Exxon Pipeline Co. v. United States

725 F.2d 1467, 233 U.S. App. D.C. 361

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 27, 1984
• Docket: Nos. 83-1299, 83-1626
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Opinion concurring in the result filed by Circuit Judge J. SKELLY WRIGHT.

HARRY T. EDWARDS, Circuit Judge:

This case requires us to consider again the proper scope of judicial review of decisions by the Federal Energy Regulatory Commission (“FERC” or “Commission”) concerning the reasons given to justify oil pipeline rate suspensions. On March 18, 1983, FERC issued an order suspending for seven months a proposed rate filed by Exxon Pipeline Company for the Trans Alaska Pipeline System (“TAPS”). A seven-month suspension is the maximum period permitted by the Interstate Commerce Act.¹ On March 31,1983, FERC issued a similar order suspending the effective date of a proposed rate filed by BP Pipelines Inc. (“BP”), also for seven months. In this consolidated action, Exxon and BP challenge the adequacy of the reasons provided by the Commission for the length of the suspensions.² We conclude that, under the very narrow standard of review set out below, FERC has articulated adequate reasons to withstand further judicial intervention. Accordingly, we affirm.

I. Background

The Trans Alaska Pipeline System carries crude oil from producing fields in Alaska to a marine terminal on the Pacific coast of the state. Exxon and BP are two of eight oil companies that hold an undivided interest in TAPS facilities. Each owner files with FERC its own proposed rate for transportation of crude oil through its share of the total capacity.

On February 17, 1983, Exxon filed FERC Tariff No. 268 to increase its tariff by 97 cents, from $5.30 per barrel to $6.27 per barrel, with a proposed effective date of March 19, 1983. On March 7, 1983, the State of Alaska, an intervenor in this action, filed with FERC a protest and petition for a seven-month suspension and an investigation, as authorized by section 15(7) of the Interstate Commerce Act. Alaska argued, inter alia, that the rate was unjust and unreasonable, in violation of section 1(5) of the Act.³ Exxon responded that the tariff was just and reasonable and that, in any event, a one-day rather than a seven-month suspension would be consistent with established FERC policy. It cited the Commission’s decision in Buckeye Pipe Line Co., 13 FERC (CCH) ¶ 61,267 (Dec. 24, 1980), which announced a FERC policy of suspending oil pipeline rates for one day only.

On March 18, 1983, one day before the proposed effective date of the tariff, FERC issued its order suspending the rate for seven months and instituting a formal investigation.⁴ The FERC order explained that the rate had “not been shown to be just and reasonable, and may be unjust, unreasonable, unduly discriminatory or otherwise unlawful,” 22 FERC (CCH) at 61,-569, and that it would therefore be suspended. Addressing the length of suspension, the Commission acknowledged its established policy that oil pipeline rates generally should be suspended for one day only, absent extraordinary circumstances. But, it continued,

[s]uch circumstances are presented here because the rate increase by Exxon could have a detrimental impact on the citizens of Alaska. This is because a higher TAPS transportation rate results in a lower wellhead price paid to the producer, which in turn means a lower royalty payment to the State of Alaska. We will therefore exercise our discretion and suspend the filing for seven months, or until October 19, 1983, at which time it will be allowed to go into effect subject to refund.

22 FERC (CCH) at 61,569.

BP’s tariff increase effort followed a similar course. On March 2, 1983, BP filed FERC Tariff No. 4 to increase its TAPS rates,⁵ with a proposed effective date of April 1, 1983. The State of Alaska then filed a protest and petition for suspension. On March 31, 1983, one day before the proposed effective date, FERC issued an order suspending the new rates for seven months and instituting an investigation.⁶ As it had done in the Exxon case, FERC referred to the detrimental impact that the new rates might have on the citizens of Alaska to justify the length of the suspension. 22 FERC (CCH) at 61,633.

In this action, Exxon and BP do not challenge the FERC decisions to suspend the proposed tariffs for some period; nor do they contest the decisions to institute investigations. Rather, their challenges focus on the reasons given for the length of the suspensions, and the alleged failure by FERC to explain adequately why the Buckeye one-day suspension rule was not followed.

II. Discussion

A.

