Arizona Corp. Commission v. Federal Energy Regulatory Commission

397 F.3d 952, 365 U.S. App. D.C. 1, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20037, 2005 U.S. App. LEXIS 2225
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 11, 2005
DocketNos. 03-1206, 03-1209
StatusPublished
Cited by2 cases

This text of 397 F.3d 952 (Arizona Corp. Commission v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Corp. Commission v. Federal Energy Regulatory Commission, 397 F.3d 952, 365 U.S. App. D.C. 1, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20037, 2005 U.S. App. LEXIS 2225 (D.C. Cir. 2005).

Opinion

STEPHEN F. WILLIAMS, Senior Circuit Judge.1

Petitioners, a group of natural gas shippers, challenge three FERC orders that modify the terms — set in 1990 and 1996 Settlements — under which petitioners ship natural gas over the lines of El Paso Natural Gas Company. El Paso Natural Gas Co., 99 FERC ¶ 61,244, 2002 WL 2013618 (2002) (“May 2002 Order”); El Paso Natural Gas Co., 100 FERC ¶ 61,285, 2002 WL 31975738 (2002) (“September 2002 Order”); El Paso Natural Gas Co., 104 FERC ¶ 61,045, 2003 WL 22222700 (“July 2003 Order”). Most relevant to this case, FERC converted petitioners’ contracts from full requirements (“FR”) to contract demand (“CD”) arrangements, thereby obligating them to pay for additions to capacity necessitated by growth in their demand. Petitioners argue that the orders did not meet the Mobile-Sierra public interest standard set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956), and FPC v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388 (1956). We find no error in FERC’s orders. The Commission did not merely [3]*3protect El Paso from an “improvident bargain,” as petitioners allege, but exercised its Mobile-Sierra authority to prevent “the imposition of an excessive burden” on third parties. Northeast Utils. Serv. Co. v. FERC, 55 F.3d 686, 691 (1st Cir.1995) (internal quotation marks and citation omitted).

* * *

El Paso’s pipeline delivers natural gas from three production basins — San Juan, Permian, and Anadarko — to California and several nearer states. The 1990 Settlement preserved FR service, but converted El Paso’s FR sales customers to FR transportation customers and allocated pipeline capacity pro rata among firm shippers. By 1996, El Paso had accumulated substantial excess capacity because Californian local distributors, under state orders, had turned back their rights. Accordingly the parties adopted a new 1996 Settlement, setting current rates and terms to prevail until 2006. Under that Settlement, the reservation charges of the CD shippers were based on the capacity they reserved, while the FR shippers’ were based on 1996 “billing determinants.” Nonetheless, the FR shippers remained free, as the name “full requirements” suggests, to insist that El Paso meet their full requirements. After the 1996 Settlement, El Paso’s capacity surplus dwindled, making service unreliable and triggering pro rata cutbacks. FERC responded in the May 2002 Order by requiring, among other things, that all major FR shippers convert to CD contracts. In the September 2002 Order it set the conversion price when FR shippers and El Paso could not agree, and in the July 2003 Order it finalized the details of conversion and denied rehearing. Petitioners now appeal the orders.

The main factual question is whether the record contains substantial evidence of capacity curtailments on El Paso’s mainline severe enough to render firm service unreliable and thus justify Commission action under Mobile-Sierra. FERC cites numerous sources to answer in the affirmative. One FR shipper, Southwest Gas Corporation, had, “[f]or ten years, ... complained about firm service degradation by El Paso.” Southwest’s experience was apparently common: another group of shippers, for example, complained that its “customers for at least [a] year ... experienced] cutbacks in scheduled quantities due to capacity constraints, regardless of the supply basin accessed.... El Paso’s overtaxed mainline system is reaching the breaking point.” El Paso, too, took the position that it lacked “sufficient capacity ... to serve ... [customers’] aggregate capacity rights.”

Petitioners, in turn, identify holes in FERC’s evidence. They argue that FERC failed to quantify the curtailments and instead relied only on a data response sheet and customers’ comments. The capacity shortfalls, they insist, arose from “aberrational” events such as the California energy crisis and an explosion in El Paso’s pipeline at Carlsbad, New Mexico. Reply Brief at 18-19. Indeed, one El Paso executive said in April 2002 that “the main line ... is not really curtailing very often.” Petitioners contend that at a minimum FERC should have conducted a hearing to verify the scope and origin of El Paso’s capacity problems.

But “[t]he question ... is not whether record evidence supports [petitioners’] version of events, but whether it supports FERC’s.” Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 368 (D.C.Cir.2003). Admittedly, FERC’s investigation of the mainline curtailments could have been more searching. But its decision does not lack substantial evidence simply because petitioners offered “some contradictory ev[4]*4idence.” Id. We are especially reluctant to second-guess FERC’s findings because many of the present petitioners themselves moved for a summary FERC ruling that El Paso “lacks up to 1.1 Bef of mainline capacity needed to serve ... its existing firm customers.” Motion for Partial Summary Disposition by Texas, New Mexico and Arizona Shippers, at 1. A complaint filed by most of the present petitioners alleged that customers of the El Paso System were experiencing cutbacks due to capacity constraints regardless of the supply basin accessed. That most of the petitioners changed positions suggests, as argued by the joint brief of multiple intervenors in support of FERC, that their real complaint is only against the remedy FERC chose. Joint Brief of Intervenors at 19.

Affidavits from the staff of the petitioner firms, moreover, made clear that remedying the curtailments required that El Paso newly “path[ ]” its system, with receipt, mainline, and delivery point rights allocated “on a fair basis.” Joint Brief of Intervenors at Ex. A (July 12, 2001 Affidavit of Donald C. Lindquist). That is, simply waiting for aberrant events to subside would not suffice. Nor do petitioners persuade us that El Paso improperly withheld capacity. FERC observed, and petitioners did not disprove, that El Paso operated its “dynamic” pipelines at reasonable levels of capacity. July 2003 Order, 104 FERC at 61,158-62, ¶¶ 62-76.

Even assuming some doubt remains regarding the exact scope of El Paso’s mainline curtailments, FERC could reasonably find that petitioners’ contracts posed an unusual threat to the public interest. The problem was what FERC called the “unrestricted growth rights under the FR contracts.” Id. at 61,152, ¶ 30. Whereas El Paso could charge cost-based rates to CD shippers who requested additional capacity to serve increased demand, El Paso was obligated to provide petitioners additional service on demand at rates locked in by the 1996 Settlement and reflecting El Paso’s excess capacity at that time. That excess eroded thanks to intervening changes. Only the CD rates related closely to current conditions, yet the CD shippers were exposed to the curtailments every bit as much as the FR shippers were.

Petitioners respond that CD growth actually outstripped FR growth, and object to FERC’s focus on the latter. But FERC explained its focus on the FR contracts quite logically.

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Related

Phelps Dodge Corp. v. El Paso Corp.
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397 F.3d 952, 365 U.S. App. D.C. 1, 35 Envtl. L. Rep. (Envtl. Law Inst.) 20037, 2005 U.S. App. LEXIS 2225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-corp-commission-v-federal-energy-regulatory-commission-cadc-2005.