National Coal Ass'n v. Federal Power Commission, No. 10376.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: CLARK, BAZELON and FAHY, Circuit
• Citation: 191 F.2d 462
• Parties: NATIONAL COAL ASS'N et al. v. FEDERAL POWER COMMISSION.
• Decision Date: 18 June 1951
• Docket Number: No. 10376.

191 F.2d 462 (1951)

NATIONAL COAL ASS'N et al.
v.
FEDERAL POWER COMMISSION.

No. 10376.

United States Court of Appeals District of Columbia Circuit.

Argued November 20, 1950.

Decided June 18, 1951.

191 F.2d 463

John Geyer Tausig, Washington, D. C., with whom Messrs. Thomas J. McGrath, James W. Haley and Welly K. Hopkins, Washington, D. C., were on the brief, for petitioners.

Bradford Ross, General Counsel, Federal Power Commission, Washington, D. C., with whom William S. Tarver, Asst. Gen. Counsel, Federal Power Commission, and Norman A. Flanigan, Atty., Federal Power Commission, Washington, D. C., were on the brief, for respondent.

Hamilton E. Little, Memphis, Tenn., with whom Phil B. Whitaker, Chattanooga, Tenn., was on the brief, for intervenor East Tennessee Natural Gas Co. Bailey Walsh, Memphis, Tenn., and F. Trowbridge vom Bauer, Washington, D. C., also entered appearances for intervenor East Tennessee Natural Gas Co.

H. Graham Morison, Asst. Atty. Gen., and Paul A. Sweeney and Samuel D. Slade, Attys., Department of Justice, Washington, D. C., were on the brief for intervenor United States of America.

Before CLARK, BAZELON and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

This case arises upon a petition to review and set aside an order of the Federal Power Commission granting a certificate of public convenience and necessity under § 7(e) of the Natural Gas Act.¹ That certificate authorized the East Tennessee Natural Gas Company to construct and operate a 22-inch natural gas pipeline, approximately 172 miles in length, in order to service the Atomic Energy Commission's plant at Oak Ridge, Tennessee. Petitioners who now seek review of that order

191 F.2d 464

are (1) the National Coal Association, a trade association of bituminous coal mine owners and operators, some of whom are said to sell to the Oak Ridge plant; (2) the United Mine Workers of America, a labor union of coal miners, including many allegedly employed in the mines referred to in (1); and (3) the Railway Labor Executives Association, whose membership is composed of the chief executive officers of twenty-one of the so-called standard railroad labor unions, many of whose members are allegedly employed by railroads which compete with the pipelines as carriers of fuel. Pursuant to the provisions of the Act,² petitioners were granted leave to intervene and did participate as parties to the proceeding before the Commission. Upon entry of the order granting the certificate, they filed a joint application for rehearing in accordance with the provisions of § 19(a) of the Act³ which was denied after consideration on the merits. Following this action, the petition to review was filed here. We treat petitioners' intervention below and appeal here as in a representative capacity — in behalf of those of its members who will allegedly be affected by the order

As authority for their right to obtain judicial review, petitioners rely upon § 19(b) of the Act which provides that: "Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the circuit court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part * * *."⁴ The Commission vigorously asserts, however, that the injury to petitioners, which is said to result from the displacement of coal by natural gas, is too remote and conjectural to qualify them as parties "aggrieved" within the meaning of 19(b). The Commission concedes "that the courts in construing `party aggrieved' or similar language in court review sections of other regulatory statutes have relaxed the established requirements for `standing to sue' to permit a party who has suffered only financial or economic injury to obtain judicial review * * *."⁵ But, it continues, there is still the constitutional requirement of case or controversy to prevent remote and hypothetical controversies from reaching the courts and that is not satisfied unless the injury complained of is immediate, direct and substantial.

