ENSERCH EXPLORATION, INC., MANAGING GENERAL PARTNER OF EP OPERATING
COMPANY, PETITIONER V. FEDERAL ENERGY REGULATORY COMMISSION

   No. 89-1344

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The Federal Energy Regulatory Commission In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-14a) is reported
at 887 F.2d 81.  The order of the Federal Energy Regulatory Commission
reopening the well determinations (Pet. App. 51a-58a) is reported at
41 F.E.R.C. Paragraph 61,242.  The order of the Federal Energy
Regulatory Commission clarifying its initial decision and dismissing
rehearing (Pet. App. 80a-86a) is reported at 42 F.E.R.C. Paragraph
61,075.  The related order of the Federal Energy Regulatory Commission
remanding the Texas Railroad Commission's designation of the Travis
Peak formation (Pet. App. 59a-79a) and its order on rehearing (Pet.
App. 87a-92a) are reported at 41 F.E.R.C. Paragraph 61,213, and 42
F.E.R.C. Paragraph 61,074, respectively.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 30,
1989.  A petition for rehearing was denied on November 30, 1989.  Pet.
App. 93a.  The petition for a writ of certiorari was filed on February
23, 1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals lacked jurisdiction under the Natural
Gas Policy Act of 1978, 15 U.S.C. 3301 et seq., to review an order of
the Federal Energy Regulatory Commission reopening, under Section
503(d) of the Act, 15 U.S.C. 3413(d), pricing determinations for 75
natural gas wells.

                               STATEMENT

   Under Section 503 of the Natural Gas Policy Act of 1978 (NGPA), 15
U.S.C. 3413, the Federal Energy Regulatory Commission has authority to
review and, in exceptional circumstances, to reopen state or federal
agency determinations that certain categories of "high-cost" natural
gas qualify for "incentive" prices under Section 107 of the NGPA, 15
U.S.C. 3317.  /1/ After protracted proceedings involving natural gas
wells located in the Travis Peak formation, a substantial tract
underlying 47 counties in northeastern Texas, FERC remanded to the
Texas Railroad Commission its designation of that formation as
qualifying to produce "high-cost" gas.  FERC also reopened its review
of the Texas Railroad Commission's related determinations for 75
natural gas wells in the formation.  Petitioner, the owner of some of
those wells, as well as others in the Travis Peak formation,
challenged each of FERC's orders.  This case involves petitioner's
challenge only to FERC's order reopening the 75 well determinations.

   1. In Section 107 of the NGPA, 15 U.S.C. 3317, Congress sought to
encourage the production of "high-cost" natural gas by authorizing
"incentive" prices above otherwise applicable maximum lawful prices.
One type of "high-cost" natural gas entitled to those higher prices
was gas produced from a "tight formation." /2/ Section 503 of the
NGPA, 15 U.S.C. 3413, provides the framework for identifying
"high-cost" gas, "tight formation" gas, and other types of natural gas
eligible for NGPA incentive prices.  Under that framework, the
designation of a particular type of natural gas requires
determinations by both FERC and the "local jurisdictional agency,"
which the NGPA defines as the "Federal or State agency having
regulatory jurisdiction with respect to the production of natural
gas," Section 503(c)(1) of the NGPA, 15 U.S.C. 3413(c)(1).

   a. The local jurisdictional agency first determines the eligibility
of certain types of natural gas for incentive prices.  See Section
503(a) of the NGPA, 15 U.S.C. 3413(a).  The Commission then reviews
that determination and must take one of three courses of action within
specified periods of time.  First, the Commission may reverse the
local agency's determination if it concludes that the determination
"is not supported by substantial evidence in the record upon which
such determination was made." Section 503(b)(1)(A) of the NGPA, 15
U.S.C. 3413(b)(1)(A).  Second, the Commission may remand the local
agency's determination if it concludes that the determination "is not
consistent with information contained in the public records of the
Commission, and which is not part of the record upon which such
determination was made." Section 503(b)(2)(A) of the NGPA, 15 U.S.C.
3413(b)(2)(A).

