Chevron, U.S.A., Inc. v. F.E.R.C., s. CIV. A. 01-1580(RCL), CIV. A. 01-1624(RCL), CIV. A. 01-1976(RCL).
| Decision Date | 11 January 2002 |
| Docket Number | Nos. CIV. A. 01-1580(RCL), CIV. A. 01-1624(RCL), CIV. A. 01-1976(RCL).,s. CIV. A. 01-1580(RCL), CIV. A. 01-1624(RCL), CIV. A. 01-1976(RCL). |
| Citation | 193 F.Supp.2d 54 |
| Parties | CHEVRON U.S.A., INC., et al., Plaintiffs, v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant. Duke Energy Field Services, L.P., et al., Plaintiffs, v. Federal Energy Regulatory Commission, Defendant. The Williams Companies, Inc., et al., Plaintiffs, v. Federal Energy Regulatory Commission, Defendant. |
| Court | U.S. District Court — District of Columbia |
Thomas J. Eastment, Melissa E. Maxwell, Baker Botts LLP, Washington, DC, for Chevron U.S.A., Inc.
Charles D. Tetrault, Daniel A. Petalas, Vinson & Elkins LLP, Washington, D.C., Henry S. May, Jr., Vinson & Elkins LLP, Houston, TX, Howard L. Nelson, Senior Counsel, El Paso Corporation, Washington, DC, for Duke Energy Field Services.
James T. McManus, Joseph S. Koury, Kenneth S. Kaufman, Jeffrey G. DiSciullo, Wright & Talisman, P.C., Washington, DC, for Williams Companies.
Dennis Lane, Timm L. Abendroth, Office of the Solicitor, Federal Energy Regulatory Commission, Washington, D.C., for Federal Energy Regulatory Com'n.
Now before the Court are several dispositive motions in these related, but not consolidated, actions. In particular, each of the plaintiffs has filed a motion for summary judgment against the Federal Energy Regulatory Commission ("FERC") pursuant to Federal Rule of Civil Procedure 56. In the motions, the plaintiffs assert that there are not any disputed issues of material fact and that they are entitled to judgment as a matter of law. The FERC and the Intervenor-Defendants,1 on the other hand, have filed their own motions for summary judgment against the plaintiffs, in which they agree that there are no disputed issues of material fact but claim that they are the parties entitled to judgment as a matter of law.2 In addition, the FERC independently filed a motion to dismiss against each of the plaintiffs pursuant to Federal Rule of Civil Procedure 12(b)(1). In the motions, the FERC argues that the Court does not have jurisdiction to adjudicate the plaintiffs' claims against the agency. Specifically, the agency asserts that the plaintiffs do not have standing to bring the suits, that they have failed to comply with the notice requirements of 43 U.S.C. § 1349, and that the consultation requirements of 43 U.S.C. § 1334(f)(3) do not create a private cause of action. After a thorough review of the parties' memoranda, the applicable law, and for the following reasons, the Court GRANTS the plaintiffs' motions for summary judgment and DENIES the FERC's motions to dismiss and the defendants' motions for summary judgment.
In 1953, Congress enacted the Outer Continental Shelf Lands Act ("OCSLA") to address the issue of federal authority over the submerged lands extending seaward from the navigable waters of the United States.3 43 U.S.C. § 1301-1356. Congress allocated the primary responsibility of administering the statute to the Secretary of the Interior. 43 U.S.C. § 1334(a) (). Other federal agencies such as the FERC, however, also have important responsibilities under the OCSLA.4
In particular, the FERC is specifically mentioned in two subsections of the OCSLA. First, 43 U.S.C. § 1334(e), which deals with rights-of-way through the submerged lands of the OCS, grants FERC the authority to determine, in consultation with the Secretary of Energy, "proportionate amounts" of oil and gas production to be transported or purchased by pipelines. Second, § 1334(f),5 which is entitled "Competitive principles governing pipeline operation," refers to the FERC in its three subparts. Section 1334(f)(1) provides that every permit, license, easement, right-of-way, or other grant of authority for the transportation by pipeline on or across the OCS of oil or gas shall require that the pipeline be operated in accordance with certain competitive principles. 43 U.S.C. § 1334(f)(1). These competitive principles include requiring the pipeline to "provide open and nondiscriminatory access to both owner and nonowner shippers." 43 U.S.C. § 1334(f)(1)(A). Subparagraph (1)(B) provides the FERC with the power to "order a subsequent expansion of throughput capacity of any pipeline for which the permit, license, easement, right-of-way, or other grant of authority is approved or issued after the date of enactment of this subparagraph." 43 U.S.C. § 1334(f)(1)(B). Moreover, § 1334(f)(2) allows the FERC to exempt facilities from any of the requirements of 1334(f)(1) if it "feeds into a facility where oil and gas are first collected or a facility where oil and gas are first separated, dehydrated or otherwise processed." 43 U.S.C. § 1334(f)(2). Finally, § 1334(f)(3) provides that the FERC shall consult with the Attorney General on specific conditions to be included in any permit, license, easement, right-of-way, or grant of authority in order to ensure that the pipelines operate in accordance with the competitive principles set forth in § 1334(f)(1). 43 U.S.C. § 1334(f)(3).
