Panhandle Eastern Pipe Line Co. v. FEDERAL POWER COM'N

• Decision Date: 25 February 1955
• Docket Number: No. 11484.,11484.
• Citation: 219 F.2d 729
• Parties: PANHANDLE EASTERN PIPE LINE COMPANY, a Corporation, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

219 F.2d 729 (1955)

PANHANDLE EASTERN PIPE LINE COMPANY, a Corporation, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 11484.

United States Court of Appeals, Third Circuit.

Argued February 7, 1955.

Decided February 25, 1955.

Rehearing Denied March 21, 1955.

William J. Grove, Washington, D. C., for respondent.

Charles V. Shannon, Washington, D. C., for American Louisiana Pipe Line Co., Michigan Consolidated Gas Co., Michigan Wisconsin Pipe Line Co., intervenors.

Christopher T. Boland, Washington, D. C., for Texas Gas Transmission Corp., intervenor.

Robert A. Derengoski, Lansing, Mich., for Michigan Public Service Commission, intervenor.

James H. Lee, Detroit, Mich., for City of Detroit, Mich., intervenor.

William E. Miller, Washington, D. C., for petitioner in opposition to motions to dismiss.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

These are motions by the respondent and interveners to dismiss the petition for review of the Commission's opinion No. 276 and accompanying order of October 1, 1954 which issued certificates of convenience and necessity to American Louisiana Pipe Line Company and Texas Gas Transmission Company. Under the opinion and order American Louisiana was authorized to construct a pipeline system from points in Louisiana to points within the State of Michigan. The line would have an initial delivery capacity of approximately 300,000 Mcf of natural gas per day. The same opinion and order gave Texas Gas authority to construct facilities which would enable it to deliver 51,000 Mcf of natural gas per day to American Louisiana at a proposed connecting point with the latter's system in Kentucky. American Louisiana proposes to deliver 200,000 Mcf per day of its initial capacity to Michigan Consolidated Gas Company and the remaining 100,000 Mcf to Michigan Wisconsin Pipe Line Company.¹ That gas would be added to the present supplies of those companies and sold and resold in their respective territories which cover in part the states of Iowa, Missouri, Wisconsin and Michigan.

The petitioner, Panhandle, is a pipeline owner and operator but, with the exception of Michigan Consolidated, does not serve any of the distributing companies or communities which will receive gas from American Louisiana. Panhandle was permitted to intervene in the proceeding below by the Commission and, as has been indicated, filed in this court its petition to review the Commission's above described opinion and order.

The fact that Panhandle was allowed to intervene of itself "shall not be construed as recognition by the Commission that such intervener might be aggrieved by any order of the Commission in such proceeding." F.P.C.Rules of Practice and Procedure, 18 C.F.R. Section 1.1(f) (13). Under Section 19(b) of the Act² petitioner must be "aggrieved by an order issued by the Commission" to entitle it to seek review of the order.

Panhandle maintains that in its petition for review it expressly alleges and shows that it is an aggrieved party. In two places of that petition it does state flatly that it is aggrieved by the order and opinion. However in its detailed exposition of the situation about which it complains no factual allegations are given which support the contention that it is aggrieved. The naked assertion is not enough. Interstate Electric, Inc., v. Federal Power Commission, 9 Cir., 1947, 164 F.2d 485; United States Cane Sugar Refiners' Ass'n v. McNutt, 2 Cir., 1943, 138 F.2d 116; Pittsburgh Radio Supply House v. Federal Communications Commission, 1938, 69 App.D.C. 22, 98 F.2d 303; cf. National Coal Ass'n v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 191 F.2d 462; National Broadcasting Co. v. Federal Communications Commission, 1942, 76 U.S. App.D.C. 238, 132 F.2d 545, affirmed 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374.

Panhandle says it is a competitor of American Louisiana, Michigan Consolidated, Michigan Wisconsin and Texas Gas. Whether or not it is a competitor of these companies for the present restricted market in the states of Michigan and Wisconsin is beside the point. There exists in that area "a crying demand" for additional quantities of gas. This can hardly be disputed.³ American Louisiana and Texas Gas propose to build a pipeline in order to supply that demand. Panhandle filed no competitive application in this proceeding. It has evinced no interest in trying to take care of the substantial increased needs which are the basis for the certificates of convenience and necessity issued by the Commission.

The only gas supplied by Panhandle to any of the distributing companies who will obtain gas from the American Louisiana project is to Michigan Consolidated. Panhandle, however, has been actually seeking to reduce the quantity of gas it furnishes Michigan Consolidated. The Commission denied its application to this effect. On review we remanded the case to the Commission for reconsideration of Panhandle's application. Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 3 Cir., 1953, 204 F.2d 925.⁴ That proceeding which has been combined with Panhandle's application for equitable distribution of its capacity among customers (Commission order of February 18, 1954, 19 Fed.Reg. 1071-73) has been heard and is awaiting decision. Whatever may be the...