California v. Lo-Vaca Gathering Co.
California v. Lo-Vaca Gathering Co.
Opinion of the Court
delivered the opinion of the Court.
El Paso Natural Gas Co. is an interstate natural gas pipeline company that delivers gas at the Arizona-California border to three California distribution companies. The present controversy concerns gas to be purchased by it in Texas from Lo-Vaca Gathering Co. and Houston Pipe Line Co. Under Lo-Vaca’& contract gas produced in Texas is to be delivered to a subsidiary of El Paso’S at a Texas point for delivery, into its pipeline. The contract contains the following two clauses:
“All of the gas to be purchased by El Paso from Gatherer [Lo-Vaca] under this agreement shall be used by El Paso solely as fuel in El Paso’s compressors, treating plants, boilers, camps and other facilities locátéd outside of the State of Texas. It is understood, however, that said gas will be commingled with other gas being transported in El Paso’s pipe fine system.”
“It is the intent and understanding of the parties hereto that the sale of natural gas hereof is not subject to the jurisdiction of the Federal Power Commission because this sale is not for resale.”
This “restricted use” agreement provides for a Separate metering of the contract volumes prior to their delivery info El Paso’s system. El Paso will meter the. gas used
El Paso and Houston made a similar contract containing a similar “restricted use” provision by which El Paso covenants that this Houston gas will be consumed by El Paso solely as fuel in its Texas operations or in another Texas plant. This contract, like the other one, also provides for metering the volume of gas delivered in Texas; and it includes a covenant by El Paso that the Texas uses will &t all times exceed the amounts supplied by Houston.
In spite of these "restricted use” covenants it is conceded that the gas sold by Lo-Vaca and Houston to El Paso will flow in a commingled stream with gas from other sources and that at least a portion of the gas will in fact be resold out of Texas.
The Federal Power Commission asserted jurisdiction over these sales as sales in interstate commerce “for resale,” as that term is used in § 1 (b) of the Natural Gas Act, 52 Stat. 821, 15 U. S. C. § 717 (1958 ed.).
We said in Connecticut Co. v. Federal Power Comm’n, 324 U. S. 515, 529, “Federal jurisdiction was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.” And that is the test we have followed under both the Federal Power Act and the Natural Gas Act, except as Congress itself has substituted a so-called legal Standard for the technological one. Id., at 530-531. In Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U. S. 682, 687, we considered the anatomy of the pipeline system to discover the channel of the constant flow; again in Federal Power Comm’n v. East Ohio Gas Co., 338 U. S. 464, 467; and most recently in Federal Power Comm’n v. Southern Cal. Edison Co., 376 U. S. 205, 209, n. 5. The result of our decisions is to make the sale of gas which crosses a state line at any stage of its movement from wellhead to ultimate consumption “in interstate commerce” within the meaning of the Act.
Attempts have been made by one convention or another to convert a local transaction into one of interstate commerce (Sprout v. South Bend, 277 U. S. 163; Superior Oil Co. v. Mississippi, 280 U. S. 390) or to make a segment of interstate commerce appear to be only intrastate (Baltimore & Ohio R. Co. v. Settle, 260 U. S. 166). But those attempts have failed. Similarly, we conclude that when it comes to the question what gas is for “resale” the present contracts should not be able to change the jurisdictional result.
The fact that a substantial part of the gas will be resold, in our view, invokes federal jurisdiction at the outset over the entire transaction. Were suppliers of gas and pipeline companies free to allocate by contract gas from a particular source to a particular use, havoc would be raised with the federal regulatory scheme, as it was con
Reversed.
Mr. Justice White took no part in the consideration or decision of these cases.
Section 1 (b) of the Act provides:
“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 such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.”
Section 2 (7) of the Act reads as follows:
“When used in this Act, unless the context otherwise requires—
“(7) ‘Interstate commerce’ means commerce between any point in a State and any point outside thereof, or between points within the same State but through any place outside thereof, but only insofar as such commerce takes place within the United States.”
