Interstate Natural Gas Ass'n of America v. F.E.R.C.
| Decision Date | 05 March 1985 |
| Docket Number | 81-1802,82-1004 and 82-1177,Nos. 81-1680,81-1696,81-1690--81-1692,s. 81-1680 |
| Citation | 756 F.2d 166,244 U.S.App.D.C. 145 |
| Parties | , 1 Fed.R.Serv.3d 1080 INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Mobil Oil Corporation, et al., General American Oil Company of Texas, Phillips Petroleum Company, Pennzoil Company, Mississippi River Transmission Corp., Shell Oil Company, Exxon Corporation, Laclede Gas Company, Getty Oil Company, Louisiana Land & Exploration Company, Associated Gas Distributors, Northern Natural Gas Company, Texas Gas Transmission Corporation, Texaco, Inc., Tenneco Oil Company, Houston Oil and Minerals Corporation, Gulf Oil Corporation, Placid Oil Company, Aminoil, USA, Inc., et al., Intervenors. MICHIGAN WISCONSIN PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Mobil Oil Corporation, et al., Amoco Production Company, General American Oil Company of Texas, Phillips Petroleum Company, Pennzoil Company, Exxon Corporation, Shell Oil Company, Tenneco Oil Company, Union Oil Company of California, Louisiana Land & Exploration Company, Getty Oil Company, Associated Gas Distributors, Laclede Gas Company, Sun Oil Company, Arco Oil & Gas Company, Placid Oil Company, Texaco, Inc., Gulf Oil Corporation, Intervenors. TRANSCONTINENTAL GAS PIPE LINE CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Mobil Oil Corporation, General American Oil Company of Texas, Phillips Petroleum Company, Pennzoil Company, Shell Oil Company, Associated Gas Distributors, Getty Oil Company, Louisiana Land & Exploration Company, Texaco, Inc., Exxon Corporation, Sun Oil Company, Tenneco Oil Company, Houston Oil and Minerals Corporation, Gulf Oil Corporation, Placid Oil Company, Intervenors. NATURAL GAS PIPELINE COMPANY OF AMERICA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Mobil Oil Corporation, et al., General American Oil Company of Texas, Phillips Petroleum Company, Pennzoil Company, Shell Oil Company, Laclede Gas Company, Associated Gas Distributors, Getty Oil Comp |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Motion for Order Directing Compliance with Mandate.
Frederick Moring, Washington, D.C., for petitioner, Associated Gas Distributors, on Motion for Order Directing Compliance with Mandate.
Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., for respondent F.E.R.C., with whom Joel M. Cockrell, Atty., F.E.R.C., Washington, D.C., was on response to the Motion for Order Directing Compliance with the Mandate.
John H. Cheatham, III, Washington, D.C., for petitioner, Interstate Natural Gas Ass'n of America, was on response to the Motion for Order Directing Compliance with the Mandate.
Kenneth J. Neises, Washington, D.C., for petitioner, Laclede Gas Co., was on response to the Motion for Order Directing Compliance with Mandate.
J. Paul Douglas, Carroll L. Gilliam, Washington, D.C., and Robert D. Haworth, Houston, Tex., for intervenors, Producers, were on response to the Motion for Order Directing Compliance with Mandate.
L. Charles Landgraf and Raymond N. Shibley, Washington, D.C., for intervenors, Panhandle Eastern Pipe Line Co., et al., were on response to the Motion for Order Directing Compliance with Mandate.
Glen S. Howard and Edward J. Grenier, Jr., Washington, D.C., for intervenors, Process Gas Consumers Group, et al., on Motion for Order Directing Compliance with Mandate.
Robert F. Shapiro, Chevy Chase, Md., and Rigdon H. Boykin, New York City, for intervenor, American Paper Institute, Inc., were on response to the Motion for Order Directing Compliance with Mandate.
Before ROBINSON, Chief Judge, MIKVA and SCALIA, Circuit Judges.
Opinion for the Court Per Curiam.
On August 9, 1983, this court issued its opinion in Interstate Natural Gas Association of America v. FERC, 716 F.2d 1 (D.C.Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 1615, 1616, 80 L.Ed.2d 144 (1983) (Interstate ). We held that under the Natural Gas Policy Act of 1978, 15 U.S.C. Sec. 3301, et seq. (1982), the Federal Energy Regulatory Commission's "dry" method of measurement of the Btu content of natural gas for wellhead pricing purposes was improper and resulted in prices in excess of those permitted under the statute. We instructed FERC to vacate its Order designating the "dry" method. Two consequences of our decision were inexorable: implement the proper pricing method for future pricing decisions, and remedy the effects of past use of the improper pricing method at the earliest possible moment.
The Interstate parties are before us again, in response to the motion of petitioner Associated Gas Distributors to enforce our mandate in Interstate. For the reasons stated below, we direct FERC to implement the refund procedures set forth in Order No. 399.
