Atlantic Refining Co. v. Public Service Commission
Atlantic Refining Co. v. Public Service Commission
Opinion of the Court
delivered the opinion of the Court.
This proceeding tests the jurisdiction, as well as the discretion, of the Federal Power Commission in the certificating of the sale of natural gas under § 7 (e) of the Natural Gas Act of 1938, 52 Stat. 821, 56 Stat. 84, as amended, 15 U. S. C. § 717 et seq.
The respondents, other than the Public Service Commission of the State of New York, are public utilities in New York and New Jersey. They buy gas from petitioner Tennessee for distribution in those States. They’ and the New York Commission oppose the issuance of the certificates on the ground that their issuance will.increase the price of gas to consumers in those States, of whom there are over a million, using Tennessee’s gas. Upon the issuance of the certificates the respondents filed petitions for review with the Court of Appeals. It held that “Congress has not given thé Commission power to inquire into the issue of public convenience and necessity where, as
The natural gas involved here is of a Miocene sand located below seabed out in the Gulf of Mexico some 15 to 25 miles offshore from Cameron and Vermilion Parishes, Louisiana. The petitioners in No. 518’ are each' independent natural gas producers. They jointly own oil and gas leases (25% to each company) which they obtained from Louisiana covering large acreages of the Continental Shelf off the Louisiana coast. Jurisdiction over the Continental Shelf is claimed by the United States and the question is now in litigation. The .Congress has continued existing leases in effect pending the outcome of the controversy over the title. 67 Stat. 462, 43 U. S. C. (Supp. I, 1954) §§ 1331-1343. The four companies’ joint venture has resulted in the .discovery of huge fields of natural gas and they have dedicated some 1.75 trillion cubic feet of gas from 95,000 acres of their leases to the petitioner Tennessee Gas Transmission Company, a natural gas company subject to the jurisdiction of the
The four contracts dedicating the gas to Tennessee run from each of the petitioner producers. The contracts call for an initial price of 22.4 cents per MCF for the gas, including 1-cent tax, with escalator clauses calling for periodic increases in specific amounts.
The Presiding Examiner on March 29, 1957, found that the sales were required by the public convenience and necessity. Continental Oil Co., 17 F. P. C. 563. While he found that the proposed price was higher than any price Tennessee was then paying, he pointed to other prices currently paid for onshore sales “for smaller reserves and smaller future potentials.” Id., at 571. The average weighted cost of gas to Tennessee he found would be increased, if the contract price was certificated, by .97 cent per MCF.
The Commission, as we have indicated, took three strikes at the recommendations of the Examiner. On April 22 it reversed his-finding on public convenience and necessity because the evidence was insufficient as to price. It said:
“The importance of this issue in certificating this sale cannot easily be overemphasized. This is the largest reserve ever committed to one sale. This is the first sale from the newly developed .offshore fields from which large proportions of future gas supplies will be taken. This is the highest price level at which the sale of gas to Tennessee; Gas has been proposed.
“These factors make it abundantly evident that, in the public interest, this crucial sale should not be permanently certificated unless the rate level has been-shown to be in the public interest.” Id., at 575.
The Commission granted petitioners temporary certificates and remanded the proceeding to the Examiner “to determine at what rates the public convenience and necessity requires these sales” of natural gas to Tennessee under a permanent certificate. Id., at 576. The producers immediately moved for modification,- asserting that they could not present sufficient evidence “within any reasonable period in the. future” to meet the necessities of the remand and, further, could not “afford to commence, construction until at least the initial rate [question] is resolved.” The Commission on May 20, however, reiterated its belief that “the record does not contain sufficient evidence on which to base a finding that the public convenience and necessity requires the sale of the gas at that particular rate level.” 17 F. P. C. 732, 733-734. In an
We note that the Commission did not seek certiorari here but has filed a brief amicus curiae.
I. Jurisdiction of the Commission.
The Court of Appeals thought that the Commission had no jurisdiction to consider petitioners’ proposal because it was limited to a firm price agreed upon by the., parties applicant. Their refusal to accept certification at a lower price, even to the extent of canceling their, contracts and withholding the gas from interstate commerce, the court held, resulted in the Commission’s losing jurisdiction.- We do not believe that this follows. No sales, intrastate or interstate, of gas had ever been made from the leases involved here. The contracts under which the petitioners proposed to sell the gas in the interstate market were all conditioned on the issuance of certificates of phblic convenience and necessity. A failure by either party to secure such • certificates rendered the contracts subject to termination. Certainly the filing of the application for a certificate did not constitute a dedication to the interstate market of the gas recoverable under these leases. Nor is there doubt that the producers were at liberty to refuse conditional certificates proposed by
II.'The Validity of the Order:
The purpose of the Natural Gas Act was- to underwrite just and reasonable rates to the. consumers of natural gas. Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591 (1944). As the.original § 7 (c) provided, it Was “the intention of Congress; that natural gas shall be sold in interstate commerce for resale for, ultimate public consumption for domestic, commercial, industrial, or any other use at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest.” 52 Stat. 825.
