Consolidated Edison Co. of New York, Inc. v. Federal Power Commission

Decision Date26 November 1974
Docket Number74--1200,73--2017,74--1184 and 74--1231,74--1150,Nos. 73--1999,s. 73--1999
Citation167 U.S.App.D.C. 134,511 F.2d 372
PartiesCONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Brick Institute of America, Intervenors. STATE OF NORTH CAROLINA and North Carolina Utilities Commission, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Piedmont Natural Gas Co., Inc., et al., Intervenors. ALABAMA GAS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Southeast Alabama Gas District et al., Intervenors. ATLANTA GAS LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, South Carolina Electric & Gas Company et al., Intervenors. BATTLE CREEK GAS COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. National Distillers and Chemical Corp. et al., Intervenors. MICHIGAN CONSOLIDATED GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Michigan Gas Storage Company et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

William I. Harkaway, Washington, D.C., with whom Charles J. McCarthy, Washington, D.C., and Robert A. Froehlich, New York City, were on the brief for petitioner in No. 73--1999.

Morton L. Simons, Washington, D.C., for petitioners in No. 73--2017.

Harold L. Tailsman, Washington, D.C., with whom Melvin Richter, Washington, D.C., and A. S. Lacy, Birmingham, Ala., were on the brief for petitioner in No. 74--1150.

John E. Holtzinger, Jr., Washington, D.C., with whom Paul H. Keck, Washington, D.C., was on the brief for petitioner in No. 74--1150.

J. Richard Tiano, Washington, D.C., with whom Richard M. Merriman, and Richard T. Witt, Washington, D.C., and Raymond P. Buschmann, Chicago, Ill., were on the brief for petitioners in No. 74--1184.

John E. Haley, Washington, D.C., with whom Richard J. Flynn, Washington, D.C., Frederick G. Berner, Jr., and Gary L. Cowan, Washington, D.C., were on the brief for petitioners in No. 74--1231.

George W. McHenry, Jr., Sol., Federal Power Commission, with whom Leo E. Forquer, Gen. Counsel, William J. Grealis, Thomas M. Walsh and John R. Staffier, Attorneys, F.P.C., Washington, D.C., were on the brief for respondent.

Richard A. Solomon, Washington, D.C., for intervenor National Distillers and Chemical Corp.

Raymond N. Shibley, Washington, D.C., with whom James J. Flood, Jr., Washington, D.C., was on the brief for intervenor Panhandle Eastern Pipe Line Co.

James J. Flood, Jr., Washington, D.C., with whom William A. Major, Jr., Birmingham, Ala., was on the brief for intervenor Southern Natural Gas Co.

Joseph T. Stevens, for intervenor Brooklyn Union Gas Co. No brief was filed by intervenor Brooklyn Union Gas Co. Barbara M. Gunther, Brooklyn, N.Y., entered an appearance for intervenor Brooklyn Union Gas Co.

John T. Ketcham, and Robert J. Haggerty, Washington, D.C., were on the brief for petitioner Anchor Hocking Corp. in No. 74--1184.

Edward J. Grenier, Jr., Richard P. Noland, Richard J. Pierce, Jr., and David C. Evans, Washington, D.C., were on the brief for intervenors Brick Institute of America and Brick Ass'n of North Carolina.

Dale A. Wright and Melvin Richter, Washington, D.C., were on the brief for intervenor Piedmont Natural Gas Co., Inc.

John T. Miller, Jr., Washington, D.C., was on the brief for intervenor Elizabethtown Gas Co. and for intervenors A. P. Green Refractories, Co., and others.

Frederick Moring, Washington, D.C., was on the brief for intervenor South Jersey Gas Co. Paul H. Keck, Washington, D.C., entered an appearance for intervenor South Jersey Gas Co.

Peter H. Schiff, Albany, N.Y., and Richard A. Solomon, Washington, D.C., were on the brief for intervenor Public Service Commission of the State of New York.

Daniel L. Bell, Jr., and Giles H. Snyder, Charleston, W. Va., were on the brief for intervenor Columbia Gas Transmission Corp.

George A. Avery, Toni K. Golden and James K. White, Washington, D.C., were on the brief for intervenor Michigan Gas Storage Co. Henry F. Krautwurst, Monte R. Richards and Susan A. Low, Washington, D.C., were on the brief for intervenor Washington Gas Light Co.

Edward S. Kirby, Newark, N.J., was on the brief for intervenor Public Service Electric and Gas Co. in support of petitioners' motion for stay to maintain the status quo etc. James R. Lacey, Newark, N.J., entered an appearance for intervenor Public Service Electric and Gas Co.

Thomas F. Ryan, Jr., Washington, D.C., entered an appearance for intervenor Transcontinental Gas Pipe Line Corp.

Donald W. McCoy and Alfred E. Cleveland, Fayetteville, N.C., entered appearances for intervenor North Carolina Natural Gas Co.

