Ederal Power Commission v. Panhandle Eastern Pipe Line Co.
Opinion of the Court
delivered the opinion of the Court.
Stated broadly this certiorari brings before us for review a problem involving the scope of the power over the gas reserves of a natural-gas company given, to the Federal Power Commission by the Natural Gas Act. 52 Stat. 821, as amended, 56 Stat. 83. Specifically the question to be decided is whether a natural-gas company, subject to the Act, may sell the leases covering an estimated twelve per cent, of its total gas reserves without the approval and contrary to an order of the Commission.
The issue is madé very sharply because the District Court .and the Court of Appeals have refused an injunction, sought by the Commission, to hold the. gonsumma
Respondent, Panhandle Eastern Pipe Line Company (herein called Panhandle), a Delaware corporation, transports and markets natural gas in interstate commerce by means of its pipe-line system which runs from Texas into Michigan. In addition it owns or controls gas-producing properties in Kansas, Oklahoma, and Texas.
In September, 1948, Panhandle organized Hugoton Production Company (hereinafter called Hugoton), also a Delaware corporation. On October 11,1948, pursuant to a written agreement between the two companies, Panhandle transferred to Hugoton gas leases on approximately 97,000 acres .of land in Kansas and $675,000 in cash. In return Panhandle received all the outstanding capital stock of Hugoton and the option to purchase on or after January 1, 1965, all or part of the gas produced from this land, which is at present undeveloped and not connected with any pipe-line system. The gas reserves under this acreage are estimated at approximately 700 billion cubic feet. Hugoton thereafter contracted to sell to the Kansas Power and Light Company for a period of fifteen years from November 1, 1949, to November 1, 1964, the gas produced from these leases, which, according
On the same date as the transaction between Panhandle and Hugoton, Panhandle declared a dividend of the Hugoton stock to the holders of its common stock at the rate of one-half share of Hugoton stock for each share of common stock of Panhandle. The dividend was to be paid November 17, 1948, to Panhandle’s stockholders of record on October 29, 1948. Nothing called to our attention indicates any control retained by Panhandle over the Hugoton stock.
On October 26, 1948, the Federal Power Commission (hereinafter called the Commission) ordered an investigation “pursuant to the provisions of Section 14 of the Natural Gas Act, of the facts and circumstances involved in the formation and proposed operation of the Hugoton Production Company and the transfer to said company by Panhandle Eastern of the natural-gás reserves . . . .” By a supplementary order of November 10, 1948, Hugo-ton was joined as a party, a date for a public hearing was fixed, and Hugoton and Panhandle ordered to show cause why they should not be directed to cancel the contract, and why Panhandle should not be prohibited from transferring the leases without the consent of the Commission and from distributing the Hugoton stock to its stockholders. Pending a final determination, the Commission ordered that the status quo be maintained by Panhandle and Hugoton.
Upon the apparent refusal of Panhandle to comply with this order, the Commission on November 13, 1948, instituted the instant suit in the United States District Court for the District of Delaware, seeking a preliminary injunction and a temporary restraining order to compel Panhandle to proceed no further with the stock distribution and to maintain the status quo pending the final determination of the questions for which the hearing
'On appeal, the Court of Appeals for the Third Circuit affirmed the judgment of the District Court on the ground that § 1 (b)' of the Natural Gas Act, excluding' “the production or gathering of natural gas” from the Commission’s jurisdiction, left the transfer .of- gas leases to state regulation, and putside the scope of the Commission’s regulatory powers. 172 F. 2d 57- The State Corporation Commission of Kansas had been granted leave to intervene in the Court of Appeals in opposition to the. Federal Power Commission. ■
To consider the important question of the applicability of the Natural Gag Act-to this transaction, we granted certiorari. 336 U. S. 935.
Without-entering upon another review of its legislative history,
Section 1 (b) provides as follows:
“(b^ The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in guch transportation-or sale, but shall not apply to any other transportation or sale of natural gas or to the.local distribution of natural gás or to the facilities used for such distribution or to the production or gathering' of natural, gas.”
“This section determines the Act’s coverage and does so in the light pf the situation existing at the time. Three things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce.; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or. sale.” Panhandle Eastern Pipe Line Co. v. Public Service. Com
Thé Commission seeks to distinguish between the activities of production and gathering, such as drilling, spacing wells, or collecting gas, and the facilities, such as reserves and. gas leases, used therefor and argues that only the former were excluded from the coverage of the Act. In support of this position it is pointed out that the section specifically exempts both the local distribution and the facilities used therefor, while it makes no mention of the facilities used for production or gathering.
