Algonquin Gas Transmission Co. v. Federal Power Com'n

• Decision Date: 15 January 1953
• Docket Number: No. 4703.,4703.
• Citation: 201 F.2d 334
• Parties: ALGONQUIN GAS TRANSMISSION CO. v. FEDERAL POWER COMMISSION.
• Court: U.S. Court of Appeals — First Circuit

201 F.2d 334 (1953)

ALGONQUIN GAS TRANSMISSION CO. v. FEDERAL POWER COMMISSION.

No. 4703.

United States Court of Appeals First Circuit.

January 8, 1953.

Rehearing Denied January 15, 1953.

Paul A. Porter, Washington, D. C. (Burns, Blake & Rich, Boston, Mass., and Arnold, Fortas & Porter, Washington, D. C., with him on the brief), for petitioner.

Bernard A. Foster, Jr., Assistant General Counsel, Washington, D. C. (Bradford Ross, General Counsel, and Harry R. Van Cleve, Jr., and Robert W. Perdue, Washington, D. C., with him on the brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

For two years, more or less, the Federal Power Commission has had before it several related proceedings, chief of which, for present purposes, are overlapping or competitive applications by Algonquin Gas Transmission Company (Algonquin) and by Northeastern Gas Transmission Company (Northeastern), each seeking a permanent certificate of public convenience and necessity, under § 7(c) of the Natural Gas Act, as amended, 52 Stat. 825, 56 Stat. 83,¹ authorizing the construction and operation of a natural gas pipe-line system, and the sale of natural gas to distributing companies and communities in the New England region.

On October 4, 1950, the Commission issued its Opinion No. 201, in which it found on the evidence before it that "the public convenience and necessity requires adequate and satisfactory natural gas service at a reasonable cost in the New England area." In subsequent stages of the proceedings, the Commission issued orders dividing up the territory between Algonquin and Northeastern, and issuing to each a certificate authorizing the construction and operation of a pipe-line system to serve the communities allocated to it. The certificate to Algonquin was granted by an order on February 26, 1951, accompanied by the Commission's Opinion No. 206.

Prior thereto, on December 21, 1950, Northeastern had submitted to the Commission a new application seeking exclusive authority to serve the whole New England area, including the communities which the Commission had theretofore allocated to Algonquin subject to a showing by Algonquin that it had an adequate supply of natural gas to serve such markets. By order of January 10, 1951, the Commission, without having set for hearing this new application by Northeastern, had denied the same "without prejudice to its refiling should the pending application of Algonquin be denied."

Subsequently, Northeastern filed in the Court of Appeals for the Third Circuit a petition to review the Commission's order of January 10, 1951, dismissing its new application, the Commission's order of February 26, 1951, granting the certificate to Algonquin, and two other related orders. The Court of Appeals held that the Commission had erred in granting the certificate to Algonquin without having had a hearing on the new and conflicting application by Northeastern; and entered judgment setting aside these two orders of the Commission (as well as the other two related orders) and remanding the case to the Commission for further proceedings not inconsistent with the Court's opinion. Northeastern Gas Transmission Co. v. Federal Power Commission, 3 Cir., 1952, 195 F.2d 872. We refer to the opinion in that case for further details as to the various underlying proceedings before the Commission.

Algonquin procured a stay of the mandate of the Court of Appeals pending application to the Supreme Court for a writ of certiorari. On October 13, 1952, the Supreme Court denied certiorari in the case. 344 U. S. 818, 73 S.Ct. 31.

Meanwhile, acting on the authority of the outstanding certificate granted to it on February 26, 1951, Algonquin proceeded, at large expense, with the construction of its pipe-line system, which it had almost but not quite completed before October 23, 1952, when the mandate of the Court of Appeals went down to the Commission. The Commission, in compliance with the mandate, promptly reopened the proceedings for hearing the competitive applications by Algonquin and Northeastern, and certain related applications and matters; and these hearings are presently in progress before a presiding examiner of the Commission.

