Cia Mexicana de Gas v. Federal Power Commission, No. 11790

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, HOLMES, and WALLER, Circuit
• Citation: 167 F.2d 804
• Parties: CIA MEXICANA DE GAS, S. A., v. FEDERAL POWER COMMISSION (REYNOSA PIPE LINE CO., Intervener). STATE OF TEXAS et al. v. FEDERAL POWER COMMISSION.
• Docket Number: No. 11790,11791.
• Decision Date: 07 May 1948

167 F.2d 804 (1948)

CIA MEXICANA DE GAS, S. A.,
v.
FEDERAL POWER COMMISSION (REYNOSA PIPE LINE CO., Intervener). STATE OF TEXAS et al.
v.
FEDERAL POWER COMMISSION.

Nos. 11790, 11791.

Circuit Court of Appeals, Fifth Circuit.

May 7, 1948.

167 F.2d 805

Henry F. Holland, of Houston, Tex., for petitioner Cia Mexicana, De Gas, S. A.

Binford Arney, of Corpus Christi, Tex., for intervener, Reynosa Pipe Line Co.

James D. Smullen, Asst. Atty. Gen. of Texas, for petitioners State of Texas et al.

Bradford Ross, Gen. Counsel, and Charles E. McGee, Asst. Gen. Counsel, Federal Power Commission, both of Washington, D. C. (Louis W. McKernan, W. Russell Gorman, and Albert J. Feigen, all of Washington, D. C., of counsel), for respondent.

Before HUTCHESON, HOLMES, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

The review sought is of orders of the Federal Power Commission authorizing the exportation¹ of natural gas from Texas to Mexico and granting a certificate² of public convenience and necessity.

Joining in a kind of Janus headed attack upon them, the State of Texas and the Railroad Commission, on the one hand, and Cia Mexicana De Gas, S. A., on the other, are here seeking their overthrow.

It is true that both the State of Texas and Cia Mexicana do, in their petitions for review and their joint brief, rely in the main on the same claims of error. But it is further true that, from the standpoint of the grounds of their opposition to the orders, the State and Cia Mexicana did not see eye to eye.

In its intervention, Cia Mexicana, whose principal source of supply is Texas gas purchased from United Gas Pipe Line Company, under an export permit, did urge, as Texas did, that Mexicana had vast resources of gas capable of development, but its emphasis was upon its status and position as a public utility company serving the territory sought to be invaded by Reynosa and the protection of its rights as such company.

The emphasis of the State of Texas in the Railroad Commission's motion to present additional evidence upon the gas resources of Mexico was entirely upon the conservation of Texas gas for use in Texas and southwestern United States.

To the claim, however, of Reynosa, that the opposition of Texas to its export permit, while it did not and does not oppose the permit under which Cia Mexicana gets its gas, presents an inconsistency, Texas answers simply, "Enough is enough."

In addition to petitioning for review, Cia Mexicana has filed a petition to introduce additional evidence, as to matters occurring since the hearing and order. Reynosa Pipe Line Company, urging that petitioners are not aggrieved persons under the Natural Gas Act and that their petitions present nothing for review, moves to dismiss the petitions for review and to introduce additional evidence. The Federal Power Commission opposes the introduction of additional evidence.

We make short work of Reynosa's motion to dismiss. We think it clear that

167 F.2d 806

petitioners are aggrieved parties within the meaning of the Act, and, as such, are rightfully here. Mexicana's motion to adduce additional evidence, however, is, for the reasons hereinafter stated, denied

On the merits, petitioners claim that the orders should be set aside and the matter returned to the commission for a rehearing because they are without support in the evidence, or, if not for that reason, because they are based on a hearing unfair to petitioner.

In Arkansas Louisiana Gas Co. v. Federal Power Commission, 5 Cir., 113 F.2d 281 and in Department of Conservation v. Federal Power Commission, 5 Cir., 148 F. 2d 746, 750, this court has had occasion to fully consider the powers granted the Commission and the scope of review of its orders when entered under Sec. 7(c) of the Natural Gas Act, 15 U.S.C.A. § 717f (c). In the last cited case, we said:

"Normally it is for the commission to draw the conclusion that the present or future public convenience and necessity either requires or does not require the granting of a certificate. Normally an order granting a certificate may be set aside only when the evidence admits of but one conclusion, that its granting will not serve public convenience and necessity * * *."

Here two situations are under review. One, the granting of a certificate of convenience and necessity, is the precise one dealt with in those cases. The other, the granting of an export permit, is provided for in Section 3 of the Natural Gas Act.³ Under the command of this section, "the Commission shall issue such order upon application, unless, after opportunity for hearing, it finds that the proposed exportation or importation will not be consistent with the public interest." (Emphasis supplied.)

A certificate of public convenience and necessity requires as a condition to its granting that the commission make a positive finding of consistency with the public interest.

An export permit, on the other hand, must be issued unless the commission makes a negative finding, and it may not be doubted, that the authority of the commission to grant an export permit is certainly as broad as its...