Public Utilities Com'n of State of Cal. v. F.E.R.C.
| Decision Date | 10 May 1990 |
| Docket Number | Nos. 89-1189,89-1230,89-1372 and 89-1396,89-1215,s. 89-1189 |
| Citation | 900 F.2d 269 |
| Parties | , 110 P.U.R.4th 555 PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, El Paso Natural Gas Company, Southern California Gas Company, Mobil Oil Corporation, Northwest Pipeline Corporation, Chevron U.S.A., Inc., Kern River Gas Transmission Company, Pacific Gas & Electric Company, Texaco, Inc., et al., United States Borax and Chemical Corporation, Transwestern Pipeline Company, Mojave Pipeline Company, The Process Gas Consumers Group, Wyoming-California Pipeline Company, Wyoming Natural Gas Pipeline Authority, Amoco Production Company, El Paso Municipal Customer Group, Southern Union Gas Company, Southwest Gas Corporation, Intervenors. MOJAVE PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Northwest Pipeline Corporation, Kern River Gas Transmission Company, United States Borax and Chemical Corporation, Southern California Gas Company, Mobil Oil Corporation, Transwestern Pipeline Company, Chevron U.S.A., Inc., Public Utilities Commission of the State of California, El Paso Natural Gas Company, Wyoming-California Pipeline Company, Pacific Gas & Electric Company, Amoco Production Company, Southern Union Gas Company, Southwest Gas Corporation, The Southern California Utility Power Pool, et al., The Process Gas Consumers Group, Intervenors. KERN RIVER GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern California Gas Company, Transwestern Pipeline Company, Mojave Pipeline Company, Public Utilities Commission of the State of California, Northwest Pipeline Corporation, Wyoming-California Pipeline Company, Pacific Gas & Electric Company, Amoco Production Company, Southern Union Gas Company, United States Borax and Chemical Corporation, Chevron U.S.A., Inc., Southwest Gas Corporation, Southern California Utility Power Pool, et al., Texaco, Inc., et al., El Paso Natural Gas Company, Intervenors. KERN RIVER GAS TRANSMISSION COMPA |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mark Fogelman, with whom Janice E. Kerr and J. Calvin Simpson, San Francisco, Cal., were on the brief, for Public Utilities Com'n of the State of Cal. in Nos. 89-1189 and 89-1396 and intervenors in No. 89-1215, 89-1230 and 89-1372.
Lynn R. Coleman and Jeffrey D. Komarow, with whom Stephen E. McGregor, Douglas E. Nordlinger, and John S.L. Katz, for Mojave Pipeline Co., Harold L. Talisman, Michael J. Thompson, Terence J. Collins, Ernest B. Abbott, Washington, D.C and Craig R. Rich, for Kern River Gas Transmission Co., were on the joint brief, for petitioners and intervenors in Nos. 89-1215, 89-1230, 89-1372, 89-1189 and 89-1396.
Robert H. Solomon, Atty. F.E.R.C., with whom Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., was on the brief, for respondent in all cases. Frank R. Lindh, Atty., F.E.R.C., Washington, D.C., also entered an appearance for respondent.
Daniel F. Collins, with whom G. Mark Cook and Bernard A. Foster, III, Washington, D.C., were on the brief, for intervenor Wyoming-California Pipeline Co. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396. G. William Stafford, Washington, D.C., also entered an appearance for intervenor.
Kim M. Clark, Washington, D.C., Donald J. MacIver, Jr., Richard Owen Baish, Michael D. Ferguson, El Paso, Tex. and Rush Moody, Jr., Washington, D.C., entered appearances for intervenor El Paso Natural Gas Co. in Nos. 89-1189, 89-1215, 89-1230 and 89-1396.
Richard P. Bonnifield, Washington, D.C., entered an appearance for intervenor Northwest Pipeline Corp. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
Michael D. Gayda and E.R. Island, Los Angeles, Cal., entered appearances for intervenor Southern California Gas Co. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
William I. Harkaway, Steven J. Kalish and Carl M. Fink, Washington, D.C., entered appearances for Southwest Gas Corp. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
John B. Price, Houston, Tex., entered an appearance for intervenor Mobil Oil Corp. in Nos. 89-1189 and 89-1215.
