American Smelting & Refining Co. v. FEDERAL POWER COM'N
| Citation | 494 F.2d 925 |
| Decision Date | 21 January 1974 |
| Docket Number | 73-1016,73-1116,73-1050,73-1042,73-1152.,No. 72-2204,73-1148,73-1040,73-1102,72-2204 |
| Parties | AMERICAN SMELTING AND REFINING COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent (two cases), Tucson Gas & Electric Company, et al., Intervenors. SAN DIEGO GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Johns-Manville Products Corp., et al., Intervenors. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, General Motors Corporation et al., Intervenors. SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, General Motors Corporation et al., Intervenors. SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Tucson Gas and Electric Co. et al., Intervenors. AMERICAN SMELTING AND REFINING COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, El Paso Natural Gas Co. et al. CITY OF WILLCOX and Arizona Electric Power Cooperative, Inc., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, American Smelting and Refining Co. et al., Intervenors. SOUTHERN UNION GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Smelting and Refining Co., et al. Intervenors. DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Shell Oil Company et al., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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K. R. Edsall, Los Angeles, Cal., for petitioner in No. 73-1042, also argued for petitioners in Nos. 73-1016, 73-1040, 73-1050 and 73-1152.
Robert J. Haggerty, Washington, D.C., with whom Arthur S. Grenier, Dallas, Tex., Charles E. McGee and John T. Ketchom, Washington, D. C., were on the brief for petitioner in No. 73-1148 and intervenor Southern Union Gas Co.
Arnold D. Berkeley, Washington, D. C., with whom George Spiegel, Washington, D. C., was on the brief for petitioner in No. 73-1116.
George W. McHenry, Jr., Acting Sol., Federal Power Commission with whom Leo E. Forquer, Gen. Counsel and Platt W. Davis, III, Atty., Federal Power Commission were on the brief for respondent. Gordon Gooch, Gen. Counsel, Washington, D. C., at the time the record was filed also entered an appearance for respondent in No. 73-1116.
Edward J. Grenier, Jr., Washington, D. C., with whom Richard Noland and Richard J. Pierce, Jr., Washington, D. C., were on the brief for intervenors, General Motors Corp. and Johns-Manville Products Corp.
Jerome Ackerman and James R. McCotter, Washington, D. C., were on the brief for petitioners in Nos. 72-2204 and 73-1102 and intervenor, American Smelting and Refining Co. and others.
Sherman Chickering, C. Hayden Ames and David R. Pigott, San Francisco Cal., were on the brief for petitioner in No. 73-1016 and intervenor San Diego Gas and Electric Co. Donald J. Richardson, Jr., San Francisco, Cal., also entered an appearance for intervenor San Diego Gas and Electric Co. in Nos. 72-2204, 73-1040, 73-1042 and 73-1050.
Rollin E. Woodbury, Alan M. Nedry, Rosemead, Cal., Edward C. Farrell and Arthur T. Devine, Deputy City Atty., Los Angeles, Cal., were on the brief for petitioner in No. 73-1050.
Frederick Searls, San Francisco, Cal., entered an appearance for petitioner in No. 73-1040 and intervenor Pacific Gas and Electric Co. in Nos. 73-1102 and 73-1148. Daniel E. Gibson, Oakland, Cal., also entered an appearance for intervenor Pacific Gas and Electric Co. in No. 73-1102.
John P. Mathis, J. Calvin Simpson and Lawrence Q. Garcia, San Francisco, Cal., were on the brief for intervenors, The People of the State of California and the Public Utilities Commission of the State of California in Nos. 73-1016, 73-1040, 73-1042 and 73-1050.
Thomas F. Brosnan, Washington, D. C., and Lawrence V. Robertson, Jr., Las Vegas, Nev., were on the brief for intervenor Tucson Gas and Electric Co. in Nos. 72-2204, 73-1016, 73-1040, 73-1042, 73-1050, 73-1148 and 73-1152.
C. Frank Reifsnyder, Washington, D. C., was on the brief for intervenors, El Paso Natural Gas Co.
John William Whitsett and Edward Farrell, Los Angeles, Cal., were on the brief for intervenor Air Polution Control District of the County of Los Angeles in No. 73-1152.
Thomas G. Johnson, Houston, Tex., entered an appearance for intervenor, Shell Oil Co. in Nos. 72-2204, 73-1016, 73-1040, 73-1042, 73-1050, 73-1102 and 73-1152. Dan A. Bruce, Houston, Tex., also entered an appearance for intervenor Shell Oil Co. in No. 73-1050.
