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Office of Consumers' Counsel, State of Ohio v. F.E.R.C.

Document Cited authorities 39 Cited in 76 Precedent Map Related
Vincent
Decision Date04 February 1986
Docket Number84-1143,84-1100,84-1146,84-1179 and 84-1444,84-1142,84-1135,Nos. 84-1099,s. 84-1099
Citation783 F.2d 206
PartiesOFFICE OF CONSUMERS' COUNSEL, STATE OF OHIO, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Public Service Commission of the State of New York, Public Service Commission of West Virginia, Process Gas Consumers Group, Columbia Gas Distribution Companies, UGI Corporation, Dayton Power and Light Company, Columbia Gas Transmission Corporation, Pennsylvania Gas and Water Company, Consumer Advocate For the Commonwealth of Pennsylvania, Washington Gas Light Company, Interstate Natural Gas Association of America, Cities of Charlottesville and Richmond, Virginia, Consumer Advocate Division of the Public Service Commission of West Virginia, Cincinnati Gas & Electric Company, et al., Baltimore Gas and Electric Company, Public Utilities Commission of Ohio, Texas Eastern Transmission Corporation, Transwestern Pipeline Company, Exxon Corporation, Maryland Office of People's Counsel, Intervenors. ASSOCIATED GAS DISTRIBUTORS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Service Commission of the State of New York, Public Service Commission of West Virginia, Pennsylvania Gas and Water Company, Process Gas Consumers Group, Columbia Gas Distribution Companies, UGI Corporation, Dayton Power and Light Company, Columbia Gas Transmission Corporation, Washington Gas Light Company, Interstate Gas Association of America, Cities of Charlottesville and Richmond, Virginia, Consumer Advocate Division of the Public Service Commission of West Virginia, Office of Consumers' Counsel, Cincinnati Gas & Electric Company, et al., Baltimore Gas and Electric Company, Public Utilities Commission of Ohio, Texas Eastern Transmission Corporation, Transwestern Pipeline Company, Exxon Corporation, Maryland Office of People's Counsel, Intervenors. PUBLIC SERVICE COMMISSION of the STATE of NEW YORK, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Washington Gas Light Company, Baltimore Gas and Electric Company, Exxon Corporation, Maryland Office of Peopl
CourtU.S. Court of Appeals — District of Columbia Circuit

Page 206

783 F.2d 206

251 U.S.App.D.C. 208

OFFICE OF CONSUMERS' COUNSEL, STATE OF OHIO, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent

Public Service Commission of the State of New York, Public

Service Commission of West Virginia, Process Gas Consumers

Group, Columbia Gas Distribution Companies, UGI Corporation,

Dayton Power and Light Company, Columbia Gas Transmission

Corporation, Pennsylvania Gas and Water Company, Consumer

Advocate For the Commonwealth of Pennsylvania, Washington

Gas Light Company, Interstate Natural Gas Association of

America, Cities of Charlottesville and Richmond, Virginia,

Consumer Advocate Division of the Public Service Commission

of West Virginia, Cincinnati Gas & Electric Company, et al.,

Baltimore Gas and Electric Company, Public Utilities

Commission of Ohio, Texas Eastern Transmission Corporation,

Transwestern Pipeline Company, Exxon Corporation, Maryland

Office of People's Counsel, Intervenors.

ASSOCIATED GAS DISTRIBUTORS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Public Service Commission of the State of New York, Public

Service Commission of West Virginia, Pennsylvania Gas and

Water Company, Process Gas Consumers Group, Columbia Gas

Distribution Companies, UGI Corporation, Dayton Power and

Light Company, Columbia Gas Transmission Corporation,

Washington Gas Light Company, Interstate Gas Association of

America, Cities of Charlottesville and Richmond, Virginia,

Consumer Advocate Division of the Public Service Commission

of West Virginia, Office of Consumers' Counsel, Cincinnati

Gas & Electric Company, et al., Baltimore Gas and Electric

Company, Public Utilities Commission of Ohio, Texas Eastern

Transmission Corporation, Transwestern Pipeline Company,

Exxon Corporation, Maryland Office of People's Counsel, Intervenors.