In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7 (e) of the Act as being required, by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although
This is especially true where, as here, the initial price will set a pattern in an area where enormous reserves of gas appear to be present. We note that in petitioners’ proof a map of the Continental Shelf area off of the coast of Louisiana shows that the leases here involved cover but 17 out of a blocked-out area covering some 900 blocks of 5,000 acres each. The potential of this vast acreage, in light of discoveries already' made as shown by the record, is stupendous. The Commission has found that the transaction here covers the largest reserve "ever committed to interstate commerce in a single sale. Indications are that it is but a puff in comparison to the enormous potentials present under the seabed of the- Gulf. The price certificated will in effect become the floor for future contracts in the area. This has been proven by conditions in southern Louisiána where prices have now vaulted from 17 cents to over 23 cents per MCF. New price plateaus will thus be created as new contracts are made and unless controlled will result in “exploitation” at the expense of the consumer, who eventually pays for the increases in his monthly bill.
It is true that the Act does not require a determination of just and reasonable rates in a § 7 proceeding as it does in one under- either § 4 or § 5. Nor 'do we. hold that a
There is, of course, available in such a situation, a method by which the applicant and the Commission can arrive at a rate that is in keeping with the public convenience and necessity. The Congress, in § 7 (e), has authorized the Commission to. condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant’s existing rates by reason of “favored nation” clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary.
This, is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the'
Our examination of the record here indicates that there was insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of the permanent certificates. The witnesses tendered developed little more information than was included in the printed contracts. As the proposed contract price was. higher than any paid by Tennessee, including offshore
Nor do we find any support whatever in the record for the conclusory finding on which the order was. based -that “the public served through the Tennessee Gas system is greatly, in need of increased supplies of natural gas.” 17 F. P. C. 880, 881. Admittedly any such- need was. ■wrapped up in the Commission’s action in Docket .G-11107, where Tennessee was asking for permission to enlarge its facilities. However, the two dockets were not consolidated and the Presiding Examiner conditioned his approval here on the granting of the application in Docket G-11Í07, no part of which record is here. Neither is
-These considerations require an affirmance of the judgment with instructions that the applications be remanded to the Commission for further proceedings.
It is so ordered.
Section 7(e), 15 U. S. C. § 717f (e), provides:
“(e) Except in the cases governed by the provisos contained in subsection (c) of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perforin the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction; extension, or acquisition, to the extent authorized by the certificate, is or Will be required by the present or future, public'convenience arid necessity; otherwise such application ■ shall be denied. The Commission shall have’the power to attach to the issuance -of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”
These are the Atlantic Refining. Company, Cities Service Production Company, Continental Oil Company, and Tidewater Oil Cpmpany, all petitioners in. No. 518 and sometimes known as CATCO.
Tennessee operates a pipeline system extending from gas fields in Texas and Louisiana through Arkansas, Mississippi,. Tennessee, Kentucky, West Virginia, Ohio, Pennsylvania, New Jersey, New York and into Massachusetts, New Hampshire, Rhode Island and Connecticut. It serves some 80 distributing companies which in turn serve millions of consumers in the various States which its pipeline traverses.
These increases were'later limited to 2 cents per MCF. The escalator, clauses apparently were inserted in lieu of “favored nation” clauses, but by letter, not a part of the contracts, “favored nation” clauses were to be substituted at a later date on certain contingencies.
The exact finding is as follows:
“Including the gas .which Tennessee proposes to purchase under these, contracts, some 240,000 M. c. f. per day (14.73 p. s. i. a.), it is estimated that the weighted average cost of all gas to Tennessee in 1958 will be some 13.70 cents per M. c. f., as compared with 12.73 cents if'the gas here, proposed to be purchased is excluded.” 17 F. P. C. 563, 570.
Thus is the .97-cent figure derived. It is, however, a misleading figure, for- the estimate for 1958 includes the 22.4-cent gas for only two months of 1958, November and December. There is no indication in the record as to what the cost increase .would be if the weighted average were calculated .by including the 22.4-cent gas for the full year.
The brief is not signed by the Solicitor General but by both the General'Counsel and the Solicitor of the Federal Power Commission.
The 1942 amendments to § 7, 56 Stat. 83, were not intended to change this declaration of purpose. See Hearings, House Interstate. and Foreign Commerce Committee, on H. R. 5249, 77th Cong., 1st Sess. 18-19; H. R. Rep. No. 1290, 77th Cong., 1st Sess.; S. Rep. No. 948, 77th Cong., 2d Sess.
Tennessee has subsequently filed an application with the F. P. C. requesting higher rates designed to produce some $19,000,000 additional annual revenue; Tennessee Gas Transmission Co., Docket G-17166.
Concurring Opinion
I agree with the judgment of the Court'on the ground that the findings upon which the Commission based its conclusion that the public convenience and. necessity' required the issuancé to petitioners of unconditional final certificates find no support in the record. There is no evidence supporting what appear to be the crucial findings that (1) “the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas,” particularly insofar as this finding implies that this need is immediate and cannot be satisfied from Tennessee’s existing reserves, and that (2) there was serious danger that producer petitioners’ gas would be permanently-lost to the interstate market unless an unconditional . certificate were granted on their terms. This makes it unnecessary to consider at this stage any of the other questions sought to be presented by the parties.
Reference
- Full Case Name
- ATLANTIC REFINING CO. Et Al. v. PUBLIC SERVICE COMMISSION OF NEW YORK Et Al.
- Cited By
- 356 cases
- Status
- Published