Utility Users League and Nickolas L. Barnes v. Federal Power Commission, Commonwealth Edison Company, Intervenor

394 F.2d 16
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 28, 1968
Docket16164
StatusPublished
Cited by8 cases

This text of 394 F.2d 16 (Utility Users League and Nickolas L. Barnes v. Federal Power Commission, Commonwealth Edison Company, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Utility Users League and Nickolas L. Barnes v. Federal Power Commission, Commonwealth Edison Company, Intervenor, 394 F.2d 16 (7th Cir. 1968).

Opinions

HASTINGS, Chief Judge.

This is a petition for review of the Respondent Federal Power Commission’s order of December 2, 1966 approving the merger of Central Illinois Electric and Gas Company (Central) into Respondent-Intervenor Commonwealth Edison Company (Edison). Petitioners are Utility Users League and Nickolas L. Barnes, an Edison customer. The Utility Users League, according to the allegations in its petition to intervene before the Commission, is “a not-for-profit association of utility users including customers of Commonwealth Edison Company.” Edison and Central are public utilities incorporated and operating in Illinois.

Prior to merger Edison provided electric energy for a service area of 11,000 square miles having a population in excess of 7,000,000. It had 2,272,700 customers in its service area, which contained the City of Chicago and its suburbs. The net value of its plant on December 12, 1965 was $1,788,082,518, and its annual operating revenue was $589,-315,479. Edison operated twelve steam generating stations having a net capability of 7,764,000 kilowatts.

Central furnished electricity, gas, and minor amounts of water and steam heat in five non-contiguous territories in Illinois. The largest of these territories was the Rockford division, which contained 78% of Central’s 94,468 electric customers and 81% of its 87,227 gas customers. That territory was surrounded on three sides by Edison’s service area. On December 31, 1965 Central’s net utility plant was valued at $91,681,655 (of which $56,422,122 was allocated to electric plant and $33,761,799 was allocated to gas plant) and its annual operating revenue was $40,533,403 (of which $22,951,829 was electric revenue and $17,126,436 was gas revenue). Central’s two generating stations had a capability of 239,500 kilowatts. In the five years ending with 1965, Central’s electricity sales increased at a compound annual rate of 7.8 percent. Its estimated 1966 peak load was 210,000 kilowatts.

Edison and Central filed a joint application for approval of their plan of merger on March 2, 1966 pursuant to § 203(a) of the Public Power Act, 16 U.S. C.A. § 824b(a). Petitioners filed their petition to intervene on April 7, 1966. Their petition and that of the City of Rockford were granted on July 6, 1966. Hearings were held between July 11 and July 20,1966. Petitioners did not appear at those hearings, but were permitted to submit written interrogatories. The Commission’s order and opinion approving the merger were filed on December 2, 1966. On January 30, 1967, the Commission denied petitioners’ petition for rehearing filed January 3, 1967.

In its opinion the Commission considered the reasonableness of the purchase price, the accounting treatment, the economic effect of the merger, its voluntariness and its effect on competition. The Commission concluded that the merger was consistent with the public interest, as required by 16 U.S.C.A. § 824b(a). It retained jurisdiction for future decision on Edison’s operation of Central’s gas and non-contiguous electric properties.

In their petition for review petitioners challenge the Commission’s order on several grounds. They contend that the Commission failed to give adequate con[19]*19sideration to the anti-competitive effects of the merger, that the applicants failed to make an adequate record, that the merger violates the Public Utility Holding Company Act § 11(b)(1), 15 U.S. C.A. § 79k, that the purchase price was excessive, and, generally, that the merger is not “consistent with the public interest.” See, 16 U.S.C.A. § 824b(a).

We are without jurisdiction to entertain this petition unless petitioners are parties “aggrieved by an order issued by the Commission.” 16 U.S.C.A. § 825i(b). Similar limitations on the right to obtain judicial review are contained in other federal regulatory statutes. See, e. g., Natural Gas Act, 15 U.S.C.A. § 717r(b); Communications Act, 47 U.S.C.A. § 402 (b) (6).

The term “aggrieved party” has long eluded precise definition, and, as the Supreme Court has noted, its meaning “is in any event more or less determined by the specific circumstances of individual situations.” United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 156, 73 S.Ct. 609, 612, 97 L.Ed. 918 (1953). Clearly, a petitioner for review need not show injury to a personal economic interest. Scenic Hudson Preservation Conference v. Federal Power Commission, 2 Cir., 354 F.2d 608, 615 (1965).

A party seeking judicial review cannot rest on the mere allegation that he is “aggrieved.” He must make a preliminary showing of aggrievement. Lynchburg Gas Company v. Federal Power Commission, 3 Cir., 284 F.2d 756 (1960); Cincinnati Gas & Electric Co. v. Federal Power Commission, 101 U.S. App.D.C. 1, 246 F.2d 688 (1957); Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 3 Cir., 219 F.2d 729, cert. denied, 349 U.S. 945, 75 S.Ct. 874, 99 L.Ed. 1272, reh. denied, 350 U.S. 868, 76 S.Ct. 99, 100 L.Ed. 769 (1955).

In determining petitioners’ standing to seek review in this court we are not bound by the Commission’s order granting petitioners leave to intervene in the proceeding before the Commission. Petitioners’ standing is a jurisdictional question to be determined by this court. In any event, the Commission’s order permitting intervention provided that “the admission of such petitioners shall not be construed as recognition by the Commission that they, or any of them, might be aggrieved because of any order or orders issued by the Commission in this proceeding.”

Petitioners alleged before the Commission that some of them were customers of Edison. Consumers have been found to be “aggrieved persons,” entitled to obtain judicial review. City of Pittsburgh v. Federal Power Commission, 99 U.S.App.D.C. 113, 237 F.2d 741, 748-749 (1956); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631-632 (1953); Associated Industries of New York v. Ickes, 2 Cir., 134 F.2d 694, 705-713, vacated for mootness, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943). In each of these cases, however, the petitioner made substantial factual allegations that the challenged agency decision was detrimental to him.

Petitioners here have made no showing that the merger approved by the Commission has a significant detrimental effect on them, either actually or potentially. They perceive several possible detrimental effects of the merger: a lessening of competition, the joint ownership of gas and electric properties by Edison, increased rates for former Central customers, increased rates for all customers to offset the allegedly excessive price paid for Central’s stock and increased difficulty in demonstrating the need for rate reductions.

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