North Carolina Utilities Commission v. Federal Energy Regulatory Commission, 80-1219
| Decision Date | 20 May 1981 |
| Docket Number | No. 80-1219,80-1219 |
| Citation | 209 U.S.App.D.C. 400,653 F.2d 655 |
| Parties | NORTH CAROLINA UTILITIES COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Public Service Electric and Gas Company, Transcontinental Gas Pipe Line Corporation, Kerr-McGee Corporation, Mobil Oil Exploration, et al., Farmers Chemical Association, Inc., Washington Gas Light Company, General Motors Corporation, Brooklyn Union Gas Company, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Morton L. Simons with whom Barbara M. Simons, Washington, D.C., was on the brief for petitioner.
Auburn L. Mitchell, Atty., Federal Energy Regulatory Commission, Washington, D.C., for respondent. Robert R. Nordhaus, Gen. Counsel, Jerome Nelson, Sol. and A. Karen Hill, Atty., Federal Energy Regulatory Commission, Washington, D.C., were on the brief for respondent.
Robert G. Hardy, Washington, D.C., with whom Thomas F. Ryan, Jr., David J. Evans and Joseph A. Cannon, Washington, D.C., were on the brief for intervenor, Transcontinental Gas Pipe Line Corp. Robert D. Haworth, Letitia Taitte, Houston, Tex., Carroll L. Gilliam, Philip R. Ehrenkranz and Craig W. Hulvey, Washington, D.C., were on the brief for intervenors, Mobil Oil Exploration, et al.
Richard G. Harris, Derrill M. Cody, Oklahoma City, Okl., William J. Grove, Sr., Carroll L. Gilliam and Jon L. Brunenkant, Washington, D.C., were on the brief for intervenor, Kerr-McGee Corp.
James R. Lacey, Glen Ridge, N.J., entered an appearance for intervenor, Public Service Electric and Gas Company.
Stephen A. Herman, Trenton, N.J., entered an appearance for intervenor, Farmers Chemical Association, Inc.
Susan A. Low and Gordon M. Grant, Washington, D.C., entered an appearance for intervenor, Washington Gas Light Co.
Edward J. Grenier, Jr., Richard P. Noland, Richard A. Oliver, Washington, D.C., and Julius Jay Hollis, Detroit, Mich., entered appearances for intervenor, General Motors Corp.
Joseph Paul Stevens, Brooklyn, N.Y., entered an appearance for intervenor, Brooklyn Union Gas Co.
Before WALD, MIKVA and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Petitioner North Carolina Utilities Commission ("NCUC") seeks to vacate, or in the alternative to reverse and remand for further findings, an order of the Federal Energy Regulatory Commission ("FERC" or "the Commission") 1 affirming the Initial Decision of the Administrative Law Judge ("Initial Decision") 2 in the proceedings denominated as FERC Docket No. RP75-51. This order (hereinafter referred to as "RP75-51 Order") terminated an investigation into the causes of, and possible solutions to, curtailments of natural gas deliveries suffered by customers of Transcontinental Gas Pipe Line Corporation ("Transco") during the 1974-75 winter season, and approved several factual findings reached by the Administrative Law Judge ("ALJ") after consideration of the testimony and exhibits presented to him. Because we find petitioner lacks standing to bring this suit and because the decision to terminate this investigation instituted pursuant to section 14 of the Natural Gas Act ("NGA" or "the Act"), 15 U.S.C. § 717m(a), is committed to agency discretion, we dismiss this case for lack of jurisdiction.
Transco, a major interstate pipeline, purchases, transports and sells natural gas to distributors in 11 states, including North Carolina. At the time of the events which gave rise to this action, its principal sources of supply lay in the outer continental shelf, an area of small, fragmented reservoirs with relatively short productive lives. During the summer of 1974, it became obvious that Transco's supplies from these sources would fall far short of its original estimates, necessitating curtailments in planned deliveries to its customers. Accordingly, Transco issued its first curtailment plan in September, 1974, projecting a shortfall of supply over contract demand of 28 percent. Transco continued to revise its estimates of available gas supplies downwards in the fall, and contemporaneously issued a series of revisions to its original curtailment projections, increasing projected non-delivery by 30 Bcf., 3 between October and December of 1974.
