Process Gas Consumers Group v. U.S. Dept. of Agriculture, No. 79-1336

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON, Chief Judge, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG; PER CURIAM; WALD; Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG; PER CURIAM; MacKINNON and ROBB; WRIGHT and TAMM
Citation694 F.2d 778
PartiesThe PROCESS GAS CONSUMERS GROUP, et al., Petitioners, v. U.S. DEPARTMENT OF AGRICULTURE, Bob Bergland, Secretary of Agriculture, Respondents, United Gas Pipe Line Company, et al., Intervenors. UNITED GAS PIPE LINE COMPANY, Petitioner, v. U.S. DEPARTMENT OF AGRICULTURE, Bob Bergland, Secretary of Agriculture, Respondents, Transcontinental Gas Pipe Line Corporation, et al., Intervenors. The PROCESS GAS CONSUMERS GROUP, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, American Bakers Association, et al., Intervenors. COLUMBIA GAS TRANSMISSION CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, United Distribution Companies, the United States Brewers Association, Inc., Public Service Commission of New York, Consolidated Gas Supply Corporation, Great Western Sugar Company, Tennessee Gas Pipeline Co., Intervenors. UNITED DISTRIBUTION COMPANIES, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Consolidated Gas Supply Corporation, Intervenor. UNITED DISTRIBUTION COMPANIES, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. The BROOKLYN UNION GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Service Commission of New York, Intervenor. STATE OF LOUISIANA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. COLUMBIA NITROGEN CORPORATION and Nipro, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. FIRST MISSISSIPPI CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ATLANTA GAS LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. FIRST MISSISSIPPI CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. UNITED GAS PIPE LINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. The PROCESS GAS CONSUMERS GROUP, American Industr
Decision Date01 October 1982
Docket NumberNo. 79-1336

Page 778

694 F.2d 778
224 U.S.App.D.C. 212
The PROCESS GAS CONSUMERS GROUP, et al., Petitioners,
v.
U.S. DEPARTMENT OF AGRICULTURE, Bob Bergland, Secretary of
Agriculture, Respondents,
United Gas Pipe Line Company, et al., Intervenors.
UNITED GAS PIPE LINE COMPANY, Petitioner,
v.
U.S. DEPARTMENT OF AGRICULTURE, Bob Bergland, Secretary of
Agriculture, Respondents,
Transcontinental Gas Pipe Line Corporation, et al., Intervenors.
The PROCESS GAS CONSUMERS GROUP, et al., Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
American Bakers Association, et al., Intervenors.
COLUMBIA GAS TRANSMISSION CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
United Distribution Companies, the United States Brewers
Association, Inc., Public Service Commission of New York,
Consolidated Gas Supply Corporation, Great Western Sugar
Company, Tennessee Gas Pipeline Co., Intervenors.
UNITED DISTRIBUTION COMPANIES, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
Consolidated Gas Supply Corporation, Intervenor.
UNITED DISTRIBUTION COMPANIES, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
The BROOKLYN UNION GAS COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
Public Service Commission of New York, Intervenor.
STATE OF LOUISIANA, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
COLUMBIA NITROGEN CORPORATION and Nipro, Inc., Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
FIRST MISSISSIPPI CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
ATLANTA GAS LIGHT COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
FIRST MISSISSIPPI CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
UNITED GAS PIPE LINE COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
The PROCESS GAS CONSUMERS GROUP, American Industrial Clay
Company of Sandersville and Georgia Kaolin
Company, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
ALLIED CHEMICAL CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
STATE OF LOUISIANA, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
The FERTILIZER INSTITUTE, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
COLUMBIA GAS TRANSMISSION CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
The BROOKLYN UNION GAS COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
UNITED DISTRIBUTION COMPANIES, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
NATIONAL FOOD PROCESSORS ASSOCIATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
ATLANTA GAS LIGHT COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
No. 79-1336. *
United States Court of Appeals,
District of Columbia Circuit.
Argued En Banc April 13, 1982.
Decided Oct. 1, 1982.

Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., with whom George H. Williams, Jr., Atty., F.E.R.C., Washington, D.C., was on the rehearing brief on Section II.A for respondents.