   Finally, if the Commission neither reverses nor remands the local
agency's determination within applicable time limits (or does not
expressly affirm), that determination becomes final.  Pet. App. 3a-4a.
 Once final, the determination is "binding" unless one of two
conditions identified in Section 503(d) of the NGPA, 15 U.S.C.
3413(d), is later determined to exist:  (1) either the Commission or
the local agency "relied on any untrue statement of a material fact,"
Section 503(d)(1)(A) of the NGPA, 15 U.S.C. 3413(d)(1)(A), or (2)
"there was omitted a statement of material fact necessary in order to
make the statements made not misleading," Section 503(d)(1)(B) of the
NGPA, 15 U.S.C. 3413(d)(1)(B).  Commission action taken in either of
these circumstances is referred to as a "reopening." See 18 C.F.R.
275.205;  Pet. App. 106a-107a.

   b. Section 503 of the NGPA, 15 U.S.C. 3413, provides for judicial
review of certain actions taken by FERC under this framework.  Section
503(b)(4) specifically provides for review in the courts of appeals of
a FERC action taken under Section 503(b)(1) or (2), namely, where the
Commission reverses or remands the local jurisdictional agency's
"high-cost" gas determination.  Aside from those two circumstances,
however, Section 503(c)(4) provides that any FERC determination made
under Section 503 "shall not be subject to judicial review under any
Federal or State law." See Williston Basin Interstate Pipeline Co. v.
FERC, 816 F.2d 777, 782-783 (D.C. Cir. 1987), cert. denied, 484 U.S.
1025 (1988);  Mesa Petroleum Co. v. FERC, 688 F.2d 1014, 1015-1016
(5th Cir. 1982).  /3/

   2. Petitioner, a natural gas producer, owns and operates natural
gas wells in the Travis Peak formation, a substantial tract underlying
47 counties in northeastern Texas.  In November 1981, the Texas
Railroad Commission designated the Travis Peak formation as a "tight
formation" under Section 503(a) of the NGPA, 15 U.S.C. 3413(a), and so
notified FERC of its recommendation.  After a series of exchanges
between FERC and the state agency, FERC eventually issued a final rule
in May 1986.  That rule for the most part adopted the Texas Railroad
Commission's recommendation and therefore designated most, but not
all, of the Travis Peak formation as a "tight formation" qualified to
produce "high-cost" gas.  Order No. 450, 51 Fed. Reg. 19,164 (1986),
FERC Stats. & Regs. (CCH) Preambles Paragraph 30,698 (1986);  Pet.
App. 17a-27a.

   Petitioner and other Travis Peak natural gas producers thereafter
filed applications with the Texas Railroad Commission "to secure
individual tight formation well determinations for certain Travis Peak
wells already completed." Pet. App. 5a n.6.  The Texas Railroad
Commission approved those applications.  In August 1986, the Texas
Railroad Commission forwarded to FERC 75 individual notices of
determination that completed Travis Peak wells qualified for higher
tight formation prices.  Since FERC did not reverse or remand those
determinations within 45 days, as provided by Section 503(b) of the
NGPA, 15 U.S.C. 3413(b), the determinations became final.  See Pet.
App. 5a n.6.

   In the meantime, Delhi Gas Pipeline Corporation, an intrastate
pipeline that purchased Travis Peak natural gas, in June 1986 had
filed with FERC a petition for rehearing of the May 1986 final rule
designating Travis Peak as a "tight formation." Delhi contended that
recent empirical studies suggested that the Texas Railroad Commission
had based its initial designation on inadequate and outdated data.
Pet. App. 5a-6a.  In January 1987, FERC granted Delhi's petition for
rehearing, vacated the May 1986 final rule, and reopened the record
for further rulemaking proceedings.  Order No. 450, 52 Fed. Reg. 2401
(1987), FERC Stats. & Regs. (CCH) Preambles Paragraph 30,724 (1987);
Pet. App. 28a-41a.

   In July 1987, as a result of the District of Columbia Circuit's
decision in Williston Basin Interstate Pipeline Co. v. FERC, supra,
FERC cancelled further rulemaking proceedings.  /4/ At the same time,
however, FERC issued a "notice of preliminary finding" to remand the
designation of the Travis Peak formation as a "tight formation" to the
Texas Railroad Commission for consideration of the recent Travis Peak
studies.  Texas R.R. Comm'n, Travis Peak Formation, 40 F.E.R.C.
Paragraph 61,100 (1987);  Pet. App. 42a-50a.  Petitioner, along with
other Travis Peak natural gas producers, filed comments with FERC
opposing the remand to the state agency.

