. McKernan, W. Russell Gorman, and Albert J. Feigen, all of Washington, D. C., of counsel), for respondent.
Before HUTCHESON, HOLMES, and WALLER, Circuit Judges.
The review sought is of orders of the Federal Power Commission authorizing the exportation1 of natural gas from Texas to Mexico and granting a certificate2 of public convenience and necessity.
Joining in a kind of Janus headed attack upon them, the State of Texas and the Railroad Commission, on the one hand, and Cia Mexicana De Gas, S. A., on the other, are here seeking their overthrow.
It is true that both the State of Texas and Cia Mexicana do, in their petitions for review and their joint brief, rely in the main on the same claims of error. But it is further true that, from the standpoint of the grounds of their opposition to the orders, the State and Cia Mexicana did not see eye to eye.
In its intervention, Cia Mexicana, whose principal source of supply is Texas gas purchased from United Gas Pipe Line Company, under an export permit, did urge, as Texas did, that Mexicana had vast resources of gas capable of development, but its emphasis was upon its status and position as a public utility company serving the territory sought to be invaded by Reynosa and the protection of its rights as such company.
The emphasis of the State of Texas in the Railroad Commission's motion to present additional evidence upon the gas resources of Mexico was entirely upon the conservation of Texas gas for use in Texas and southwestern United States.
To the claim, however, of Reynosa, that the opposition of Texas to its export permit, while it did not and does not oppose the permit under which Cia Mexicana gets its gas, presents an inconsistency, Texas answers simply, "Enough is enough."
In addition to petitioning for review, Cia Mexicana has filed a petition to introduce additional evidence, as to matters occurring since the hearing and order. Reynosa Pipe Line Company, urging that petitioners are not aggrieved persons under the Natural Gas Act and that their petitions present nothing for review, moves to dismiss the petitions for review and to introduce additional evidence. The Federal Power Commission opposes the introduction of additional evidence.
We make short work of Reynosa's motion to dismiss. We think it clear that petitioners are aggrieved parties within the meaning of the Act, and, as such, are rightfully here. Mexicana's motion to adduce additional evidence, however, is, for the reasons hereinafter stated, denied.
On the merits, petitioners claim that the orders should be set aside and the matter returned to the commission for a rehearing because they are without support in the evidence, or, if not for that reason, because they are based on a hearing unfair to petitioner.
In Arkansas Louisiana Gas Co. v. Federal Power Commission, 5 Cir., 113 F.2d 281 and in Department of Conservation v. Federal Power Commission, 5 Cir., 148 F. 2d 746, 750, this court has had occasion to fully consider the powers granted the Commission and the scope of review of its orders when entered under Sec. 7(c) of the Natural Gas Act, 15 U.S.C.A. § 717f (c). In the last cited case, we said:
Here two situations are under review. One, the granting of a certificate of convenience and necessity, is the precise one dealt with in those cases. The other, the granting of an export permit, is provided for in Section 3 of the Natural Gas Act.3 Under the command of this section, "the Commission shall issue such order upon application, unless, after opportunity for hearing, it finds that the proposed exportation or importation will not be consistent with the public interest." (Emphasis supplied.)
A certificate of public convenience and necessity requires as a condition to its granting that the commission make a positive finding of consistency with the public interest.
An export permit, on the other hand, must be issued unless the commission makes a negative finding, and it may not be doubted, that the authority of the commission to grant an export permit is certainly as broad as its authority under the certificate section. Neither may it be doubted that one seeking a review here of an order granting an export permit is under at least as heavy a burden to overthrow the order as he would be if he sought by review to overthrow an order granting a certificate. Under Section 3, the permit must be granted unless the Commission finds that it is not consistent with the public interest. Here the Commission has not found this, but the contrary, and the burden on petitioners to overthrow the finding and order is a heavy one. To discharge that burden they must point to a record showing, so clearly and positively as to override the Commission's finding, that the granting of the permit is in fact inconsistent with the public interest.
The fact, of which petitioners seek to make so much, that on the first hearing the Commission, two commissioners dissenting, refused the permit, and on the second hearing, without substantial additional evidence, granted it, is, we think, without significance here. A commission, like a court, may, indeed should, change its findings and order if on rehearing it is of a different mind. If it does so change, our function on a review of its findings and order is to determine not which of the two findings and orders was the best but whether, as claimed by petitioners, the findings and order under review are without evidence to support them. When the order, conditioned4 as it is, is considered in the light of the record and the full and careful opinion of the Commission, we can find no basis in the record for the conclusion urged upon us that its granting was arbitrary and unreasonable and contrary to the evidence and the statute.
Nor can we agree with petitioners that they stand in any stronger position on their complaint5 that the hearing was unfair and was conducted in such disregard of the "basic concepts of fair play" t...
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