The Commission cites §§ 5 (b), 6 (a) and (b), 8 (a), 9 (a), 10 (a), and 14 (b) to show that Congress intended “to confer a certain measure of authority upon the Commission” over the production and gathering of gas. These sections empower the Commission to make investigations, to prescribe rules for the keeping of accounts and records by the natural-gas companies, and to require that the companies file such reports as are deemed necessary by the Commission in the proper administration of the Act. These powers are inquisitorial in nature and were designed to aid the Commission in exercising its powers and “to serve as a basis for recommending further legislation to the Congress.” Section 14 (b), quoted below, comes closest to supporting the Commission's argu
In Colorado Interstate Gas Co. v. Federal Power Commission, supra, at 602, the Court in considering the more important of these sections said that they described powers which were aids to the “normal conventions” of rate making. We held that the Commission in exercising its rate-making authority could include the fair value of the producing and gathering facilities in the rate base of a natural-gas company. The primary duty of the Commission is to fix just and reasonable rates for the transportation and sale of natural gas.in interstate commerce for resale. For this purpose the Court pérmitted the Commission to examine and consider the cost of. production and gathering. The use of such data for rate making is not a precedent for regulation of any part of production or marketing. Before the Colorado Interstate decision, it was apparent that the value of producing facilities and the cost of gas bought by a
The Commission urges it has jurisdiction over the transaction between Panhandle and Hugoton from the powers granted to it by § 7 (c) of the Act which authorizes, it to issue certificates of coiivenience and necessity for the interstate transportation and sale of natural gas and those granted to it by §§ 4 and.5 to determine reasonable rates for such transportation and sale. It is pointed out that Panhandle in thrqe applications for certificates of convenience and necessity to construct additional pipeline facilities had included the. acreage here involved as part of its gas reserves, and certificates were issued, upon the finding by the Commission that Panhandle had adequate reserves to warrant' its expansion.
The Federal Power Commission leans heavily upon § 7 (b), which provides.that no natural-gas company may abandon any of its facilities subject to the jurisdiction
To accept these arguments springing from power to allow interstate service, fix rates, and control abandonment would establish wide control by the Federal Power Commission over the production and gathering of gas. It would invite expansion of power into other phases of the forbidden area.
The District Court found as a fact, and the finding is undisputed by the Commission, that, “It has been the practice in the natural gas industry for companies to trade freely in gas leases, and the Commission has never heretofore asserted the right to regulate transfers of such leases.” Thus for over ten years the Commission has never claimed the right to regulate dealings in gas acreage. Failure to use such an important power for so long a time indicates to us that the Commission did not believe the power existed.
The Commission sought by injunction to enforce its order halting the transaction between Panhandle and.
The judgment of the Court of Appeals is accordingly
Affirmed.
Porter v. Wamer Co., 328 U. S. 395, 398; Yakus v. United States, 321 U. S. 414, 440; Hecht Co. v. Bowles, 321 U. S. 321, 331; Virginian R. Co. v. System Federation, 300 U. S. 515, 552; Harrisonville v. Dickey Clay Co., 289 U. S. 334, 338.
The legislative history has- been discussed by our prior opinions in Panhandle Eastern Pipe Line Co. v. Public Service Comm’n of Indiana, 332 U. S. 507, 514-521; Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U. S. 682, 689-690; Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 601-603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 609-613; Illinois Natural Gas Co. v. Central Illinois Pub. Serv. Co., 314 U. S. 498, 506-508.
See H. R. Rep. No. 2651, 74th-Cong., 2d Sess., pp. 1-3; SLR. Rep. No. 709, 75th Cong., 1st Sess., pp. 1-4; S. Rep. No. 1162, 75th Cong., 1st Sess.,1 pp. 1-3.
See Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 467; Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U. S. 507, 517-518.