   3. On November 25, 1987, FERC issued its final order reaffirming
the remand of the Travis Peak determination proceeding to the Texas
Railroad Commission.  Texas R.R. Comm'n, Travis Peak Formation, 41
F.E.R.C. Paragraph 61,213 (1987);  Pet. App. 59a-79a.  FERC determined
that under Section 503(b)(2) of the NGPA, 15 U.S.C. 3413(b)(2), the
Texas Railroad Commission's "tight formation recommendation for the
Travis Peak area is not consistent with information contained in the
public records of (FERC), and which is not part of the record upon
which the determination was made." Pet. App. 60a.  Accordingly, FERC
remanded "the determination * * * to (the state agency) for such
further action as it deems appropriate." Ibid.  /5/

   On that same day, FERC exercised its authority under Section 503(d)
of the NGPA, 15 U.S.C. 3413(d), and reopened the 75 final well
category determinations previously made for the Travis Peak formation.
 Texas R.R. Comm'n, Travis Peak Formation, 41 F.E.R.C. Paragraph
61,242 (1987);  Pet. App. 51a-58a.  In light of the parallel
proceedings involving the remand to the Texas Railroad Commission,
FERC determined that those well category determinations were "based on
an untrue statement of fact, namely that Travis Peak is designated a
tight formation, and must be reopened." Pet. App. 57a.  FERC deferred
all further action on those well category determinations pending the
Texas Railroad Commission's reexamination of the tight formation
designation for the Travis Peak formation.  Id. at 57a-58a.  /6/

   4. In October 1989, the court of appeals denied the petition for
review of the Commission's remand order and dismissed the petition for
review of its reopening order.  Pet. App. 1a-14a.  /7/ In the court of
appeals, petitioner renewed the contention that FERC exceeded its
authority under Section 503(d) by reopening the otherwise final Travis
Peak well determinations.  See Pet. C.A. Br. 36-44;  Pet. C.A. Reply
Br. 14-25.  The court of appeals, however, did not reach the merits of
that claim, holding that it lacked jurisdiction to review the
Commission's order under the NGPA.  Pet. App. 12a-13a.

   The court explained that Section 503(c)(4) of the NGPA, 15 U.S.C.
3413(c)(4), governs judicial review of Section 503 well category
determinations, and that Section 503(c)(4), in conjunction with
Section 503(b) of the NGPA, 15 U.S.C. 3413(b), "limits judicial review
of the Commission's determinations to those cases in which the
Commission either reverses the determination of a jurisdictional
agency or remands the matter for further consideration." Pet. App.
12a-13a;  see p. 4, supra.  Since the Commission's reopening order did
not fall within either of those categories, the court concluded that
review was unavailable.

   The court of appeals rejected petitioner's assertion that it had
jurisdiction under the general review provision in Section 506 of the
NGPA, 15 U.S.C. 3416.  See note 3, supra.  The court observed that,
under Section 503(b) of the NGPA, 15 U.S.C. 3413(b), it was "invested
with appellate jurisdiction of (jurisdictional agency determinations)
only where the Commission reverse(s) or remands them." Pet. App. 13a
(quoting Mesa Petroleum Co. v. FERC, 688 F.2d at 1016 (emphasis and
brackets in original)).  The court therefore held that jurisdiction
could not lie under Section 506 where it was "clear that the drafters
of the (NGPA) intended to preclude our review of section 503 orders
except in the limited instances prescribed in section 503(b)." Pet.
App. 13a (quoting Mesa Petroleum Co. v. FERC, 688 F.2d at 1016
(brackets in original)).

                               ARGUMENT

   The decision of the court of appeals correctly applies the judicial
review provisions of the NGPA and does not conflict with any decision
of this Court or of any other court of appeals.  Moreover, the
question whether decisions to reopen well category determinations are
judicially reviewable is of limited practical significance because the
Commission has only rarely exercised its authority under Section
503(d) to reopen well category determinations, and acted here only
because of the "unusual and obviously protracted procedural history"
of the case.  Pet. App. 77a.  In addition, the issue is of diminishing
importance given Congress's repeal of NGPA price controls, including
Section 503, effective January 1, 1993.  See note 1, supra.
Accordingly, further review of petitioner's contention regarding
review of the Commission's reopening order is not warranted.