We begin our analysis with a brief review of the applicable statutory scheme. Section 15(7) authorizes the Commission to institute a proceeding to determine the lawfulness of a proposed rate. Pending final action in that proceeding, the Commission may suspend the proposed rate for up to seven months beyond the time it would otherwise go into effect by delivering to each affected carrier, and filing with the proposed rate, a statement of reasons for the suspension.

If FERC has not issued a final ruling on the rate at the conclusion of the suspension period, the new rate goes into effect. In that instance, the Commission may require the carrier to account for all amounts received under the new rate. In the event that FERC ultimately finds any part of the increased rate to be in violation of the Interstate Commerce Act, it may require the carrier to refund the appropriate amount, with interest. See 49 U.S.C. § 15(7) (1976). If the proposed rate is determined to be reasonable, the carrier is not reimbursed for money foregone during the suspension period.

Several propositions about the narrow scope of judicial review of Commission actions pursuant to this section are absolutely clear. It is well-established that a court may not review a Commission decision as to whether or not to suspend a rate, at least as long as the agency complies with its statutory obligation to give a reason,⁷ and in no other way oversteps the bounds of its authority. See Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 638 n. 17, 652-53, 98 S.Ct. 2053, 2058 n. 17, 2065-66, 56 L.Ed.2d 591 (1978); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963); Municipal Light Boards v. FPC, 450 F.2d 1341 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). It is less well-established, however, whether a court may review the reasons given by FERC to satisfy either a suspension or its length;⁸ likewise, it is unclear whether a court may or should remand a case to the agency for reconsideration of the reasons where some flaw is perceived in agency decisionmaking. These narrow yet recurring issues are the ones that we confront today.

B.

In addressing these issues, we do not write on a clean slate. As a starting point, we consider a pair of cases in this Circuit that have grappled with judicial review of decisions by FERC concerning the reasons for the length of a suspension, and a pair of Commission decisions that have established policy relevant to the length of suspensions. We recognize that existing precedent in this Circuit is somewhat obscure, primarily because the two leading cases, Connecticut Light & Power Co. v. FERC, 627 F.2d 467 (D.C.Cir.1980), and Delmarva Power & Light Co. v. FERC, 671 F.2d 587 (D.C.Cir.1982), do not sit well together. Our conclusion on the proper scope of review, set out below, is intended to clarify existing case law and enable parties before the Commission, as well as FERC itself, to glean some clear understanding of the potential (and limited) role of the judiciary in these matters.

In Connecticut Light, the electric utility petitioned for review of a FERC order suspending for five months a proposed new rate schedule. Under section 205(e) of the Federal Power Act, as under section 15(7) of the Interstate Commerce Act,⁹ the Commission may suspend rates as long as it gives a statement of reasons. The court considered whether the order provided the requisite statement of reasons, held that it did not, and remanded to the Commission for an accounting of its reasons.

FERC had justified the suspension in Connecticut Light with “boiler plate” language explaining that rates had not been shown to be just and reasonable and might be unjust, unreasonable or otherwise unlawful. The court ruled that the same boiler plate language might justify suspension in every case but certainly would not justify different lengths of suspension:

Of course, indistinguishable rationales for differing results constitute no rationale at all.. .. WHY a five-month suspension is justified instead of one-month — or one day — is within the agency’s knowledge, because it consciously made a decision to impose a five-month or one day suspension. If the agency had no knowledge, standards, or rationale to guide it in making the choice, then its choice was totally arbitrary and must be set aside. If the FERC has standards or a rationale by which it chooses a period of suspension ranging from one day to five months, then the statute commands that they be articulated, so that their reasonableness and application to the individual case can be known, and so that the regulated entities will have some guidance for the future.

627 F.2d at 471. As is apparent from the above-quoted passage, the court rejected the Commission’s assertion that its reasons were unreviewable and held that a court indeed has jurisdiction to determine whether a suspension order complies with the statutory reasons requirement. Id. The court then defined the requirement by stating that the agency must give “reasons for the length of a suspension that fit the fact situation of the relevant case.” Id. at 473 (footnote omitted) (emphasis added). As a result, by declaring that it would consider the applicability of FERC’s reasons to individual cases, the court’s opinion was read by some as opening the door to challenges to Commission suspension decisions.

