Metzenbaum v. Federal Energy Regulatory Commission
| Decision Date | 20 April 1982 |
| Docket Number | No. 82-1097,82-1097 |
| Parties | Howard M. METZENBAUM, et al., Complainants, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Foothills Pipe Lines (Yukon) Ltd., Alaskan Northwest Natural Gas Transportation Company, Philadelphia Council of Neighborhood Organizations, Bronson C. LaFollette, Attorney General of the State of Wisconsin, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Complaint Under the Alaskan Natural Gas Transportation Act, 15 U.S.C. 719h(c)(1).
Herman Schwartz, Washington, D. C., with whom Edward L. Petrini, Lansing, Mich., was on the brief, for complainants. R. Philip Brown, Lansing, Mich., also entered an appearance for complainant Frank J. Kelley, Atty. Gen., State of Michigan, Detroit, Mich., Margaret Ann Samuels, Columbus Ohio, also entered an appearance for complainant, Office of Consumers' Counsel, State of Ohio.
Charles A. Moore, Houston, Tex., Gen. Counsel, Federal Energy Regulatory Commission, of the bar of the Supreme Court of Texas pro hac vice by special leave of the Court, with whom Jerome M. Feit, Sol., and Andrea Wolfman, Atty., Federal Energy Regulatory Commission, Washington, D. C., were on the brief, for respondent.
William J. Grealis, with whom Rush Moody, Jr., Ronald M. Johnson, John F. Markus and Seth R. Molay, Washington, D. C., were on the brief, for intervenor, Alaskan Northwest Natural Gas Transp. Co.
George W. McHenry, Jr. and John H. Burnes, Jr., Washington, D. C., were on the brief for intervenor, Foothills Pipe Lines (Yukon) Ltd.
Edward L. Petrini, Lansing, Mich., also entered an appearance for intervenor, Philadelphia Council of Neighborhood Organizations.
Bronson C. LaFollette, Atty. Gen., Madison, Wis., pro se.
Before ROBB, WALD and GINSBURG, Circuit Judges.
Opinion PER CURIAM.
In this action, a number of United States Senators and Representatives, States, state officials and consumer advocates 1 challenge the validity of Pub.L.No.97-93, 95 Stat. 1204, which waived certain provisions of federal law, notably certain sections of the Alaskan Natural Gas Transportation Act ("ANGTA"), 15 U.S.C. §§ 719-719o, that would otherwise have governed the construction and operation of the Alaskan natural gas pipeline. Also at issue is a Federal Energy Regulatory Commission ("FERC") order issued in conformity with the waivers. Complainants seek declaratory and injunctive relief on the grounds that Pub.L.No.97-93 was enacted in violation of the procedures mandated by ANGTA, that it unconstitutionally deprives natural gas consumers of the right to just and reasonable rates, and further that the FERC order issued pursuant to the waiver was improperly promulgated without notice and comment. We find that the first challenge to Pub.L.No.97-93 is not suitable for judicial resolution. As to the second challenge, we find that complainants have not made out a claim that the statute is facially invalid and that issues they raise as to possible applications of the statute are not ripe for decision. Finally, we find that the FERC order was appropriately issued without notice and comment as a nondiscretionary ministerial action.
ANGTA established the framework for a federal role in the development of a transportation system for delivery of natural gas from Prudhoe Bay, Alaska, through Canada, to the contiguous states and for federal regulation of rates to be charged for Alaskan natural gas transported through the system. ANGTA includes, inter alia, procedures for Congressional incorporation into the Act of Presidential determinations regarding the construction and operation of such a system, 15 U.S.C. §§ 719e, 719f. Pursuant to these provisions, President Carter submitted a Decision and Report to Congress ("Decision") which Congress enacted into law in late 1977, Pub.L.No.95-158, 91 Stat. 1268. Over the next two years, FERC issued a series of orders implementing the Decision. Among these was an order authorizing Alcan Pipeline Company to construct and operate the Alaskan segment of the pipeline, Order Vacating Prior Proceedings and Issuing Conditional Certificates of Public Convenience and Necessity, FERC Docket Nos. CP78-123, CP78-124, CP78-125 (Dec. 16, 1977), Joint Appendix ("J.A.") at 1, and several orders interpreting terms of the Decision.
