Monsanto Company v. Federal Energy Regulatory Commission

963 F.2d 827, 1992 U.S. App. LEXIS 14573
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 26, 1992
Docket91-4399
StatusPublished
Cited by4 cases

This text of 963 F.2d 827 (Monsanto Company v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monsanto Company v. Federal Energy Regulatory Commission, 963 F.2d 827, 1992 U.S. App. LEXIS 14573 (5th Cir. 1992).

Opinion

PER CURIAM:

Petitioner seeks review of the Federal Energy Regulatory Commission’s decision to retain petitioner’s filing fee for a certificate of convenience and necessity. We hold that the Commission had authority to retain the filing fee. We therefore deny the petition.

I.

We summarize only those facts necessary to this petition. A more detailed factual predicate to this controversy is found in our previous decision, Florida Gas Transmission Co. v. FERC, 876 F.2d 42 (5th Cir.1989). In July 1987, the Federal Energy Regulatory Commission (FERC or Commission) authorized Florida Gas Transmission Company to provide interruptible transportation service to petitioner Monsanto Company under section 7(c) of the Natural Gas Act. 40 FERC 11 62,104 (1987). *829 Although Florida Gas had applied for a five-year authorization, FERC acted pursuant to a fixed policy and authorized the transportation service for one year or until Florida Gas accepted a blanket “open access” transportation certificate under 18 C.F.R. § 284.221 (whichever occurs first). Florida Gas appealed the Commission’s standing policy of granting only one-year individual certificates of convenience and necessity. Florida Gas, 876 F.2d 42.

While that appeal was pending before this court, Florida Gas twice renewed its certificate with the Commission. On May 27, 1988, Florida Gas filed an application to renew its service for Monsanto and to increase the volume of gas it was entitled to transport on behalf of Monsanto. The Commission issued the requested certificate on January 17, 1989 with another one-year expiration attached. 46 FERC ¶ 61,-028 (1989). Monsanto does not contest the fee associated with this filing. On April 27, 1989, Florida Gas again applied to renew its certificate to serve Monsanto. Florida Gas paid the required filing fee of $19,450 under protest pending the outcome of its appeal. The Commission granted Florida Gas’s certificate on September 18, 1989, with another one-year limitation. 48 FERC ¶ 62,206 (1989).

About a month before the Commission issued its September 1989 order, our mandate issued in Florida Gas. We vacated the Commission’s application to Florida Gas of its standing one-year limitation policy because it had not “substantiated its policy to limit individual certification to one year in this case.” Florida Gas, 876 F.2d at 44. We remanded the case to the Commission for further consideration in light of our opinion. On December 20, 1989, the Commission issued its order addressing the remand from this court. 49 FERC ¶ 61,375 (1989). In that December 1989 order the Commission attempted to more fully explain why it applied the one-year limitation policy to Florida Gas.

Monsanto intervened in the Florida Gas proceedings because it was contractually obligated to reimburse Florida Gas for all filing fees associated with certificate applications. Florida Gas and Monsanto both appealed to the Commission to reconsider its September 1989 order limiting the certificate to a one-year term in light of our Florida Gas decision. Monsanto also sought a refund of the filing fee associated with the April 1989 application. The Commission denied the appeal and the request for a refund in January 1990. 50 FERC ¶ 61,082 (1990). In March 1991, the Commission denied rehearing of its December 1989 and January 1990 orders. 54 FERC ¶ 61,305 (1991). Monsanto timely appealed to this court.

II.

A.

We briefly address our jurisdiction. FERC contends that the current controversy is moot because Florida Gas accepted a blanket certificate on July 16, 1990. We agree with Monsanto that the issue of refunding application fees is not moot. As FERC itself recognizes, to “invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400, 410 (1990). Monsanto claims that it suffered an injury by virtue of its loss of $19,450 when FERC arbitrarily and capriciously demanded an application fee on April 27, 1989. The fact that Florida Gas has now accepted a blanket certificate means only that no future annual applications are necessary. Such acceptance, however, does not render moot the question of whether FERC was entitled to retain the application fee paid in April 1989. Monsanto’s appeal is not moot, and we now turn to the merits of its petition.

B.

The narrow issue before us is whether Monsanto is entitled to a refund of $19,450 associated with Florida Gas’s April 1989 application for renewal of its certificate. We will reverse FERC’s order refusing to refund Monsanto’s application fee *830 only if that decision is “arbitrary, capricious, or otherwise not in accordance with law.” Florida Gas, 876 F.2d at 44; 5 U.S.C. § 706(2).

Monsanto claims that our decision in Florida Gas vacating FERC’s one-year limitation on individual certificates means that FERC was forbidden from further enforcing its one-year policy and collecting any application fees associated with that policy. FERC responds that it has rehabilitated its term limitation policy and, accordingly, is entitled to retain application fees associated with that policy. We agree with FERC.

We did not hold in Florida Gas that FERC’s policy of one-year limitations on individual certificates could never be applied to Florida Gas. Rather, we held that FERC had deprived Florida Gas of due process by not substantiating its standing policy with respect to Florida Gas. Florida Gas, 876 F.2d at 44, 45. The Commission’s original orders had simply stated that the Commission was applying a standing, prophylactic rule of limiting individual certificates to one-year terms. We held that “FERC must be able to substantiate the general rule” with respect to Florida Gas so that the affected parties might be allowed to challenge the basis of the rule. Id. at 44. We faulted FERC for failing to substantiate “either through the development of specific facts or by making a reasoned explanation.” Id. at 45.

In its December 1989 order, FERC provided a more reasoned explanation of its decision to apply the general policy to Florida Gas. First, the Commission stated that annual review is “particularly appropriate where allegations of undue discrimination have been raised against a company.” 49 FERC ¶ 61,375 at 62,370. The Commission found that such an allegation had been raised by Peoples Gas System Inc. (Peoples), a Florida Gas customer, in December 1986 with respect to service for Monsanto.

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Bluebook (online)
963 F.2d 827, 1992 U.S. App. LEXIS 14573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monsanto-company-v-federal-energy-regulatory-commission-ca5-1992.