Arizona Elec. Power Co-op, Inc. v. Federal Energy Regulatory Commission
| Decision Date | 13 August 1980 |
| Docket Number | 77-1830,79-1681,77-1634,77-1715,77-1676,Nos. 75-1952,78-1198 and 79-2087,s. 75-1952 |
| Parties | ARIZONA ELECTRIC POWER COOPERATIVE, INC., et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Southern Union Gas Co., Southern California Gas Co., El Paso Natural Gas Co., Pacific Gas & Electric Co., People of the State of California and the Public Utilities Commission of the State of California, Intervenors. ARIZONA ELECTRIC POWER COOPERATIVE, INC. and City of Willcox, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Asarco, Inc., et al., Southern Union Company, People of the State of California, et al., General Motors Corporation, Pacific Gas & Electric Company, Tucson Gas & Electric Company, Southwest Gas Corporation, Southern California Gas Company, Arizona Public Service Company, San Diego Gas & Electric Company, El Paso Natural Gas Company, Southern California Edison Company, Intervenors. SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Southern Union Co., People of the State of California, Public Utilities Commission of the State of California, General Motors Corporation, Pacific Gas and Electric Co., Tucson Gas & Electric Co., Arizona Public Service Co., San Diego Gas & Electric Co., El Paso Natural Gas Co., Southern California Edison Co., Arizona Electric Power Coop., City of Willcox, Intervenors. ARIZONA ELECTRIC POWER COOPERATIVE, INC. and the City of Willcox, Arizona,Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Southern California Gas Company, Pacific Gas and Electric Company, El Paso Natural Gas Company, Intervenors. SOUTHERN UNION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. State of California, et al., General Motors Corp., Pacific Gas and Electric Co., Tucson Gas and Electric Co., Southern California Gas Co., Arizona Public Service Co., San Diego Gas & Electric Co., El Paso Natural Gas Co., Arizona Electric Power Coop., Inc., et al., Salt River Project Agricultural Improvement and Power District, Southwest Gas Corp |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Federal Energy Regulatory commission.
Arnold D. Berkeley, Washington, D. C., with whom Roger J. McClure and Bruce J. Wendel, Washington, D. C., were on brief, for Arizona Electric Power Cooperative, et al., petitioners in Nos. 75-1952, 77-1634, 78-1198, 79-1681 and 79-2087 and intervenors in Nos. 77-1676, 77-1715 and 77-1830.
John S. Fick, Los Angeles, Cal., with whom Thomas D. Clarke, Los Angeles, Cal., was on brief, for Southern California Gas Company, petitioner in No. 77-1676 and intervenor in Nos. 75-1952, 77-1634, 77-1715, 78-1198 and 79-1681. Douglas Kent Porter and Jeffrey A. Meith, Los Angeles, Cal., also entered an appearance for Southern California Gas Co.
Robert B. McLennan, San Francisco, Cal., with whom Malcolm H. Furbush, San Francisco, Cal., was on brief, for Pacific Gas Electric Co., petitioner in No. 77-1830 and intervenor in Nos. 75-1952, 77-1634, 77-1676, 77-1715, 78-1198, 79-1681 and 79-2087. Howard v. Golub, San Francisco, Cal., also entered an appearance for Pacific Gas and Electric Co.
George H. Williams, Jr., Atty., Federal Energy Regulatory Commission, Washington, D. C., for respondent. Drexel D. Journey, Robert W. Perdue, Allan A. Tuttle, Thomas M. Walsh, M. Frazier King, Jr., and Howard E. Shapiro, Attys., Federal Energy Regulatory Commission, Washington, D. C., also entered appearances for respondent.
C. Frank Reifsynder, Washington, D. C., for El Paso Natural Gas Co., intervenor in Nos. 75-1952, 77-1634, 77-1676, 77-1715, 77-1830, 78-1198, 79-1681 and 79-2087. George W. Wise, Washington, D. C., also entered an appearance for El Paso Natural Gas Co.
Nicholas W. Fels, Washington, D. C., with whom Terry Coleman, Washington, D. C., were on brief, for Asarco, Inc., et al., intervenor in No. 77-1634.
Robert J. Haggerty, Washington, D. C., also entered an appearance for Southern Union Gas Company, petitioner in No. 77-1715 and intervenor in Nos. 75-1952, 77-1634, 77-1676, 77-1830 and 78-1198.