The House report on the Act, after quoting the exemption provisions of § 1 (b), says: “The quoted words are not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission, but similar language, was in previous bills, and, rather than invite the contention, however unfounded, that the elimination of the negative language would broaden the scope of the act, the committee has included it in this bill.” H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 3:
Actually, in the words of the House report, “That part of the negative declaration stating that the act shall not apply to 'the local distribution of natural gas’ is surplusage by reason of the fact that distribution is made only to consumers in connection with sales, and since no jurisdiction is given to the Commission to regulate sales to consumers the Commission would have no authority over distribution, whether or not local in u^iaracter.” H. R. Rep. No. 709, 75th Cong., 1st Sess., p. 3.
In a brief prepared by the Solicitor of the Federal Power Com-, mission for the House Committee on Interstate and Foreign Commerce on the constitutionality of H. R. 11662, an earlier bill substantially similar to the Natural Gas Act, the following appears as part of the analysis of the bill: “The bill makes no attempt to regulaté the production or gathering facilities of a natural-gas company, this function being purely local in character, nor is any attempt made to exercise control over distribution facilities.” Hearings before a subcommittee of the House Committee on Interstate and Foreign Commerce on H. R. 11662, 74th Cong., 2d Sess., p. 17.
The Solicitor of the Federal Power Commission in testifying at the same hearing also ans’wered the following question:
“Mr. Cole [Member of Committee]. Does this bill give anywhere the Commission power over the source of natural gas in the different fields in a manner which we might call comparable to that which your Commission now has over hydroelectric generating plants?
“Mr. DeVane [Solicitor of the F. P. C.]. It does not; no. It does not attempt to regulate the gathering rates or the gathering business. Section 11,1 believe it is, of the bill deals with that.” P. 34.
“(b) The Commission may, after hearing-, determine the adequacy or inadequacy of the gas reserves held or controlled by any natural-gas company, or by anyone on its behalf, including its owned or leased properties or royalty contracts; and may. also, after hearing, determine the propriety and reasonableness of the inclusion in operating expenses, capital, or surplus of all delay rentals or other forms of rental or compensation for unoperated lands and leases. For the purpose of such determinations, the Commission may require any natural-gas company to file with the Commission true copies of ¿11 its lease and royalty agreements with respect to such gas reserves.”
See H. R. Rep. No. 7Ó9, 75th Cong., 1st Sess.,' p. 7.
Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 603; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 610, 612.
5 F. P. C. 544, 546,' 949, 952; F. P. C, Docket G-876, Order of June 10, 1948.
Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 598.
“Sec. 16. The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act. . . .”
“(b) No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the pérmission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the. available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.”
Would it soon be contended that'statutory power to require, extension of service, § 7 (a), included power to require exploration or acquisition of leases or allocation of production to interstate pipe lines in order to serve the public interest?
The report of the House Committee on Interstate and Foreign Commerce on H. It. 6586, 75th Cong., 1st Sess., which became the-Natural Gas Act,' was adopted without change by the Senate Committee Qn Interstate Commerce as its report on the same bill. See note 3, supra. The- following excerpts are taken from the report as particularly pertinent: .
“The bill is substantially identical with H. R. 12680 which, as
“. . . The bill takes no authority from State commissions, and is so drawn as to' complement and in no manner'usurp State regulatory authority, and contains provisions for cooperative action with State regulatory bodies. ... '
“Your committee believes -that this legislation is highly desirable' to fill the gap in regulation that now exists by reason of the lack of authority of the State commissions.” H. R. Rep. No. 709, 75th Cong., 1st Sess., pp. 1-3.
During the debate on the bill in the House, its sponsor, Chairman Lea of the Committee on Interstate and Foreign Commerce, made the following explanatory statements:
“The bill does-' not apply to the production and gathering of gas.” 81. Cong. .Rec. 6721.
Likewise on the floor of the Senate, Chairman Wheeler of the Committee on Interstate Commerce gave a similar interpretation to the Act:
. “Mr. AUSTIN. Mr. President, may I ask the Senator from Montana [Mr. Wheeler] a question concerning this bill? Does the bill undertake to regulate the production of natural gas, or does it undertake to regulate the producers of natural gas?
“Mr. WHEELER. It does not attempt to regulate the producers of natural gas or- the distributors of. natural gas; only those who sell it wholesale in interstate commerce. ...
“Mr. AUSTIN. Mr. President, will the Senator yield for one other-inquiry? /
“Mr. WHEELER. Yes.
“Mr. AUSTIN. Is.the bill limited in its scope to the regulation-of transportation?
