Public Service Commission v. Federal Energy Regulatory Commission

642 F.2d 1335, 206 U.S. App. D.C. 367, 1980 U.S. App. LEXIS 13749
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 24, 1980
DocketNos. 79-2182, 79-2183, 79-2184, 79-2195, 79-2213 and 79-2322
StatusPublished
Cited by2 cases

This text of 642 F.2d 1335 (Public Service 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
Public Service Commission v. Federal Energy Regulatory Commission, 642 F.2d 1335, 206 U.S. App. D.C. 367, 1980 U.S. App. LEXIS 13749 (D.C. Cir. 1980).

Opinion

Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

These direct review proceedings under the Natural Gas Act involve two separate orders entered by the Federal Energy Regulatory Commission (FERC)-the successor agency to the Federal Power Commission (FPC), 42 U.S.C. § 7172(a)(1)(C). One of those orders, reflecting the Commission’s consideration of rate increases filed in 1976 by Transcontinental Gas Pipe Line Corporation (Transco) with the FPC under section 4 of the Act, is challenged in respect of the 14% rate of return on equity allowed by it. The other order, entered by the Commission after a hearing initiated by it under section 5(a) of the Act, is attacked, on both procedural and substantive grounds, for its imposition of a new' basis for allocating Transco’s costs attributable to distance. For the reasons appearing hereinafter, we affirm with respect to the rate of return issue, but set aside the second order relating to cost allocation.1

I

Transco operates a major long-line natural gas pipeline system running from its sources of supply in Texas and Louisiana through the southern and mid-Atlantic states to its terminus in the New York metropolitan area. Its service territory is divided into three sales rate zones: Mississippi, Alabama, and Georgia are in zone 1, the Carolinas, Virginia, and the District of Columbia in zone 2, and Maryland, Delaware, Pennsylvania, New Jersey, and New York in zone 3.

A 1962 settlement between Transco and its customers provided that customers in zone 2 would pay 2.8 cents per thousand cubic feet (Mcf) more than zone 1 customers, and that zone 3 customers would pay 3.6 cents per Mcf more than zone 2 customers. The 1962 settlement and subsequent rate „ settlements incorporating theste cost allocations were approved by the FPC, and the rate differentials have been embodied in Transco’s legally effective rate schedules.

On July 30, 1976, Transco filed with the FPC an application for $81.3 million in higher rates (Docket RP76-136). On December 30, 1976, Transco, in Docket RP7726, proposed an increase in interruptible service rates. No change in the zone rate differentials was proposed by Transco in either of these filings. The FPC consolidated the two petitions. The parties were able to reach a partial settlement on issues not contested here that was approved by the [372]*372Commission on June 27, 1978.2 During the interim, Transco has applied for new rates to take effect on January 1, 1978. This meant that Transco’s 1976 request for a higher rate of return was limited, or locked in, to the eleven months between February 1 and December 31, 1977.3

After a hearing, a FERC administrative law judge issued an initial opinion establishing 14% as a reasonable rate of return on Transco’s equity for the locked-in period.4 The opinion also stated that the zone of reasonableness for this rate lay between 13.5 and 14.3%.5 This initial opinion was adopted by the Commission on August 30, 1979.6 The ALJ relied heavily upon testimony of the Commission’s expert witness, who compared Transco’s risks and rate of return to those of similar investments such as other pipelines and electric utilities. Record at 160-68. Transco’s witness also compared Transco to such investments, but suggested that the Commission’s witness had underestimated the risks facing Transco and concluded that from 16'/2% to 17% would be a more reasonable rate of return. Record at 29-42, 45-51, 473.

Although Transco had not proposed any change in the 1962 zone allocations, the parties found themselves unable to agree on a method of cost allocation during settlement negotiations. Accordingly, the Commission, confronted with a claim that no change in the existing zone differentials could be made in the absence of a finding under section 5(a) of the Act that they were unlawful, ordered a hearing on this question, and, on December 19, 1978, an administrative law judge handed down an initial decision endorsing the 1962 zone differentials.7 However, in Opinion No. 59,8 the Commission rejected the decision and, without having found the existing differentials to be unlawful, ordered cost allocation not by zones but by the Mcf-mile method, which attributes cost according to volume and mileage. The change from zones to Mcf-mile would transfer about $15 million in fixed costs from customers in zones 1 and 2 to those in zone 3.9

The Commission justified its decision by reference to Northern Natural Gas Co., 14 F.P.C. 11 (1955), aff’d sub nom. Interstate Power Co. v. FPC, 236 F.2d 372 (8th Cir. 1956), cert. denied, 352 U.S. 967, 77 S.Ct. 352, 1 L.Ed.2d 321 (1957), where it conclud[373]*373ed that distance was the prime determinant of the cost of transporting natural gas.10 Having decided on that basis that the Mcfmile method was superior to zone allocations, the Commission then. considered whether the cost-shifting effects of the Mcf-mile system should be mitigated because of (1) the historical basis of the Transco system, (2) load concentration and load factor in zone 3, and (3) storage facilities in zone 3 which benefit zone 2 consumers. NYPSC and the zone 3 customers had argued that these factors militated against using the Mcf-mile method.

These parties contend that cost allocations on the Transco system should reflect the fact that the pipeline was built thirty years ago to serve customers in zone 3 and that it would not have been built when it was without those customers. The FERC staff recommended, on this ground, to calculate costs half on the zone method, more favorable to zone 3, and half on the Mcfmile method. Opinion No. 59 at 7.

The Commission chose not to mitigate the 100% mileage cost allocation on this ground because it found that the capacity of the pipeline had increased by a factor of eight or nine since its construction and therefore the historical roots of the Transco system were of little contemporary relevance. Id. at 7. It also commented that it could not impose costs on zone 1 and 2 customers because of factors unrelated to cost. Finally, the Commission observed that the price increase attributable to mileaging in zone 3 would not render Transco’s gas less saleable. Id. at 8-9.

The zone 3 interests also argued that considerations of load concentration and load factor in their zone should be used to lessen the effect of Mcf-mile cost allocation. The pipeline’s ratio of sales in zone 3 to total sales, or load concentration, was 75%, indicating that zone 3 customers accounted for % of Transco’s sales. A high load concentration in zone 3 suggests that the pipeline’s economies of scale, such as the use of larger-diameter pipe, are largely attributable to zone 3 customers. These customers argued that they should receive the benefit of costs avoided mostly through their use of the Transco pipeline. But the Commission declined to modify the Mcfmile method, stating that all zones contribute to economies of scale on the Transco system. Opinion No. 59 at 15.

The Commission likewise did not give any weight to the heavier load factor in zone 3. The load factor, which is the ratio of average daily demand to maximum daily demand,11

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642 F.2d 1335 (D.C. Circuit, 1980)

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Bluebook (online)
642 F.2d 1335, 206 U.S. App. D.C. 367, 1980 U.S. App. LEXIS 13749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-commission-v-federal-energy-regulatory-commission-cadc-1980.