J. Calvin Simpson, Randolph W. Deutsch and Lawrence Q. Garcia, San Francisco, Cal., also entered an appearance for People of the State of California, et al., intervenor in Nos. 75-1952, 77-1634, 77-1676, 77-1715, 77-1830 and 79-2087.
Edward J. Grenier, Jr., Richard P. Noland, Floyd I. Robinson, William H. Penniman, Washington, D. C., and Julius Jay Hollis, Detroit, Mich., also entered an appearance for General Motors Corp., intervenor in Nos. 77-1634, 77-1676, 77-1715, 77-1830 and 78-1198.
Thomas F. Brosnan, John F. Harrington, Washington, D. C., and Lawrence V. Robertson, Tucson, Ariz., also entered an appearance for Tucson Gas & Electric Co., intervenor in Nos. 77-1634, 77-1676 and 77-1715.
C. H. McCrea, Las Vegas, Nev., also entered an appearance for Southwest Gas Corp., intervenor in Nos. 77-1634, 77-1715 and 77-1830.
Peyton G. Bowman, III and C. Floyd Mathews, Washington, D. C., also entered appearances for Arizona Public Service Co., intervenor in Nos. 77-1634, 77-1676, 77-1715 and 79-2087.
C. Hayden Ames, David R. Pigott, San Francisco, Cal., also entered appearances for San Diego Gas and Electric Co., intervenor in Nos. 77-1634, 77-1676, 77-1715 and 77-1830.
Rollin E. Woodbury, H. Robert Barnes, and Alan M. Nedry, Rosemead, Cal., also entered appearances for Southern California Edison Co., intervenor in Nos. 77-1634, 77-1676 and 77-1715.
Joel L. Greene, Washington, D. C., and Richard H. Silverman, Phoenix, Ariz., also entered appearances for Salt River Project Agricultural Improvement and Power District, intervenor in Nos. 77-1715 and 78-1198.
Before BAZELON, Senior Circuit Judge, and WALD and EDWARDS, Circuit Judges.
Opinion PER CURIAM
In these consolidated appeals, we are called upon to review several orders of the Federal Energy Regulatory Commission ("the Commission") issued in response to the continuing shortage of natural gas. 1 The controversy arises out of the efforts of the Commission and the El Paso Natural Gas Company ("El Paso") to assure adequate supplies of gas to east of California ("EOC") customers who receive natural gas from El Paso. Petitioners Arizona Electric Power Cooperative, Inc. and the City of Willcox, Arizona (collectively "AEPCO"), Southern California Gas Company ("So Cal"), and Pacific Gas and Electric Company ("PG&E") challenge the Commission's orders on various substantive and procedural grounds. We find all but one of petitioners' contentions moot, and therefore dismiss the petitions in Nos. 75-1952, 77-1634, 77-1676, and 77-1830. In the remaining case, No. 78-1198, we affirm the Commission.
El Paso is an interstate natural gas transmission company serving direct and distributor customers in California and in five southwestern states east of California. The petitioners in this case are all El Paso customers. In 1971, the Commission ordered El Paso and other pipelines to establish curtailment plans in anticipation of impending natural gas shortages. In response, El Paso designed and eventually began operating under a plan which prioritized different end uses of gas into five categories. 2 Priorities 1 and 2 (P-1 and P-2) the highest priorities consist of residential uses and commercial uses which cannot be supplied by resort to alternative fuels. Priorities 4 and 5 (P-4 and P-5) the lowest priority uses involve the use of natural gas as boiler fuel, a use for which substitute products are available. Priority 3 is defined residually as those end uses not included within Priorities 1, 2, 4, and 5.
Under the curtailment plan, El Paso's customers report their different end use needs by priority to the pipeline each day. El Paso then fills all the P-1 needs, followed by P-2 needs, P-3 needs, and so on until all of its available gas supply for that day is exhausted. If its supplies run out before low priority customers have been fully serviced, those customers must resort to alternative fuels for that day.
While curtailment plans provide for the orderly distribution of gas during times of shortage, they are not alone a means of avoiding any shortage. Accordingly, in 1971 the Commission also ordered El Paso to develop a plan for husbanding gas in the summer, when it is in relatively low demand, for use in the winter by temperature sensitive high priority customers. In compliance with this request, El Paso successfully petitioned the Commission in 1973 for permission to reactivate the Rhodes storage field in New Mexico. The Commission's order, which was unopposed, authorized El Paso to curtail its EOC P-5...
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