The Commission’s Report, .Statistics of Natural Gas Companies— 1962, shows that the 40 major natural gas pipeline companies consumed more than $85,000,000 worth of gas in operating their facilities (principally compressor stations), p. xviii. This represents almost 4% of the total gas-purcháse-costs of those companies. The Commission therefore points out in its brief that pipeline companies, merely by using “restricted use” controls, could without changing their actual operations create a substantial unregulated market for the benefit of particular producers. .
Our reference in Federal Power Comm’n v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 4, to “direct” sales of gas to industrial users as nonjurisdictional sales is not dispositive of the present issue. For the Commission had refused a certificate for transportation of the gas because from the standpoint of conservation it considered the end use as boiler fuel to be inferior. Whether the Commissi on had authority to assert jurisdiction over .the so-called “direct” sale because it was “for resale” as a result of its commingling with other gas was not in issue.
Cf. United States v. Public Utilities Comm’n, 345 U. S. 295, 317-318; City of Hastings v. Federal Power Comm’n, 221 F. 2d 31.
Dissenting Opinion
dissenting.
Today’s decision furnishes a too-ready answer to an intricate, problem of administrative regulation. It re7 fleets the sort of decision that is to be expected when the Court is willing to make a bare choice between two unrefined points of view as to regulatory method, without first being informed by the regulating agency concerned as to its evaluation of the competing factors — something that is indispensable to achieving a well-balanced solution of a problem such as this. The respective positions of the parties here each possesses the capacity to frustrate the scope of natural gas regulation ordained by the Congress. The Commission’s molecular theory, accepted by the Court with undefined reservations, results in expanding the regulatory scheme by sweeping within the Commission’s authority gas that has not been supplied or used for interstate resale (“nonjurisdictional” gas). The respondents’ contract-allocation position, on the other hand, might serve to contract the legitimate scope of regulation by interfering with the ability of the Commission to deal with gas restricted under a supply contract to
Whether or not there is a middle ground that would more closely fulfill the purposes of the Natural Gas Act than either of the proposals now before us is something that this Court, is not competent to assess without expert guidance from the Commission, and we have been given none. Lacking this, I am unwilling to accept at this juncture the position of either party to this litigation. I think the Court should decline to pass upon these cases until the Commission has first illumined the regulatory problems involved through an appropriate exercise of its rule-making powers.
The complexity and elusiveness of the matters with which we are asked to deal are best exposed from the vantage point of this Court by considering some of the questions to which allocation contracts in varying contexts give rise.
The Commission has, at least until this case, accepted the proposition that a single supplier to a pipeline may allocate by contract between the amount of gas used for jurisdictional purposes and the amount used nonjurisdic-tionally. For example, in City of Hastings v. Federal Power Comm’n, 221 F. 2d 31, a pipeline company sold gas to the city through one pipeline under two contracts, one covering the gas to be resold by the city, and the. other gas to be used by the city in its own plants. Although the gas was mingled in the common pipeline, the allocation was approved, and the latter gas was, without more, considered not spbject to Commission regulá-tión. A similar situation was presented in United States v. Public Utilities Comm’n of California, 345 U. S. 295, where a power company sold electricity to the Navy for
The result does not change when two or more suppliers are involved, provided that the allocation of nonjurisdic-tional gas is prorated among all of the suppliers. For example, if a pipeline company consumed 30% of its total volume of gas in its own plants, and sold 10% of the total volume in the State of production, each supplier could allocate 40% of its gas supply to nonjurisdictional use. Such was essentially the case in North Dakota v. Federal Power Comm’n, 247 F. 2d 173, where the allocation was upheld with Commission approval. If these cases are accepted by the Court, two corollaries follow: since gas is a fungible commodity, the mingling of gas does not alone render ineffective for purposes of Commission jurisdic.tion the allocation contracts, although the molecular identification of the nonjurisdictional gas is destroyed; and the fact that the prices paid for nonjurisdictional gas
The record before us does not answer the question put. There is some indication that El Paso intends to construct new compressor plants, and may have to use more non-jurisdictional gas at its existing plants to handle the added gas received from Lo-Vaca under the unrestricted contract. Such a use would satisfy a nonjurisdictional de
Another possible standard which suggests itself would, be to determine the probable percentages of gas from each supplier which will be used for nonjurisdictional purposes, and only permit each supplier to allocate by contract to nonjurisdictional use his pro rata share of the. total estimated nonjurisdictional gas. For example, if we suppose a pipeline running from the Gulf coast of Texas through New Mexico into California, as does the El Paso system, then each supplier should determine what percentage of the total volume of gas. flowing west from the point of its input will be ultimately used for a¡ nonjurisdictional purpose: It would then be mathematically probable that his gas would be used for nonjurisdictional purposes in the same percentage, and he could allocate that amount by contract, subject to change should new supplies be added to the system.