David R. Stevenson, Carroll L. Gilliam and J. Paul Douglas, Washington, D.C., entered appearances for intervenor Chevron, U.S.A., Inc. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
Lindsey How-Downing and Steven F. Greenwald, San Francisco, Cal., entered appearances for intervenor Pacific Gas and Electric Co. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
John P. Beall entered an appearance for intervenor Texaco, Inc., et al., in Nos. 89-1189 and 89-1230.
Robert J. Haggerty, Washington, D.C. and Robert B. Rice, Austin, Tex., entered appearances for intervenor Southern Union Gas Co. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
Steven S. Wall and John W. Leslie, San Diego, Cal., entered appearances for intervenor U.S. Borax and Chemical Corp. in Nos. 89-1189, 89-1215 and 89-1230.
Albert S. Tabor, Jr., and Deborah A. MacDonald, Houston, Tex., entered appearances for intervenor Transwestern Pipeline Co. in Nos. 89-1189, 89-1215, 89-1230, 89-1372 and 89-1396.
Edward J. Grenier, Jr., William H. Penniman and James M. Bushee, Washington, D.C., entered appearances for intervenor The Process Gas Consumers in Nos. 89-1189, 89-1215 and 89-1396.
Roger C. Fransen, Cheyenne, Wyo., entered an appearance for intervenor Wyoming Natural Gas Pipeline Authority in No. 89-1189.
J. Peter Luedtke and Adelia S. Maddox, Washington, D.C., entered appearances for intervenor Amoco Production Co. in Nos. 89-1189, 89-1215 and 89-1230.
Susan N. Kelly and John P. Gregg, Washington, D.C., entered appearances for intervenor El Paso Mun. Customer Group in Nos. 89-1189 and 89-1372.
Norman A. Pedersen, Washington, D.C., entered an appearance for intervenors The Southern California Utility Power Pool, et al., in Nos. 89-1215, 89-1230 and 89-1372.
George C. Garikes, Washington, D.C., entered an appearance for intervenor New Mexico Dept. of Energy, Minerals and Natural Resources, et al. in No. 89-1396.
Before WALD, RUTH BADER GINSBURG, and WILLIAMS, Circuit judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
In Order No. 436 the Federal Energy Regulatory Commission adopted procedures for granting Optional Expedited Certificates ("OEC"), 1982-85 FERC Stats. & Regs. [Reg. Preambles] p 30,665 (1985), codified at 18 CFR Secs. 157.100-157.106 (1989), so that firms could extend services and facilities, under conditions that would satisfy Sec. 7 of the Natural Gas Act, 15 U.S.C. Sec. 717f (1988), without going through the slow, costly process of traditional Sec. 7 certification. The increased speed is possible because an OEC applicant must first meet certain threshold requirements designed to assure that it bears an adequate share of the risk of the proposed pipeline; the Commission found that with this assurance it could normally infer that the project would advance the public interest without further proceedings. We upheld these regulations against several generic attacks in Associated Gas Distributors v. FERC, 824 F.2d 981, 1030-38 (D.C.Cir.1987), and six weeks later the Wyoming-California Pipeline Company applied for an OEC to construct a pipeline from Lincoln County, Wyoming to Bakersfield, California. Oil producers in California want to use the gas for Enhanced Oil Recovery, generating steam to inject it into wells to reduce the viscosity of "heavy" oil enough to make it extractable. The producers have been using the wells' crude oil, but for economic and environmental reasons would prefer to use gas. Wyoming-California Pipeline Co. (Declaratory Order on Non-Environmental Issues), 44 FERC p 61,001 at 61,001-03 & n. 3 (1988) ("WyCal Declaratory Order"). At the time of WyCal's filing, petitioners Kern River Gas Transmission Company and Mojave Pipeline Company had applications pending for traditional Sec. 7(c) certificates to serve essentially the same market. WyCal received a conditional OEC in just over one year, on November 30, 1988, contingent on successfully completing an environmental hearing. It satisfied that contingency promptly and the certificate became effective on January 13, 1989. Thus the relative speed of the OEC procedures enabled WyCal to leapfrog its competition.
Several petitioners attack the Commission's grant of WyCal's OEC. The Public Utilities Commission of the State of California, the state regulatory body charged with regulating the gas industry in California and with protecting the interests of consumers, which we will simply call California, asserts that FERC improperly preempted its jurisdiction by misreading Sec. 1(b) of the NGA. California also claims that FERC failed to weigh the environmental effects of...
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