Atlanta Gas Light Co. v. FEDERAL POWER COM'N

Decision Date11 July 1973
Docket NumberNo. 72-1475,72-1539 and 72-1415.,72-1475
Citation476 F.2d 142
PartiesATLANTA GAS LIGHT COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. ATLANTA GAS LIGHT COMPANY et al., Plaintiffs-Appellants, v. SOUTHERN NATURAL GAS COMPANY and Federal Power Commission, Defendants-Appellees. ALABAMA GAS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Albert G. Norman, Jr., Carroll L. Wagner, Jr., Atlanta, Ga., and John E. Holtzinger, Jr., Washington, D. C., for Atlanta Gas Light Co.

James E. Joiner, Atlanta, Ga., for Ga. Power Co.

John W. Hinchey, Asst. Atty. Gen., and Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for Ga. Public Service Comm.

John Izard, Jr., and Charles L. Gowen, Atlanta, Ga., James J. Flood, Jr., Washington, D. C., and Ronald L. Kuehn, Jr., Birmingham, Ala., for Southern Natural Gas Co.

John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Gordon Gooch, Gen. Counsel, George W. McHenry, Jr., Comm. Staff Counsel, Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., F.P.C., Washington, D. C., for F.P.C.

Edwin D. Robb, Jr., and George W. Williams, Savannah, Ga., for Savannah Electric & Power Co.

Howard E. Wahrenbrock, Washington, D. C., for Miss. Valley Gas Co.

Thomas F. Brosnan, Washington, D. C., Leon M. Payne, Houston, Tex., R. Y. Patterson, Jr. and Norman E. Duke, Winter Park, Fla., for Fla. Gas Transmission Co.

Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

BELL, Circuit Judge:

Under § 4 of the Natural Gas Act, 15 U.S.C.A. § 717c, any "natural-gas company" must file with the Federal Power Commission a notice of any change in a service rendered by the company in connection with the sale or transportation of natural gas subject to the jurisdiction of the Commission. Subsections (d) and (e) of § 4 provide that the Commission may, upon receipt of a notice of change, allow the change to take effect, or it may "suspend" the change until it determines, after hearing, that the change is lawful.1 These consolidated appeals arise (1) from petitions for review filed by Alabama Gas Corporation (Alagasco), Atlanta Gas Light Company (Atlanta Gas), et al., who challenge the lawfulness of the Commission's action in allowing Southern Natural Gas Company (Southern), a jurisdictional pipeline, to institute a plan which curtails gas deliveries under contracts between Southern and the petitioners, and (2) from the dismissal by the district court of a complaint filed by Atlanta Gas and others seeking declaratory relief against the Federal Power Commission for its interim adoption of Southern's curtailment plan, and equitable relief and damages against Southern for breach of its service contracts. We affirm the action of the Commission challenged in the petitions for review, and we affirm the dismissal of that portion of the district court complaint which relates to the prayer for declaratory and equitable relief. For reasons stated, we vacate the dismissal of that portion of the complaint which relates to the prayer for damages and remand to the district court to retain jurisdiction for possible further proceedings.

Nos. 72-1415 and 72-1475

On April 15, 1971, the Federal Power Commission issued Order No. 431. That order required all jurisdictional pipelines to submit "written reports" to the Commission stating how the pipelines would implement the Commission's policy of protecting the dwindling supply of natural gas and of insuring reliable and adequate service for the 1971-1972 heating season.2 The order provided that any pipeline which, because of shortages, found that it would be "necessary" to curtail service during the heating season should file with the Commission revised tariff sheets embodying a curtailment plan, "pursuant to §§ 4 and 5 of the Natural Gas Act." See footnote (2).

In response to Order No. 431, Southern filed a revised tariff sheet with the Commission on November 24, 1971. The revised tariff curtailed the volume of gas which Southern was obliged to deliver under contracts with certain customers and established service priorities among several classes of customers.3 Relying upon a statement by Southern that some curtailment of firm service commitments would be necessary during the 1971-1972 season, but expressly declining to decide whether elements of the plan were otherwise lawful, the Commission permitted the plan to take effect after a nominal suspension period of one day, pending completion of suspension proceedings under § 4. These proceedings are still pending.

