Wisconsin Gas Co. v. F.E.R.C., s. 84-1358
| Decision Date | 18 December 1984 |
| Docket Number | Nos. 84-1358,s. 84-1358 |
| Citation | 758 F.2d 669,244 U.S. App. D.C. 349 |
| Parties | WISCONSIN GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. ANR PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. GREAT LAKES GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. TRANSWESTERN PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. MIDWESTERN GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. TENNESSEE GAS PIPELINE COMPANY, A DIVISION OF TENNECO INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. CITY GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. MADISON GAS & ELECTRIC COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. WISCONSIN FUEL & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. WISCONSIN NATURAL GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. WISCONSIN POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. WISCONSIN PUBLIC SERVICE CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, et al., Intervenors. PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Gas Utilities Company, State of Michigan, |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Platt W. Davis, III, Washington, D.C., was on motion for partial stay filed by petitioner Ark. La. Gas Co.
David L. Huard, Norman A. Pedersen, Los Angeles, Cal., and Roger B. Coven, Washington, D.C., were on motion for stay filed by petitioner MIGC, Inc.
Bolivar C. Andrews, Cheryl Foley, James W. McCartney, Judy M. Johnson, Houston, Tex., and David T. Andril, Washington, D.C., were on motion for partial stay filed by petitioner Transwestern Pipeline Co.
Barbara J. Weller, Deputy Sol. and A. Karen Hill, Atty., F.E.R.C., Washington, D.C., were on response of F.E.R.C. in opposition to motions for stay.
Before WRIGHT, * MIKVA and BORK, Circuit Judges.
Opinion Per Curiam.
The petitioners, MIGC, Inc. ("MIGC"), Arkansas Louisiana Gas Company ("Arkla"), and Transwestern Pipeline Company ("Transwestern"), have moved this court to stay the operation and effect of three orders issued by the Federal Energy Regulatory Commission (the "Commission"). This court denied the motions for stay by an order dated December 18, 1984. 1 Petitioners have made allegations of irreparable injury which are speculative, unsubstantiated and of a nature which clearly does not warrant the issuance of a stay. The filing of these motions, therefore, has been an abuse of the judicial process and has wasted the time and resources of this court. We are issuing this opinion for the guidance of the bar because many essentially frivolous stay applications are being filed. Counsel know or may easily learn the requirements for a stay. Applications that do not even arguably meet those requirements, as the present ones do not, should not be filed.
The petitioners are interstate pipelines which sell natural gas under contracts, tariffs, and certificates approved by the Commission. These contracts and tariffs, and those of other interstate pipelines, often contain minimum commodity bill and minimum take provisions. A minimum commodity bill requires a pipeline customer to pay the full commodity charge for a minimum volume of gas, whether or not the customer purchases that amount of gas. A minimum take provision requires a pipeline customer to take physically a certain amount of gas and does not offer a pipeline customer an option to pay for gas not taken. On August 25, 1983, the Commission issued a Notice of Proposed Rulemaking 2 pursuant to which it proposed to adopt a regulation that would eliminate variable costs from natural gas pipeline minimum commodity bill provisions. Following the submission of comments, the Commission concluded that minimum commodity bills enable a pipeline to recover purchased gas costs in cases where the pipeline does not actually incur such costs. Additionally, the Commission found that if a customer must pay for the gas, whether or not it actually takes the gas, then the customer will not seek lower-priced gas supplies but will continue to purchase gas from the same supplier. To alleviate these problems, the Commission issued Order No. 380 3 which declares inoperative any minimum bills which allow recovery of purchased gas costs from a customer who does not take the gas. 4 Several parties filed applications with the Commission for a rehearing and for a stay of the Order. These applications also sought clarification of the Order with respect to whether it applies to minimum take provisions. On July 30, 1984, the Commission issued Order No. 380-A 5 in which it granted a stay with respect to the application of the final rule to minimum take provisions, and denied the petitions for rehearing. 6 Several parties then petitioned this court for review of the Orders. 7 ANR Pipeline Company and Great Lakes Gas Transmission Company moved this court for a stay of the Orders. These parties argued that they would suffer irreparable harm in the absence of a stay because if their customers did not meet their minimum bill obligations, then the pipelines would incur increased liability under the take-or-pay provisions 8 in their contracts with producers of natural gas. A motions panel of this court denied the motion on the ground that the petitioners had not demonstrated that in the absence of a stay they would suffer irreparable harm. 9
On October 24, 1984, the Commission issued Order No. 380-C 10 which affirmed the application of Order No. 380 to minimum take provisions. Petitioner MIGC then moved this court to stay the effect of these Orders to the extent that they apply to the minimum bill and minimum take provisions in its contracts and tariffs. Petitioners Arkla and Transwestern have moved this court to stay the operation and effect of these Orders only to the extent that they apply to minimum take provisions.
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