PUBLIC SERVICE COM'N OF NY v. FEDERAL POWER COM'N, 12401

• Citation: 257 F.2d 717
• Decision Date: 30 June 1958
• Docket Number: 12403.,No. 12401,12401
• Parties: PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. LONG ISLAND LIGHTING COMPANY, Public Service Electric & Gas Company, Petitioners, v. FEDERAL POWER COMMISSION.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

257 F.2d 717 (1958)

PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

LONG ISLAND LIGHTING COMPANY, Public Service Electric & Gas Company, Petitioners, v. FEDERAL POWER COMMISSION.

Nos. 12401, 12403.

United States Court of Appeals Third Circuit.

Argued March 21, 1958.

Decided June 30, 1958.

Rehearing Denied August 27, 1958.

Kent H. Brown, Albany, N. Y., for Public Service Commission.

Edward S. Kirby, Newark, N. J., for Public Service Electric & Gas Co.

David K. Kadane, Mineola, N. Y. (Edward M. Barrett, Garden City, N. Y., Bertram D. Moll, Mineola, N. Y., Edward J. Morris, Franklin Square, N. Y., on the brief), for Long Island Lighting Co.

Gene M. Woodfin, Houston, Tex. (Robert O. Koch, Houston, Tex., J. Evans Attwell, Vinson, Elkins, Weems & Searls, Houston, Tex., Roland B. Voight, Lloyd F. Thanhouser, Houston, Tex., on the brief), for Continental Oil Co. and Tidewater Oil Co.

Bernard A. Foster, Jr., Washington, D. C. (Charles B. Ellard, William R. Dotson, Edward J. Kremer, Jr., Dallas, Tex., Bernard A. Foster, Jr., Sherman S. Poland, Ross, Marsh & Foster, Washington, D. C., Gentry Lee, Cecil C. Cammack, Bartlesville, Okl., on the brief), for Atlantic Refining Co. and Cities Service Production Co.

Howard E. Wahrenbrock, Washington, D. C. (Willard W. Gatchell, General Counsel, Robert L. Russell, Asst. General Counsel, John Paul Geneau, Attorney, Federal Power Commission, Washington, D. C., on the brief), for Federal Power Commission.

William C. Braden, Jr., Houston, Tex., Harry S. Littman, Jack Werner, Harold L. Talisman, Washington, D. C., for Tennessee Gas Transmission Co.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

Serious questions involving the authority of the Federal Power Commission are presented in these petitions to review an order of the Commission granting certificates of public convenience and necessity pursuant to Section 7(e) of the Natural Gas Act, 15 U.S.C. § 717f(e).

Oil leases in the Gulf of Mexico off the shore of Cameron and Vermilion parishes in Louisiana are owned by four independent producers of natural gas, Cities Service Production Company, The Atlantic Refining Company, Tidewater Oil Company, and Continental Oil Company. They are referred to collectively as the CATCO companies. In the early part of September, 1956, CATCO applied to the Federal Power Commission for certificates of public convenience and necessity for authority to sell their natural gas to Tennessee Gas Transmission Company, pursuant to contracts executed in August, 1956. Later in September, 1956, Tennessee Gas itself applied for a certificate of public convenience and necessity for authority to expand its facilities in preparation for the purchase of the gas from CATCO.

The contracts between the CATCO producers and Tennessee Gas provided for an initial rate of 22.4 cents per Mcf (including one cent gathering tax reimbursement), with an automatic increase of two cents every four years thereafter. The highest rate Tennessee Gas had previously paid for natural gas in the area was 18 cents per Mcf. The offshore gas fields in question represent the largest reserve ever committed to one sale, and the sale proposed is the first from the newly developed fields which will provide impressive proportions of future gas supply.

Hearings were begun on the CATCO applications on February 28, 1957. Petitioner Public Service Commission of the State of New York, which exercises general regulatory supervision over the gas industry in that state, intervened in the proceedings. An order of the respondent Commission permitted intervention also of four distributing company customers of Tennessee Gas, namely, Long Island Lighting Company, Public Service Electric and Gas Company, Brooklyn Union Gas Company, and Lake Shore Pipe Line Company. Tennessee Gas was the only intervenor in favor of the CATCO applications.

In the latter part of March, 1957, the presiding examiner's decision ordered the issuance of certificates of public convenience and necessity to the CATCO applicants without conditions as to price, and conditioned only upon the issuance of a certificate to Tennessee Gas for the construction of its necessary facilities.

