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08/28/74 Rhode Island Consumers' v. Federal Power Commission

August 28, 1974

UTILITIES AND CARRIERS OF THE STATE OF RHODE ISLAND, PETITIONER

v.

FEDERAL POWER COMMISSION, RESPONDENT, ALGONQUIN GAS TRANSMISSION CO., TEXAS EASTERN TRANSMISSION CORPORATION, ARKANSAS-MISSOURI POWER COMPANY & ASSO., NATURAL GAS CO., INTERVENORS, BOSTON GAS COMPANY, ET AL., PETITIONERS

v.

FEDERAL POWER COMMISSION, RESPONDENT, TEXAS EASTERN

ASSO. NATURAL GAS CO., ALGONQUIN GAS TRANSMISSION CO., INTERVENORS MUNICIPAL DEFENSE GROUP, PETITIONERS

v.

FEDERAL POWER COMMISSION, RESPONDENT, ARKANSAS-MISSOURI POWER CO. &

CORP., INTERVENORS CONNECTICUT PUBLIC UTILITIES COMMISSION, PETITIONER

v.

FEDERAL POWER COMMISSION, RESPONDENT, ARKANSAS-MISSOURI POWER CO. & ASSO. NATURAL GAS CO., TEXAS



Tamm, Leventhal and Robinson, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

RHODE ISLAND CONSUMERS' COUNCIL AND DIVISION OF PUBLIC

TRANSMISSION CORPORATION, ARKANSAS-MISSOURI POWER CO. &

ASSO. NATURAL GAS CO., ALGONQUIN GAS TRANSMISSION CO.,

TEXAS EASTERN TRANSMISSION CORP., TEXAS GAS TRANSMISSION

EASTERN TRANSMISSION CORP., ALGONQUIN GAS TRANSMISSION CO., INTERVENORS

Nos. 73-1159, 73-1223, 73-1292, 73-1337 1974.CDC.198

Petitions for Review of an Order of the Federal Power Commission.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

These cases are before the court on petitions to review an order of the Federal Power Commission approving an interim plan for curtailment of natural gas deliveries by Texas Eastern Transmission Corporation, and for certain changes in Texas Eastern's rates. Petitioners include natural gas distributors purchasing gas that flows through Texas Eastern's system, some directly from Texas Eastern and others from Algonquin Gas Transmission Company, a New England pipeline which currently obtains its entire supply from Texas Eastern. Other petitioners are Rhode Island Consumers' Council, the Rhode Island Division of Public Utilities, and the Connecticut Public Utilities Commission. Intervening in support of the Commission's order are Algonquin, Texas Eastern and several large customers of the latter.

Petitioners challenge both the allocation and the rate structure changes ordered by the Commission. We decline to pass upon certain objections to the allocation provisions, in view of events that have occurred subsequent to the Commission's order. We do consider the merits of the objections leveled by petitioners against the rate tariff order, particularly the Commission's approval of retention of "demand charge" provisions notwithstanding termination of entitlement to contract "demand" quantities. We reject these contentions. I. PROCEEDINGS BEFORE THE COMMISSION

Taking note of the nation's gas shortage, the Commission on April 15, 1971, issued Order No. 4311 directing all jurisdictional pipelines to submit reports to implement the FPC's policy that pipelines take all steps necessary to insure an adequate and reliable gas supply for the 1971-72 winter and thereafter. The FPC directed pipelines anticipating curtailment of deliveries to file a tariff sheet, pursuant to ยงยง 4 and 5 of the Natural Gas Act, setting forth a curtailment plan.

Texas Eastern initially responded to Order 431 with a statement that any curtailment necessary would be carried out in accordance with the existing tariff, which called for pro-rata reductions of customers' entitlements under their contracts. Subsequently, on October 19, 1971, Texas Eastern advised the Commission that it would be necessary to curtail deliveries by approximately 15 billion cubic feet during the winter of 1971-72. At the same time, Texas Eastern filed a tariff change eliminating an obligation to refund certain charges when it curtailed deliveries as a result of a supply shortage. The Commission docketed Texas Eastern's tariff change2 and consolidated further proceedings ...


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