Public Service Commission of State of New York v. Commission

295 F.2d 140

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 15, 1961
• Docket: Nos. 15366, 15854, 15910
• Status: Published

Opinions

FAHY, Circuit Judge.

These petitions for review of orders of the Federal Power Commission, herein usually referred to as the Commission, involve the effort of the Public Service Commission of the State of New York, herein referred to as PSC, to intervene in three separate proceedings before the Commission.¹ The petitions are filed pursuant to section 19(b) of the Natural Gas Act.²

The Commission proceedings were on applications filed by independent producers of natural gas for certificates of public convenience and necessity to sell natural gas for transportation and resale in interstate commerce under section 7 (e) and (e) of the Natural Gas Act.³ None of the gas was to come into New York State, but in denying intervention the Commission assumed the truth of PSC’s allegations that the fields from which the gas originates, namely, Texas Railroad Districts 2, 3 and 4 and the southern Louisiana fields, are important sources of supply for the three pipelines serving New York. It is the position of PSC that the price of the New York gas would be affected by the price authorized to be charged in the certificates applied for.

In each proceeding PSC filed a notice of intervention, the principal part of which reads as follows:

“Notice of Intervention

“The Public Service Commission of the State of New York, a regulatory body of the State of New York having jurisdiction to regulate rates and charges for the sale of natural gas within said State, hereby gives notice that it intervenes in these proceedings.”

The denial of intervention in each case was followed by petition to the Commission for reconsideration, and after its denial timely petition to this court for review.⁴

The position of the Commission is that PSC was entitled to intervene only upon showing an interest over and above that evidenced by the filing of a notice of intervention, and that it failed to make such a showing. The Commission relies primarily upon the decision of this court in Memphis Light, Gas & Water Div. v. Federal Power Comm., 100 U.S.App.D.C. 205, 243 F.2d 628. That case, however, arose on petition of a private company to intervene. Upon consideration of the provisions of the Act and the rules governing intervention by private interests this court held the Commission had not erred in denying intervention. It was not necessary to consider the rules governing intervention of state regulatory commissions. The reason for the Commission’s relianee in the present ease upon Memphis is unclear to us.

The statutory provisions governing intervention are in section 15(a) and (b) of the Natural Gas Act:

“(a) * * * In any proceeding before it, the Commission in accordance with such rules and regulations as it may prescribe, may admit as a party any interested State, State commission, municipality or any representative of interested consumers or security holders, or any competitor of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest.

“(b) All hearings, investigations, and proceedings under this Act shall be governed by rules of practice and procedure to be adopted by the Commission * * *.”⁵

The Act is thus phrased in permissive terms. The permission, however, is to be controlled by such “rules and regulations as it [the Commission] may prescribe.” All hearings, investigations and proceedings are to be governed by “rules of practice and procedure to be adopted by the Commission.” The cases before us naturally are governed by the Commission rules. They were first published in the Federal Register in 1947 and provide as follows:

Ҥ 1.8 Intervention

“(a) Initiation of intervention. Participation in a proceeding as an intervener may be initiated as follows:

“(1) By the filing of a notice of intervention by a State Commission, including any regulatory body of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy, or natural gas, as the case may be, to consumers within the intervening State or municipality.” ⁶

We read this language as meaning what it says; it grants permission to a State Commission to participate as intervener by filing a notice of intervention. No application to be acted on by the Commission is required. A State Commission initiates its own participation as intervener in behalf of consumers within the “intervening State.” This appears not only from the language of section 1.8(a) (1) but by contrasting with it the provisions immediately following in section 1.8(a) (2), governing intervention of parties other than State Commissions. Such parties may intervene only on “order of the Commission upon petition to intervene.” The order is to be sought on petition filed “by any person claiming a right to intervene or an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought.” Provision is made for answer to the petition, and the Commission in due course will grant or deny the petition, in whole or in part, or may authorize limited participation. Under these detailed provisions the petitions are required to be acted upon one way or another by the Commission. This is in sharp contrast with the rules applicable to a State Commission. There is no requirement of a petition to intervene, or answer thereto or action thereon by the Federal Commission granting a petition in whole or in part or allowing limited participation. Intervener status is acquired by the filing of a notice of intervention. And insofar as we are advised the Commission never, prior to our Memphis decision, sought to apply its rules to require a State Commission, in order to intervene, to do more than file a notice of intervention. This approach to the matter no doubt emanated from the Commission’s faith that public service commissions, public bodies with public responsibilities, would not abuse the right granted.

The difference between public and private parties in the method of obtaining intervener status is emphasized by the “Definition” of “Interveners” contained in the Commission’s rules, which reads:

“Persons petitioning to intervene as provided by § 1.8, when admitted as a participant to a proceeding, and State Commissions giving notice of intervention as provided in said section, are styled interveners.” ⁷

This provision again makes clear that in the case of a State Commission intervener status is acquired by filing a notice of intervention, whereas others become interveners on petition “when admitted as a participant to a proceeding.”

The section of the rules adopted to carry out the policy of the Act authorizing cooperation between the Federal Commission and State Commissions is also pertinent.⁸ These rules, in detailed fashion, exemplify the Commission’s desire to make effective the solicitude of Congress for cooperation between State Commissions and the Federal agency. These rules are under the heading of cooperation, not of intervention, but the very last subdivision provides:

“(f) Intervention by State commissions. Any interested State commission may, as a matter of right, intervene in any proceeding before the Federal Power Commission, as provided in § 1.8.” ⁹

The “interested State commission” thus referred to is a State Commission interested in utilizing the cooperative procedures of the Act. Such a State Commission may intervene as of right, as provided in section 1.8, that is, by filing a notice of intervention. No petition for intervention or action thereon is required.

