FORT PIERCE UTILITY AUTHORITY OF THE CITY OF FORT PIERCE, ET AL., PETITIONERS,
v.
FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT
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The court held that the Federal Energy Regulatory Commission must provide reasoned consideration for denying a compensation scheme, rather than relying on unsupported policy justifications.
The Federal Energy Regulatory Commission (FERC) applied for rehearing, alleging conflict with a D.C. Circuit decision. The court previously held that …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM:
On application for rehearing, the Federal Energy Regulatory Commission asks us to reconsider our decision for alleged conflict with that of the D.C. Circuit in Consolidated Edison Co. v. FERC, 676 F. 2d 763 (D.C.Cir.1982), or to clarify our decision.
Reconsideration is unnecessary, for there is no conflict between our holding in Ft. Pierce II, 724 F. 2d 1167, and the Con Ed decision. The D.C. Circuit stated in Con Ed that “there is nothing inherently inconsistent about allocating natural gas to those who are most in need of it while requiring the beneficiaries of such a plan to compensate those who must purchase more expensive alternative supplies.” 676 F. 2d at 767 n.
9. That court held that the Commission’s decision that compensation was unnecessary was not arbitrary, where economic losses to those curtailed would be partially offset by ratemaking treatment, and where past certifications to the beneficiaries of compensation were to protect higher priority users. In Ft. Pierce II, we held that the Commission could not reject a compensation scheme merely on the asserted policy justification that compensation is inconsistent with end-use curtailment, when the Commission failed to demonstrate the inconsistency. Our requirement of proof that a compensation plan would significantly impede the desired end use of natural gas requires no more than that the Commission meet its obligation to articulate some specific inconsistency between compensation and end-use curtailment before relying on it as justification for denying compensation.
Our remand is not a directive to the Commission to order compensation in this case. Nor does it impinge upon the agency’s discretion to decide to deny compensation. It is an order to give reasoned consideration to the merits of a compensation scheme. The invocation of a policy, with no support in fact or logic, does not constitute the consideration required.
The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Bane is DENIED.
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Citator
Cited By
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Borden, Inc. v. Fed. Energy Regulatory Comm'n, 855 F.2d 254 (5th Cir. 1988)
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Miss. Power & Light Co. v. Fed. Energy Regulatory Comm'n, 736 F.2d 261 (5th Cir. 1984)
Authorities Cited
- Consol. Edison Co. OF NEW York, Inc. v. Fed. Energy Regulatory Comm'n, 676 F.2d 763 (D.C. Cir. 1982)
- Fort Pierce Util. Auth. OF the City OF Fort Pierce v. Fed. Energy Regulatory Comm'n, 724 F.2d 1167 (5th Cir. 1984)