Office of the Consumers' Counsel, State of Ohio v. F.E.R.C., s. 85-1585
| Decision Date | 06 January 1987 |
| Docket Number | Nos. 85-1585,85-1586,s. 85-1585 |
| Parties | OFFICE OF THE CONSUMERS' COUNSEL, STATE OF OHIO, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Columbia Gas of Ohio, Inc., Columbia Gas Transmission Corp., Washington Gas Light Co., et al., Intervenors. STATE OF OHIO, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Columbia Gas of Ohio, Inc., Columbia Gas Transmission Corp., Washington Gas Light Co., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
M. Howard Petricoff, Sp. Asst. Atty. Gen., State of Ohio, with whom Robert S. Tongren, Asst. Atty. Gen., State of Ohio, Columbus, Ohio, was on the brief for petitioners, State of Ohio, et al., in No. 85-1586.
Margaret Ann Samuels, Columbus, Ohio, with whom David C. Bergmann, Sandusky, Ohio, was on the brief for petitioners, Office of the Consumers' Counsel, State of Ohio, in No. 85-1585.
John Harris Conway, Atty., F.E.R.C., with whom Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., was on the brief for respondent. Barbara J. Weller and Andrea Wolfman, Attys., F.E.R.C., Washington, D.C., also entered appearances for respondent.
Fredric J. George, with whom Stephen J. Small and H.L. Snyder, Charleston, W. Va., were on the brief for intervenor, Columbia Gas Transmission Corp., in Nos. 85-1585 and 85-1586.
Karen B. Pancost and Gordon M. Grant, Washington, D.C., were on the brief for intervenors, Washington Gas Light Co., et al., in Nos. 85-1585 and 85-1586.
Roger C. Post, Columbus, Ohio, was on the brief for intervenor, Columbia Gas of Ohio, Inc., in Nos. 85-1585 and 85-1586.
Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, * Senior District Judge.
Opinion for the Court filed by Circuit Judge WILLIAMS.
Petitioners seek review of a decision of the Federal Energy Regulatory Commission ("FERC" or the "Commission") authorizing abandonment of a 4.7-mile stretch of natural gas pipeline in Ohio known as D-75W. Bowman v. Columbia Gas Transmission Corp., 31 F.E.R.C. (CCH) p 61,185, reh'g denied, 32 F.E.R.C. (CCH) p 61,075 (1985). The proceedings before FERC consisted of a consolidation of two actions. In the first, Steve Bowman and 13 other consumers (the "consumers"), all of whom received gas delivered through D-75W, sought an order compelling Columbia Gas Transmission Corporation ("Columbia") to cease all efforts to terminate service through that line. In the second, Columbia sought FERC's permission under section 7(b) of the Natural Gas Act of 1938 (the "NGA"), 15 U.S.C. Sec. 717f(b) (1982), 1 to abandon D-75W. FERC rejected the consumers' claims that abandonment would be contrary to the public convenience or necessity 2 and granted Columbia's request. It also rejected a separate challenge by the Ohio Department of Development (Energy Division) and the Public Utilities Commission of Ohio (collectively referred to here as "Ohio" or the "state") to aspects of the abandonment order that relate to Ohio's jurisdiction. The consumers and Ohio petition for relief under section 19(b) of the NGA, 15 U.S.C. Sec. 717r(b) (1982). We find no grounds to set aside the order.
The disputed stretch of pipeline consists of the 4.3-mile segment of Line D-75 to the west of Harpster, Ohio. 3 D-75 was constructed between 1909 and 1911 by Ohio Fuel Gas Company ("Ohio Fuel"), the predecessor of Columbia, and originally carried gas from Line T-50 eastward to several Ohio towns. Construction of Line D-75 was facilitated by right-of-way agreements with rural consumers, predecessors of the petitioners, who lived between Line T-50 and Harpster. These consumers exchanged easements across their property for the right to receive service directly from the line through what are known as farm taps "[w]hile gas is conveyed through said premises in said pipe line...." 4
The eastern end of D-75 was connected to a new Ohio Fuel line, Line D, around 1929. Joint Appendix ("J.A.") at 802. For the next four decades D-75 was used to move gas from Line T-50 to Line D, as well as to provide gas to the towns along its path and to the rural consumers. By 1970, Line T-50 had deteriorated, and Ohio Fuel applied for and was granted authorization to abandon it. Ohio Fuel Gas Co., 45 F.P.C. 25 (1971). After the demise of T-50, the company reversed the flow in D-75, feeding gas in at D-75's eastern end and moving it westward. Thus the consumers residing along the 4.3-mile stretch of D-75W west of Harpster were no longer tapping into the vital first stage of D-75, but instead found themselves at the end of the line.
