Maryland People's Counsel v. F.E.R.C.

• Decision Date: 19 April 1985
• Docket Number: Nos. 85-1029,85-1086,s. 85-1029
• Citation: 760 F.2d 318
• Parties: MARYLAND PEOPLE'S COUNSEL, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. LACLEDE GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 318

760 F.2d 318

245 U.S.App.D.C. 248

MARYLAND PEOPLE'S COUNSEL, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

LACLEDE GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

Nos. 85-1029, 85-1086.

United States Court of Appeals, District of Columbia Circuit.

Decided April 19, 1985.

Motions to Intervene Granted in Part

and Denied in Part April 19, 1985.

Before MIKVA, GINSBURG and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

In the first of the above captioned cases, Maryland People's Counsel ("MPC") challenges under 15 U.S.C. Sec. 717r(b) (1982) a natural gas special marketing program established by the Federal Energy Regulatory Commission ("FERC") pursuant to agency orders authorizing such programs. Tenneco Oil Co., et al., Order Amending Certificates of Convenience and Necessity, Extending Limited-Term Abandonments, and Establishing Procedures, Docket Nos. CI83-269-000, etc., 28 F.E.R.C. (CCH) p 61,383 (1984); Tenneco Oil Co., et al., Order Granting in Part and Denying in Part Rehearing, Clarifying Certificate Order and Granting Intervention, Docket Nos. CI83-269-000, etc., 29 F.E.R.C. (CCH) p 61,334 (1984). We have before us in that case a motion for stay of the orders, and petitions for intervention by numerous parties to the proceedings below. In the second captioned case, brought by Laclede Gas Company challenging another special marketing program established pursuant to the same orders, we have before us a motion to consolidate with the first suit, a motion for stay of the orders, and numerous petitions for intervention.

At the time these two appeals were filed, we already had before us Case No. 84-1019, Maryland People's Counsel v. FERC (D.C.Cir. argued Jan. 22, 1985), challenging a special marketing program established for the prior year, pursuant to predecessor orders. Columbia Gas Transmission Corp. and Columbia Gulf Transmission Corp., Findings and Order After Statutory Hearing Granting Interventions and Issuing Certificate of Public Convenience and Necessity, Docket No. CP83-452-000, 25 F.E.R.C. (CCH) p 61,220 (1983); Columbia Gas Transmission Corp. and Columbia Gulf Transmission Corp., Order Clarifying Prior Order and Granting Rehearing for the Purpose of Further Consideration, Docket No. CP83-45-001, 25 F.E.R.C. (CCH) p 61,401 (1983); Columbia Gas Transmission Corp. and Columbia Gulf Transmission Corp., Order Clarifying Prior Orders and Denying Rehearing, Docket No. CP83-452-001, 26 F.E.R.C. (CCH) p 61,031 (1984). In that case, in pursuance of our duty to satisfy ourselves of our jurisdiction, Bouchet v. National Urban League, Inc., 730 F.2d 799, 805 (D.C.Cir.1984), we raised on our own initiative, and received briefing upon, several questions pertaining to the standing of MPC to sue. Because granting either the motions to intervene in MPC's suit or Laclede's motion for consolidation with that suit seemed inappropriate if, by reason of lack of standing, we lacked jurisdiction over MPC's appeal, see Simmons v. ICC, 716 F.2d 40, 46 (D.C.Cir.1983), we deferred ruling on the motions until the standing issue could be resolved. We here set forth our opinion on the standing point common to both MPC appeals.

We were initially concerned that MPC's authorizing statute did not empower the agency to appear before this court. The relevant provision of Maryland law authorizes the agency "to appear before the [Maryland State Public Service] Commission and the courts ... in all matters or proceedings over which the Commission has original jurisdiction" (which is not this case), but more generally only to "appear before any federal or State agency as necessary to protect the interests of residential and noncommercial users." MD.ANN.CODE art. 78, Sec. 15 (1980) (emphasis added). We would normally consider the term "agency," especially when used in such close proximity to specific reference to "courts," not to include Article III courts.

