# In re Permian Basin Area Rate Cases

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## Dissenting Opinion

    Douglas
United States Supreme Court
390 U.S. 747
Permian Basin Area Rate Cases
Certiorari to the United States Court of Appeals for the Tenth Circuit
No. N/A Argued: Dec. 5-7, 1967 --- Decided: May 1, 1968
Following this Court's decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, holding that independent producers are "natural gas compan[ies]" within the meaning of § 2 (6) of the Natural Gas Act, the Federal Power Commission (FPC) struggled under a heavy administrative burden in attempting to determine whether producers' rates were just and reasonable under §§ 4 (a) and 5 (a) by examining each producer's cost of service. In 1960 the FPC announced that it would begin a set of proceedings under § 5 (a) in which it would determine maximum producers' rates for each major producing area. A Statement of General Policy was issued by the FPC, asserting its authority to determine and require application throughout a producing area of maximum rates for producers' interstate sales, tentatively designating certain areas as producing units for rate regulation (three of which areas were consolidated for this proceeding), and providing two series of area guideline prices, for initial filings and for increased rates. The first area proceeding was initiated in 1960, and in 1965 the FPC issued its decision, devising for the Permian Basin area a rate structure with two area maximum prices, one for natural gas produced from gas wells and dedicated to interstate commerce after January 1, 1961, and the other, and lower, price for all other natural gas produced in the area. The FPC found that price could be an incentive for exploration and production of new gas-well gas, while supplies of associated and dissolved gas and previously committed reserves of gas-well gas were relatively unresponsive to price variations. The FPC did not use prevailing field prices in calculating rates, but utilized composite cost data from published sources and from producers' cost questionnaires, establishing the national costs in 1960 of finding and producing gas-well gas, and, for all other gas, deriving the just and reasonable rate from historical costs of gas-well gas produced in the Permian Basin in 1960, with a local and historical emphasis. The uncertainties of joint cost allocation made it difficult to compute the cost of gas produced in association with oil, but the FPC found that the costs of such gas were less than those incurred in producing flowing gas-well gas. Each maximum rate includes a return to the producer of 12% on average production investment based on the FPC's two series of cost computations. A system of quality and Btu adjustments was provided for. The following rates were determined: 16.5¢ per Mcf (including state production taxes) in Texas, and 15.5¢ (excluding state production taxes) in New Mexico, for gas-well gas dedicated to interstate commerce after January 1, 1961; 14.5¢ per Mcf (including taxes) in Texas, and 13.5¢ per Mcf (excluding taxes) in New Mexico, for flowing gas, including oil-well gas and gas-well gas dedicated to interstate commerce before 1961; 9¢ per Mcf minimum for all gas of pipeline quality. The FPC declared that it would provide special relief in hardship cases; that small producers (annual national sales not above 10,000,000 Mcf) need not adjust prices for quality and Btu deficiencies; that it would require a moratorium until January 1, 1968, for filing under § 4 (d) for prices above the applicable area maximum; that the use of indefinite escalation clauses to increase prevailing contract prices above the area maximum was thereafter prohibited; and that refunds were required of the difference between amounts collected by producers in periods subject to refund and the amounts permitted under the area rate. The Court of Appeals held that the FPC had authority to impose maximum area rates, sustained (but stayed enforcement of) the moratorium on § 4 (d) filings, approved the two-price system and the exemption for small producers, but concluded that the requirements of FPC v. Hope Natural Gas Co., 320 U.S. 591, were not satisfied. It held that the FPC had not properly calculated the financial consequences of the quality and Btu adjustments, had not made essential findings as to aggregate revenue, and had not precisely indicated the circumstances in which individual producers could obtain relief from area rates. On rehearing, the court also held that refunds were permissible only if aggregate actual area revenues exceeded aggregate permissible area revenues, and only to the amount of the excess, apportioned on "some equitable contract-by-contract basis."
Held:
    1. A presumption of validity attaches to each exercise of the FPC's expertise, and those who would overturn its judgment undertake "the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." FPC v. Hope Natural Gas Co., supra, at 603. Pp. 766-767.
    2. The FPC has constitutional and statutory authority to adopt a system of area regulation and to impose supplementary requirements. Pp. 768-790.
       (a) Area maximum rates, determined in conformity with the Natural Gas Act, and intended to balance investor and consumer interests, are constitutionally permissible. Pp. 769-770.
       (b) In these circumstances the FPC's broad guarantees of special relief were not inadequate or excessively imprecise. Pp. 771-772.
       (c) The FPC did not abuse its discretion by its refusal to stay, pro tanto, enforcement of the area rates pending dispositions of producers' petitions for special relief. Pp. 773-774.
       (d) Area regulation is consistent with the terms of the Act and is within the statutory authority granted the FPC to carry out its broad responsibilities. Pp. 774-777.
       (e) The FPC may under §§ 5 and 16 of the Act impose a moratorium on the filing under § 4 (d) of proposed rates higher than those determined to be just and reasonable, and the relatively brief moratorium declared here did not exceed or abuse the FPC's authority. Pp. 777-781.
