United Gas Improvement Co. v. Federal Power Com'n, 12797

• Decision Date: 04 August 1959
• Docket Number: No. 12797,12805.,12797
• Citation: 269 F.2d 865
• Parties: UNITED GAS IMPROVEMENT COMPANY, Philadelphia Electric Company, Petitioners in No. 12,797, v. FEDERAL POWER COMMISSION, Respondent, PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, Petitioner in No. 12,805, v. FEDERAL POWER COMMISSION, Respondent. Pan American Petroleum Corporation, Atlantic Refining Company, Cities Service Production Company, Humble Oil & Refining Company, Ohio Oil Company, Oil Participations Incorporated, Tidewater Oil Company, Transcontinental Gas Pipe Line Corporation, Continental Oil Company, Magnolia Petroleum Company, Pure Oil Company, Sun Oil Company, Union Oil Company of California, W. H. Hunt, Trustee for Hassie Hunt Trust, Phillips Petroleum Company, Intervenors.
• Court: U.S. Court of Appeals — Third Circuit

269 F.2d 865 (1959)

UNITED GAS IMPROVEMENT COMPANY, Philadelphia Electric Company, Petitioners in No. 12,797, v. FEDERAL POWER COMMISSION, Respondent, PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, Petitioner in No. 12,805, v. FEDERAL POWER COMMISSION, Respondent.

Pan American Petroleum Corporation, Atlantic Refining Company, Cities Service Production Company, Humble Oil & Refining Company, Ohio Oil Company, Oil Participations Incorporated, Tidewater Oil Company, Transcontinental Gas Pipe Line Corporation, Continental Oil Company, Magnolia Petroleum Company, Pure Oil Company, Sun Oil Company, Union Oil Company of California, W. H. Hunt, Trustee for Hassie Hunt Trust, Phillips Petroleum Company, Intervenors.

Nos. 12797, 12805.

United States Court of Appeals Third Circuit.

Argued June 5, 1959.

Decided August 4, 1959.

Rehearing Denied September 9, 1959.

J. David Mann, Jr., Washington, D. C., and Samuel Graff Miller, Philadelphia, Pa. (Morgan, Lewis & Bockius, W. James MacIntosh, Philadelphia, Pa., John E. Holtzinger, Jr., Washington, D. C., Vincent P. McDevitt, Robert P. Garbarino, Philadelphia, Pa., on the brief), for petitioners in 12,797.

Kent H. Brown, Albany, N. Y. (George H. Kenny, Albany, N. Y., Barbara M. Suchow, New York City, on the brief), for petitioner in 12,805.

Howard E. Wahrenbrock, Washington, D. C. (Willard W. Gatchell, General Counsel, William L. Brunner, Washington, D. C., on the brief), for respondent.

John T. Miller, Washington, D. C. (Richard J. Connor, Thomas F. Brosnan, Gallagher, Connor & Boland, Washington, D. C., on the brief), for Transcontinental Gas Pipe Line Corp., intervenor.

William J. Merrill, Houston, Tex., for producer-intervenors.

Chas. B. Ellard, William R. Dotson, Edward J. Kremer, Jr., Dallas, Tex., Bernard A. Foster, Jr., Sherman S. Poland, Ross, Marsh & Foster, Washington, D. C., on the brief for intervenor Atlantic Refining Co.

Gentry Lee, Cecil C. Cammack, Bartlesville, Okl., Bernard A. Foster, Jr., Sherman S. Poland, Ross, Marsh & Foster, Washington, D. C., on the brief, for intervenor Cities Service Production Co.

Lloyd F. Thanhouser, Bruce R. Merrill, Houston, Tex., on the brief, for intervenor Continental Oil Co.

Carl Illig, Houston, Tex., William H. Holloway, Washington, D. C., on the brief, for intervenor Humble Oil and Refining Co.

George S. Finley, Edward L. Atkinson, Jr., Dallas, Tex., Robert E. May, Washington, D. C., Ralph B. Shank, Dallas, Tex., on the brief, for intervenor W. H. Hunt, Trustee for Hassie Hunt Trust.

Frank C. Bolton, Jr., Ross Madole, William S. Richardson, Dallas, Tex., on the brief, for intervenor Magnolia Petroleum Co.

Martin A. Row, Dallas, Tex., Herf M. Weinert, Joiner Cartwright, Beaumont, Tex., Robert E. May, Richard F. Generelly, May, Shannon & Morley, Washington, D. C., on the brief, for intervenor Sun Oil Co.

Clayton L. Orn, Robert M. Vaughan, Findlay, Ohio, James D. Parriott, Washington, D. C., on the brief, for intervenor Ohio Oil Co.

L. A. Thompson, W. W. Heard, J. P. Hammond, Tulsa, Okl., William J. Grove, Carroll L. Gilliam, Dow, Lohnes & Albertson, Washington, D. C., on the brief, for intervenor Pan American Petroleum Corp.

Rayburn L. Foster, Harry D. Turner, H. K. Hudson, Kenneth Heady, James G. Williams, Jr., Bartlesville, Okl., Charles E. McGee, Washington, D. C., Lambert McAllister, Washington, D. C., on the brief, for intervenor Phillips Petroleum Co.