Jack M. Irion, Shelbyville, Tenn., entered an appearance for intervenor Union Cities Gas Co.

Joseph W. Ferraro, Jr., Newark, N.J., entered an appearance for intervenor The New Jersey Board of Public Utility Commission.

F. Kent Burns, Raleigh, N.C., entered an appearance for intervenor Public Service Co. of North Carolina, Inc.

William W. Ross, Washington, D.C., entered an appearance for intervenors Pomona Corp.

Edward J. Grenier, Jr., Richard P. Noland and Richard J. Pierce, Jr., Washington, D.C., entered appearances for intervenors General Motors Corp. and Georgia Industrial Group.

David C. Murchison and Richard S. Harrell, Washington, D.C., entered appearances for intervenor Caterpillar Tractor Co.

John W. Glendening Jr., and John S. Schmid, Washington, D.C., entered appearances for intervenor Mueller Brass Co.

Harold L. Talisman, Washington, D.C., entered an appearance for intervenor Corning Glass Works.

Michael J. Manning, Washington, D.C., entered an appearance for intervenor Anderson Clayton Foods.

Raymond D. Hurley, Washington, D.C., entered an appearance for intervenor Owens-Corning Fiberglas Corp.

James R. McClarnon, Indianapolis, Ind., entered an appearance for intervenor City of Indianapolis, etc.

George Mabry entered an appearance for intervenor Johns-Manville Fiber Glass, Inc.

Ronald D. Eastman, Washington, D.C., entered an appearance for intervenor The American Textile Manufacturers Institute, Inc.

Ronald L. Winkler, Washington, D.C., entered an appearance for North Carolina Congressional Delegation to the Congress of the United States as amicus curiae and also for intervenor Brick Institute of America.

Peyton G. Bowman, III, Washington, D.C., entered an appearance for intervenor South Carolina Electric and Gas Co.

Carl L. Evans, Montgomery, Ala., entered an appearance for intervenor Alabama Public Service Commission.

William T. Miller, Washington, D.C., entered an appearance for intervenor Southeast Alabama Gas District.

M. John Bowen, Jr., Columbia, S.C., entered appearances for intervenors South Carolina Public Service Commission and South Carolina Energy Management Office.

Jerome Ackerman, Washington, D.C., entered an appearance for intervenor Staffer Chemical Co.

Edward W. Stern, Philadelphia, Pa., entered an appearance for intervenor Philadelphia Gas Works.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and AUBREY E. ROBINSON, Jr., ** United States District Judge for the District Court of the District of Columbia.

PER CURIAM:

Oral argument in these three groups of consolidated appeals was heard on November 21, 1974. In addition to the issues presented on the merits of petitioners' claims, we asked counsel in Consolidated Edison v. FPC to address themselves to a number of motions recently filed by petitioners, intervenors and the FPC, as respondent, in that case. We deal presently only with the problems raised in these motions, to which a speedy response is sought by all parties and required by the onslaught of winter and a deepening shortage of natural gas. A full understanding of our response requires a brief review of the background litigation.

Petitioners in all three cases are customers of natural gas pipeline companies--Transcontinental Gas Pipe Line Corporation (Transco); Southern Natural Gas Company (Southern); Panhandle Eastern Pipe Line Company (Panhandle). They contest the legality of service curtailment plants filed by the pipelines reflecting the priorities outlined in FPC Order No. 467, 1 as modified by Order No. 467--B. 2 In each case, prior to the issuance of Order No. 467 on January 8, 1973, the pipeline had filed an interim curtailment plan negotiated among its own customers under FPC Order No. 431. And in each case, after attempts to extend the interim plan, or to file revised plans not in accord with Order No. 467, 3 the pipeline submitted a plan more or less consistent with the requirements of the order.

Appeals were filed from FPC orders effectuating the 467-type plans, and petitioners in each case moved for a stay pendente lite. In two cases, those involving Transco and Southern, the stays were granted. 4 In terms of the need for any immediate order of the court, it was accepted by Commission counsel, and was the prevailing consensus at oral argument, that the present situation--with a stay in effect in the Southern case, and the stay denied in Panhandle--was likely to be as protective of customers during the coming winter as any alternative. 5 The current controversy centers on whether the stay in the Transco case should continue in effect, and if so, how it should be shaped to give protection against irreparable harm.

Our initial order in the Transco case was issued November 9, 1973. It was clarified on December 14, 1973, to make explicit our intent that the existing interim plan, which would have been replaced by the 467-type plan under the administrative orders in dispute, remain in effect 'until further order of this court.' In the fall of 1974 the Commission requested a further clarification of our stay, in light of ongoing negotiations between the pipeline and its customers to reach a new interim settlement plan. On October 4, 1974, we gave this explanation:

Our orders of November 9, 1973 and December 14, 1973 do not permit...

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