Alagasco, Atlanta Gas, and others,4 whose service contracts with Southern were affected by the curtailment plan, petitioned the Commission for leave to intervene in the suspension proceedings. When the Commission permitted the curtailment plan to take effect, the intervenors requested the Commission to reconsider its interim action. These petitions were denied. A petition for partial stay of the suspension order, filed by Atlanta Gas, was denied by the Commission on March 24, 1972.

The petitions for judicial review of the Commission's action, filed pursuant to § 19 of the Act, 15 U.S.C.A. § 717r, followed in due course.

The petitioners contend that the Commission cannot, under § 4, permit a curtailment plan to take effect on an interim basis without making, at the very least, a preliminary determination that the curtailment is necessary in order to effectuate the policies of Order No. 431. The petitioners contend, further, that where, as they alleged, the curtailment plan establishes service priorities that are inconsistent with priorities established in outstanding certificates of public service and convenience, the Commission cannot allow the plan to take effect without invoking the elaborate hearing procedure set out in § 7 of the Act, 15 U.S.C.A. § 717f. Finally, the petitioners contend that the Commission's action was unlawful because the Commission did not, prior to the interim action, undertake a detailed evaluation of the environmental impact of the curtailment order, as required by the National Environmental Protection Act (NEPA), 42 U.S.C.A. § 4321 et seq.

The Commission maintains, first, that the contested action was not a reviewable order; second, that it may properly employ § 4 procedures, unadorned by preliminary findings of fact, in the exercise of its curtailment power; and finally, that the NEPA does not require the issuance of a detailed environmental statement prior to the issuance of an interim suspension order.


The Natural Gas Act provides for review by the court of appeals of "an order issued by the Commission in such proceeding" under the Act. 15 U.S.C.A. § 717r(b). The Act does not require that the order be "final", and the Act does not, by its terms, impose any other limitation on the class of actions subject to review. The courts have recognized this fact; nevertheless, they have traditionally declined to review many actions which, in a literal sense, are "orders issued by the Commission in a proceeding" under the Act. In general, the courts have declined to review non-final orders that are not "definitive" in their impact upon the rights of the parties and do not threaten the petitioner with "irreparable harm". See Federal Power Commission v. Metropolitan, Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L. Ed. 1408; Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 1960, 285 F.2d 737; Algonguin Gas Transmission Co. v. Federal Power Commission, 1 Cir., 1953, 201 F.2d 334.

The requirement that the reviewable order be "definitive" in its impact upon the rights of the parties is something more than a requirement that the order be unambiguous in legal effect. It is a requirement that the order have some substantial effect on the parties which cannot be altered by subsequent administrative action. See Atlantic Seaboard Corp. v. Federal Power Commission, 4 Cir., 1953, 201 F.2d 568. The additional condition of reviewability —the requirement that the order threaten "irreparable harm"—is, to that extent, redundant, since an "irreparable" injury, like the effect of a "definitive" order, cannot be redeemed by subsequent official action. See Atlantic Seaboard Corp. v. Federal Power Commission, supra at 572.

We hold that the Commission's interim suspension order is reviewable because it is definitive in its impact upon the rights of the parties and threatens irreparable harm. The order permits Southern to withhold volumes of gas which it is obliged to deliver under private contract. The order may prove to be temporary, since it may be changed when the Commission considers the facts of the case on the merits. But the present effect of the order cannot be substantially altered by subsequent action of the Commission. There is nothing the Commission can do at a later date to change the fact that the petitioners do not now receive volumes of gas which they may be entitled to receive under contract. In terms of its impact upon the parties, the order is as "definitive" as it could be; and if it is legally injurious, its consequences will be irremediable at a later date.

The petitions for review are properly before this court.

The Legality of § 4 Procedures

In Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), the Supreme Court upheld the power of the Commission to order the curtailment of gas deliveries to all customers of jurisdictional pipelines—customers purchasing gas for their own consumption as well as customers purchasing gas for resale to ultimate consumers. More critically, for purposes of the present appeals, the court held that the Commission may properly utilize the procedures of § 4 as a means of exercising its curtailment power.

Without seriously contesting the power of the Commission to order curtailments, the petitioners strenuously urge the impropriety of a...

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