Connecticut Light also ordered the Coin-mission to establish standards for the exercise of its discretion, either through rule-making or case-by-case adjudication, “to assure that its discretion is not exercised in an arbitrary way and to give guidance to parties filing and challenging rate increases.” Id. FERC responded in Buckeye Pipe Line Co., 13 FERC (CCH) ¶ 61,267 (Dec. 24, 1980), in which it began to articulate' a framework for determining oil pipeline suspension lengths. The Commission observed that previously it had formulated a policy to suspend electric utility and natural gas rates for the maximum period permitted by statute. 13 FERC (CCH) at 61,593-94 & n. 9. It concluded, however, that oil pipeline suspensions probably should be governed by different rules, and that such rates should be suspended for one day only, absent extraordinary circumstances.

The Buckeye decision explained that differences in lengths of suspension were justified by the disparate impacts on consumers of rate increases in three different industries. Electric power and natural gas rate regulation is cost-based, and wholesale rate increases “flow through” to retail bills. Oil pipeline rates represent a small regulated portion of an otherwise vast unregulated whole — oil pricing. Market forces, not regulatory concepts, primarily control prices, and “the pipeline charge does not bulk large in the price of the end product.” 13 FERC (CCH) at 61,594. Thus, electric power and natural gas rate increases as a rule affect consumers more than pipeline rates. At the same time, for reasons noted below,¹⁰ statutory refunds do not sufficiently compensate consumers forced to pay higher rates that later are ruled unreasonable. As a result, pursuant to the decision in Buckeye, in instances where consumers bear the brunt of the increase — as with electric utility and natural gas rates — the enunciated FERC policy was to suspend rates for the maximum period. However, where shippers, not consumers, bear the brunt — as with oil pipelines — the announced FERC policy was to suspend rates for one day only.¹¹

In a second decision, Williams Pipe Line Co., 21 FERC (CCH) ¶ 61,260 (Nov. 30, 1982), appeal pending sub nom. Farmers Union Central Exchange, Inc. v. FERC, Nos. 82-2412 et al. (D.C.Cir.), FERC further refined its general policy on oil pipeline rates and identified TAPS rates as warranting special treatment, in significant part because of the possible impact of pipeline rate increases on Alaska’s revenues. 21 FERC (CCH) at 61,600. FERC noted first that there is almost a total identity of interest between TAPS owners and shippers, and that practically all money paid to TAPS owners is a “wash.” Id. Second, royalties and severance taxes due the State of Alaska are computed on the oil’s value at the wellhead, which is approximately the world market price minus the cost of transportation. The higher the pipeline charge, the lower the state’s revenues. The shippers therefore have an interest in paying themselves as much as possible for pipeline transit. “Every time they shift a dollar from one pocket to the other in order to pay themselves for shipping their own oil over their own pipeline they save 27.5 cents in royalties and severance taxes that would otherwise fall into Alaska’s coffers.” Id. at 61,691-92 n. 229.

As these cases make apparent, FERC heeded the admonition of Connecticut Light and began to formulate FERC suspension length policy on a case-by-case basis. In the meantime, this court revisited the issue of judicial review. In Delmarva Power & Light Co. v. FERC, 671 F.2d 587 (D.C.Cir.1982), we cut back on any broad reading of Connecticut Light’s assertions of reviewability. This court held unreviewable a maximum-length FERC suspension, accompanied by reasons, against a challenge of illogic and inconsistency, explaining that “the length of a rate suspension is a decision utterly inappropriate for judicial review and manifestly within the agency’s province.” 671 F.2d at 594. Judge Wilkey, who also authored Connecticut Light, concluded:

It is one thing to require that a rationale be given [as Connecticut Light had required], it is something else to examine the merits of the rationale so expressed. At oral argument Delmarva claimed that the reasons given by FERC were illogical and inconsistent, and that giving illogical and inconsistent reasons was tantamount to giving no reasons at all. However, we cannot see how reviewing the consistency and logic of an order is anything but reviewing its merits.