After exceptions were filed by intervenors, the respondent Commission issued its order of April 22, 1957. It directed the issuance of temporary certificates to the CATCO applicants, but remanded the proceedings to the examiner to determine what initial rates would accord with public convenience and necessity. After reviewing the circumstances which rendered this sale one of extreme importance both as to initial rate and as to the enormous volume of gas proposed to be sold, the Commission found:

"Those factors make it abundantly evident that, in the public interest, this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest."

The CATCO applicants moved to modify that order, alleging that the economic risk involved would foreclose their acceptance of temporary certificates issued by the respondent Commission. Further, the applicants proposed to change their contracts so as to give the Commission continuing supervision of the proposed sale and future price increases regardless of any change Congress might make in the Natural Gas Act. The initial rate in the contract would stay at 22.4 cents per Mcf, however. No further evidence as to the reasonableness of the initial rate was presented.

The second order, issued May 20, 1957, demonstrated the Commission's desire to extend itself in an effort to be fair to the applicants while protecting the ultimate consumers from rates which might later be determined excessive. This order, however, still recognized that there was insufficient evidence in the record on which to base a finding that public convenience and necessity required sale of the gas at the initial rate proposed. The plan embodied in the Commission's order was intended to permit the sale of the gas as soon as possible and was to be effectuated in the following manner. Without remanding the proceedings to the examiner, permanent certificates would be issued conditioned upon the initial rate of 18 cents (including the one cent gathering tax reimbursement). The CATCO companies would be entitled to file for a rate increase to 22.4 cents per Mcf to be effective one day after the commencement of gas deliveries to Tennessee Gas.¹

The Commission reasoned that the consumers would thereby not be relegated to the cumbersome and time-consuming procedure of a Section 5 proceeding where the burden would be on the Commission to show the rates unreasonable and where there are no provisions for refund in the event the Commission is able to meet its burden. The order, though unusual, was deemed necessary by the Commission to protect all parties concerned.

Still the CATCO applicants were not satisfied, and their dissatisfaction this time was expressed by Tennessee Gas in an application for rehearing filed June 4, 1957, which in part states:

"Tennessee has been definitely advised by the producer-applicants that they will not amend Section 10 of the contract so as to change the initial rate from 21.4 cents per Mcf to 17 cents per Mcf. The rates exclude the tax. Tennessee has been further informed by the producer-applicants that the certificates issued by said order will not be accepted by them for that reason, and that, accordingly, the contracts will be terminated. * * *"

A rehearing was held on June 12, 1957. No further evidence was added to the record. Counsel for the CATCO companies made it clear that unless CATCO received certificates not conditioned with initial rates they might deem objectionable, they would seek to dispose of their gas elsewhere than in the interstate market.

Impressed with this threat, the Commission issued its order of June 24, 1957, in which it granted permanent certificates of public convenience and necessity to the CATCO applicants without any condition affecting the initial price of 22.4 cents per Mcf as originally provided in the contracts with Tennessee Gas. Commissioner Connole dissented. It is this order which petitioners ask us to review.²

Tennessee Gas, CATCO, and the Commission argue that the petitioners have no standing to ask this court to review the order of June 24, 1957, because they are not "aggrieved" as required by Section 19(b) of the Act. Essentially, the petitioners represent the ultimate consumers of the gas. In Natural Gas Pipeline Company of America v. Federal Power Commission, 3 Cir., 1958, 253 F.2d 3, certiorari denied Dorchester Corp. v. Natural Gas Pipeline Co. of America, 78 S.Ct. 1372, we held that a gas transmission company which has passed its increases on to its customers is "aggrieved," since as a matter of ethics and good business, it is required to protect its customers. Here the petitioners are more nearly representative of the ultimate consumers than was Natural Gas Pipeline Company in that case. Furthermore, when it is considered that New York distributors are supplied by Tennessee Gas, that the contract price approved by the Commission's order is 4.4 cents higher than any other price paid by Tennessee Gas, that this is the first sale from new fields which will supply enormous quantities of gas in the future, and that the Commission's order in effect places the burden on the petitioners to show that the rates are unreasonable, it is clear the argument that petitioners are not "aggrieved" is without substance.

The suggestion that petitioners have not exhausted their administrative remedies is equally lacking in merit. The final order of the Commission granted unconditional certificates of public convenience and necessity. Rehearing has been denied. Judicial review is the next step, and the suggestion of unsatisfactory administrative remedies which are no remedies at all cannot displace this review.³

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