Charles H. McCrea, Las Vegas, Nev., entered an appearance for intervenor Southwest Gas Corp. in Nos. 72-2204, 73-1016, 73-1040 and 73-1042. Leonard L. Snaider, Las Vegas, Nev., entered an appearance for intervenor Southwest Gas Corp. in Nos. 73-1050, 73-1102 and 73-1148 and intervenor Southern Gas Corp. in No. 73-1152.
Richard H. Silverman, Phoenix, Ariz., entered an appearance for intervenor Salt River Project Agricultural Improvement and Power Dist. in Nos. 72-2204, 73-1016, 73-1040, 73-1042 and 73-1050.
Richard M. Merriman, Washington D. C., entered an appearance for intervenor Arizona Public Service Co. in Nos. 72-2204, 73-1016, and 73-1040. Peyton C. Bowman, III, Washington, D. C., also entered an appearance for intervenor Arizona Public Service Co. in Nos. 72-2204, 73-1016, 73-1040 and 73-1116.
Henry F. Lippitt, Los Angeles, Cal., entered an appearance for intervenor Nevada Industrial Customers in No. 73-1042.
Before FAHY, Senior Circuit Judge, and TAMM and MacKINNON, Circuit Judges.
Rehearing Denied in Nos. 73-1016, 73-1040, 73-1042, 73-1116, February 25, 1974.
We are called upon to review orders of the Federal Power Commission which establish a temporary curtailment plan for use on the Southern Division System of the El Paso Natural Gas Company. The temporary plan was approved on October 31, 1972 and will remain in effect until the Commission approves a permanent plan.1 The purpose of a curtailment plan is to provide procedures for the allocation of gas among customers during periods of gas shortage. Much of the difficulty encountered in formulating such procedures for the El Paso system arises from the variety of customers it serves. The two California customers, Southern California Gas Company (SoCal) and Pacific Gas and Electric Company (PG&E) are partial requirements customers, i. e. El Paso is only one of the sources from which they obtain gas supplies. The customers situated in the southwestern states east of California, on the other hand, are full requirements customers. Many, if not all, of the service contracts between El Paso and its east-of-California (EOC) customers require El Paso to supply all gas requirements up to a stated daily maximum.2 In the past, the EOC customers have borne the entire burden of service curtailments. Neither of the California customers had ever experienced any reduction of service from El Paso under former curtailment plans.3 Not surprisingly, the alignment of the parties before us reflects this difference between the two categories of customers. The California customers object strongly to various aspects of the temporary plan. The EOC customers generally support the temporary plan although they, too, oppose certain features.
On April 15, 1971, the Commission issued Order No. 431, a statement of general policy. Citing recently experienced natural gas shortages,4 the order required jurisdictional pipeline companies to take all steps necessary for protection of reliable and adequate gas service.5 Any pipeline which expected that curtailment of service might be necessary was ordered to file tariff sheets setting forth a curtailment plan. Several months after order 431 was issued, El Paso filed proposed tariff revisions which modified the provisions in El Paso's FPC Gas Tariff governing curtailments in El Paso's Southern Division System. This matter is still pending before the Commission and no final order has been issued.
During the proceedings on the proposed revisions, however, El Paso filed a motion requesting the Commission to prescribe interim emergency curtailment procedures to be followed until the issuance of its final order. Although hearings regarding the proposed permanent plan had already been completed, they were reconvened for the limited purpose of ascertaining the need for interim curtailment procedures. Following ten days of hearings, the matter was submitted directly to the Commission, bypassing intermediate decision by the Administrative Law Judge. On October 31, 1972, the Commission issued Opinion No. 634, which (i) declared that the curtailment provisions of El Paso's tariff then in force were discriminatory and violative of the Natural Gas Act and (ii) established a temporary curtailment plan to be followed in El Paso's Southern Division until October 31, 1973 or the issuance of a final order in the proceedings, whichever should occur earlier.6 This order and a later clarifying order are the subject of the present petitions for review.
In Opinion No. 634 the Commission found that, in the event of a gas shortage, El Paso's existing tariff provisions called for complete cut-off of all EOC customers, including residential and small commercial customers, before any service to California would be curtailed.7 Thus, even industrial users in California would have priority over EOC residential users. After concluding that these provisions were discriminatory and violative of sections 4 and 5 of the Natural Gas Act, the Commission further found that an interim curtailment plan should be adopted based upon the following schedule of priorities:
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