On October 21, 1952, anticipating the reopening by the Commission of the underlying proceedings upon receipt of the mandate of the Court of Appeals, Algonquin filed with the Commission an application for a temporary certificate of public convenience and necessity under the proviso of § 7(c) of the Natural Gas Act.² The application stated that on the faith of the certificate Algonquin's main line had been 99.9 per cent installed, that almost all of its lateral lines had been completed, and that if a temporary emergency certificate were granted, Algonquin would be in a position to operate its system within a matter of days. We set forth in the footnote a portion of the application, describing the emergency which in the view of Algonquin would justify the issuance of a temporary certificate under § 7 (c).³ The prayer of the application was for the issuance by the Commission of "a temporary emergency certificate of public convenience and necessity authorizing applicant Algonquin Gas Transmission Company to continue with the construction and operation of its pipeline system and to render natural gas service to the customers specified to be served by Algonquin in Opinions Nos. 202 and 206, or their successors, and in the quantities set forth in such opinions without prejudice to any further action the Commission might take and pending determination of the application of Algonquin Gas Transmission Company in Docket No. G-1319."

Thus the application for a temporary certificate contemplated the completion of a new pipe-line system, and the sale of natural gas to a whole region which theretofore had got along without any natural gas service.

On October 31, 1952, the Commission issued an order (two members dissenting) dismissing for lack of jurisdiction Algonquin's application for a temporary certificate, upon a finding that such application did not "come within the purview of the authority of this Commission to grant." A rehearing of the application was had at Algonquin's request, but on November 26, 1952, the Commission entered a further order affirming its order of dismissal.

On December 5, 1952, Algonquin filed its petition now pending before us, seeking review of the Commission's order denying for lack of jurisdiction Algonquin's application for a temporary emergency certificate. Petitioner expressed doubt whether the order was presently reviewable by us under § 19 (b) of the Natural Gas Act, 15 U.S.C.A. § 717r(b), and as an alternative asked us to issue an order to respondent Commission to show cause why a writ of mandamus should not be issued under 28 U.S.C. § 1651, directing the Commission to vacate its orders of October 31 and November 26, 1952, and to hear and dispose of on the merits Algonquin's application for a temporary emergency certificate.

We issued the show-cause order, as requested, on December 5, 1952. The Commission promptly filed its answer, asserting that the order in question is reviewable, and reviewable exclusively, under § 19(b) of the Act; acquiescing in such review by this court, "forthwith if it so desires"; asking that the alternative petition for a writ of mandamus be denied, and that this court vacate so much of its order of December 5, 1952, as required the Commission to show cause why such a writ should not be issued; and finally praying that its order of October 31, 1952, be affirmed. The Commission certified to this Court the transcript of the administrative record in the matter.

In view of the urgency asserted in the petition, we set the case for special hearing on December 16, 1952. At the outset, we denied motions by various persons for leave to intervene. Our memorandum explaining the reasons for denying the motions to intervene, which we read in open court, is annexed at the conclusion of this opinion.

We are certain that we presently have jurisdiction to review the order, under § 19(b) of the Act; and in view of the Commission's concession we shall not discuss this point at length.

Section 19(b) does not say that only "final" orders are reviewable. It says that any party to a proceeding under the Natural Gas Act "aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order" in the appropriate United States Court of Appeals. But it is well established, under similar language in other statutes providing for judicial review, that administrative orders of a merely preliminary or procedural character are not directly and immediately reviewable in the Court of Appeals. Federal Power Commission v. Metropolitan Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408; Eastern Utilities Associates v. Securities and Exchange Commission, 1 Cir., 1947, 162 F. 2d 385, 386 and cases cited. That does not mean that judicial review must necessarily await the ultimate order finally terminating the underlying proceeding; but the order to be reviewable must be administrative action of a substantial character approaching some degree of finality. See Phillips v. Securities and Exchange Commission, 2 Cir., 1948, 171 F.2d 180, 183.

Certain types of interlocutory orders, not immediately reviewable, may infect with invalidity the final order of the administrative agency; in which case, upon judicial review of the final order, the interlocutory order will be reviewed so far as it may have affected the final order. But the order of October 31, 1952, now under review, was not that type of interlocutory order. The order dismissing for lack of jurisdiction Algonquin's application for a temporary emergency certificate — whether right or wrong — cannot affect the validity of whatever orders the Commission may ultimately issue on the competitive applications of...