Southern Natural Gas Co. v. Federal Power Commission
| Decision Date | 01 February 1977 |
| Docket Number | 76-3971,76-3990 and 76-3991,Nos. 76-3914,s. 76-3914 |
| Parties | SOUTHERN NATURAL GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. CONSOLIDATED GAS SUPPLY CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. LACLEDE GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. TEXAS EASTERN TRANSMISSION CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ronald L. Kuehn, Jr., for petitioner in No. 76-3914.
Drexel D. Journey, Gen. Counsel, F.P.C., for respondent in No. 76-3914.
Roy R. Robertson, Jr., Birmingham, Ala., for Southern Natural Gas Co., petitioner in No. 76-3914 and intervenor in No. 76-3991.
Karol Lyn Newman, Washington, D.C., for Consolidated Gas Supply Corp., petitioner in No. 76-3971 and intervenor in Nos. 76-3914, 76-3991.
J. David Mann, Jr., Washington, D.C., for Laclede Gas Co., petitioner in No. 76-3990, and intervenor in No. 76-3914.
Platt W. Davis, III, Washington, D.C., for Texas Eastern Transmission Corp., petitioner in No. 76-3991, and intervenor in Nos. 76-3971, 76-3990, 76-3914.
Richard A. Solomon, Washington, D.C., for Public Serv. Comm. of N.Y., petitioner in No. 76-4433.
Allan Abbot Tuttle, Sol., John J. Lahey, Atty., Federal Power Commission, Washington, D.C., for Federal Power Commission.
Andrew P. Carter, New Orleans, La., Louisiana Power & Light Co., intervenor in Nos. 76-3914, 76-3990 and 76-3971.
Christopher T. Boland, Washington, D.C., for Texas Gas Transmission Corp., intervenor in Nos. 76-3914, 76-3990, 76-3991 and 76-3971.
Edward J. Grenier, Jr., Washington, D.C., for General Motors Corp., intervenor in Nos. 76-3914.
John T. Miller, Jr., Washington, D.C., for Allied Paper Inc., Monsanto Co., Texasgulf Inc., intervenors in Nos. 76-3914, 76-3991, 76-3990, 76-3971.
William T. Miller, Washington, D.C., for United Municipal, Distributors, intervenors in Nos. 76-3971, 76-3990, 76-3991, 76-3914.
Floyd I. Robinson, Jr., Washington, D.C., for General Motors Corp., intervenor in No. 76-3914.
Michael J. Manning, Washington, D.C., for Entex, Inc. & La. Gas Service Co., intervenor in Nos. 76-3971, 76-3990, 76-3991, 76-3914.
David B. Robinson, Washington, D.C., for State of Louisiana, intervenor in Nos. 76-3971, 76-3990, 76-3991 and 76-3914.
Jerome Ackerman, Washington, D.C., for Air Products & Chemical, Inc., and others, intervenors in Nos. 76-3971 and 76-3914.
William W. Bedwell, Washington, D.C., for Miss. River Transmission, intervenor in Nos. 76-3971, 76-3990, 76-3914 and 76-3971.
John S. Schmid, Washington, D.C., for Bay State Gas Co., and others, intervenors in Nos. 76-3990, 76-3991, 76-3971 and 76-3914.
Richard A. Solomon, Washington, D.C., for Public Service Comm. of the State of N.Y., intervenor in Nos. 76-3990 and 76-3991.
Stephen J. Small, Charleston, W.Va., for Columbia Gas Transmission Corp., intervenor in Nos. 76-3990, 76-3914, 76-3991 and 76-3971.
Barbara M. Gunther, Brooklyn, N.Y., for Brooklyn Union Gas Co. & Elizabethtown Gas Co., intervenors in Nos. 76-3990 and 76-3991.
James R. Lacey, Newark, N.J., for Public Service Electric & Gas Co., intervenor in Nos. 76-3990, 76-3914, 76-3991 and 76-3971.
Daniel J. Roberts, II, Providence, R.I., for New England State, intervenor in Nos. 76-3990, 76-3991 76-3914 and 76-3971.
Howard E. Wahrenbrock, Washington, D.C., for Mobile Gas Service Corp., & Clarke-Mobile Counties Gas District, intervenors in Nos. 76-3991 and 76-3914.
Francis J. McShalley, Washington, D.C., for Algonquin Gas Transmission Corp., intervenor in No. 76-3991.
John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co., intervenor in No. 76-3914.
Albert J. Feigen, Washington, D.C., for American Sugar Cane League of the U.S.A., Inc., intervenor in Nos. 76-3914 and 76-3971.
Jon D. Noland, Indianapolis, Ind., for Indiana Gas Co., Inc., intervenor in No. 76-3991.
Gordon P. MacDougall, Washington, D.C., for Pa. Public Utility Commission, intervenor in No. 76-3971.
Harold L. Talisman, Washington, D.C., for Alabama Gas Corp., intervenor in Nos. 76-3991 and 76-3914.
