Federal Power Commission v. Louisiana Power & Light Company

PETITIONER: Federal Power Commission
RESPONDENT: Louisiana Power & Light Company
LOCATION: Christian County, Kentucky

DOCKET NO.: 71-1016
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 406 US 621 (1972)
ARGUED: Apr 19, 1972
DECIDED: Jun 07, 1972

ADVOCATES:
Andrew P. Carter - for La
Gordon Gooch - for the Federal Power Comm
William C. Harvin - for United Gas Pipe Line Co. and Pennzoil United, Inc

Facts of the case

Question

Media for Federal Power Commission v. Louisiana Power & Light Company

Audio Transcription for Oral Argument - April 19, 1972 in Federal Power Commission v. Louisiana Power & Light Company

Warren E. Burger:

We will hear arguments next in 71-1016, Federal Power Commission v. Louisiana Lights and Powers, and 71-1040, United Gas Pipe Line against Louisiana Light and Power, consolidated cases.

Mr. Gooch, you may proceed whenever you are ready.

Gordon Gooch:

Mr. Chief Justice, may it please the court.

This case presents two basic issues, the first is the issue of whether the Federal Power Commission has jurisdiction to protect the interstate consumers of natural gas transported in interstate commerce, regardless of whether the ultimate customer of that gas is a customer, the distribution company or a direct purchaser from the pipeline.

The second issue is whether or not --

Potter Stewart:

State that first one again.

Gordon Gooch:

Yes, sir, whether the Federal Power Commission has jurisdiction under Section 1 (b) of the Natural Gas Act, and sections 4, 5 and 16 to regulate the curtailments of service of gas transported in interstate commerce by interstate pipelines, regardless of whether the customer is a customer of a distribution company, or a direct purchaser from the pipeline.

The second issue is whether the Fifth Circuit properly found that the Federal Power Commission did not have jurisdiction over certain facilities when the Federal Power Commission subsequently has found that they did have jurisdiction over those facilities due to the injection of substantial quantities of interstate gas.

The case arose when Louisiana Power and Light filed suit in the District Court in Louisiana seeking to enjoin United Gas Pipe Line, from implementing any curtailment program which would result in the reduction of gas delivered to two of their generating plants.

At the time, the suit was instituted, two separate proceedings were pending before the Federal Power Commission.

The first proceeding, a curtailment proceeding was to determine the Federal Power Commission's jurisdiction to allocate the suppliers of Interstate Natural Gas pipelines.

When their gas supplies were so depleted that they were unable to meet the contracts of all of their consumers in all states served by the pipeline, directly or indirectly.

And a second proceeding was pending to determine the jurisdictional status of certain facilities that are part of the United Gas Pipe Line system, that and part of the time in the past had been operated in intrastate commerce with a separate system of supply, but subsequently quantities of interstate gas had been injected into the former intrastate system.

And the question presented was whether or not those facilities, therefore were subject to federal and not state jurisdiction.

The Louisiana Power and Light company obtained a temporary restraining order ordering United to make their full deliveries without curtailment.

On LP&L's claim that domestic customers did not need the gas, that was ordered curtailed.

In time sequence now, and I'll skip some procedural matters, in time sequence, the Federal Power Commission then held in the curtailment proceeding that under section 1 (b) of the Natural Gas Act, Sections 4 and 5 the decisions of this Court in the Transco case and Panhandle in 332 U.S, that the Federal Power Commission had plenary jurisdiction under its transportation authority, over gas dedicated to interstate commerce and being transported in interstate commerce, and had the power to curtail, any and all customers of a pipeline in order to be sure that a fair allocation of gas supplies would be available to all interstate consumers.

Next, in time sequence, the Fifth Circuit held that the Federal Power Commission had no jurisdiction to order curtailments of deliveries of gas dedicated to interstate commerce, transported in interstate commerce but delivered to direct industrial consumers as distinguished from deliveries to distribution companies for ultimate resale to public, citizens, and industries.

Subsequently --

Byron R. White:

It held that the Commission had the power neither under 1 (b) 4 and 5, nor under Section 7 or 8.

Gordon Gooch:

Sir, it appeared to me that the Fifth Circuit held that under Section 7 (b) the Commission could have an abandonment proceedings and order the direct industrials completely out of an interstate pipeline.

The Fifth Circuit said between the initial certification under Section 7 --

Byron R. White:

Oh yes, but they held that they cannot have a curtailment proceeding?

Gordon Gooch:

That's correct, sir.

Byron R. White:

Under section 7.

Gordon Gooch:

No, sir they didn't really approach that, they only said that to the extent that the Federal Power Commission has any jurisdiction, it's under Section 7, and that would be limited to the initial certification or the abandonment, but nothing in between.

Byron R. White:

Yes.

Gordon Gooch:

And the curtailment proceedings are handled under Section 4 and 5 and 16, not under Section 7.

Byron R. White:

Well, I know but wasn't one of the claims before the Fifth Circuit that there could be a curtailment sort of abandonment under Section 7?

Gordon Gooch:

Yes, sir.