“Mr. WHEELER! Yes; it'is limited to transportation in interstate commerce, and it affects only those who sell gas wholesale.
“Mr. KING. Mr." President, I should, like to obtain information from the Senator as to the implications that arise from the bill; and what States it would affect. - As an illustration, if gas is produced in Wyoming and is transported for consumption into -the Senator’s State or my State, would the Federal Power Commission have to do with such an activity? .
“Mr. WHEELER. No; and let me'say to .the Senator that, as’a matter of' fáct¡ the bill does not interfere with the State regulation, in' any way, shape, or form.” 81 Cong. Rec. 9312. _ • ' '
“Mr. CONNALLY. Is it not also true, even though the utility commissioners advocate it, that whenever a Federal' agency takes over an activity such as this the State authorities begin to shift or lose
“Mr. WHEELER. There is no doubt about that, but this is an entirely different situation.
“Mr. CONNALLY. Yes.; one involves the railroads and the other involves gas.
“Mr. WHEELER. No. There is no attempt and can be no attempt under the provisions of the bill to regulate anything in the field except where it is not regulated at the present time. It applies only as to interstate commerce .and only to the wholesale price of . gas.” 81 Cong. Rec. 9313.
“Mr. AUSTIN. Then, it would leave to the future the right to meet any effort on the part, of the central government to acquire the natural resources of the State of Montana, or the State of Vermont, or any other State?
“Mr. WHEELER. Oh, yes. It does not touch it in any way, shape, or form, except to require the furnishing of information.
“Mr. AUSTIN. I have great fear of these occult methods of acquiring the natural resources of .our several States.” 81 Cong. Rec. 9314.
While Congress was considering the passage of the Natural Gas Act, a bill (H. R. 5711 and S. 1919,75th Cong., 1st Sess.) was introduced in both houses of Congress on March 17, 1937, which provided that “this Act shall apply to the procurement of natural gas for the purpose of its transmission through pipe lines and its sale, exchange, transmission, or distribution .in interstate commerce . . . .” The jurisdiction of the Federal Power Commission was defined as follows:
“The [Federal Power] Commission shall have jurisdiction over all facilities for the procurement of natural gas for its transmission through pipe lines and its sale, or for exchange, or distribution in interstate commerce, and over the transmission of natural gas in pipe lines in interstate commerce and. over the sale, or exchange of natural gas in interstate commerce,/and over all facilities connected
The provisions of this bill, however, failed of adoption; insteád Congress enacted § 1 (b) with its specific exemptions from the coverage of the Act.
See, for example, Kansas Gen. Stat., §§ 55 — 701 to 55-713 (1947 Supp.); Mich. Stat. Ann., e. 97, §§ 13.138 (1)-13.140 (10) (Supp. 1947); Okla. Stat. Ann., tit. 52, c. 3, §§81-247; Texas Rev. Civ. Stat., tit. 102, Art. 6008 et seq. (Vernon, 1925, with Supp. 1948); La. Gen. Stat. §§ 4766^4826.2.
Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 467.
Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U. S. 682, 690.
Federal Trade Comm’n v. Bunte Brothers, 312 U. S. 349, 352; Norwegian Nitrogen Prod. Co. v. United States, 288 U. S. 294, 315.
Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581, 602.
Section 5 (b) reads:
“(b) The Commission upon its own motion, or upon the request of any State commission,-whenever it can do só without-prejudice to the efficient and proper conduct of- its affairs, may investigate and determine the cost of the production or transportation of natural gas by a natural-gas company, in cases where the Commission has no authority to establish a rate governing the transportation or salé of such natural gas.”
When the provisions of the bill which became the Natural Gas Act were being read for amendment 'on the floor-of the House, § 5 (b) was amended by inserting the italicized words. Mr. Boren, a member of the House Committee on Interstate and Foreign Commerce, who submitted this amendment, explained the purpose of it as follows:
“Mr. BOREN. Mr. Chairman, my amendment has been agreed to by the committee. I offer the amendment in • order to keep .the .jurisdiction of the Federal Government as clearly defined .as possible from the jurisdiction of the State government in cases arising'hnder the provisions of.this bill. ...