We are cited to no instance of abuse of the right. Indeed, the present position of the Commission, as we have suggested, seems to have been due to a misinterpretation of the Memphis decision, which dealt with the effort of a private party to intervene under the provisions of section 1.8(a) (2).

The essence of the matter is that under the present rules the interest of a State Commission in intervening is shown when it files a notice of intervention, whereas the interest of a non-pub-lie entity must be established on petition to the Commission for permission to intervene under the procedures of section 1.8(a) (2) and 1.8(b), eventuating in an order of the Commission. Whether or not experience has shown that the right granted to a State Commission should be subject to controls similar to those applicable to others is not for us to decide, for the present cases are governed by the present rules. Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365; Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L.Ed.2d 1012; Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 629, 70 S.Ct. 392, 94 L.Ed. 393; McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 321, 226 F.2d 35, 43.

The orders under review will be set aside and the cases remanded for such further proceedings as are not inconsistent with this opinion.¹⁰

It is so ordered.

1 . In our No. 15366, entitled before the Commission, Texas Illinois Natural Gas Pipeline Co., et al., five independent producers of natural gas (Shell, Hargrave, Sunray, Union, and Bettis & Shepard) and one gas gathering company (South Texas) sought FPC certificates of public convenience and necessity authorizing sales of natural gas for resale in interstate commerce. The natural gas involved was to be produced, sold and delivered to the ultimate purchaser, Texas Illinois, within Railroad District 4 in Texas, and then transported in Texas, Arkansas, Missouri and Illinois for ultimate consumption in the Chicago area.

In our No. 15854, entitled before the Commission, Peoples Gulf Coast Natural Gas Pipeline Co. et al., Peoples requested additional authority for the construction of pipeline facilities and seven independent producers requested FPC certificates of public convenience and necessity authorizing sales of natural gas to Peoples, an interstate pipeline company serving markets in the State of Illinois. The gas involved in this proceeding was to be gathered in Texas Railroad Districts 2, 3 and 4.

Our No. 15910, entitled before the Commission, Coastal Transmission Corp. et al., involved proposed producer sales of natural gas from Texas Railroad Districts 2, 3 and 4 and also proposed sales from fields in southern Louisiana. The natural gas under consideration was destined for ultimate resale and consumption in Florida.

2 . 52 Stat. 831 (1938), 15 U.S.C. § 717r (b) (1958), 15 U.S.C.A. § 717r(b).

3 . 56 Stat. 83, 84 (1942), 15 U.S.C. § 717f (c, e) (1958), 15 U.S.C.A. § 717f (c, e).

4 . In No. 15366 the notice of intervention was filed March 16, 1959. On March 26, 1959, the Commission issued an order denying intervention pending further order but granting limited participation to permit PSC to show the interest on which it based its claim to intervene. PSC’s application to the Commission for subpoenas to enable it to show that interest, as it claimed, was denied April 27, 1959. PSO timely applied for reconsideration, which was denied July 16, 1959, followed by petition for review filed with this court September 14, 1959. In its application for subpoenas and for reconsideration PSO consistently maintained that it acquired intervenor status by the filing of the notice of intervention. In No. 15854 the PSO filed notice of intervention on February 10, 1960. The Power Commission on March 21, 1960, issued an order denying intervention, followed April 20, 1960, by PSO’s application for rehearing and reconsideration. This was denied May 5, 1960, and PSO’s petition for review was filed with this court July 1, 1960. In No. 15910 PSO filed its notice of intervention December 31, 1959. The Commission on March 31, 1960, issued an order denying participation by PSO as an intervenor. PSO applied on May 2, 1960, for rehearing and reconsideration, which was denied May 31, 1960, followed by petition to this court for review filed July 29, 1960.

5 . 52 Stat. 829 (1938), 15 U.S.C. § 717n(a, b) (1958), 15 U.S.O.A. § 717n(a, b).

6 . 18 C.F.R. § 1.8 (1949).

7 . 18 C.F.R. § 1.1(f) (13) (1949). The “Definition” continues: “Admission as an intervener shall not be construed as recognition by the Commission that such intervener might be aggrieved by any order of the Commission in such proceeding.” This has no bearing on who is an intervener before the Commission, or on how intervention is acquired. It has to do with court review of Commission orders.

8 . 18 C.F.R. § 1.37 (1949).

9 . 18 C.F.R. § 1.37(f) (1949).

10 . No. 15366 was before this court in Public Service Comm, of State of New York v. Federal Power Comm., 109 U.S. App.D.C. 66, 284 F.2d 200, where it was held that PSC’s right of review was limited to review of the order denying intervention notwithstanding the Commission proceedings had eventuated in a final deeision on the merits. Compare Virginia Petroleum Job. Ass’n v. Federal Power Comm., 104 U.S.App.D.C. 106, 259 F.2d 921. We consider this earlier decision as the law of the case insofar at least as No. 15366 is concerned. Moreover, none of the parties to No. 15366 or to Nos. 15854 or 15910, all consolidated, now press any question as to the correctness of the previous decision in No. 15366.