Following the issuance of our mandate, FERC moved to comply with its terms. FERC issued a rule requiring wet pricing henceforth, 49 Fed.Reg. 3072 (1984). In further implementation of our holding in Interstate, FERC issued Order No. 399 which directed producers to refund the excessive costs arising from use of the improper "dry" method of calculation:
The Federal Energy Regulatory Commission (Commission) is amending and finalizing its regulations that establish refund procedures for overcharges resulting from adjustments to the calculation of energy content of natural gas ... sold pursuant to the Natural Gas Policy Act of 1978. In so doing, the Commission is implementing [this court's] decision in Interstate Natural Gas Association of America v. Federal Energy Regulatory Commission.
49 Fed.Reg. 37735 (1984) (footnote and citation omitted).
Order No. 399, issued pursuant to the requisite notice and comment, established a system of refunds that fulfilled the premises of our decision. Under the Order, producers of natural gas were to refund to pipelines the overcharges made under the improper "dry" method. These refunds were to be paid over by the pipelines to natural gas customers who had, in the first instance, paid these excessive charges. Under the Order, "large producers" were to have refunded their overcharges on November 5, 1984, while "small producers" were scheduled to issue their refunds on May 3, 1985. To date, no refunds have been made.
FERC explicitly prohibited producers from offsetting their refund obligations against any monies owed them by the pipelines. Order No. 399, 49 Fed.Reg. 37738-39. This prohibition had particular reference to claims the producers had made for additional monies due them under Section 110 of the Natural Gas Policy Act. FERC has issued Order No. 94-A allowing producers to collect these "Section 110 costs" from pipelines. 48 Fed.Reg. 5152 (1983). Order No. 94-A is now under review in the United States Court of Appeals for the Fifth Circuit. Texas Eastern Transmission Corp. v. FERC, No. 83-4390 (5th Cir. filed 1983).
In rejecting the use of offsets, FERC recognized not only that many of the Section 110 costs owed had not been paid, but also that tying these unrelated and disputed costs to refund of the improper "dry" charges would delay and disrupt the implementation of our decision. FERC stated in Order 399:
The Commission also believes that permitting offsets of section 110 costs and Btu refunds would complicate an already difficult process and would make Commission monitoring of Btu refunds more difficult. In addition, the Commission is concerned that permitting pipelines and firstsellers to offset section 110 costs and Btu refunds could prevent the Btu refunds from reaching as many of the customers actually overcharged as possible. Considering that the section 110 orders are also subject to judicial review, the Commission believes it is more appropriate to segregate the collection of section 110 costs from the Btu refunds.
Two months after issuing Order No. 399, FERC abruptly reversed its position on offsets, and, in Order No. 399-A, 49 Fed.Reg. 46353 (1984), FERC, without addressing the weighty rationale behind its earlier Order, authorized producers to offset their refund obligations by deducting monies due them under Section 110.
Associated Gas Distributors has moved this court for an order commanding FERC to comply with our mandate by directing producers to make appropriate refunds to pipelines immediately, as set forth in Order No. 399. A petition for review of Orders No. 399 and 399-A is...
To continue reading
Request your trial
-
Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan
...(D.C.Cir.) (filed Sept. 22, 1982).64 Id.65 See note 47 supra.66 Fed.R.App.P. 3(c).67 Id.68 E.g., Interstate Natural Gas Ass'n v. FERC, 244 U.S.App.D.C. 145, 149, 756 F.2d 166, 170, cert. denied sub nom., Pennzoil Co. v. Associated Gas Distrib., 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1......
-
U.S. v. Jackson
...an appeal be noted in a timely manner.8 See, e.g., McClurkin, supra, 472 A.2d at 1351-52; Interstate Natural Gas Association of America v. FERC, supra note 8, 244 U.S. App.D.C. at 149, 756 F.2d at 170; Fischer v. United States Department of Justice, 759 F.2d 461, 463-64 (5th Cir. 1985); Uni......
-
Manion v. American Airlines, Inc.
...was not a model of clarity, but it was sufficient to satisfy the requirements of Rule 3. See, e.g., Interstate Natural Gas Ass'n of Am. v. FERC, 756 F.2d 166, 170 (D.C.Cir.1985) (per curiam) ("Federal appellate courts have broadly recognized that the filing of a paper substantially equivale......
-
Kosanowsky v. US Dept. of Army, 85 Civ. 3982 (CLB).
...of appeal) and 15(a) (governing petitions for review of agency orders generally). In Interstate Natural Gas Association v. Federal Energy Regulatory Commission, 756 F.2d 166, 170 (D.C.Cir.1985), cert. denied sub nom. Pennzoil Co. v. Associated Gas Distributors, ___ U.S. ___, 106 S.Ct. 139, ......