Edward J. Grenier, Jr., Richard P. Nolan, Robert W. Clark, III, and William H. Penniman, Washington, D.C., for the Process Gas Consumers Group, C. William Cooper, Falmouth, Mass., Richard M. Merriman, and John R. Schaefgen, Jr., Washington, D.C., for United Distribution Companies, Lewis Carroll, Birmingham, Ala., and Gordon Grant, Washington, D.C., for Washington Gas Light Co., Joseph P. Stevens and Alvin Adelman, Brooklyn, N.Y., for the Brooklyn Union Gas Co. and Richard A. Solomon, Washington, D.C., for The Public Service Commission of the State of N.Y. were on the rehearing brief on Section II.A for petitioners.

Steven A. Herman, Washington, D.C., for American Bakers Ass'n and The Fertilizer Institute with whom William A. Mogel, Washington, D.C., for American Meat Institute, et al., Joseph M. Creed, Washington, D.C., for Biscuit & Cracker Mfrs' Ass'n, Joseph S. Fontana, Washington, D.C., for Corn Refiners Ass'n, Albert J. Feigen, Washington, D.C., for American Sugar Cane League of the U.S.A., Inc., Richard S. Harrell, Washington, D.C., for Distilled Spirits Council of the U.S., Inc., Margaret M. Huff and Michael J. Huston, Indianapolis, Ind., for Eli Lilly Co., Gerard Paul Panaro, Washington, D.C., for Retail Bakers of

Page 782

America, James W. Riddell, Washington, D.C., for U.S. Brewers Ass'n, Inc., Keith R. McCrea, Washington, D.C., for Glass Packaging Institute, Donald A. Frederick, Washington, D.C., for National Council of Farmers Co-op., Edwin H. Pewett and Michael J. Ruane, Washington, D.C., for National Meat Ass'n, and Frederic G. Berner, Jr., Washington, D.C., for National Soybean Processors Ass'n were on the joint rehearing brief on Section II.A for Agriculture intervenors.

Anthony J. Steinmeyer and Bruce G. Forrest, Attys., Dept. of Justice and Terrence G. Jackson, Atty., Dept. of Agriculture, Washington, D.C., were on the rehearing brief on Section II.A for respondent, U.S. Dept. of Agriculture.

Gregory Grady, Washington, D.C., with whom Michael J. McDonald, Nicholas W. Fels, K. Gregory Tucker, Washington, D.C., Thomas E. Midyett, Knoxville, Tenn., A.S. Lacy and Roy R. Robertson, Jr., Birmingham, Ala., were on the joint rehearing brief on Section II.A for petitioners, Midwestern Gas Transmission Co., et al.

John R. Holtzinger, Jr., Paul H. Keck, John T. Stough, Jr., and Brian R. Gish, Washington, D.C., for Atlanta Gas Light Co. and William I. Harkaway and G. Douglas Essy, Chicago, Ill., for Consol. Edison Co. of New York, Inc. were on the joint rehearing brief on Section II.A for respondents.

David B. Robinson and James R. Patton, Jr., Washington, D.C., for the State of La., Nicholas W. Fels, Washington, D.C., for Air Products and Chemicals, Inc., et al., and Michael J. Manning, Washington, D.C., for Entex were on the joint rehearing brief on Section I.C for petitioners.

D. Knox Bemis, Washington, D.C., with whom W. DeVier Pierson, Richard A. Yarmey, Washington, D.C., and Sheila Jackson Lee, Houston, Tex., were on the rehearing brief on Section I.C for petitioners, United Gas Pipe Line Co.

Joel M. Cockrell, Atty., F.E.R.C., Washington, D.C., with whom Jerome M. Feit, Sol., and George H. Williams, Jr., Atty., F.E.R.C., Washington, D.C., were on the rehearing brief on Section I.C for respondent.

Joseph P. Stevens and Alvin Adelman, Brooklyn, N.Y., for The Brooklyn Union Gas Co., Richard A. Solomon, Washington, D.C., and David D'Alessandro for the Public Service Com'n of the State of N.Y., Inc. and Lewis Carroll, Birmingham, Ala., and Gordon M. Grant, Washington, D.C., for Washington Gas Light Co. were on the joint rehearing brief on Section I.C for respondents.

Before ROBINSON, Chief Judge, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges, and ROBB, ** Senior Circuit Judge.