   1. Petitioner renews its contention (Pet. 15-21) that Section 506
of the NGPA, 15 U.S.C. 3416 -- the general review provision of the
NGPA -- vests jurisdiction in the court of appeals over the
Commission's order to reopen well category determinations under
Section 503(d) of the NGPA, 15 U.S.C. 3413(d).  That claim, however,
errs in glossing over the pertinent review provisions for Commission
orders pertaining to gas pricing determinations entered under Section
503 of the NGPA.

   Section 503 of the NGPA, 15 U.S.C. 3413, by its terms provides for
judicial review of only certain actions taken under that provision.
Section 503(b)(4) specifically provides for review of a FERC action
taken under Section 503(b)(1) or (2), namely, a decision either
reversing or remanding the local jurisdictional agency's "high-cost"
gas determination.  Aside from those two types of orders, however,
Section 503(c)(4) provides that any FERC or local agency "high-cost"
gas determination initially made under Section 503(a)(1) "shall not be
subject to judicial review under any Federal or State law except as
provided under (Section 503(b))," 15 U.S.C. 3413(c)(4).  See Williston
Basin Interstate Pipeline Co. v. FERC, 816 F.2d at 782-783;  Mesa
Petroleum Co. v. FERC, 688 F.2d at 1015-1016.  /8/ The Commission's
order here -- reopening an otherwise final local agency well
determination -- which by its terms is neither a "reversal" nor a
"remand" of that decision under Section 503(b)(1) or (2) of the NGPA,
15 U.S.C. 3413(b)(1) or (2), falls outside the appellate jurisdiction
conferred by the statute.  /9/

   Petitioner therefore mistakenly relies on the "express terms" (Pet.
15) of Section 506 to provide the jurisdiction otherwise lacking in
Section 503.  That general review provision may not trump the specific
jurisdictional provision Congress enacted for particular Commission
orders, i.e., orders arising out of local agency "high-cost" gas
determinations under Section 503.  Cf. Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813 n.20 (1976);
Morton v. Mancari, 417 U.S. 535, 550-551 (1974).  As the District of
Columbia Circuit has held, "judicial review of 'tight formation'
designations is available only as provided in section 503(b)."
Williston Basin Interstate Pipeline Co. v. FERC, 816 F.2d at 783;  see
Midwest Gas Users Ass'n v. FERC, 833 F.2d 341, 350 (D.C. Cir. 1987)
(Section 503 "governs administrative and judicial review of local
agency determinations.").  /10/

   2. Petitioner also errs in contending (Pet. 11-14) that the
decision of the District of Columbia Circuit in ANR Pipeline Co. v.
FERC, 870 F.2d 717 (1989), conflicts with the decision below.  In ANR
Pipeline Co., FERC decided not to exercise its Section 503(d)
authority to reopen the well category determinations of the local
jurisdictional agency.  See 870 F.2d at 720.  Thus, no question was
presented in that case concerning the reviewability of an affirmative
decision by FERC to reopen a well category determination under Section
503(d), and thus there was no need to apply the specific judicial
review provisions of Section 503.

   Indeed, in ANR Pipeline Co., the court of appeals assumed --
without addressing the jurisdictional issue petitioner presents here
-- that it had jurisdiction to review the Commission's failure to
exercise its authority under Section 503(d) to reopen local agency
well determinations.  The court's only discussion of its jurisdiction
to review the Commission's order is limited to a citation to Section
503(b) and its remark that "(i)f the Commission remands or reverses,
its action is subject to judicial review." 870 F.2d at 719.

   On the other hand, the courts that have addressed the claim
petitioner presents here -- the decision below and the court of
appeals' prior decision in Mesa Petroleum Co. v. FERC, supra -- have
rejected any application of Section 506 to provide review for orders
entered under Section 503.  In Mesa Petroleum Co. v. FERC, supra, the
Fifth Circuit reviewed the language and "crystal clear" legislative
history of Section 503 and concluded that that provision alone
"invested (the court) with appellate jurisdiction of (local agency)
determinations only where the Commission reverses or remands them
(under Section 503(b)(1) or (2))." 688 F.2d at 1015, 1016;  accord
Pet. App. 13a.  As Mesa Petroleum noted, "(i)f all Section 503 orders
(were) reviewable under the general jurisdictional grant of Section
506(a)(1), then Section 503's provisions limiting jurisdiction (would
be) meaningless." 688 F.2d at 1016.  Accordingly, there is no conflict
among the courts of appeals concerning the reviewability of a
Commission order, under Section 503(d), reopening otherwise final
local agency well determinations.

