Martin Exploration Management Co. v. Federal Energy Regulatory Commission

813 F.2d 1059
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 9, 1987
DocketNos. 84-2756, 84-2759, 84-2760, 85-1172, 85-1250, 85-1254, 85-1257, 85-1443, 85-1452, 85-1255 and 85-1256
StatusPublished
Cited by9 cases

This text of 813 F.2d 1059 (Martin Exploration Management Co. v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin Exploration Management Co. v. Federal Energy Regulatory Commission, 813 F.2d 1059 (10th Cir. 1987).

Opinion

TACHA, Circuit Judge.

This appeal presents challenges by natural gas producers to the Federal Energy Regulatory Commission (FERC) orders interpreting the statutory mandate in § 121 of the Natural Gas Policy Act of 1978 (NGPA), 15 U.S.C. § 3331, to deregulate certain natural gas prices. For the reasons set forth in this opinion, we affirm the FERC orders in part and reverse in part.

I.

The NGPA “comprehensively and dramatically changed the method of pricing natural gas produced in the United States.” Public Serv. Comm’n., New York v. Mid-Louisiana Gas Co., 463 U.S. 319, 320, 103 S.Ct. 3024, 3026, 77 L.Ed.2d 668 (1983). The purposes of these changes “are rooted in the history of federal natural gas regulation before 1978.” Id. at 327, 103 S.Ct. at 3029. We therefore begin by examining the history of federal regulation of natural gas prices and the context in which the Ninety-Fifth Congress adopted the NGPA in 1978.

The first federal regulation of interstate sales of natural gas occurred with the passage of the Natural Gas Act of 1938 (NGA), Pub.L. No. 75-688, 52 Stat. 821 (codified as amended at 15 U.S.C. §§ 717-717w (1976)). “The NGA was enacted in response to reports suggesting that the monopoly power of interstate pipelines was harming consumer welfare.” Mid-Louisiana Gas Co., 463 U.S. at 327, 103 S.Ct. at 3029 (footnote omitted). State efforts to combat this problem had failed because they were found to be unconstitutional restrictions on interstate commerce. E.g., Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027 (1924). The NGA authorized the Federal Power Commission (FPC)1 to establish such price ceilings for the sale of interstate gas for resale as were “just and reasonable.” 15 U.S.C. § 717c(a). The NGA did not regulate the price of gas sold in intrastate markets.

The FPC struggled to apply this scheme during the next several decades. By the 1970’s, however, it became clear that the existing regulatory structure was inadequate. The federally regulated prices for interstate gas sales remained consistently below the unregulated prices for intrastate gas sales. Natural gas producers found it more profitable to commit most of their supplies to the intrastate market. At the same time, consumer demand for gas in the interstate market was artificially high because of the federally imposed ceiling prices. The result was a serious natural gas shortage in the interstate market. See generally Breyer and MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv.L.Rev. 941 (1973). “The NGA and its regulatory history led to a single, overwhelming conclusion: under NGA regulations the domestic supply of natural gas could no longer meet consumer demands in the interstate [1063]*1063market.” Note, Legislative History of the Natural Gas Policy Act: Title I, 59 Tex.L.Rev. 101, 112 (1980) [hereinafter Note].

Congress repeatedly attempted to remedy this situation during the energy crisis of the 1970’s. After several efforts to restructure the federal regulation of natural gas prices had failed, President Carter addressed the problem in his proposed Natural Energy Act in 1977. The President proposed an extension of price controls to the intrastate sale of natural gas and the establishment of a uniform and incentive-based pricing system for new natural gas. The House passed this proposal substantially unaltered. The Senate, however, was badly divided on the issue. Supporters of the House bill were opposed by supporters of the complete deregulation of natural gas prices. Proponents of deregulation believed that market forces would produce an equilibrium between supply and demand if the price of natural gas was not restricted. After a “pitched legislative battle,” Note at 114, that included several filibusters, the Senate passed a bill that “would have maintained Natural Gas Act regulation for all gas sold or delivered in interstate commerce before January 1, 1977, and steadily cut back on Commission jurisdiction so that all natural gas sold after January 1, 1982, would have been completely deregulated.” Mid-Louisiana Gas Co., 463 U.S. at 331-32, 103 S.Ct. at 3031-32.

The conference committee approved a compromise measure after months of deliberation. See H.R.Conf.Rep. No. 95-1752, 95th Cong., 2d Sess. [hereinafter Conf. Rep.], reprinted in 1978 U.S.Code Cong. & Admin.News 8983-9041. The committee bill did not adopt either the uniform regulation or the complete deregulation approach in their entirety; rather, the bill was the “careful reconciliation of two strong, but divergent, responses to the natural gas shortage.” Mid-Louisiana Gas. Co., 463 U.S. at 331, 103 S.Ct. at 3031. The conference bill was approved by both houses of Congress and signed into law by President Carter on November 9, 1978.

II.

The NGPA adopted new means to achieve the traditional purposes of the federal regulation of natural gas prices. “The aim of federal regulation remains to assure adequate supplies of natural gas at fair prices, but the NGPA reflects a congressional belief that a new system of natural gas pricing was needed to balance supply and demand.” Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Board of Mississippi, 474 U.S. 409, 106 S.Ct. 709, 716, 88 L.Ed.2d 732 (1986). The resulting pricing system is an intricate balance of uniform price ceilings, incentive prices, and partial phased deregulation.

The statutory scheme established by the NGPA divides natural gas production into numerous categories that are distinguished by the date that production began from a well or the particular type of drilling involved. Gas in these categories can be broadly classified as “old” gas, “new” gas, or difficult to produce gas. “Old” gas is generally that produced from wells that had been operating before the passage of the NGPA. See NGPA § 104, 15 U.S.C. § 3314 (sales of natural gas dedicated to interstate commerce at the time of the passage of the NGPA); NGPA § 105, 15 U.S.C. § 3315 (sales of gas under intrastate contracts existing at the time of the passage of the NGPA); NGPA § 106, 15 U.S.C. § 3316 (sale of gas under rollover contracts). “New” gas is generally that produced from wells that began production after the passage of the NGPA. See NGPA § 102, 15 U.S.C. § 3312 (sale of gas from new Outer Continental Shelf leases, new onshore wells, or new onshore reservoirs); NGPA § 103, 15 U.S.C. § 3313

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