Texaco, Inc. v. Federal Power Commission
| Decision Date | 01 June 1961 |
| Docket Number | 18379,No. 18349,18366,18394,18398,18354,18543.,18542,18357,18364,18349 |
| Citation | 290 F.2d 149 |
| Parties | TEXACO, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SUPERIOR OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. CONTINENTAL OIL COMPANY and The Ohio Oil Company, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. PURE OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUMBLE OIL & REFINING COMPANY, Reynolds Mining Corporation, Three States Natural Gas Company, Socony Mobil Oil Company, Inc., Aztec Oil & Gas Company, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. DAVIS OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SHELL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PHILLIPS PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Howard E. Wahrenbrock, Solicitor, John C. Mason, Gen. Counsel, Arthur H. Fribourg, Atty., Robert L. Russell, Asst. Gen. Counsel, Washington, D. C., for respondent, Federal Power Commission.
Allen R. Grambling, El Paso, Tex., George D. Horning, Jr.* Washington, D. C., George F. Guy, Guy & Phelan, Cheyenne, Wyo., for Western Natural Gas Co. and El Paso Natural Gas Co. (intervenors in all ten cases).
Oliver L. Stone,* Geo. C. Schoenberger, Jr., New Orleans, La., Joseph W. Morris, Joseph C. Spalding, New York City, for Shell Oil Co. (petitioner in 18398 and intervenor in 18543).
Quilman B. Davis,* Dallas, Tex., for Aztec Oil and Gas Co. (petitioner in 18379).
William J. Zeman,* Rayburn L. Foster, H. K. Hudson,* Harry D. Turner, Kenneth Heady* James G. Williams, Jr., Bartlesville, Okl., for Phillips Petroleum Co. (petitioner in 18542).
John C. Snodgrass,* Palatine, Ill., for Davis Oil Co., in 18394 and The Pure Oil Co. (petitioner in 18366).
John E. McClure and Girard R. Jetton, Jr., Washington, D. C., for General Petroleum Corp. (not a party to cases on appeal).
Marvin Davis, Gen. Partner, Denver, Colo., for Davis Oil Co. (petitioner in 18394).
Jesse H. Foster, Jr., Tulsa, Okl., for The Carter Oil Co. (not a party to cases on appeal).
Bruce R. Merrill,* Lloyd F. Thanhouser, Thomas H. Burton,* Houston, Tex., for Continental Oil Co. (petitioner in 18364 and intervenor in 18543).
Robert E. May,* May, Shannon & Morley, Washington, D. C., John A. Ward, III,* Philadelphia, Pa., Martin A. Row,* Dallas, Tex., Francis H. Caskin, Washington, D. C., for Sun Oil Co. (petitioner in 18357).
James D. Parriott, Washington, D. C., Robert M. Vaughan,* Clayton L. Orn,* Findlay, Ohio, for The Ohio Oil Co. (petitioner in 18364 and intervenor in 18543).
Joe P. Hammond, Tulsa, Okl., William J. Grove, Carroll Gilliam, Washington, D. C., for Pan American Petroleum Corp. (not a party to cases on appeal).
Harry C. Welch, Leo J. Hoffman,* Turner, White, Atwood, McLane & Francis, Dallas, Tex., for Three State Natural Gas Co. (petitioner in 18379).
James D. Smullen,* Neal Powers, Jr., Butler, Binion, Rice & Cook, Houston, Tex., for Reynolds Mining Corp. (petitioner in 18379).
F. T. Anderson, in pro. per., for Petro-Atlas Corp. (not a party to cases on appeal).
Paul F. Schlicher,* New York City, Frank H. Strickler, Washington, D. C., Richard S. Lake,* Legal Dept., Texas Co. New Orleans, La., Alfred C. DeCrane, Jr.,* Legal Dept., Texaco, Inc., Houston, Tex., for Texaco, Inc. (petitioner in 18349 and intervenor in 18543).
F. P. Jones, Jr., Herbert W. Varner,* Houston, Tex., for Superior Oil Co. (petitioner in 18354 and intervenor in 18543).
Harry P. Letton, Jr.,* Henry F. Lippitt, II, T. J. Reynolds, Los Angeles, Cal. for Southern California Gas Co. (intervenor in all ten cases).
Milford Sringer, Robert M. Olson, Jr., Los Angeles, Cal., for Southern Counties Gas Co. of California (intervenor in all ten cases).
Rollin E. Woodbury, Harry W. Sturges, Jr., John R. Bury, Los Angeles, Cal., for Southern California Edison Co. (not a party to cases on appeal).