Id. at 595. Delmarva is peppered with broad language about the unreviewability of all aspects of a suspension decision, including the reasons given for its length. In direct contrast to Connecticut Light, it implies that a court’s review must halt if any reason at all is offered for the suspension and its length. One inference that might be drawn from Delmarva is that FERC may suspend for seven months on sunny days and one month on cloudy days and, offering those weather-related reasons alone, be immune from review. Indeed, that is one reading respondents apparently urge upon us. However, Delmarva nowhere articulates what reasons FERC had given in that case. The actual holding of the case therefore left unanswered precisely what degree of fact-specificity and rationality will suffice to preclude further review.

We today reject any suggestion of absolute unreviewability, as has another panel of this court in reconciling Connecticut Light and Delmarva. See Southern California Edison Co. v. FERC, 686 F.2d 43, 46 (D.C.Cir.1982) (review is permissible to assure reasons satisfy Connecticut Light; if they do, the suspension decision itself is unreviewable). We believe Connecticut Light was something of an aberration, and that it authorized a more probing review of the merits of a suspension decision than is appropriate. Realizing that it perhaps enabled reviewing courts to penetrate too far into the merits of FERC suspension decisions, we attempted in Delmarva to cut back on Connecticut Light. We did not intend in Delmarva, as we do not here, to say that the decision to suspend a rate for a given length of time is wholly unreviewable. Nonetheless, we emphasize that our rejection of that reading of Delmarva in no respect widens the narrow scope of review we carve out today.

C.

The statute imposes on FERC an obligation to state reasons for a suspension and for the length of the suspension. We think it is nonsensical'to construe this requirement as permitting FERC to state reasons that have nothing whatsoever to do either with its ultimate inquiry into the reasonableness of the rate or with its interim concern, expressed in Buckeye, for persons or entities irrevocably harmed by the institution of a new rate. We therefore hold that the reasons given must pass a minimal threshold test. They must in some way be related to FERC’s interim or ultimate inquiries. We will not, however, take the next step and review the merits of a given case. For us to intrude at the suspension stage would disrupt the Commission’s regulatory function, by forcing a consideration of the reasonableness of a proposed rate prior to a final FERC ruling on that very question.

It is clear that the requirement of a statement of reasons is far from a frivolous adornment to the statute. Such a requirement has a rationale of its own, quite separate from facilitating judicial review on the merits. This point was emphasized by the Supreme Court in another context, in Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975) (considering the scope of review of Labor Secretary’s decision not to bring a civil action to set aside a union election). In so doing, the Court noted that a “reasons” requirement promotes thought by the decisionmaker and “compels him to cover the relevant points and eschew irrelevancies.” Id. at 572, 95 S.Ct. at 1860. Thus, a statement of reasons, “almost essential if there is to be judicial review, is desirable on many other grounds. The necessity for justification is a powerful preventive of wrong decisions.... A statement of reasons may even make a decision somewhat more acceptable to a losing claimant.” Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1292 (1975) (footnotes omitted). With these considerations in mind, we conclude, as did the Supreme Court in Dunlop, that “a statement of reasons must be adequate to enable the court to determine whether the [Commission’s] decision was reached for an impermissible reason or for no reason at all.” 421 U.S. at 573, 95 S.Ct. at 1860.

We note also that, in the particular context that we confront, a reasons requirement plays an additional role. In Connecticut Light, we explained that reasons provided by FERC give guidance to carriers. 627 F.2d at 471. They enable carriers to predict, on the basis of past explanations, how long a suspension they face, thereby permitting them to target an effective date for a new rate, and to file the new rate with the agency in time for it to become effective when needed. Particularly in light of these recognized practical and theoretical rationales for a reasons requirement, we conclude that a court’s review should extend as far as — but no farther than — -an examination of the reasons to assure they are in some way relevant to FERC’s statutory inquiries.

D.

To illustrate the limited scope of this review, we now consider the rate suspensions at issue in this case. In particular, we address petitioners’ assertion that FERC’s concern about the impact of a new rate on Alaska’s citizens is not an acceptable reason to suspend the rate for the maximum period. We disagree. Petitioners apparently claim that the reason is not acceptable because it could not be determinative in FERC’s ultímate decision on the reasonableness of the rate. That may be true. But we also know that FERC’s consideration of the rate’s impact on Alaska’s coffers is not wholly irrelevant to FERC’s ultimate decision.¹² FERC has explained the relationship between that reason and its inquiry, see Order, supra note 4, 22 FERC (CCH) at 61,569, and we have no reason to doubt that explanation. The reason therefore suffices.