In order to effectuate these statutory provisions and, more precisely, "to ensure that natural gas is transported on an open and nondiscriminatory basis through pipeline facilities located on the" OCS, the FERC issued Order No. 639 on April 10, 2000 and Order No. 639-A on July 26, 2000. In accordance with the reporting regulations promulgated in these orders, which are set out in 18 C.F.R. ch. 330, gas service providers6 must report information regarding service provided during each quarter of the year.7 Specifically, they must file a description and map of their facilities, a list of their affiliates, and their conditions of service (including the names of the shippers receiving service, the type of service provided, the primary receipt and delivery points, and the rates they charge each customer). 18 C.F.R. § 330.2. To comply with these reporting requirements, the plaintiffs in the instant actions have filed the necessary information with the FERC since October 16, 2000. At the same time, pursuant to 18 C.F.R. § 388.112, the plaintiffs also have requested confidential treatment for certain commercially sensitive information submitted to the agency.
After the plaintiffs began filing their reports with the FERC, the Producer Coalition requested that the agency disclose the allegedly confidential contract information. Even though the Producer Coalition subsequently narrowed the scope of its Freedom of Information Act request, the FERC issued Order on Request for Confidential Treatment, 96 F.E.R.C. ¶ 61,296 ("Disclosure Order"), on September 13, 2001. The order provided that the information the plaintiffs submitted to the FERC would not be treated as confidential and accordingly would be released within five days.8 Moreover, on October 12, 2001, the FERC issued an Order Clarifying Prior Order, 97 F.E.R.C. ¶ 61,040 ("October 12 Order"). In that order, the FERC stated that the Disclosure Order of September 13, 2001 would not be limited by the narrowed scope of the Producer Coalition's request for information. That is, the FERC found that the pending confidentiality requests "presented insufficient grounds to support continued confidentiality in light of OCSLA's open access requirements." October 12 Order at 3.
The plaintiffs in the instant cases seek judicial review of the four orders issued by the FERC mentioned above. In particular, Duke Energy Field Services, L.P. and El Paso Field Services, L.P. ("Duke") (Civil Action No. 01-1624) allege in their first amended complaint that "FERC does not have the statutory authority to promulgate the policing and enforcement regime created by Order Nos. 639 and 639-A." Amended Complaint at ¶ 9. Similarly, Williams Companies, Inc. and Dynegy Midstream Services, L.P. ("Williams") (Civil Action No. 01-1976) allege in their complaint that the orders are unlawful because the Commission failed to consult with certain federal officials prior to promulgating the new rules, as required by the OCSLA. Complaint at ¶ 19. Chevron U.S.A., Inc., et al. ("Chevron") (Civil Action No. 01-1580), on the other hand, allege in their first amended complaint that even if the FERC had the power to issue the regulations in the first instance, the agency "exceeded its statutory authority by failing to limit the application of the scope of the reporting requirements under Order Nos. 639 and 639-A to pipeline facilities performing transportation services under Sections 5(e) and (f) of the OCSLA." Amended Complaint at ¶ 23. In other words, Chevron contends that even if the FERC can promulgate these reporting regulations, the agency exceeded its statutory authority by doing so in such a broad manner as to include them within the scope of the regulations. All of the plaintiffs also allege that the FERC further exceeded its authority by issuing the Disclosure Order and the October 12 Order directing the release of the confidential information that they had filed with the agency. The plaintiffs seek both declaratory and injunctive relief from the Court.
Before reaching the merits of the plaintiffs' claims the Court must determine whether it has jurisdiction. These cases arise under the Administrative Procedure Act, 5 U.S.C §§ 701-701, and the OCSLA, 43 U.S.C. §§ 1331-1356. The Court has subject matter jurisdiction over the plaintiffs' claims pursuant to 28 U.S.C. § 1331 and 43 U.S.C § 1349. In its motions to dismiss, however, the FERC challenges the Court's jurisdiction on three grounds. First, the agency argues that none of the plaintiffs have standing to initiate these actions. Specifically, the agency states that the plaintiffs have...
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