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Henry v. Federal Power Comm'n

Citation: 6 ELR 20508
No. Nos. 73-2090 et al., 513 F.2d 395/10 ERC 1732/(D.C. Cir., 07/28/1975)

The Court of Appeals affirms the decision of the Federal Power Commission (FPC) that its jurisdiction does not extend to the production, transportation, and sale of unmixed synthetic gas produced from coal. In addition, the court holds that, while preparation of an environmental impact statement would currently be premature, the FPC must take into account the environmental costs of coal gasification projects as a whole when evaluating certificates of public convenience for facilities connecting them to gas pipelines under FPC jurisdiction. The language of the Natural Gas Act, 15 U.S.C. § 717(b), unambiguously distinguishes between "natural" and "artificial" gas. The latter, in an unmixed state, cannot be regulated by the FPC. When enacting the Natural Gas Act, Congress was concerned with the origin of the regulated gas, and not primarily with its transportability because of high Btu content. Congress was aware of the technical possibility of transmission of low-Btu artificial gas, but preferred to leave FPC jurisdiction of such activity to a future time when that possibility became economic reality. Technological developments do not per se justify extension of regulatory jurisdiction. Chemeheuvi Tribe of Indians v. FPC, 420 U.S. 395, 5 ELR 20224 (1975). Nor can the need for regulation alone expand the reach of FPC jurisdiction, FPC v. Louisiana Power & Light Co., 406 U.S. 621 (1972), see Mobil Oil Corp v. FPC, 463 F.2d 256 (1971), especially where a distinctly new subject is sought to be regulated. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954).

Nonetheless, the FPC has jurisdiction over mixed transmission of natural and synthetic gas. The FPC is affirmatively required to scrutinize all factors relating to the public convenience and necessity of mixed gas commerce. See FPC v. Transcontinental Gas Pipe Line Co., 365 U.S. 1 (1961). In effect, the FPC has indirect control over nonjurisdictional transactions and facilities. Panhandle Eastern Pipe Line Co. v. FPC, 359 F.2d 675, 683 (8th Cir. 1966).

Counsel for Petitioner Alice Henry
Richard W. Hughes
Robert M. Strumor
Shiprock NM 87420
(505) 368-4562

Counsel for Petitioner Environmental Defense Fund
Clifton E. Curtis
Edward Berlin
Berlin, Roisman & Kessler
1712 N St., NW
Washington DC 20036
(202) 833-9070

Counsel for Petitioner State of California
William H. Booth
State Public Utilities Agency
Berkeley CA 94701
(415) 464-1366

Counsel for Petitioner Transwestern Coal Gasification Company
James W. McCartney
Vinson, Elkins, Searls, Connally & Smith
First City National Bank Bldg.
Houston TX 77002
(713) 236-2222

Counsel for Respondent
George W. McHenry, Jr., Solicitor
Leo E. Forquer, General Counsel
Richard A. Oliver
Federal Power Commission
Washington DC 20002
(202) 275-4258

Levanthal, J., for himself, Wilkey & Richey, JJ.