   3. Despite petitioner's suggestion (Pet. 14), the practical
significance of the question presented does not call for this Court's
intervention.  The Commission is reluctant to exercise its authority
under Section 503(d) to reopen well category determinations.  See,
e.g., ANR Pipeline Co. v. FERC, 870 F.2d 717 (D.C. Cir. 1989);  Mobil
Oil Exploration & Producing Southeast Inc., 34 F.E.R.C. Paragraph
61,211 (1986).  For that reason alone, petitioner errs in claiming
(Pet. 14) that the court of appeals' decision threatens to unsettle
those well determinations already made final under Section 503.  Here,
the Commission took the extraordinary step of exercising its reopening
authority under Section 503(d) only because of the "unusual and
obviously protracted procedural history" of the case.  Pet. App. 77a.
Those circumstances, which petitioner highlighted in the court below,
see Pet. C.A. Br. 26-35, are not likely to recur.  /11/

   Moreover, the procedural question at issue -- as opposed to any
substantive economic consequences of Commission pricing decisions
under the NGPA, cf. FERC v. United Distrib. Cos., petition for cert.
pending, No. 89-1453 (filed Mar. 15, 1990), -- is of diminishing
importance given Congress's repeal of NGPA price controls, including
Section 503, effective January 1, 1993.  See note 1, supra.
Accordingly, further review of petitioner's contention regarding
review of the Commission's reopening order is not warranted.  /12/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   WILLIAM S. SCHERMAN

      General Counsel

   JOSEPH S. DAVIES

      Deputy Solicitor

   ROBERT H. SOLOMON

      Attorney Federal Energy Regulatory Commission

   APRIL 1990

   /1/ Congress has since repealed those statutory provisions,
together with their price controls, effective January 1, 1993.  See
the Natural Gas Wellhead Decontrol Act of 1989, Pub. L. No. 101-60,
Sections 2(b), 3(b)(5), 103 Stat. 158-159.

   /2/ As the court of appeals explained, a "tight formation is a
sedimentary layer of rock cemented together in such a manner so as to
restrict or impede the flow of the gas through the rock." Pet. App. 2a
n.1;  see Order No. 99, 45 Fed. Reg. 56,034 (1980), FERC Stats. &
Regs. (CCH) Preambles Paragraph 30,183 (1980) (codified at 18 C.F.R.
271.703 (1989)), aff'd, Pennzoil Co. v. FERC, 671 F.2d 119 (5th Cir.
1982).

   In recent orders, FERC has removed natural gas produced from tight
formation wells spudded or recompleted after May 12, 1990, from the
category of "high-cost" gas entitled to incentive prices.  Limitation
on Incentive Prices for High-Cost Gas to Commodity Values, Order No.
519, 55 Fed. Reg. 6367 (Feb. 23, 1990), reh'g denied, Order No. 519-A
(Apr. 13, 1990).

   /3/ Section 506(a)(4) of the NGPA, 15 U.S.C. 3416(a)(4), generally
provides for review of "any final order issued by the Commission * * *
in the United States Court of Appeals for any circuit in which the
party to which such order relates is located or has its principal
place of business, or in the United States Court of Appeals for the
District of Columbia circuit."

   /4/ In Williston Basin Interstate Pipeline Co. v. FERC, 816 F.2d at
782-783, the court of appeals held that the Commission must review
"tight formation" designations under Section 503 of the NGPA, 15
U.S.C. 3413, rather than under the Commission's general rulemaking
authority in Section 501 of the NGPA, 15 U.S.C. 3411.

   In response to that decision, the Commission also issued a rule in
July 1987 requiring review of tight formation designations only under
the procedures in Section 503 of the NGPA, 15 U.S.C. 3413.  See Pet.
App. 6a n.7, 46a n.8.

   /5/ In January 1988, FERC dismissed requests filed by petitioner
and others for rehearing of its remand order.  Texas R.R. Comm'n,
Travis Peak Formation, 42 F.E.R.C. Paragraph 61,074 (1988);  Pet. App.
87a-92a.