On January 8, 1975, the Federal Power Commission ("FPC") 4 invoked its discretionary In the spring of 1975, Transco again revised its deliverability projection, this time upward to include 18 Bcf. of gas which it had previously declared unavailable. On July 1, 1975, the FPC issued an Order Amending Prior Order and Broadening Scope of Investigation ("Investigatory Order II") 8 to enlarge the scope of the investigation. The additional areas to be explored were "all facts bearing upon the alleged need for any curtailment by Transco to its customers and also to Transco's efforts to improve deliverability upon its system consistent with its obligations to provide adequate and reliable service to its customers," as well as "all facts bearing upon (1) the enforcement of the provisions of the Natural Gas Act or any rule, regulation, or order thereunder; and (2) remedial measures to be directed by the Commission." 9 In the same order, the FPC removed from the scope of the investigation two of Transco's suppliers, Mitchell Energy and Development Corporation ("Mitchell") and Cities Service Oil Corporation ("Cities Service") pursuant to the request of a Congressional subcommittee conducting a related investigation. 10 In its Order Amending Order and Requiring Report ("Investigatory Order IV"), 11 the FPC limited the scope of its investigation to Transco's 19 largest suppliers in the interest of efficiency "(s)ince the purpose of the investigation is to locate, if possible, additional supplies of gas that can After an extensive investigation in which seven people spent six weeks in the field, the FPC staff submitted a report concluding that:
authority under section 14 of the Act 5 to investigate Transco's supply shortage. In its Order Instituting Investigation and Order to Show Cause, Setting Hearing, and Establishing Procedures ("Investigatory Order I"), 6 the FPC outlined five areas of inquiry: (1) "the circumstances for the increased curtailment," (2) "a determination as to the current projections of curtailment for said system," (3) "the adequacy of the gas reserves held or controlled by (Transco)," (4) "the change, if any, in the level of production from such reserves, (and) the effect on deliverability of gas from reserves affected by adverse weather" and (5) "the actions taken to fully reactivate the production from those reserves." 7 Transco and its principal suppliers presented evidence on these matters at FPC hearings held between January and March, 1975, at which time the proceedings were suspended to allow the parties to obtain additional information
be brought on stream prior to the commencement of the coming heating season." 12
in every case, the inability to satisfy the contract requirements was caused by a combination of mechanical and water problems and/or the inability of the wells to produce due to depletion. Thus, of the DCQ (daily contract rate) rate schedules/fields investigated, it is the conclusion of the technical staff that there were no companies that could not satisfactorily account for not making their respective DCQ....
The ALJ issued his Initial Decision in June, 1977. See note 2 supra. The ALJ substantially adopted the factual conclusions of the Staff Report, which he quoted at length in his opinion. He thereby vindicated Transco's actions during the crisis he found that the curtailments were necessary and that Transco had not attempted to manipulate gas supplies for its own profit but did not go so far as to conclude that Transco or its suppliers were free from blame for the conditions which led up to the crisis. Indeed, the opinion notes that "there may have been some lack of diligence in the past in improving gas supplies and some bad management decisions on the timing of offshore repairs (.)" 13 However, the ALJ rejected the remedial measures proposed by the FPC staff and NCUC in light of Transco's "aggressive" efforts to increase future deliverable supplies of natural gas 14 and "Ordered, subject to review by the Commission, that this Investigation is terminated." 15
NCUC and the FPC staff filed Exception Briefs to this initial decision, arguing that the judge should have recommended remedial actions. 16 The Commission, however, affirmed the ALJ's decision in a two page order issued in 1979, noting in a footnote that Transco's supply situation had vastly improved by 1978 and that the 1979 projections were even higher. RP75-51 Order; R. 6982.1; I J.A. 240. NCUC filed an application for rehearing; when the Commission took no action upon it for the statutorily designated time period, NCUC petitioned for review by this court.
NCUC argues before this court that the RP75-51 Order should be vacated or reversed and remanded for three reasons. First, NCUC contends that the Commission was required to dismiss the investigation as Respondent FERC and the intervenors, Transco and Public Service Electric and Gas Company, et al. ("PSEG"), 18 argue in their main brief that the investigation is not moot, that the order terminating it was supported by substantial evidence, and that in any case, NCUC has no standing to bring the suit because it is not a party "aggrieved" by the Commission's order. FERC additionally contends that its order terminating the investigation is not subject to judicial review, but is a decision committed entirely to agency discretion.
moot because its decision to terminate the investigation and affirm the ALJ's findings with respect to Transco's and its suppliers' behavior was based on Transco's improved performance in the post-1977 years rather than the factual record underlying the ALJ's Initial Decision. Second, NCUC...
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