Stephen Schachman, Philadelphia, Pa., for Philadelphia Gas Works, intervenor in Nos. 76-3971 and 76-3914.
Clayton L. Orn, Houston, Tex., for N.O. Public Service, Inc., intervenor.
Richard M. Merriman, Washington, D.C., for Miss. Power & Light Co., intervenor.
W. DeVier Pierson, Washington, D.C., for United Gas Pipe Line Co., intervenor.
John E. Holtzinger, Jr., Washington, D.C., Henry P. Sullivan, Richard B. Gordon, Pittsburgh, Pa., Norman A. Flaningam, Washington, D.C., James E. Wright, Jr., New Orleans, La., for petitioner in No. 76-3971.
J. David Mann, Jr., Washington, D.C., Richard L. Eckhart, St. Louis, Mo., for petitioner in No. 76-3990.
Platt W. Davis, III, Thomas L. Wylie, Washington, D.C., J. Evans Attwell, Jack D. Head, Houston, Tex., petitioner in No. 76-3991.
Petitions for Review of Orders of the Federal Power Commission (Alabama and Texas Cases).
Before CLARK, RONEY and TJOFLAT, Circuit Judges.
In this case, Southern Natural Gas Co. petitions for a review of two Federal Power Commission (FPC) orders in the proceedings to establish a natural gas curtailment plan for the United Gas Pipe Line Co. (United) system. Pursuant to its authority under the Natural Gas Act (the Act), the FPC has been confronting the natural gas curtailment problem for the past six years. Although no permanent solution has yet emerged, interim natural gas curtailment has been accomplished in the meantime under various temporary plans for the United system. The petition before us involves the course that these curtailment proceedings will take at least through the end of the current winter heating season, unless the FPC is able to reach before that time some final administrative resolution of the complex problem of equitable natural gas curtailment. Southern Natural and various intervenors argue that the FPC has disobeyed a mandate of this court handed down in February of 1976 in conjunction with our decision in Louisiana Power & Light Co. v. FPC, 526 F.2d 898 (5th Cir.1976) (hereinafter Louisiana Power & Light ), and that this court should take appropriate steps to enforce that mandate. We have now heard argument and received briefs from all interested parties, and thus proceed to the merits of Southern Natural's petition.
Although the procedural history of this matter has been detailed in several previous opinions of this court, 1 we shall here recount some of the recent developments for the purpose of clarity. Before November 1976, when we heard argument on the instant petition, the FPC was last before this court in connection with a curtailment plan for United in Louisiana Power & Light. That case involved the validity of the FPC's determination that United should curtail its gas deliveries under a newly-adopted three-category interim curtailment plan. 2 This new three-category plan was to replace the four-category curtainment plan which had been in effect (on an interim basis) since November 1, 1971. On review of the FPC's orders 3 establishing the new curtailment plan, this court determined that the FPC had improperly disapproved the old four-category plan and replaced it with the three-category plan. Accordingly, we reversed the FPC's orders implementing the three-category plan and remanded the case for further proceedings before the FPC. At the same time, however, since United had already begun to allocate its gas under the FPC's three-category plan, we allowed continued operation under the plan for the duration of the 1975-76 winter heating season. We cautioned, however, that
this is the last year during which the three-priority plan will remain in operation without the support of a proper finding on the invalidity of the four-priority plan. Absent proper compliance by the Commission with our decision on remand, the four-priority plan will control curtailment on the United system for the 1976-77 winter heating season.
While Louisiana Power & Light was awaiting the decision of this court, 4 the FPC issued an order on October 31, 1975, approving an interim (one-year) settlement curtailment plan for the United system. 5 The order also directed that United "file by April 1, 1976, revised tariff sheets and an impact study setting forth United's proposed curtailment program for the winter 1976-77 and summer 1977 seasons." Before United had filed new tariff sheets pursuant to the FPC's order, however, this court decided Louisiana Power & Light.
Soon thereafter, on April 1, 1976, United tendered for filing with the FPC new tariff sheets designed to implement a permanent curtailment plan for the United system. United's proposal was to establish a new (and permanent) three-category curtailment plan to become effective on November 1, 1976, one day after the then-current interim curtailment plan expired. The United proposal was objected to by Southern Natural by way of a "Protest and Motion to Reject" filed with the Commission on April 23, 1976. Southern Natural's objections were overruled, however, on May 28, 1976, when the FPC issued an order which stated that the presence of numerous issues of fact foreclosed its authority to reject or summarily dispose of United's filing. This order formally accepted United's April 1, 1976, tariff sheets for filing. At the same time, however, the FPC suspended the operation of United's proposed plan, effective June 1, 1976. The effect of this suspension was that United's plan would become operative after five months had elapsed, if the FPC was unable to determine its permissibility by that time. 6 On September 14, 1976, the FPC issued an order denying various petitions for rehearing of its May 28 order.
On October 22, 1976, ten days before United's proposed curtailment plan would take effect due to the lapse of the Act's five-month suspension period, Southern...
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