   /6/ In January 1988, FERC clarified its reopening order and
otherwise dismissed requests filed by petitioner and others for
rehearing of that order.  Texas R.R. Comm'n, Travis Peak Formation, 42
F.E.R.C. Paragraph 61,075 (1988);  Pet. App. 80a-86a.  The Commission
rejected petitioner's claim that its order violated Section 503(d).
Pet. App. 85a.  As the Commission explained:

      Tight formation well category determinations are dependent upon
      the existence of an underlying determination that the formation
      in which the wells are drilled qualifies as a tight formation.
      Without a tight formation designation there can be no
      entitlement to the NGPA section 107(c)(5) (incentive) price.

Pet. App. 85a.

   /7/ The court of appeals rejected petitioner's challenge to FERC's
order remanding, under Section 503(b)(2)(A) of the NGPA, 15 U.S.C.
3413(b)(2)(A), the Travis Peak determination proceeding to the Texas
Railroad Commission.  Pet. App. 9a-12a.  The court concluded that FERC
"pursued a reasonable and prudent course of action in remanding the
tight field designation to the Texas Railroad Commission." Id. at 11a.
 Petitioner has sought no further review of that aspect of the court
of appeals' judgment.  See Pet. 10 n.7.

   /8/ For that reason, petitioner is wrong in asserting (Pet. 18-19)
that a Commission reopening order under Section 503(d) is not subject
to the express judicial review provisions in Sections 503(b) and
503(c)(4).

   /9/ A Commission order affirming a state agency's determination
under Section 503 likewise falls outside the appellate jurisdiction
conferred by the statute, a proposition petitioner accepts.  Pet. 18;
see Mesa Petroleum Co. v. FERC, 688 F.2d at 1015-1016.

   /10/ Petitioner seeks to rely on the floor statement of
Representative Dingell as evidence that "Section 506 was intended only
to preclude judicial review of Commission Section 503(b) action
affirming jurisdictional agency determinations." Pet. 20.  But a full
recitation of that statement -- as opposed to petitioner's abbreviated
version (ibid.) -- refutes petitioner's contention and otherwise
confirms the validity of the court of appeals' holding that Section
506 may not provide jurisdiction to review agency action under Section
503.  As Representative Dingell stated:

         Section 506(a)(1) does not now fully reflect the separate
      judicial review procedures established under section 503.
      Section 506(a)(1) should have included a parenthetical exclusion
      "(other than a final finding by the Commission under section
      503(b)(1))." * * * However, the conferees are confident that
      these modifications are not essential to the proper operation of
      section 506 judicial review provisions.  Applying the rule of
      statutory construction that the specific controls the general,
      the conferees believe that the courts will properly apply these
      sections in a manner consistent with the explanation found on
      pages 118-119 of the Joint Statement of Managers.  In particular
      the judicial review requirements of section 503(b) are intended
      to be distinct from the judicial review provisions set forth in
      section 506.  Accordingly, section 503(c)(4) specifically
      provides that judicial review of section 503 determinations is
      to be available only under the provisions of section 503(b).

124 Cong. Rec. 38,367 (1978) (emphases added).

   In Mesa Petroleum Co. v. FERC, supra, the court of appeals
expressly relied on that full statement to reject the contention
raised by petitioner here and therefore concluded that "the drafters
of the (Natural Gas Policy) Act intended to preclude our review of
Section 503 orders except in the limited instances prescribed in
Section 503(b)." 688 F.2d at 1016.

   /11/ Indeed, in light of the Commission's recent orders, see note
2, supra, natural gas produced from tight formation wells spudded or
recompleted after May 12, 1990, no longer qualifies for incentive
prices under the NGPA.

   /12/ In any event, the practical effect of the court of appeals'
decision only postpones, rather than precludes, judicial review of the
Commission's ultimate decision regarding the well determinations.
FERC will not take any action on the reopened well determinations
until after the Texas Railroad Commission decides, on remand, whether
the Travis Peak formation should be designated again as a tight
formation.  See Pet. App. 57a, 84a-85a.  If the state agency
redesignates the Travis Peak formation, and the Commission agrees, the
Commission will then reinstate the well determinations at issue.
Petitioner, of course, would then have no reason to seek further
review.  If, on the other hand, the state agency redesignates the
Travis Peak formation, and the Commission either reverses or remands
that designation, the Commission's actions with respect to the well
determinations would then be subject to review under Section 503(b).