We have concluded, however, that the question of MPC's authorization under state law does not go to our jurisdiction. See Summers v. Interstate Tractor and Equipment Co., 466 F.2d 42, 50 (9th Cir.1972) ("The question of a litigant's capacity or right to sue or to be sued generally does not affect the subject matter jurisdiction of the district court"). And since none of the parties to the instant action raised the issue prior to our request for supplemental briefing, we will deem it to have been waived. Cf. C. WRIGHT & A. MILLER, FEDERAL RULES OF CIVIL PROCEDURE Sec. 1295 (1969) (suggesting that objections to capacity can be treated as waived in the district court if not put in issue by a responsive pleading). Lest this punctilious disposition leave the erroneous impression that Maryland People's Counsel is careless of its jurisdiction, we note by way of dictum that a case decided by the Maryland courts, whose word on this issue is conclusive, has held that the authorizing legislation permits MPC "to raise and advance the interests of residential and noncommercial users in the appropriate forum, including the courts." Keane v. Heintz, No. A-61447/81295303, slip. op. at 2 (Cir.Ct. for Baltimore City, Apr. 10, 1984). While that case pertained to appearance in state rather than federal court, we see no way the statute can be interpreted to make a distinction between the two.

A separate question, however, is whether MPC meets the standing requirements of federal law. MPC does not purport to purchase any of the natural gas affected by the Commission's special marketing program, but seeks to represent, in its capacity as a state agency, the interests of those citizens of Maryland who do. A state's interest in those aspects of the welfare of its citizens secured and furthered by government--that is, a state's so-called "quasi-sovereign" interest--is unquestionably sufficient to confer standing upon the state as parens patriae. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901). However, "[a] State does not have standing as parens patriae to bring an action against the Federal Government," Alfred L. Snapp & Son, 458 U.S. at 610 n. 16, 102 S.Ct. at 3270 n. 16, citing Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 600-01, 67 L.Ed. 1078 (1923). Thus, this court has denied parens patriae standing for a state suit against the Small Business Administration. Commonwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C.Cir.1976).

Here, however, MPC does not rely exclusively upon the general doctrine of parens patriae, but appeals to a statutory conferral of standing by the Natural Gas Act. 15 U.S.C. Sec. 717r(b) provides that "[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order ... in the United States Court of Appeals for the District of Columbia...." In turn, the provision specifying who may be a "party to a proceeding" states:

In any proceeding before it, the Commission ... may admit as a party any interested State, State commission, municipality or any representative of interested consumers or security holders, or any competitors of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest.

15 U.S.C. Sec. 717n(a). The Act defines "municipality" as "a city, county, or other political subdivision or agency of a State," 15 U.S.C. Sec. 717a(3) (emphasis added). The special solicitude for states and state agencies is also reflected in the provision governing those who may apply for rehearing, which is a prerequisite for judicial review. 15 U.S.C. Sec. 717r(a) allows "[a]ny person, State, municipality, or State commission aggrieved by an order" to apply for a rehearing (emphasis added). ¹

It seems to us inconceivable that the specific provision of party and rehearing status for states and state agencies envisioned that these entities would be particularly likely purchasers of natural gas; to the contrary, it was evidently designed to recognize precisely the interest of the states in protecting their citizens in this traditional governmental field of utility regulation--that is, the states' parens patriae interest. We think it unavoidable, moreover, that the reference in the judicial review provision to a "party to a proceeding under this chapter aggrieved by an order" includes aggrievement by reason of impairment of the parens patriae interest acknowledged earlier. The question before us, then, is whether Massachusetts v. Mellon 's holding that the parens patriae interest is inadequate to support standing in suits against the federal government applies even where Congress has said otherwise. That is, whether Massachusetts v. Mellon embodies part of what the Supreme Court has called the "core component" of the constitutional doctrine of standing, Allen v. Wright, --- U.S. ----, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984), or rather part of the "prudential component," id.--i.e., an element that the courts must dispense with if Congress so provides. We think the latter.

It is unquestionable that a state, in its parens patriae...