PUBLIC SERVICE COMMISSION of the STATE of NEW YORK, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Washington Gas Light Company, Baltimore Gas and Electric

Company, Exxon Corporation, Maryland Office of People's

Counsel, Cities of Charlottesville and Richmond, Virginia,

Cincinnati Gas & Electric Company, Office of Consumers'

Counsel, Process Gas Consumers Group, Consumer Advocate

Division of the Public Service Commission of West Virginia,

Public Utilities Commission of Ohio, Intervenors.

CITIES OF CHARLOTTESVILLE AND RICHMOND, VIRGINIA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Dayton Power and Light Company, Cincinnati Gas & Electric

Company, et al., Maryland Office of People's Counsel,

Baltimore Gas and Electric Company, Process Gas Consumers

Group, Washington Gas Light Company, Public Utilities

Commission of Ohio, Intervenors.

CITIZEN/LABOR ENERGY COALITION, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Dayton Power and Light Company, Cincinnati Gas & Electric

Company, et al., Baltimore Gas and Electric Company,

Maryland Office of People's Counsel, Consumers' Counsel,

State of Ohio, Process Gas Consumers Group, Washington Gas

Light Company, Public Utilities Commission of Ohio, Intervenors.

BALTIMORE GAS & ELECTRIC COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Dayton Power and Light Company, Cincinnati Gas & Electric

Company, et al., Office of Consumers' Counsel, Maryland

Office of People's Counsel, Process Gas Consumers Group,

Washington Gas Light Company, Cities of Charlottesville and

Richmond, Virginia, Public Utilities Commission of Ohio,

Intervenors.

PROCESS GAS CONSUMERS GROUP, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

Public Utilities Commission of Ohio, Office of Consumers'

Counsel, Baltimore Gas and Electric Company, Cities of

Charlottesville and Richmond, Virginia, Washington Gas Light

Company, Maryland Office of People's Counsel, Pennsylvania

Department of Commerce, Association of Businesses Advocating

Tariff Equity, American Iron and Steel Institute, Georgia

Industrial Group, Intervenors.

COLUMBIA GAS TRANSMISSION CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent,

UGI Corporation, Dayton Power and Light Company, Public

Service Commission of West Virginia, Process Gas Consumers

Group, Public Service Commission of the State of New York,

Pennsylvania Gas and Water Company, Columbia Gas

Distribution Companies, Ohio Office of Consumers' Counsel,

Washington Gas Light Company, Associated Gas Distributors,

Baltimore Gas and Electric Company, Cities of

Charlottesville and Richmond, Virginia, Interstate Natural

Gas Association of America, Transwestern Pipeline Company,

Texas Eastern Transmission Corporation, Maryland Office of

People's Counsel, The Cincinnati Gas & Electric Company and

Union Light, Heat & Power Company, Consumer Advocate

Division of the Public Service Commission of West Virginia,

Public Utilities Commission of Ohio, Intervenors.

Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146,

84-1179 and 84-1444.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 23, 1985.

Decided Feb. 4, 1986.

Jennifer N. Waters, with whom Frederick Moring and Roger B. Cooper were on brief for petitioner, Associated Gas Distributors in No. 84-1100 and intervenor in Nos. 84-1099, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444; and with whom Hodges B. Childs was on brief for petitioner, Baltimore Gas and Electric Company in No. 84-1146 and intervenor in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1179 and 84-1444.

William H. Penniman, with whom Edward J. Grenier, Jr. and Glen S. Howard were on brief for petitioner, Process Gas Consumers Group, et al. in No. 84-1179 and intervenors in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146 and 84-1444. JoAnne Morris also entered an appearance for Process Gas Consumers Group.

Stephen J. Small, with whom William I. Harkaway, R. Clyde Hargrove and Giles D.H. Snyder were on brief for petitioner, Columbia Gas Transmission Corp. in No. 84-1444 and intervenor in Nos. 84-1099 and 84-1100.