It is unnecessary for us to undertake a re-examination at this time of what has already been done so well by Judge Frank in his comprehensive discussion of the considerable body of case law which has developed with regard to the problem of standing to challenge administrative orders. See Associated Industries v. Ickes, 2 Cir., 1943, 134 F.2d 694. We agree with the rationale which that case draws from the Supreme Court's decisions in the Sanders⁶ and Scripps-Howard⁷ cases: "* * * one threatened with financial loss through increased competition resulting from a Commission's order is `aggrieved,' and entitled as such to a review notwithstanding that the very statute pursuant to which he obtains review is designed to keep competition alive and confers

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upon him no property right which gives him any kind of immunity from competition."⁸ The "`person aggrieved' review provision is a constitutionally valid statute authorizing a class of `persons aggrieved' to bring suit in a Court of Appeals to prevent alleged unlawful official action in order to vindicate the public interest, although no personal substantive interest of such persons had been or would be invaded. Although one threatened with financial loss through increased competition * * * cannot, solely on that account, make the proper showing to maintain a suit against the official, absent such a statute, yet the `person aggrieved' statute gives the needed authority to do so to one who comes within that description."⁹

The doctrine that a competitor belongs to the class of persons whose injury is sufficiently direct and immediate to qualify as "aggrieved" has been applied in a case brought under § 19(b) of the Natural Gas Act. In Cia Mexicana De Gas v. Federal Power Commission, 5 Cir., 1948, 167 F.2d 804, 805-806, the court thought it "clear" that a natural gas company which competed with a certificate applicant was entitled to seek judicial review of the order granting the certificate.

Nothing in United States Cane Sugar Refiners Ass'n v. McNutt, 2 Cir., 1943, 138 F.2d 116, runs counter to what we have already said. That case merely emphasizes the importance of the requirement that, to qualify as a person "adversely affected" by an administrative order, a petitioner must show that such order results in direct and immediate injury to him. Petitioners there were sugar refiners seeking review of an order of the Food and Drug Administration authorizing canners to use dextrose or corn sirup or both in combination with sugar without being required to so state on the label. It was argued that the order would result in diminished use of petitioner's product, the more expensive sugar. The sugar refiners were not consumers of the regulated product, as was true in Associated Industries; nor were they competitors in the production and sale of it, as was true in Sanders and Scripps-Howard. They were merely suppliers of an ingredient used in the manufacture of it. As such, they could point to no higher prices they would have to pay as a result of the order complained of or even, with any certainty, to loss of markets previously enjoyed. They could show no immediate adverse effect of the order upon them but only a "tenuous likelihood" that "the regulations will do away with the remote, speculative sales resistance of the public to the marketing of the canned fruits sweetened in some part with dextrose or corn sirup which might be present if the labels on the cans disclosed" that these sweeteners had been added to the sugar.¹⁰ Such a remote possibility of injury was neither substantial, direct nor immediate and hence did not bring petitioners into sufficiently close relationship to the subject matter of the order to permit them to "vindicate the public interest."

Petitioners in the case before us trace their injury to the displacement of coal by natural gas which will result from the issuance of the certificate. The coal companies will lose markets previously enjoyed by them at Oak Ridge. Their employees will be deprived of jobs to the extent that new markets are not found, and the employees of railroad companies, which compete with the pipelines as carriers of fuel to Oak Ridge, will similarly be affected. So far as the competing coal companies (represented by petitioner National Coal Association) are concerned, there is no question that the effect of the order upon markets previously enjoyed by them brings them within the rule of Sanders and Scripps-Howard and outside the scope of Cane Sugar Refiners. This is especially true in the context of this particular industry. Congress was concerned with, and wished the Commission to consider, "the effect of construction and extension of natural gas pipelines upon the interests of producers of competing fuels and competitive transportation interests."¹¹ The

191 F.2d 466

source of such concern was congressional recognition that the market for coal was a shrinking one and that displacement of it by natural gas would create problems directly affecting both the coal industry and the railroads which transported coal — problems which would at least require that such competitors be heard upon a showing of injury to them

We see no reason, and none is suggested to us, for...