PER CURIAM:

The court's opinion in this case consists of the panel opinion of July 29, 1981, except for Parts II.A.2 and II.A.3, together with the en banc opinion of October 1, 1982. The court's order of November 13, 1981 granting rehearing en banc vacated Parts I.C and II.A of the panel opinion; the en banc opinion, however, reinstates Part II.A.1 of the panel opinion and adopts Part I.C of the panel opinion as the opinion of the en banc court.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

We granted rehearing en banc *** in this case to determine whether the Federal Energy

Page 783

Regulatory Commission ("FERC" or "Commission") 1 improperly construed its authority under sections 401 and 403 of the Natural Gas Policy Act of 1978 ("NGPA") 2 with respect to integrating priority treatment for essential agricultural uses into ongoing curtailment plans. 3 Under the NGPA, the Secretary of Agriculture ("Secretary") is instructed to certify amounts of natural gas required to supply "essential agricultural uses" 4 so as to meet "full food and fiber production." 5 The Commission is then instructed to implement the Secretary's certification by assuring that "to the maximum extent practicable" essential agricultural use requirements will not be curtailed unless doing so is necessary to meet the needs of the highest priority users: residential customers, small commercial establishments, schools, hospitals and other users for whom curtailment might be life threatening or might endanger physical property. 6 In this case, the Commission ruled that its implementation authority under the NGPA is not sufficiently broad to allow it to limit implementation of certified essential agricultural requirements to those requirements reflected in "base-year" curtailment plans. 7 Because we conclude that the Commission failed to exercise its authority to determine whether any modification to full implementation is appropriate to protect the interests of high priority users, and has therefore allowed an apparent reversal of statutory priorities to be carried out by default rather than by any considered analysis of curtailment

Page 784

policy, we reverse and remand this aspect of the Commission's decision.

I. BACKGROUND

Prior to passage of the NGPA, the Commission reviewed natural gas curtailment plans pursuant to its broad authority to regulate the interstate transportation of natural gas. 8 Early on in the development of such plans, the Commission expressed a preference for "end-use" plans--that is, plans that would distribute natural gas according to the needs of the ultimate consumer. 9 Residential consumers, for whom temporary curtailments could be life threatening, were given highest priority. Those for whom curtailment was considered to pose the least hardship--customers with "interruptible"...

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  • Brae Corp. v. U.S., SEA-LAND
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 24, 1984
    ...Process Gas Consumers Group v. United States Department Page 1043 of Agriculture, 694 F.2d 728, 745-46 (D.C.Cir.1981); adopted en banc, 694 F.2d 778, 783 n. 3 (D.C.Cir.1982),cert. denied, --- U.S. ----, 103 S.Ct. 1874, 76 L.Ed.2d 807 (1983), and we believe it especially appropriate here for......
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    ...Nat'l Wildlife Federation v. Gorsuch, 693 F.2d 156, 167 (D.C.Cir.1982); Process Gas Consumers Group v. U.S. Dep't of Agriculture, 694 F.2d 778, 791 (D.C.Cir.1982) (en banc ). If Congress has delegated to an agency the task of elaborating the meaning of a statutory directive, then a reviewin......
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15 cases
  • Brae Corp. v. U.S., SEA-LAND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 24, 1984
    ...Process Gas Consumers Group v. United States Department Page 1043 of Agriculture, 694 F.2d 728, 745-46 (D.C.Cir.1981); adopted en banc, 694 F.2d 778, 783 n. 3 (D.C.Cir.1982),cert. denied, --- U.S. ----, 103 S.Ct. 1874, 76 L.Ed.2d 807 (1983), and we believe it especially appropriate here for......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 5, 1982
    ...since deference is "ultimately 'a function of Congress' intent,' " Process Gas Consumers Group v. United States Department of Agriculture, 694 F.2d 778, 791 (D.C.Cir.1982) (en banc) (quoting Constance v. Secretary of Health & Human Services, 672 F.2d 990, 995 (1st Cir. 1982)), we find it no......
  • Black Citizens for a Fair Media v. F.C.C., Nos. 81-1710
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 7, 1983
    ...Nat'l Wildlife Federation v. Gorsuch, 693 F.2d 156, 167 (D.C.Cir.1982); Process Gas Consumers Group v. U.S. Dep't of Agriculture, 694 F.2d 778, 791 (D.C.Cir.1982) (en banc ). If Congress has delegated to an agency the task of elaborating the meaning of a statutory directive, then a reviewin......
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