I recognize, of course, that there may be pitfalls in both of these possible methods,, and that there may be other, formulae that are preferable to either. I have ventured
It is undoubtedly true that normally an administrative agency may decide for itself whether to proceed in a.given field of its regulatory functions through the promulgation of general rules
I would vacate the judgment of the Court of Appeals and remand the case to the Commission for further proceedings after the promulgation of interpretive rules to. cover this, and like cases.
See Elman, Comment, Rulemaking Procedures in the FTC’s Enforcement of the Merger Law, 78 Harv. L. Rev. 385 (1964).
See Court’s opinion, ante, p. 370. In fact, the price charged by Lo-Vaca for its nonjurisdictional gas is exactly the same as the price established for its concededly jurisdictional sale, and the Houston sale is for a price lower than either of the Lo-Vaca sales.
Both Lo-Vaca and El Paso are constructing pipelines to connect with the' El Paso system at its Coquat station, and both must obtain Commission certification under § 7 of the Natural Gas Act in order to construct such pipelines. The Commission could take many of ,the factors presented in this case into account when ruling on the applications, see Federal Power Comm’n v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1. The Commission could also take into account the reasonableness of the prices charged for nonjurisdic-tional gas should El Paso apply for a rate increase on its jurisdictional sales.
See Amerada Petroleum Corp. v. Federal Power Comm’n, 334 F. 2d 404 (C. A. 8th Cir. 1964), cert. pending, No. 585, this Term, where the suppliers in the North Dakota case, supra, had been allocating, and the pipeline then added new suppliers which did not allocate. The Court, of Appeals upheld-the allocation contracts.
Corrections would have to be made, of course, where gas is withdrawn for intrastate consumption from a trunk line before the gas is mingled with the interstate system. Such gas would all be attributed to the suppliers feeding the trunk line, and this gas would not be used in computing the total percentages. Cf. Peoples Natural Gas Co. v. Public Service Comm’n of Pennsylvania, 270 U. S. 550. This method of allocation would only operate with' natural gas, which flows in one direction only; different considerations would be applicable were we dealing with electric power, which can flow in both directions along a system.
See United States v. Storer Broadcasting Co., 351 U. S. 192. See generally 1 Davis, Administrative Law Treatise, §5.01 (1958).
See Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194.
See, e. g., United States v. Public Utilities Comm’n of California, supra, at 318, n. 28.
See Lo-Vaca Gathering Co., 26 F. P. C. 606, 615:
“To the extent that North Dakota may be inconsistent with the action we take here, we believe it was erroneously decided.” Compare, supra, p. 373.
As for example, in rate-making proceedings.
Natural Gas Act, §1 (b), quoted in the Court’s opinion, ante, p. 368, n. 1.
See Addison v. Holly Hill Fruit Prods., Inc., 322 U. S. 607, 619.
Reference
- Full Case Name
- CALIFORNIA Et Al. v. LO-VACA GATHERING CO. Et Al.
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- 67 cases
- Status
- Published