Memphis Light, Gas & Water Div. v. FEDERAL POWER COM'N

• Decision Date: 14 February 1957
• Docket Number: 12840.,No. 12837,12837
• Citation: 100 US App. DC 205,243 F.2d 628
• Parties: MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Louisiana Pipe Line Company and Texas Gas Transmission Corporation, Intervenors. PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Louisiana Pipe Line Company and Texas Gas Transmission Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 205, 243 F.2d 628 (1957)

MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Louisiana Pipe Line Company and Texas Gas Transmission Corporation, Intervenors.

PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, American Louisiana Pipe Line Company and Texas Gas Transmission Corporation, Intervenors.

Nos. 12837, 12840.

United States Court of Appeals District of Columbia Circuit.

Argued June 11, 1956.

Decided February 14, 1957.

Mr. Reuben Goldberg, Washington, D. C., and Mr. George E. Morrow, Memphis, Tenn., of the bar of the Supreme Court of Tennessee, pro hac vice, by special leave of Court, for petitioner in No. 12837.

Mr. William E. Miller, Washington, D. C., with whom Messrs. Raymond N. Shibley and George B. Mickum, III, Washington, D. C., were on the brief, for petitioner in No. 12840.

Mr. William L. Ellis, Attorney, Federal Power Commission, with whom Mr. Willard W. Gatchell, General Counsel, Federal Power Commission, was on the brief, for respondent.

Mr. Christopher T. Boland, Washington, D. C., with whom Messrs. Richard J. Connor, John T. Miller, Jr., Washington, D. C., and Thomas F. Ryan, Jr., Austin, Tex., were on the brief, for intervenor, Texas Gas Transmission Corporation. Mr. Walter E. Gallagher, Washington, D. C., also entered an appearance for intervenor, Texas Gas Transmission Corporation.

Mr. Charles V. Shannon, Washington, D. C., for intervenor, American Louisiana Pipe Line Co. Mr. Stanley M. Morley, Washington, D. C., also entered an appearance for intervenor, American Louisiana Pipe Line Co.

Before PRETTYMAN, WASHINGTON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

Four independent producers¹ sought certification to supply to American Louisiana Pipe Line Company part of its requirements for natural gas to be delivered from Louisiana to Michigan. The balance of the natural gas requirements for American Louisiana was to be supplied by Texas Gas Transmission Corporation. Panhandle Eastern Pipe Line Company's petition to intervene in these producer proceedings and to consolidate them with proceedings In the Matters of American Louisiana Pipe Line Company, Commission Docket G-2306,² having been denied by Commission Order of April 18, 1955, and its petition for rehearing thereof having been denied by Commission Order of June 13, 1955, Panhandle asks us to review and set aside those two orders, predicating jurisdiction upon § 19(a) and (b) of the Natural Gas Act.³ The petition of Memphis Light, Gas and Water Division to intervene in the producer proceedings likewise by Commission Order of April 18, 1955, was denied, but Memphis was allowed limited participation. The Commission having certificated the producers by its order of May 9, 1955, Memphis thereupon asked rehearing of its petition to intervene and of the May 9, 1955 certification. The Commission, by its order of June 13, 1955, denied the Memphis petition for rehearing with respect to the first order, and by order of July 5, 1955, denied the Memphis petition for rehearing of the Commission's May 9, 1955, certification order. Memphis, resting its petition on § 19(b) of the Natural Gas Act, now seeks review of the four orders mentioned. We consolidated the petitions for review filed by Panhandle and Memphis, and also allowed American Louisiana and Texas Gas to intervene. The intervenors and the Commission filed timely motions to dismiss, action upon which was deferred,⁴ without prejudice to renewal, until after argument on the merits. We are now satisfied that the motions to dismiss must be granted.

Background

The pipeline proceedings, Commission Docket G-2306, disclose that American Louisiana was authorized to construct and operate a 1,300-mile pipeline system extending from Louisiana to Michigan, estimated to cost approximately $130,000,000 and to possess an initial capacity of about 300,000 Mcf. of natural gas per day. In related proceedings, Docket G-2311, Texas Gas sought and was granted authority to construct and operate facilities to deliver to American Louisiana approximately 50,000 Mcf. of natural gas per day. American Louisiana had proposed to deliver 100,000 Mcf. per day to Michigan-Wisconsin Pipe Line Company and 200,000 Mcf. per day to Michigan Consolidated Gas Company. The Commission conditioned American Louisiana's certificate to require that there be filed a schedule of rates satisfactory to the Commission at least 60 days prior to the commencement of service. The Commission further concluded that the gas reserves available to American Louisiana under its purchase contracts were reasonably adequate to meet the requirements of the proposed project. As to Texas Gas, the Commission found that certification was required by public convenience and necessity, that Texas Gas was able to carry out its proposal, and concluded that there was merit in the claim of Texas Gas that the proposed sale to American Louisiana would ultimately redound to the benefit of the customers of Texas Gas.