“During the hearings I offered this amendment and made-the following statement: _
“'Mr. Chairman, I would like to.make this observation for the record and as a challenge to the proponents of this bill: That subsection B of section 5 provides for a growth and for the extension of the influence of a Federal bureau, or commission, in a- realm
“Mr. Chairman, this amendment -clarifies the jurisdiction as between the Federal and State governments, and assures us that the Federal Government will not go into a realm where the State government already has proper authority to handle the problem.
“The committee has approved the amendment, and I have nothing further to say.” 81 Cong. Rec. 6728.
“Sec. 20. (a) Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this Act, or of any rule, regulation, or order thereunder, it may in its discretion bring an action in the proper district court of the United States, the District Court of the United States for the District of Columbia, or the United States courts of any Territory or other place subject to the .jurisdiction of the United States, to enjoin such acts or practices and to enforce compliance with this Act or any rule, regulation, or order thereunder, ....’’
Cf. Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 468.
In an analogous situation before the institution of this litigation, there had been uncertainty of opinion in the Commission as to the reach of the Act toward sales by independent producers and gatherers to natural-gas companies for transportation in interstate commerce. See reports of the Federal Power Commission on its Natural Gas Investigation (Docket No. G-580), transmitted to Congress on April 28, 1948. In Part IV of the report subscribed to by Commissioners Smith and Wimberly; it is concluded at pp. 38 and 40:
“No reasonable basis is found in the Act or its legislative history for a conclusion that, although the ‘activities’ of production and gathering are exempt under Section 1 (b), sales of natural gas which are made at arm’s- length by producers and gatherers who do not thereafter transport it in interstate commerce may be regulated. Unless such a distinction is specifically disclaimed, doubts and uncertainties will continue to be felt and expressed regarding the possible jurisdiction under the Natural Gas Act of those who only produce and gather natural gas and then sell it to others transporting such gas in interstate commerce.” Pp. 38-39.
“In view of the present unsettled state of this matter, it is desirable,' as the Commission has heretofore recommended, that the Congress should adopt-appropriate amendatory legislation to make it clear that-independent producers or gatherers of natural gas, and their sales thereof to interstate pipe lines, are not subject to the provisions of the Natural'Gas Act. -Such.action will confirm what clearlv an-
See also the report subscribed to by Commissioners Olds and Draper, pp. 12-14.
Congress is now giving consideration to this problem. See H. R.( 79, H. R. 1758,. H. R. 982, S. 1498, and S. 1831, 81st Cong., 1st Sess.j and committee hearings thereon.
Concurring in Part
with whom
The Court’s judgment and opinion in this case go far toward scuttling the Natural Gas Act. 52 Stat. 821, as amended, 56 Stat. 83. In that Act Congress declared it “necessary in the public interest” for the Federal Government to regulate natural-gas companies engaged in.
The Court’s sterilizing interpretation rests on an exception to. Commission authority appearing in § 1 (b) of the Act.*
Section 7 (e) of the Act requires the Commission to issue certificates of convenience and necessity only if an interstate company is “able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of. the Commission thereunder . . . .” As authorized by § 7 (d), the Commission requires appli
The respondent company had its rate base fixed and its ability to serve the public determined on its claim to ownership of the very gas reserve properties the Court now permits it to sell to an affiliate over the protest of the Commission. According to allegations in the Commission’s. complaint the respondent gas company has already received from its customers large sums of money from rates which reflected expenses incurred. in maintaining these reserves and for exploration and development costs in relation to them. But under the Court’s holding today, these properties, increased in value by consumer contributions, can be given away by the respondent company to its newly formed affiliate. Congress could not have intended to render the Commission powerless to protect gas reserves necessary to continued consumer service and paid for by rates fixed to allow development of the reserves. .
It seems inconceivable that Congress would have passed an Act to regulate natural-gas companies with a wholly neutralizing exception to bar regulation of the gas reserves upon which the- whole gas business depended. I cannot attribute such a meaningless and deceptive action to the Congress. While the Act itself grants broad Commission powers effectively to regulate gas companies, the Court’s interpretation deprives the Commission of power essential to fixing fair rates and to protecting continued services during the life of a company’s gas reserves.
Today’s opinion regards Congress’ action like that of a parent who ordered his offspring to go swimming with a stern admonition not to go near the water.
I would reverse.
Today’s opinion also relies on a “finding of fact” by the District
§ 57.5 (f) of the Commission’s Order No. 99 (7 Fed. Reg. 6844).
Reference
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