Joel M. Cockrell, Atty. F.E.R.C., for respondent. William H. Satterfield, Gen. Counsel, Jerome M. Feit, Sol., and Michael E. Small, Atty., F.E.R.C. were on brief for respondent in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444. Thomas F. Hirsch, III, Atty. F.E.R.C. also entered an appearance for F.E.R.C.

Margaret Ann Samuels was on brief for petitioner, Office of Consumer's Counsel, State of Ohio in No. 84-1099 and intervenor in Nos. 84-1100, 84-1135, 84-1146, 84-1179 and 84-1444.

David E. Blabey, Richard A. Solomon and Robert W. Kneisley were on brief for petitioner, Public Service Com'n of State of New York in No. 84-1135 and intervenor in Nos. 84-1099, 84-1100 and 84-1444.

Stanley W. Balis and Susan N. Kelly were on brief for petitioners, Cities of Charlottesville and Richmond, Va., et al. in Nos. 84-1142 and 84-1143 and intervenors in Nos. 84-1099, 84-1100, 84-1135, 84-1146, 84-1179 and 84-1444.

J. Evans Attwell, James W. McCartney, Judith M. Johnson, Kathleen C. Lake, Bolivar C. Andrews and Cheryl M. Foley were on brief for intervenors, Texas Eastern Transmission Corp., et al. in Nos. 84-1099, 84-1100 and 84-1444. David T. Andril also entered an appearance for intervenors, Texas Eastern Transmission Corp., et al.

John H. Cheatham, III and Edward B. Myers were on brief for intervenor, Interstate Natural Gas Ass'n in Nos. 84-1099, 84-1100 and 84-1444.

John K. Keane, Jr. and Thomas C. Gorak were on brief for intervenor, Maryland People's Counsel in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444.

Robert P. Haynes, III was on brief for intervenor, Consumer Advocate for the Com. of Pennsylvania in No. 84-1099.

Frank P. Saponaro, Jr. and Jennifer K. Walter were on brief for intervenor, UGI Corp. in Nos. 84-1099, 84-1100 and 84-1444.

Donald J. MacIver, Jr., Richard Owen Baish, Scott D. Fobes, C. Frank Reifsnyder and Richard C. Green were on brief for amicus curiae, El Paso Natural Gas Co. in Nos. 80-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444, urging reversal.

Richard M. Merriman and Stephen G. Kozey entered appearances for intervenor, Dayton Power and Light Co. in Nos. 84-1099, 84-1100, 84-1142, 84-1143, 84-1146 and 84-1444.

Glenn W. Letham and Channing D. Strother, Jr. entered appearances for intervenor Pennsylvania Gas and Water Co. in Nos. 84-1099, 84-1100 and 84-1444.

Robert R. Rodecker and Denise C. Goulet entered appearances for intervenor, Public Service Com'n of West Virginia in Nos. 84-1099, 84-1100, 84-1135 and 84-1444.

Lewis Carroll entered an appearance for intervenor, Washington Gas and Light Co. in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444.

Edmund Travis, Jr., Sherman S. Pland and John P. Gregg entered appearances for intervenor, Exxon Corp., in Nos. 84-1099, 84-1100 and 84-1135.

James J. Mayer entered an appearance for intervenor, Cincinnati Gas & Elec. Co., et al. in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146 and 84-1444.

Martin J. Marz and Robert S. Tongren entered appearances for intervenor, Public Utilities Com'n of Ohio in Nos. 84-1099, 84-1100, 84-1135, 84-1142, 84-1143, 84-1146, 84-1179 and 84-1444.

Before WALD, MIKVA and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves several petitions for review of the Federal Energy Regulatory Commission's ("FERC" or "Commission") interpretation of subsection 601(c)(2) of the Natural Gas Policy Act of 1978 ("NGPA"), which guarantees that interstate pipelines can pass through the cost of purchasing natural gas to their customers "except to the extent the Commission determines that the amount paid was excessive due to fraud, abuse, or similar grounds." 15 U.S.C. Sec. 3431(c)(2) (1982). At issue here is FERC's definition of the term "abuse" and its application of that definition to the natural gas acquisition...

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