ANGTA also established a mechanism for Congress to agree to waive otherwise applicable regulatory requirements if the President so recommended in order to expedite construction and operation of the system. 15 U.S.C. § 719f(g). In late 1981, proposing to "clear away governmental obstacles to proceeding with private financing of this important project," President Reagan initiated the process to set aside some portions of President Carter's Decision, the Natural Gas Act, 15 U.S.C. §§ 717-717w, and the Energy Policy and Conservation Act, 42 U.S.C. §§ 6201-6422. 127 Cong.Rec. S11514, H7351 (daily ed. Oct. 15, 1981) (Message from the President accompanying Findings and Proposed Waiver of Law). President Reagan submitted to each house of Congress a proposal to waive President Carter's Decision to the extent that it prohibited participation in ownership of the pipeline by Alaskan natural gas producers, 2 barred inclusion in the pipeline rate base of the capital costs of the conditioning plant that prepares gas for transmission through the system, 3 and disallowed pre-billing, i.e., charging consumers for the cost of the pipeline "prior to completion and commissioning of operation of the system." Decision at 38. 4 President Reagan's proposal further sought to waive the provisions of the Natural Gas Act that might require formal evidentiary hearings on applications for authorization of pipeline construction or operation, 15 U.S.C. § 717f(c)(1)(B), and to withdraw from FERC its authority under the Natural Gas Act to revise rates "in such a manner as to reduce project revenues below the level necessary to service project debt, or the shipper tariff in such a manner as to reduce their ability to pay the project tariff." H.R.Rep.No.350, 97th Cong., 1st Sess. 20 (1981). 5
On October 19, 1981, joint resolutions to approve the waivers were introduced in each house. Except for the formal headings, the resolutions were identical:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the House of Representatives and Senate approve the waiver of the provision of law (Public Law 95-158, Public Law numbered 688, Seventy-fifth Congress, second session, and Public Law 94-163) as proposed by the President, submitted to the Congress on October 15, 1981.
H.R.J.Res. 341, 97th Cong., 1st Sess., reprinted at H.R.Rep.No.350, 97th Cong., 1st Sess. 2 (1981); S.J.Res. 115, 97th Cong., 1st Sess., reprinted at S.Rep.No.272, 97th Cong., 1st Sess. 1 (1981). The Senate version, S.J.Res. 115, was passed a month later by a vote of 75 to 19, 127 Cong.Rec. S13711 (daily ed. Nov. 19, 1981), and the House version, H.R.J.Res. 341, was passed on December 9, 1981 by a vote of 233 to 173. 127 Cong.Rec. H8964 (daily ed. Dec. 9, 1981). Immediately after passage of H.R.J.Res. 341, following "normal procedure," Representative Udall asked for unanimous consent to consider the identical Senate resolution "so there (would) be action by both bodies on the same matter," but an opponent of the waivers objected. Id. at H8965. The following day, Representative Long submitted to the House a rule to allow consideration of the Senate resolution. H.R.Res. 296, 97th Cong., 1st Sess., 127 Cong.Rec. H9082 (daily ed. Dec. 10, 1981). Representative Long noted that ANGTA outlines certain parliamentary procedures and further provides that either house may alter those rules in the same manner as any other parliamentary rules. Id. He concluded, therefore, that "a special order providing for the consideration of the joint resolution which is in itself a temporary amendment to the rules of the House is perfectly in order." Id. at H9082-83. The rule change was agreed to, id. at H9090, and the Senate resolution was considered and passed by a vote of 230 to 188. Id. at H9090-101. The President signed the Senate resolution into law on December 15, 1981, and it became Pub.L.No.97-93.
On January 4, 1982, FERC issued an order amending the initial authorization for construction and operation of the pipeline to include the conditioning plant within the approved system. Order Amending Conditional Certificate, FERC Docket Nos. CP78-123 et al. (Jan. 4, 1982), J.A. at 538. FERC regarded the amendment as "a ministerial action" mandated by the waiver of law to be taken "without any exercise of administrative judgment or discretion," and concluded that "opportunity for notice, intervention and comment would serve no useful function." Id. at 3, J.A. at 540. On January 28, this cause was brought in accordance with the requirement that ANGTA claims be heard exclusively and expeditiously by this court acting as a Special Court. 15 U.S.C. § 719h.
A. Complainants first argue that Pub.L.No.97-93 is invalid because it was passed in violation of ANGTA parliamentary rules, 15 U.S.C. § 719f(d)(5)(B), which bar consideration by either house of Congress of a resolution approving proposed waivers within 60 days of considering "any other resolution respecting the same Presidential (recommendation)." This provision was enacted by Congress
as an exercise of the rulemaking power of each House of Congress, respectively, and as such it is deemed a part of the rules of each House ... with full recognition of the constitutional right of either House to change the rules (so far as those rules relate to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of such House.
15 U.S.C. § 719f(d)(1). Thus, complainants ask us to decide whether or not the rules of the House of...
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