E.

As we observed in Connecticut Light, and as we reaffirm today, FERC has broad, authority to determine its policy on the length of suspensions either through rulemaking or case-by-case adjudication. As a result, in the vast majority of cases a reviewing court’s inquiry will end if reasons given pass the threshold test of relatedness. For now, we can identify only two possible situations in which we believe an appellate court might appropriately remand to FERC for further articulation of reasons even after the reasons offered have passed the threshold test set out above.

First, if we were faced with a situation in which FERC had taken action that was patently arbitrary by imposing two different suspension lengths in cases that were absolutely indistinguishable, and if it had failed to offer even summary reasons to explain the difference, we believe the reasons would be susceptible to remand.¹³ We do not face such a situation here. For one, these cases are not indistinguishable from a third in which FERC decided differently. Petitioners no doubt would argue that Buckeye fits that bill precisely. However, Buckeye is distinguishable because there FERC did not address TAPS rates. As FERC made clear in its Williams decision, TAPS cases implicate different concerns from most oil pipeline cases and are treated differently. In light of that case, it cannot plausibly be argued that Buckeye is indistinguishable from the Exxon and BP actions.¹⁴

Moreover, even if the cases were sufficiently similar to trigger this second-tier analysis, FERC offered an adequate reason for its treatment of Exxon and BP. The Commission’s reference to the possible detrimental effect of a rate increase on the citizens of Alaska — a concern not present in the Buckeye case — would have sufficed to end our inquiry.

The second situation warranting further consideration of reasons might occur if a FERC action was plainly and absolutely foreclosed by existing rules or past precedent. In that instance, it might be patently unfair to permit the suspension’s length to stand. The facts of the instant case enable us to illustrate the slender opening this exception cuts in the Commission’s discretion. Petitioners argue that Buckeye established a norm — one-day suspensions — and identified two possible exceptions to that norm. Thus, they conclude, FERC is bound to the norm unless one of the exceptions applies. Had FERC engaged in rulemaking, that conclusion might be accurate. However, Buckeye did not establish any FERC policy that was intended to be fixed in concrete. First Buckeye, then Williams, and now these cases sequentially formulate pipeline policies for Alaska. In this ongoing case-by-case process, our role surely is not to inhibit the evolution of agency policy as circumstances change and unforeseen issues arise.

Therefore, while it is true that Buckeye did not specifically forecast the result in this case, that fact is irrelevant. What is important is that Buckeye did not foreclose the Commission’s action here. In other words, nothing in Buckeye promised that a one-day suspension would always be applied without regard to new or changed circumstances that might confront FERC in future cases.

Accordingly, having reviewed FERC’s reasons within the narrow limits set out above, we affirm the two suspension orders before us.

So ordered.

1 .49 U.S.C. § 15(7) (1976). In 1978, the Interstate Commerce Act was recodified as 49 U.S.C. §§ 10101 et seq. As recodified, the Act does not extend to oil pipelines. 49 U.S.C. § 10501(a)(1)(C) (Supp. V 1981). However, § 4(c) of the Recodification Act of 1978, Pub.L. No. 95-473, 92 Stat. 1466, excluded from the general repeal and reenactment transportation of oil by pipeline. We therefore make reference to the Interstate Commerce Act as it stood before recodification.

Until October 1, 1977, oil pipelines were within the jurisdiction of the Interstate Commerce Commission. On that date, jurisdiction over the transportation of oil in interstate commerce by pipeline was transferred to FERC. Department of Energy Organization Act of 1977, Pub.L. No. 95-91, 91 Stat. 565 (codified as amended at 42 U.S.C. §§ 7101-7375 (Supp. V 1981)).

2 . The petitioners also requested that this court terminate the prospective continuation of the suspension orders. Because the orders terminated in October, we need not consider this court’s power to order a rate into effect. Nevertheless, we address the challenge to the reasons FERC offers for the suspension’s length, because the issue is capable of repetition, yet evading review. See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Connecticut Light & Power Co. v. FERC, 627 F.2d 467, 470 (D.C.Cir.1980).