Although Panhandle had been allowed to intervene in opposition to the American Louisiana application, the Commission noted that Panhandle had submitted no proposal to meet additional needs of Michigan Consolidated or of the other customers of Michigan-Wisconsin.

Memphis sought no rehearing and no review of the Commission's orders in the pipeline proceedings. However, Panhandle's petition to review the Commission's order accompanying its opinion in No. 276 was dismissed by the Third Circuit Court of Appeals.⁵ The court noted that the only gas from Panhandle to any of the distributing companies which would obtain gas from the American Louisiana project is to be supplied to Michigan Consolidated. Panhandle had actually been seeking to reduce the quantity of gas it furnished to Michigan Consolidated. The court observed that the gas to be delivered to the latter by American Louisiana "is not in displacement of any part of its Panhandle allotment but over and above it in order to provide for the increased requirements of the Michigan Consolidated territory."⁶ Panhandle, the court noted, had "participated fully in the exhaustive hearings and arguments below."

Thus, in brief review, we see consumers in the Michigan-Wisconsin area found to be in great need of additional supplies of natural gas, to meet which need the American Louisiana project, after extensive hearings, was certificated. Its supplies in part were to come from Texas Gas which had been authorized to make such deliveries. Both Panhandle and Memphis were parties to the pipeline proceedings and participated extensively therein. Panhandle's petition to review was dismissed, and Memphis sought no review. Certainly the pipeline proceedings were terminated, and all that remained was certification of American Louisiana's other suppliers. By December 1, 1954, the four independent producers, here involved, had filed their applications for authorization to sell their gas to American Louisiana, which the Commission consolidated for hearing pursuant to notice of March 7, 1955.

No. 12840

Panhandle argues to us that the Commission abused its discretion in denying intervention in the producer proceedings in view of the fact that it had been allowed to intervene in the pipeline proceedings. Panhandle complains further that the Commission erred in rejecting its motion to consolidate the producer proceedings with the earlier — but terminated — pipeline proceedings.

We have repeatedly refused, even where consolidation is sought at the instance of a proper party, to interfere with the control by an agency over its own proceedings.⁷ In the Commission's denial of consolidation we find no error.⁸

Whatever interest Panhandle had in the American Louisiana pipeline proceedings had been conclusively disposed of both by the Commission and by the courts. Although a party, Panhandle was found not to be aggrieved by the American Louisiana project. It has no present interest to be heard as to where American Louisiana obtains its gas. We pointed out in National Coal Ass'n v. Federal Power Commission⁹ a very real distinction between those who are entitled to intervene as of right and those who are entitled to intervention at the discretion of the Commission.¹⁰

Here, there is no allegation that Panhandle has an interest to protect, nor has it set up a basis for a challenge, arising from American Louisiana's contracts with its suppliers. Panhandle alleges no contractual relations with any of the four independent producers. It makes no claim to intervention as of right. On the contrary, giving Panhandle's petition its broadest sweep, the Commission was shown no more than a continuing interest in the market served by Michigan Consolidated, one of Panhandle's customers which, through the American Louisiana project, is to receive an additional supply of gas, over and above that supplied by Panhandle. But competition between Michigan Consolidated and Panhandle, however important as a factor for consideration in the pipeline proceedings, is too remote to ground Panhandle's claim in the pending producers' matter to an exercise of the Commission's discretion in its favor.

Panhandle's petition for rehearing added nothing new. Rather, consideration of its representations discloses only an emphasis of claims extensively pursued and concluded in the pipeline proceedings.

Panhandle sought no rehearing of the May 9, 1955 order certificating the producers, and under the express language of the Act¹¹ cannot now be heard on this aspect of the case.

The motions to dismiss Panhandle's petition to review the orders of April 18, 1955 and of June 13, 1955 are granted.

No. 12837

Memphis, in its petition for leave to intervene, told the Commission it is engaged in distribution and sale of natural gas in Memphis and near-by areas. As a city gate customer of Texas Gas, it obtains all its gas under a requirements contract. It...