C. Hayden Ames, Chickering & Gregory, San Francisco, Cal., for San Diego Gas and Electric Co. (not a party to cases on appeal).
Richard H. Peterson, F. T. Searls, Malcolm H. Furbush, San Francisco, Cal., for Pacific Gas and Electric Co. (intervenor in all ten cases, except in 18543).
Roger Arnebergh, City Atty., Los Angeles, Cal., for City of Los Angeles (not a party to cases on appeal).
William M. Bennett,* Public Utilities Commission of the State of California Commission of the State of California, San Francisco, Cal., for People of the State of California and California Utilities Commission (petitioner in 18543).
William J. Merrill,* George H. Lawrence, Humble Oil & Refining Co., Houston, Tex., Paul H. Long, Tulsa, Okl., for Humble Oil & Refining Co. (petitioner in 18379 and intervenor in 18543).
Roy L. Merrill,* William S. Richardson,* Ross Madole, Dallas, Tex., for Socony Mobil Oil Co., Inc. (petitioner in 18379).
Norman M. Littell, Washington, D. C., for Navajo Tribe of Indians (Amicus) in 18543.
Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.
Rehearing Denied June 1, 1961 in No. 18543.
These cases, consolidated for argument and to some extent for briefing in this court are brought to review an order of the Federal Power Commission. The order complained of granted to El Paso Natural Gas Company and to certain independent producers certificates of public convenience and necessity authorizing the construction and operation of pipeline and other facilities by El Paso and it authorized the sale of gas by the producers to El Paso at an initial price of 17.7 cents per Mcf. The original contracts between the producers and El Paso had provided for an initial price of 20 cents per Mcf. The order also, pursuant to the temporary authorizations which the Commission had previously issued and under which the producers were then operating, directed refunds by the producers to El Paso of amounts collected in excess of 17.7 cents per Mcf. and required payment of interest on the refunds at 6 percent.
The applications before the Commission were eighteen in number, one being by El Paso and the other seventeen being independent producers. The state of California intervened in the proceedings.
Fourteen of the independent producers and the State of California sought and were denied rehearing of the Commission's order. They are now parties to this petition for review. In addition, the Navajo tribe of Indians filed a brief as amicus curiae, claiming to have an interest to protect as owners of most of the land on which the producing leases lie. In general, the producers and the Navajo Indians contend that on the record before it there was no basis for the Commission to grant a conditional certificate and even if any condition was authorized, the Commission in any event had no authority to condition the certificate on the adoption of an initial price less than that contained in the schedule filed by the applicants. The State of California took the position that there was no basis for a finding of public convenience and necessity at the 17.7 cent rate and it argues here that no rate in excess of 12.69 cents per Mcf would be warranted on the record.
Without setting out the separate contentions of each party, we think all of the substantial issues presented in these petitions for review can be summarized in rather brief compass.
The producers' petitions contend that when a section 7 application for certificate is filed the commission cannot validly impose a condition that a lower initial price be filed than that agreed upon between the parties if the evidence establishes that there is a critical need for the gas and that the proposed price will not result in a triggering of general price raises or an increase in existing rates. Petitioners also contend that they should not be required to make refunds of the difference between the 17.7 cent rate and the 20 cent rate that has been charged under the temporary certificate, because, they say, the conditions in the temporary certificate were so broadly and indefinitely stated as to nullify the condition. Finally, they state that since the temporary certificate conditions did not expressly provide for the payment of interest on refunds, the Commission's final order, now appealed from, could not validly require the payment of 6 percent interest on such refunds.
The petitioners' first contention is broken down into two parts. The first is that on the record before us there was no justification for the Commission's denying the grant of a certificate at the initial price fixed in the contracts, that is, 20 cents per Mcf. This they say is true because the great demand for the gas out-weighs any evidence in the record that might otherwise warrant the Commission's requiring a price condition as a result of its duty to give "most careful scrutiny and responsible reactions to initial price proposals of producers." See Atlantic Refining Company v. Public Service Commission, 360 U.S. 378, 79 S. Ct. 1246, 1255, 3 L.Ed.2d 1312.
The second is that even though the record warranted the Commission's granting a certificate at 20 cents conditioned upon a refund of any sums collected in excess of the amount later determined to be just and reasonable, the Commission under no circumstances had the power to condition the grant of a certificate in the manner which it did; that is, by requiring the filing of a new initial price of 17.7 cents in lieu of the contract price of 20 cents.
There can be no doubt, in light of the Supreme Court's decision in the Atlantic Refining Company case (hereafter referred to as CATCO), that in a proper case the Commission has the power to attach such conditions in the granting of a certificate as may be necessary. We...
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