3 . Section 1(5) provides in part:

(a) All charges made for any service rendered or to be rendered in the transportation of passengers or property or in the transmission of intelligence by wire or wireless as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part' thereof is prohibited and declared to be unlawful ....

49 U.S.C. § 1(5) (1976).

4 .Order Accepting for Filing, Suspending Revised Tariff Subject to Refund and Investigation, Exxon Pipeline Company, 22 FERC (CCH) ¶ 61,327 (Mar. 18, 1983) [hereinafter cited as “Order”].

5 . BP had two different rates for crude oil from two different reservoirs, and it submitted, increases for both. It sought to increase Sadlerochit crude oil to $6.20 per barrel, from $5.40, and to increase Kuparuk crude oil to $6.35 from $5.53 per barrel.

6 . Order Accepting for Filing, Suspending Revised Tariff Subject to Refund and Invéstigation, BP Pipelines Inc., 22 FERC (CCH) fl 61,360 (Mar. 31, 1983).

7 . The statute states, in pertinent part, that the Commission

upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, charge, classification, regulation, or practice, but not for a longer period than seven months beyond the time when it would otherwise go into effect.

49 U.S.C. § 15(7) (1976).

8 . In Trans Alaska, the Supreme Court made clear that a statement of a rate’s probable unreasonableness suffices as a reason for the fact of suspension. 436 U.S. at 653, 98 S.Ct. at 2066. This court has also made clear that a statement that a rate might be unreasonable satisfies the requirement as to the fact of suspension. Connecticut Light & Power Co. v. FERC, 627 F.2d 467, 471-72 (D.C.Cir.1980). Since apparently it has been the practice of FERC to include such boiler plate language in all suspension orders, see id. at 471, as it did in the cases before us, see, e.g., Order, supra note 4, 22 FERC (CCH) at 61,569, few challenges are brought to the reasons given for the fact of suspension. As a result, our consideration of the scope of review focuses on reasons given for the length of a suspension.

9 .Under the Federal Power Act, the Commission may suspend new rates up to five months, as compared to the Interstate Commerce Act’s seven-month suspensions. Because the provisions relating to suspension otherwise are virtually identical, courts look for guidance to the case law of each in construing one or the other. See Earth Resources Co. v. FERC, 628 F.2d 234 (D.C.Cir.1980); Papago Tribal Util. Auth. v. FERC, 628 F.2d 235 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980).

10 . FERC offered two reasons for treating consumers differently than shippers. First, the migratory nature of society means some consumers are never fully reimbursed. Second, the statutory-collection-subject-to-refund mechanism works as a forced loan to utilities or carriers, subject to repeated rollover as new rates go into effect conditionally. Id. at 61,-593-94. That shippers of petroleum are not so migratory as consumers, and that they enjoy a different economic status, led the Commission to conclude that shippers could tolerate rates that turn out to be unreasonable more easily than consumers. Id. at 61,594-95. Because revenues foregone during a suspension period are lost forever, the Commission determined that oil pipeline rates should be suspended for the minimum allowable period.

11 . Buckeye also set out two scenarios that might constitute exceptional circumstances warranting full-length suspension of oil pipeline rates. Id. at 61,596. The parties do not assert that either scenario applies in this case.

12 . Nor is the reason irrelevant to FERC’s interim consideration of the lasting effect of new rates later found to be unreasonable. For that reason also it may be cited as a reason.

13 . For example, if a case indistinguishable from this one arises tomorrow, with the same reasons given, and FERC suspends for one day only, the court would have grounds to be concerned.

14 . Petitioners also might argue that FERC’s Order Denying Motions For An Expedited Decision, Trans Alaska Pipeline System, 20 FERC (CCH) ¶ 61,044 (July 12, 1982), in which the Commission stated that Alaska’s financial position did not warrant an expedited decision in a massive TAPS rate case, presents a prior indistinguishable case treated differently. See Brief of Petitioner Exxon, pp. 19-20. We disagree. First, the cases are not indistinguishable: this one involves the suspension of rates, whereas the other involved a procedural request to expedite a proceeding. Second, the earlier order explicitly stated, as the grounds for not expediting, the desire to await the Commission’s Williams decision. Williams, in turn, noted the impact of TAPS rates on Alaska’s coffers.