Public Utilities Commission of California v. Federal Energy Regulatory Commission

100 F.3d 1451
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 20, 1996
DocketNos. 95-70611, 95-70917, 96-70104
StatusPublished
Cited by3 cases

This text of 100 F.3d 1451 (Public Utilities Commission of California v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Utilities Commission of California v. Federal Energy Regulatory Commission, 100 F.3d 1451 (9th Cir. 1996).

Opinion

ROBERT E. JONES, District Judge:

The Public Utilities Commission of the State of California (CPUC) and the Pacific Gas and Electric Company (PG & E), plus numerous intervenors, have petitioned for review of the Federal Energy Regulatory Commission’s (FERC’s) determination that it has exclusive jurisdiction, under the federal Natural Gas Act (NGA), 15 U.S.C. §§ 717 et seq., over Mojave Pipeline Company’s application [1456]*1456to expand its existing natural gas facilities in California.

The NGA, administered by FERC, governs the transportation and sale of natural gas in interstate commerce. 15 U.S.C. § 717(b). The Act does not apply to “any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” Id. The NGA also does not apply to persons engaged in certain kinds of interstate transportation of natural gas when all the gas is consumed within the receiving state. 15 U.S.C. § 717(c). FERC has no regulatory jurisdiction in these situations, and instead the appropriate state agency regulates such projects.

If the NGA applies to a natural gas project, section 7 requires the natural gas company to have a FERC-issued certificate of public convenience and necessity. 15 U.S.C. § 717f(c). FERC grants applications for such certificates if it finds:

that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of [the Act] and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise, such application shall be denied.

Id. § 717f(e). FERC can also attach “reasonable terms and conditions as the public convenience and necessity may require.” Id.

Mojave Pipeline is a natural gas company currently operating in California and Arizona. It holds a FERC-issued section 7 certificate of public convenience and necessity to operate approximately 384 miles of natural gas pipeline that have been in service since 1992. On March 17, 1993, Mojave Pipeline applied to FERC for another section 7 certificate to construct its proposed Northward Expansion.

The Northward Expansion would extend Mojave’s existing system approximately 290 miles northward from its East Lateral near Bakersfield, California to Martinez, California. A branch from this line would extend northward approximately 59 miles to a' point just southeast of Sacramento, California. Mojave also would construct approximately 222 miles of high pressure extensions and laterals of varying lengths and diameters that would connect to the receipt facilities of the Northward Expansion shippers.

“Preliminary Determination on Nonenviron-mental Issues,” Mojave Pipeline Co., 69 FERC ¶ 61,244, at 61,918 (Nov. 18, 1994).

The natural gas Mojave Pipeline proposed to transport would “be received from El Paso Natural Gas Company and Transwestern Pipeline Company in Arizona, and [would] be transported across state lines into California.” “Order on Jurisdictional Issue,” Mojave Pipeline Co., 66 FERC ¶ 61,194, at 61,433 (Feb. 15, 1994). However, “except for the additional compression proposed at To-pock, Arizona, all of the proposed facilities and potential customers would be located in California.” Id. at 61,431.

Notices of Mojave Pipeline’s application and its November 1993 amendment to that application were published in the Federal Register. 58 Fed.Reg. 17224 (April 1, 1993); 58 Fed.Reg. 61085 (Nov. 19, 1993). Sixty-nine timely motions and ten late motions to intervene were filed in the .proceeding, all of which FERC granted.

CPUC and PG & E, as intervenors, protested Mojave Pipeline’s proposal on several grounds but argued in particular that CPUC, not FERC, had jurisdiction over Mojave Pipeline’s proposed expansion. FERC found that it had exclusive jurisdiction over the proposal. “Order on Jurisdictional Issue,” 66 FERC at 61,440-41. CPUC and PG & E submitted timely requests for rehearing, which FERC denied. “Order Issuing Certificate, Ruling on Deferred Issues, Denying Rehearing arid Reconsideration and Granting and Denying Clarification,” Mojave Pipeline Co., 72 FERC ¶ 61,167, at *25 (Aug. 4, 1995) [hereinafter Final Order]. In the same order, FERC issued a NGA section 7 certificate of public convenience and necessity to Mojave Pipeline, authorizing it to construct [1457]*1457and operate its Northward Expansion. Id. at *24. PG & E filed a timely request for rehearing of the Final Order, which FERC denied. “Order Denying Rehearing and Clarifying Prior Order,” Mojave Pipeline Co., 73 FERC ¶ 61,300, at *17 (Dec. 13, 1996).

The NGA allows a person aggrieved by FERC’s orders to petition the court of appeals for any circuit “wherein the natural-gas company to which the order relates is located or has its principal place of business” for review within 60 days after FERC has issued an order addressing that person’s petition for rehearing. 15 U.S.C. § 717r(b). CPUC filed timely petitions for review of FERC’s Final Order and “Order on Jurisdictional Issue” (No. 95-70611) and of FERC’s “Order Denying Rehearing and Clarifying Prior Order” (No. 96-70104). PG & E filed a timely petition for review of FERC’s “Order Denying Rehearing and Clarifying Prior Order” and also for review of the Final Order and Order on Jurisdictional Issue (No. 95-70917). Therefore, jurisdiction over these cases is proper in this court.

Since these appeals were filed, however, Mojave Pipeline has refused the certificate of convenience and necessity that FERC issued to it for the Northward Expansion. As a result, this court now dismisses these appeals as moot, grants FERC leave to vacate all of its orders regarding Mojave Pipeline’s application, and remands to FERC with instructions that the Mojave Pipeline application proceeding be entirely dismissed.

DISCUSSION

I. PENDING MOTIONS

A. Transfer to the D.C. Circuit

After these appeals were filed and briefing was completed, Mojave Pipeline moved to transfer this ease to the D.C. Circuit. However, Mojave Pipeline later requested that it be allowed to withdraw that motion to transfer. This court granted that request and hence need not address the propriety of retaining these cases in the Ninth Circuit.

B. Process Gas Consumers Group’s Motion to Dismiss

While these appeals were pending, Mojave Pipeline notified FERC that it declined to accept the certificate of public convenience and necessity issued to it in FERC’s Final Order.

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