Over time D-75W began to develop excessive leaks. Between 1960 and 1967 Columbia repaired over 400 leaks with magnesium anodes designed to slow deterioration. In the following years it detected fewer leaks, but in the spring of 1983 it discovered 28. J.A. at 787. Columbia determined that the line could no longer be used safely, id. at 703-05, and the consumers were informed in June 1983 of its intention to abandon the line, id. at 668-77. The consumers started an action in state court, seeking an injunction against abandonment on grounds of the right-of-way agreements. Brief of Petitioner at 15-16. In January 1984, however, the Department of Transportation issued an order requiring Columbia to cease its use of the line because of the safety hazard. See J.A. at 666-67. Columbia complied and since February 1, 1984, has not used the line. See id. at 621. Of course the Department of Transportation order left in place Columbia's service obligation under the NGA, stemming from the original certification of service. For relief from that obligation, FERC consent is required. See, e.g., United Gas Pipe Line Co. v. McCombs, 442 U.S. 529, 99 S.Ct. 2461, 61 L.Ed.2d 54 (1979).
Meanwhile, the consumers' state court action culminated in a settlement. According to its terms, Columbia, at its expense, supplied the consumers with $39,226.16 worth of equipment enabling them to use propane as an alternative fuel. (One consumer incurred expenses of $21,000 to convert a grain dryer, which Columbia apparently will pay for under the order here reviewed.) Columbia also agreed to pay the difference between the higher cost of propane and the cost of gas until the status of D-75W was resolved. J.A. at 614. The parties stipulated that repair of D-75W west of Harpster would be prohibitively expensive and that replacement of the pipeline with a four-inch plastic pipe would cost $173,000.
As a preliminary matter, we must determine whether Ohio has standing. Its challenge relates to four points of the Commission's order. First, the state claims that the Commission exceeded its authority to the extent that it authorized abandonment of D-75W not only for interstate transmission and sales for resale but also for local distribution purposes. Brief of Petitioner Ohio at 11-12. Second, it claims that FERC's finding that the line was not engaging in local distribution was not supported by substantial evidence. Id. at 12-13. Third, Ohio challenges FERC's findings concerning the relationship of Columbia and its affiliate, Columbia Gas of Ohio ("COH"), and especially the finding that Columbia sold gas to COH for resale to the consumers, rather than, as Ohio would have it, directly to the consumers. Id. at 13. Fourth, it challenges FERC's statement that Ohio's jurisdiction over Columbia could not extend beyond rate setting even if it were found that Columbia was selling directly to the consumers. Id. at 13-14. The state does not, however, challenge FERC's jurisdiction to authorize abandonment of D-75W for interstate transmission and sale-for-resale purposes or to impose conditions on that abandonment. Id. at 11-12.
Section 19(b) of the NGA, 15 U.S.C. Sec. 717r(b) (1982) grants standing to appeal Commission orders to any party aggrieved by those orders. Aggrievement requires a non-speculative harm. As this court has previously said, "To show aggrievement, a plaintiff must allege facts sufficient to prove the existence of a 'concrete, perceptible harm of a real, non-speculative nature[.]' " North Carolina Utilities Commission v. FERC, 653 F.2d 655, 662 (D.C.Cir.1981) (quoting Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 716 (D.C.Cir.1977)).
The state has failed to allege such facts. At oral argument it emerged that Ohio's main concern was the possible preemptive effect of FERC's order in a future state proceeding, the precise object of which was not revealed. This injury is speculative for section 19(b) purposes. It assumes a number of propositions that have not been established in the record before us, including the state's authority under Ohio law to accomplish its unstated objectives, Columbia's litigation strategy in the event Ohio asserts jurisdiction, and the preclusive effect of FERC's pronouncements in a future action. Any such preclusive effect is improbable. Ohio's challenges relate to FERC's statements or findings that are wholly unnecessary to the decision before it, namely, the release of Columbia from its obligations under the NGA to maintain the disputed service through D-75W. Issue preclusion applies only if the first determination was necessary to the judgment. See 1 Restatement (Second) of Judgments Sec. 27 comment h (1982). A ruling by this court excising the offending dicta might well violate the rule against advisory opinions, but this is a question we need not decide, since we have determined Ohio did not have standing under section 19(b) to request it.
Section 7(b) of the NGA requires that the Commission, before authorizing abandonment, find "that the present or future public convenience or necessity permit [sic] such abandonment." The Commission's opinion construed this mandate as primarily requiring it to balance the "needs" of the pipeline against...
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