       (f) Under the authority of § 5 (a) the FPC permissibly restricted the application of indefinite escalation clauses. Pp. 781-784.
       (g) The problems and public functions of small producers differ sufficiently to permit their separate classification, and the exemptions created for them by the FPC comport with the terms and purposes of its statutory responsibilities. Pp. 784-787.
       (h) The regulatory area designated in this first area proceeding was both convenient and familiar, and the FPC was not obliged under these circumstances to include among the disputed issues questions of the proper size and composition of the regulatory area. Pp. 787-789.
    3. The rate structure devised for natural gas produced in the Permian Basin did not exceed the FPC's authority; and the "heavy burden" of attacking the validity of that rate structure has not been satisfied. Pp. 790-813.
       (a) The responsibilities of a reviewing court are to determine whether the FPC abused or exceeded its authority, whether each of the order's essential elements is supported by substantial evidence, and whether the order may reasonably be expected to maintain financial integrity, attract needed capital, and fairly compensate investors for risks they have assumed, while appropriately protecting relevant public interests, both existing and foreseeable. Pp. 791-792.
       (b) While field prices may have some relevant to the calculation of just and reasonable rates, the FPC was not compelled, on this record, to adopt field prices as the basis of its computations of area rates. Pp. 792-795.
       (c) The two-price rate structure, which is permissible under the Act, will provide a useful incentive to exploration and prevent excessive producer profits, and thus protect both present and future consumer interests. Pp. 795-799.
       (d) The FPC may employ "any formula or combination of formulas" it wishes and is free "to make the pragmatic adjustments which may be called for by particular circumstances," as long as the consequences are not arbitrary or unreasonable. FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586. P. 800.
       (e) In calculating cost data for the two maximum rates by selections of differing geographical bases and time periods the FPC did not abuse its authority, as its selections comported with the logic of its system of incentive pricing. Pp. 800-813.
       (f) The FPC's use of flowing gas-well gas cost data to calculate the rate for old gas, disregarding the costs of gas produced in association with oil, was essentially pragmatic, and its judgment was warranted under the circumstances. Pp. 803-805.
       (g) The computation of the rate base by determining an average net production investment to which the FPC applied a constant rate of return, was within the FPC's discretion, and was not arbitrary or unreasonable. Pp. 805-806.
       (h) The selection of 12% as the proper rate of return for gas of pipeline quality was supported by substantial evidence that the rate will be likely to "maintain financial integrity, to attract capital, and to compensate investors for the risks assumed." Pp. 806-808.
       (i) It was not impermissible for the FPC to treat quality adjustments as a risk of production, and its promulgation of quality standards was accompanied by adequate findings as to their revenue consequences. Pp. 808-812.
    4. The FPC's rate structure has not here been shown to deny producers revenues consonant with just and reasonable rates. Pp. 813-822.
       (a) The FPC need not provide formal findings in absolute dollar amounts as to revenue and revenue requirements; it is enough if it proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order. P. 814.
       (b) The FPC permissibly discounted the producers' reliance upon the relationship between gas reserves and production to establish the inadequacy of the rate structure. Pp. 816-818.
       (c) The contention that since the area maximum rates were derived from average costs they cannot, without further adjustment, provide aggregate revenue equal to the producers' aggregate requirements has not been sustained. Pp. 818-821.
       (d) The FPC's authority to abrogate existing contract prices depends on its conclusion that they "adversely affect the public interest," and it properly applied that authority in setting a minimum area price of 9¢ per Mcf and in declining to apply it to prices less than the two area maximum rates. Pp. 820-821.
    5. Since it has been almost eight years since these proceedings were commenced, and the remaining issues, which were not decided by the Court of Appeals, were briefed and argued at length in this Court, no useful purpose would be served by further proceedings in the Court of Appeals. Pp. 823-824.
    6. The FPC's orders requiring refunds of (1) amounts charged in excess of the applicable area rates for periods following the effective date of its order and (2) amounts collected in excess of area rates during previous periods in which producers' prices were subject to refund under § 4 (e), were within its authority. It reasonably concluded that the adoption of a system of refunds conditioned on findings as to aggregate area revenues would prove inequitable to consumers and difficult to administer effectively. Pp. 825-828.
375 F. 2d 6 and 35, affirmed in part, reversed in part, and remanded.
Richard A. Solomon argued the cause for the Federal Power Commission. With him on the brief were Solicitor General Marshall, Ralph S. Spritzer, Richard A. Posner, Peter H. Schiff, Leo E. Forquer, David J. Bardin and Alan J. Roth.
