ASARCO, Inc. v. F.E.R.C.
| Decision Date | 29 November 1985 |
| Docket Number | 82-2311,83-1409 and 83-1415,82-2204,82-2527,Nos. 82-2173,82-2270,s. 82-2173 |
| Citation | 777 F.2d 764,250 U.S.App.D.C. 105 |
| Parties | ASARCO, INC., Inspiration Consolidated Copper Company and Kennecott Corporation, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern California Edison Company, El Paso Electric Company, Phelps Dodge Corporation, Pacific Gas & Electric Company, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, El Paso Natural Gas Company, Southern Union Company, Southwest Gas Corporation, Intervenors. SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, El Paso Electric Company, Phelps Dodge Corporation, Pacific Gas & Electric Company, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, Southern Union Company, El Paso Natural Gas Company, Southwest Gas Corporation, Intervenors. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Phelps Dodge Corporation, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, Southern Union Company, Southwest Gas Corporation, El Paso Natural Gas Company, El Paso Electric Company, Intervenors. PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company, El Paso Natural Gas Company, Southern Union Company, Southwest Gas Corporation, Governor Edmund G. Brown, Jr., Public Service Commission of West Virginia, Intervenors. ASARCO, INC., Inspiration Consolidated Copper Company and Kennecott Corporation, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company, Salt River Project Agricultural Improvement and Power District, Phelps Dodge Corporation, Southern California Gas Company, Southwest Gas Corporation, Southern Union Company, Tenneco Oil Company, et al., Intervenors. EL PASO NATURAL GAS COMP |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Federal Energy Regulatory commission.
Douglas K. Porter, with whom D.J. Gilmore, Thomas D. Clarke and Eddie R. Island, Los Angeles, Cal., for Southern Cal. Gas Co. petitioner in No. 82-2204, Daniel E. Gibson and Robert B. McLennan, San Francisco, Cal., for Pacific Gas and Elec. Co. petitioner in No. 82-2270, J. Calvin Simpson and Lawrence Q. Garcia, San Francisco, Cal., for Public Utilities Com'n of the State of Cal. petitioner in No. 82-2311, were on joint brief, for petitioners in Nos. 82-2204, 82-2270 and 82-2311. D.J. Gilmore, Los Angeles, Cal., also entered an appearance for petitioner Southern Cal. Gas Co.
Nicholas W. Fels and David N. Heap, Washington, D.C., were on memorandum in lieu of brief for ASARCO, Inc., et al., petitioners in Nos. 82-2173 and 82-2527, intervenor in No. 83-1409.
C. Frank Reifsnyder, with whom Richard C. Green, Washington, D.C., Donald J. MacIver, Jr., Richard Owen Baish, Daniel E. Bappe and Scott D. Fobes, El Paso, Tex., were on brief, for El Paso Natural Gas Co. petitioner in Nos. 83-1409 and 83-1415 and intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311 and 82-2527.
Thomas E. Hirsch, III, Atty., F.E.R.C., with whom Stephen R. Melton, Acting Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on brief, for respondent F.E.R.C., in all cases. Joshua Z. Rokach, Atty., F.E.R.C., Washington, D.C., also entered an appearance for F.E.R.C.
Peyton G. Bowman, III, Daniel J. Wright, Washington, D.C., Steven M. Wheeler and Herbert I. Zinn, Phoenix, Ariz., entered appearances for Ariz. Public Service Co., intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.
J. Michael Marcoux, Washington, D.C., entered an appearance for El Paso Elec. Co. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.
Michael J. Strumwasser and Daniel P. Selmi, Los Angeles, Cal., entered appearances for Governor Edmund G. Brown, Jr., intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311 and 83-1409, and Governor George Deukmejian, intervenor in No. 83-1415.
