South Dakota Public Utilities Commission v. Federal Energy Regulatory Commission

643 F.2d 504, 1981 U.S. App. LEXIS 19592
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 5, 1981
DocketNo. 79-2020
StatusPublished
Cited by4 cases

This text of 643 F.2d 504 (South Dakota Public Utilities Commission v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Dakota Public Utilities Commission v. Federal Energy Regulatory Commission, 643 F.2d 504, 1981 U.S. App. LEXIS 19592 (8th Cir. 1981).

Opinions

STEPHENSON, Circuit Judge.

This is an appeal of an order entered by the Federal Energy Regulatory Commission (FERC) permitting an accelerated rate of depreciation for certain facilities owned by Northern Natural Gas (Northern). The South Dakota Public Utilities Commission (South Dakota) opposed Northern’s proposed adjustments before the FERC and has appealed its decision. The FERC found that because of dwindling reserves of natural gas, Northern should be allowed to depreciate its equipment over a period shorter than the physical life of the equipment. That is, the FERC decided that the useful life of the pipeline systems would be shorter than the time that normal wear and tear would require abandonment.

South Dakota asserts primarily that the depreciation rates set by the FERC were premised upon baseless estimates of future reserves, that the FERC miscalculated the portion of the predicted future reserves Northern would be able to purchase and, therefore, the FERC decision was inconsistent with the standards imposed by the Natural Gas Act, 15 U.S.C. §§ 717, et seq., and as applied in Memphis Light, Gas and Water Division v. Federal Power Commission, 504 F.2d 225 (D.C.Cir.1974). A secondary issue involves South Dakota’s challenge of the FERC’s decision to take official notice of the record in one of the two related proceedings that were consolidated at the time the FERC issued its order. We affirm the FERC’s decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Northern Natural Gas is a major interstate transporter of natural gas with revenues exceeding a billion dollars per year. Its pipeline network moves natural gas from the producing areas of Texas, Oklahoma and Kansas northward to Nebraska, Iowa, South Dakota, Minnesota and Wisconsin. Northern also owns producing and gathering equipment offshore in the Gulf of Mexico plus an isolated system in Montana and Wyoming. For the purpose of computing depreciation, Northern’s properties are divided into four components, two of which are important here. The first is referred to as the South End supply area. The South End links Northern’s two major supply fields — the Hugoton-Anadarko and the Permian Basin — to the rest of the Northern [507]*507system. The second major component is referred to as the Market Area and consists of the equipment north of the Kansas-Nebraska border.1

The primary issues in the proceedings below were whether the FERC properly estimated the reserves of natural gas in the Hugoton-Anadarko and Permian Basin supply areas, and what share of the estimated reserves Northern would be able to acquire. The relationship of the supply of natural gas and depreciation rates is inversely proportional. The higher the estimates of natural gas supplies, the lower the depreciation rates should tend to be because it is more likely that the pipeline system will be a useful asset throughout its physical life. Conversely, the lower the estimated supplies the higher depreciation rates are called for because the pipeline system may become useless before it has physically deteriorated to the point where abandonment would be required. For example, in this case, under the FERC staff’s estimates, Northern’s facilities will be useful until approximately the year 2000. However, the physical life of the equipment will not end until about tóle year 2011. In these circumstances, the FERC concluded, an increased rate of depreciation was appropriate. Therefore, the gravamen of this litigation, and the subject of nearly 7000 pages in this voluminous record, is how much natural gas is awaiting discovery in the Hugoton-Anadarko and Permian Basin fields, and how much of that supply will Northern be able to buy.

The FERC2 order approved settlement agreements in two related rate cases filed by Northern. The first, RP 76-89, was filed in April 1976. The second, RP 77-56, was filed about a year later, while the earlier case was still pending. Both were requests for general rate increases that eventually were narrowed to the single issue of proper rates of depreciation.3

Negotiations between the FPC and Northern in RP 76-89 began in August 1976. Thirty-one petitions for leave to intervene were granted; the bulk of these represented Northern’s customers which are local utility companies. Several state regulatory agencies were also represented including the South Dakota Public Utilities Commission and the Iowa State Commerce [508]*508Commission. The FPC and Northern reached an agreement in October 1976, setting the composite depreciation rate at 4.48 percent. South Dakota filed adverse comments on the settlement proposal. The FPC rejected its arguments but on application for rehearing the FPC reversed itself finding that the settlement was not supported by substantial evidence and remanded the case to the presiding administrative law judge for a hearing on the depreciation rates. A three-day hearing was held in January and February 1978. In June, ALJ Benkin issued a decision finding that neither the settlement rates nor those proposed by South Dakota were supported by substantial evidence. He therefore held that Northern’s pre-existing rates would remain in effect.

Meanwhile RP 77-56 had reached a similar stage. Following discussions among Northern and other parties, a settlement was reached which, if approved by the FPC, would resolve all issues. South Dakota again was the only party active in the case which opposed the settlement rates. A hearing was held in April of 1978. The parties agreed to waive the ALJ’s initial decision and upon completion of the hearing, the proposed settlement and the record were certified to the FERC. Thus, the two cases consisting of identical parties and issues were then pending before the FERC which, in August 1979, issued its order consolidating the two dockets and approving the settlement rates. South Dakota made an application for rehearing which was denied. This appeal followed.

II. STANDARDS AND SCOPE OF REVIEW

The Natural Gas Act of 1938 provides the authority and the relevant standards to guide the FERC in its administrative function. Section four of the Act, 15 U.S.C. § 717c, provides that the FERC shall set rates that are “just and reasonable.” Section nine, 15 U.S.C. § 717h, gives the FERC the authority to determine “proper and adequate rates of depreciation” for natural gas companies within its jurisdiction. Section four modifies section nine in the sense that depreciation rates in order to be proper must be just and reasonable. See Memphis Light, Gas and Water Division v. Federal Power Commission, supra, 504 F.2d at 230 n.19. As these standards suggest, the FERC has been given the difficult job of balancing diverging interests: an excessive rate of depreciation would place a heavy burden on the ratepayers while an inadequate rate would be unfair to the company.

It is clear that by statute and case law the FERC has been granted wide latitude to use its expertise in the application of these vague standards to practical problems. Section 19(b) of the Natural Gas Act, 15 U.S.C.

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643 F.2d 504, 1981 U.S. App. LEXIS 19592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-dakota-public-utilities-commission-v-federal-energy-regulatory-ca8-1981.