J. Calvin Simpson argued the cause for the Public Utilities Commission of California; Malcolm H. Furbush argued the cause for the Pacific Gas & Electric Co.; John Ormasa argued the cause for the Pacific Lighting Gas Supply Co. et al., and C. Hayden Ames argued the cause for the San Diego Gas & Electric Co., all in support of the order of the Federal Power Commission. With Mr. Simpson on the brief for the Public Utilities Commission of California was Mary Moran Pajalich. With Messrs. Furbush, Ormasa and Ames on the brief for Pacific Gas & Electric Co. et al. was Frederick T. Searls. Roger Arnebergh filed a brief for the City of Los Angeles, and Edward T. Butler and Thomas M. O'Connor filed a brief for the City of San Diego and the City and County of San Francisco, in support of the order of the Federal Power Commission.
Bruce R. Merrill argued the cause for the Continental Oil Co.; Crawford C. Martin, Attorney General, argued the cause for the State of Texas; Boston E. Witt, Attorney General, argued the cause for the State of New Mexico; Herbert W. Varner argued the cause for the Superior Oil Co.; Robert W. Henderson argued the cause for the Hunt Oil Co. et al.; J. Evans Attwell argued the cause for Bass et al.; Justin R. Wolf argued the cause for the Standard Oil Co. of Texas; James L. Armour argued the cause for the Mobil Oil Corp.; Louis Flax argued the cause for the Sun Oil Co., and Carroll L. Gilliam and Oliver L. Stone argued the cause for the Amerada Petroleum Corp. et al., all in opposition to the order of the Federal Power Commission. With Mr. Merrill on the brief for the Continental Oil Co. et al. were Thomas H. Burton, Cecil N. Cook, Neal Powers, Jr., and Lloyd F. Thanhouser. With Messrs. Martin and Witt on the brief for the State of Texas et al. were George M. Cowden, First Assistant Attorney General of Texas, Houghton Brownlee, Jr., Linward Shivers and C. Daniel Jones, Jr., Assistant Attorneys General of Texas, A. J. Carubbi, Jr., and William J. Cooley, Special Assistant Attorney General of New Mexico. With Mr. Varner on the brief for the Superior Oil Co. were Homer J. Penn and Murray Christian. With Mr. Henderson on the brief for the Hunt Oil Co. et al. were Paul W. Hicks and Donald K. Young. With Mr. Attwell on the brief for Bass et al. was W. H. Drushel, Jr. With Mr. Wolf on the brief for the Standard Oil Co. of Texas was Francis R. Kirkham. With Mr. Armour on the brief for Mobil Oil Corp. et al. were Thomas P. Hamill, Robert D. Haworth and William H. Tabb. With Mr. Flax on the brief for the Sun Oil Co. were Phillip D. Endom and Robert E. May. With Messrs. Gilliam and Stone on the brief for the Amerada Petroleum Corp. et al. were Joseph W. Morris, Edwin S. Nail, Edward J. Kremer, Jr., Robert E. Wade, Bernard A. Foster, Jr., Graydon D. Luthey, Warren M. Sparks, Martin E. Erck, Clayton L. Orn, Joseph F. Diver, H. Y. Rowe, W. W. Heard, J. P. Hammond, T. C. McCorkle, William H. Emerson, Kenneth Heady, John R. Rebman, Jerome M. Alper, Thomas G. Johnson, Charles E. McGee, Sherman S. Poland, Richard F. Remmers, Homer E. McEwen, Jr., William K. Tell, Jr., William R. Slye and John C. Snodgrass. John Davenport filed a brief for Texas Independent Producers & Royalty Owners Association et al., in opposition to the order of the Federal Power Commission.
Briefs of amici curiae were filed by Louis J. Lefkowitz, Attorney General of New York, Kent H. Brown and Morton L. Simons for the Public Service Commission of the State of New York; by J. David Mann, Jr., John E. Holtzinger, Jr., Bertram D. Moll, William T. Coleman, Jr., Robert W. Mars, C. William Cooper, Edward S. Kirby, James R. Lacey, Edwin F. Russell, Jr., Barbara M. Suchow, John W. Glendening, Jr., John S. Schmid and Dale A. Wright for the Associated Gas Distributors Group, and by Vincent P. McDevitt and Samuel Graff Miller for the Philadelphia Electric Co.

## Notes

* ↑ No. 90, Continental Oil Co. et al. v. Federal Power Commission; No. 95, Superior Oil Co. v. Federal Power Commission; No. 98, New Mexico et al. v. Federal Power Commission; No. 99, Sun Oil Co. v. Federal Power Commission et al.; No. 100, California et al. v. Skelly Oil Co. et al.; No. 101, Hunt Oil Co. et al. v. Federal Power Commission; No. 102, Pacific Gas & Electric Co. et al. v. Skelly Oil Co. et al.; No. 105, Bass et al. v. Federal Power Commission; No. 117, Federal Power Commission v. Skelly Oil Co. et al.; No. 181, City of Los Angeles v. Skelly Oil Co. et al.; No. 261, City and County of San Francisco v. Skelly Oil Co. et al.; No. 262, City of San Diego v. Skelly Oil Co. et al.; No. 266, Standard Oil Co. of Texas, a Division of Chevron Oil Co. v. Federal Power Commission; and No. 388, Mobil Oil Corp. et al. v. Federal Power Commission.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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