R. Gordon Gooch, Houston, Tex., Charles M. Darling, IV, Steven R. Hunsicker, John W. Leslie, George B. Mickum, III, Steven H. Brose, Steven Reed, Michael J. Henke, David T. Andril and Ann M. Ashton, Washington, D.C., entered appearances for Tenneco Oil Co., et al., intervenors in Nos. 82-2527 and 83-1409.
Robert J. Haggerty, Washington, D.C., Bruce E. Henderson, Dallas, Tex., and Cameron R. Graham, Albuquerque, N.M., entered appearances for Southern Union Co. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527 and 83-1409.
William A. Claerhout and Charles H. McCrea, Las Vegas, Nev., entered appearances for Southwest Gas Corp. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.
Robert R. Rodecker, Charleston, W. Va., and Richard E. Hitt, entered appearances for Public Service Com'n of W. Va. intervenor in Nos. 82-2311 and 83-1409.
H. Robert Barnes and Larry R. Cope, Rosemead, Cal., entered appearances for Southern Cal. Edison Co. intervenor in Nos. 82-2173 and 83-1409.
Joel L. Greene, Carl W. Ulrich, Washington, D.C., and Richard H. Silverman, Phoenix, Ariz., were on statement in lieu of brief for Salt River Project Agr. Improvement and Power Dist. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2527, 83-1409 and 83-1415.
Before TAMM, * WALD and SCALIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge SCALIA.
We are required to determine whether we have jurisdiction under Sec. 19 of the Natural Gas Act ("NGA"), 15 U.S.C. Sec. 717r (1982), to consider five petitions for review of orders of the Federal Energy Regulatory Commission. Southern California Gas Company ("SoCal"), Pacific Gas and Electric Company ("PG&E"), the California Public Utilities Commission ("CalPUC"), and ASARCO, Inc., Inspiration Consolidated Copper Company, and Kennecott Corporation (jointly "ASARCO") have each petitioned for review of a March 31, 1982, order of the Commission in which it accepted for filing a tariff submitted by El Paso Natural Gas Company ("El Paso") despite demands that the filing be immediately rejected under the Mobile-Sierra doctrine as inconsistent with existing rate settlements. ASARCO also seeks review of a September 30, 1982, order of the Commission that accompanied another September 30 order in which the Commission for the first time addressed and resolved the Mobile-Sierra claims. The issues presented are whether we have jurisdiction to review an acceptance for filing as to which a Mobile-Sierra claim has been made but has not been ruled upon by the Commission; and whether a petitioner may urge before us an objection that others presented to the Commission in their petition for rehearing but that the petitioner itself did not. 1
Both an abbreviated review of the recent history of natural gas regulation and a detailed account of the complicated procedural history of this case are necessary for an understanding of the jurisdictional issues we confront.
From 1938 to 1978, the NGA required that all rates charged for natural gas sold for resale in interstate commerce be "just and reasonable." NGA, ch. 556, Sec. 4(a), 52 Stat. 821, 822 (1938) (). Initially, the Commission interpreted the NGA as granting jurisdiction only over the rates charged by interstate pipelines for gas sold to their jurisdictional customers. In determining whether a rate was "just and reasonable," the Commission used a "cost-of-service" methodology--i.e., it allowed recoupment of the costs incurred by the pipeline in acquiring (or producing) and transporting gas, plus a reasonable return on investment.
In 1954, the Supreme Court held that under the NGA, the Commission was also required to regulate the sales of gas to interstate pipelines by independent producers. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). Individual cost-of-service methodology could feasibly be applied to the relatively few interstate pipeline companies; but the Commission simply could not process individual rate filings by the thousands of independent producers. For its newly imposed responsibilities, therefore, the Commission adopted the methodology of area-wide ratemaking, determining "just and reasonable" rates for entire geographical areas based on the average cost of service of independent producers within that area. Area Rate Proceeding, 34 F.P.C. 159 (1965), upheld in Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). The Commission later established "national rates" for independent producer sales of gas of recent vintage. Just and Reasonable National...
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