General Motors Corp. v. Federal Energy Regulatory Commission

• Decision Date: 11 October 1979
• Docket Number: No. 78-1101,78-1101
• Citation: 607 F.2d 330
• Parties: GENERAL MOTORS CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Cities Service Gas Company, et al., Intervenors.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 330

607 F.2d 330

GENERAL MOTORS CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Cities Service Gas Company, et al., Intervenors.

No. 78-1101.

United States Court of Appeals Tenth Circuit.

Argued July 17, 1979.

Decided Oct. 11, 1979.

Richard P. Noland, of Sutherland, Asbill & Brennan, Washington, D. C. (Edward J. Grenier, Jr., Robert W. Clark III, William H. Penniman, Laurel W. Glassman and Stephen E. Roth, Washington, D. C., with him on briefs), Otis M. Smith, Gen. Counsel, and Julius J. Hollis, General Motors Corp., Detroit, Mich., of counsel, for petitioner.

J. Paul Douglas, Federal Energy Regulatory Commission, Washington, D. C. (Robert R. Nordhaus, Gen. Counsel, and Howard E. Shapiro, Sol., Washington, D. C., with him on brief), for respondent.

Melvin Richter, of Littman, Richter, Wright & Talisman, P. C., Washington, D. C. (Dale A. Wright, Washington, D. C., Alfred O. Holl, Daniel R. Hopkins and Ron W. Fry, Oklahoma City, Okl., and Donal D. Guffey, Kansas City, Mo., on brief), for intervenors, Cities Service Gas Company and The Gas Service Company.

John M. Lilla, Sp. County Counselor, of Jackson & Sherman, P. C., Kansas City, Mo., for intervenors, Jackson County, Missouri and Home Builders Association of Greater Kansas City.

Don M. Jackson, Sp. County Counselor, Kansas City, Mo., and Stanley Christopher, Deputy County Counselor, Office of County Counselor, Kansas City, Mo., on brief, for intervenor, Jackson County, Missouri.

Morton L. Simons, of Simons & Simons, Washington, D. C., and William H. Reeder, Union Gas System, Inc., Independence, Kan., on brief, for intervenor, Union Gas System, Inc.

Before SETH, Chief Judge, and BREITENSTEIN and McKAY, Circuit Judges.

SETH, Chief Judge.

General Motors seeks a review of two orders entered by the Federal Energy Regulatory Commission, Docket No. RP75-62 Cities Service Gas Company. One is titled "Order Clarifying Prior Order" and dated December 12, 1977, and the second is a February 8, 1978, Order Denying Rehearing. The orders were entered during the course of hearings on the Cities Service Gas Company's plan for curtailment of service on its pipeline system. Other aspects of the plan and hearings before this court are referred to in State Corporation Commission of Kansas, et al. v. F. E. R. C. (10th Cir. No. 77-1781).

Cities Service Gas Company is a natural gas company under the Natural Gas Act (15 U.S.C. § 717a(6)), and sells gas for resale in Oklahoma, Kansas, Wyoming and other states. The petitioner General Motors has plants which use natural gas supplied by the Cities Service pipeline system to distributors Gas Service and Union Gas. The intervenors herein, other than Cities Service, are gas distribution companies, manufacturing plants, and Jackson County, Missouri.

The orders herein sought to be reviewed were directed to certain aspects of the curtailment plan which Cities Service proposed to meet a possible reduction in the amount of available natural gas. The plan provided for several categories of users which would each have a designated priority in the event curtailment of service became necessary.

The issue here as it relates to the several orders is a narrow one by reason of the limited scope and purpose of the orders. The basic issues are whether the orders are "final" to permit a review, and whether General Motors is "aggrieved" by the orders as contemplated by 15 U.S.C. § 717r(b).

We must hold that the orders challenged are not final orders to permit judicial review. In the several previous orders, the Commission stated that the issue of a growth limitation restriction on new service connections on the Cities Service system had not been decided, and that the matter was reserved until the conclusion of evidentiary hearings on the issue.

The Commission in Opinion 805 held that the Cities Service plan for curtailment could not be approved because it did not include an "Index of Requirements." Thus it did not include a tabulation and analysis of the end-use requirements of the ultimate consumers for the pipeline system As of January 1, 1978 (a prospective date). This requirement for an index was considered necessary to evaluate a curtailment plan based on stated priorities of the "users." In any event, the date referred to January 1st has become important in this appeal. Thus the fact that a particular date was referred to is significant.

This was followed by Opinion 805-A (August 2, 1977) which changed the apparent no-growth implications of 805 in response to a petition by Cities Service. Opinion 805-A directed the further hearings on the growth question, and more importantly it expressly permitted continued connections for high priority customers. As to this, it also recited: "Maintenance of the status quo will not adversely affect any party to, or issue in, this proceeding." The Commission in 805-A postponed the January 1st date of the 805 Opinion for the index of requirements.

This was followed by an order of September 30th wherein the Commission required the index be filed showing end-use requirements as of January 1st only "for information." In this order, the Commission repeated that it had not decided whether or not to use such an index. However, this order contained the critical admonition of caveat that the Commission "might decide to impose an index As of January 1st, and that the new connections made pending such a decision would be at the gas distributors' risk."

It is this caveat in the September 30th order which provoked the general reaction later referred to by the Commission as "uncertainty." The Commission Sua sponte in an order entered December 12, 1977, referred to the "uncertainty" and to the "unilateral decisions by others which have placed a cloud over future building activities and have precipitated other actions which cannot be reconciled with the public interest." The Commission then stated that should an index of requirements be imposed, it would Not be based on connections as of January 1st, but would be imposed prospectively only. General Motors objects to this change from a Possible index based on January 1st conditions to a Possible index based on conditions at the conclusion of pending hearings, or some prospective date then determined. General Motors applied for a rehearing, which was denied, and thus appeals from the December 12th order which in substance permitted customers to be added pending resolution of the index of requirements matter.

Thus it is the order which changed the date and permitted the addition of these connections which are assumed to be of high priority, or at least higher than General Motors, which it objects to. It also objects to the way in which the action was taken by the Commission. General Motors urges that it was not proper to enter the order Sua sponte without additional hearings or additions to the record. Also, General Motors objects that the order made reference to matters outside the record, that is, events which took place after the original hearings in a community served. The "event" in the community was an announcement of a curtailment of home building by reason of the caveat in the September 30th order. This apparent curtailment or moratorium had been brought to the attention of the public and to the Commission. Some parties had sought rehearing on the ground such a moratorium would result or had resulted.

To summarize, the basic order concerned was one which disapproved the curtailment plan of Cities Service because it did not contain an index of requirements. The Commission did not decide whether or not such an index would be used, and set the matter down for hearing. The date for the index to be proposed for consideration was stated January 1st. The date was changed and the matter postponed, but in the caveat the Commission reserved the right to go back to the original date and this caused the reaction. This reservation was eliminated by order here challenged, and it was stated that should an index be adopted it would be as of some future date and of prospective application.

When the challenged orders are placed in context, it is apparent that they are a segment of ongoing...