John C. Snodgrass, Chicago, Ill., on the brief, for intervenor Pure Oil Co.

Paul S. Schlicher, New York City, Alfred C. DeCrane, Jr., Houston, Tex., Frank H. Strickler, Washington, D. C., on the brief, for intervenor Texaco Seaboard, Inc.

L. A. Gibbons, Los Angeles, Cal., George D. Horning, Jr., Patrick G. Sullivan, John J. Ross, Hogan & Hartson, Washington, D. C., on the brief, for intervenor Union Oil Co. of California.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

These cases are two petitions seeking review of action of the Federal Power Commission. They present the same questions and attack the same order.¹ They have been argued together and will be disposed of in one opinion.

The Federal Power Commission has granted permanent certificates of convenience and necessity to twenty-six gas producers, involving thirty-eight applications, who have made contracts for the sale of gas produced in southern Louisiana and offshore areas to Transcontinental Gas Pipe Line Corporation (Transco) for transportation and resale in interstate commerce. The Commission also granted permanent certificates of public convenience and necessity to Transco to construct additional pipe line facilities to carry the supply of natural gas authorized by the producers' certificates.

The matters before the Commission involving this large transaction covered many items. There were contracts for the sale of gas by the producers. There were incidental and for our purposes here unimportant provisions concerning arrangements with buyers from Transco's pipe line. There was an elaborately worked out and thoroughly considered plan for the storage of gas in underground reservoirs in western Pennsylvania. There was a proposal by Transco for a huge increase in pipe line facilities to serve the New York and Philadelphia areas. Transco's capital expenditure is about $167,000,000.

While the factual background is wide the subject litigated in this review becomes a narrow one. Transco's customers called for more gas than Transco was able from its then sources to supply. Transco negotiated arms-length contracts with these twenty-six producers. There is no suggestion that there was any collusion in the formation of these contracts. They call for prices ranging from 22.4 cents to 23.3 cents per Mcf of gas.

It is the contention of the petitioners that the Commission abused its discretion in not attaching to the producers' certificates conditions limiting the price to be paid by Transco to a level below that set in the contracts.² It is pointed out by them that the price of natural gas obtained from the area here concerned has been increasing rapidly. These last certificates of convenience and necessity which approve this scale of prices will cause another general rise in gas prices, it is argued, and thus produce another loop in the rising spiral.

This is really the only point in the case, when all the argument is made: Was it an abuse of discretion for the Commission to grant these certificates without conditioning them as to price? We have said in the Signal case³ that the Commission could make its certificate conditioned upon a price limitation.⁴ We did not say that it must.

Since the case was submitted to this Court the Supreme Court has affirmed us in a case referred to by the parties as "Catco".⁵ We proceed in this case, therefore, with the text of the Supreme Court opinion before us. The Court affirmed the Third Circuit in sending that case back to the Commission for further hearing. The grounds upon which the majority⁶ rested its decision differed from those relied on by this Court and we shall, of course, keep our eye on the Supreme Court opinion rather than our own.

The Supreme Court pointed out that there had been no showing that "`the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas.'" 360 U.S. at page 393, 79 S.Ct. at page 1256. That there is a large and immediate need for more gas in the territory served by Transco was fully developed in the testimony and made the subject of findings by the Commission.

Transco presented testimony at the producers' hearing that it would be unable to meet the estimated average day and peak day requirements of its customers from existing gas supplies. According to the evidence, without increasing its supply Transco would experience annual deficiencies of 8,162,000,000 cubic feet in 1959, 24,899,000,000 cubic feet in 1960 and 23,081,000,000 in 1961. Converted to average daily volumes, these deficiencies would amount to 22,400,000 cubic feet in 1959, 68,200,000 cubic feet in 1960 and 63,200,000 in 1961.⁷ Inclusion of the gas reserves which are the subject of these proceedings would mean that Transco need not experience its first annual deficiency until 1971. Apart from the storage field aspect of its certification, Transco will supply an additional 173,634,000 cubic feet daily to its existing customers.

At the Transco hearing prepared testimony by Transco's customers indicated that in 1959 and in the following years substantial deficiencies in the supply of natural gas would exist. In sum, these gas companies, serving local consumers, attested with facts and figures to the increased consumer demand for gas, their inability to satisfy that demand from existing supplies, and the desirability of purchasing increased quantities of natural gas rather than undertaking the more expensive task of expanding facilities and producing manufactured gas.

The Supreme Court opinion emphasizes strongly that attention must be given the price factor in deciding the question of issuance of the convenience and necessity certificate. The Court pointed out that Section 5 of the Natural Gas Act⁸ is not a sufficiently adequate protection for the consumer. If the price is too high the consumer will have been paying too much for his gas while the long drawn out proceeding under Section 5 is pending and there is no provision for his getting a refund. 15 U.S.C.A. § 717d (1948). Therefore, the next point necessary to consider is whether the attention given to the subject of price to be paid for the gas was sufficient on the part of the Commission and whether the conclusion it reached was reasonable.

The purchasers' certificates authorize the sale of approximately 2 trillion cubic feet of natural gas to Transco from the southern Louisiana and offshore areas at contract prices ranging from 22.4 to 23.3 cents per Mcf. The contracts do not contain favored-nation or price...