159 F.2d 215 | 6th Cir. | 1947
The petitioner, Kentucky Natural Gas Corporation, hereinafter referred to as Kentucky Natural, proceeding under the provisions of § 717r, Title 15 U.S.C.A., seeks a review of an order of the Federal Power Commission entered September 7, 1945. The order complained of granted a certificate of public convenience and necessity to Central Illinois Public Service Company, hereinafter referred to as Central Illinois, to construct and operate transmission pipeline facilities of approximately 20 miles connecting its local distribution system in Central Illinois with the East-West pipeline facilities of Panhandle Eastern Pipe Line Company, hereinafter referred to as Panhaudle, at Tuscola, Illinois, for the purpose of providing the natural gas required by Central Illinois for service to its consumers in the area surrounding Mattoon, Illinois. The order denied the application of Kentucky Natural for a certificate of public convenience and necessity to construct and operate such facilities. Kentucky Natural and Central Illinois are in agreement that public convenience and necessity justify the construction and operation of the proposed new facilities, but Kentucky Natural contends that the certificate should have been issued to it instead of to Central Illinois.
The Commission made the following findings of fact which are supported by substantial evidence and are conclusive. § 717r(b), Title 15 U.S.C.A. Central Illinois owns and operates a natural gas transmission pipeline system in the State of Illinois extending from a point on the Illinois-Indiana state line in a generally westerly direction to Effingham, Illinois, connecting its various distribution systems in Paris, Kansas, Ashmore, Charleston, Mattoon, Neoga, Sigel and Effingham. It purchases its natural gas supply for its Mattoon area from Kentucky Natural, which gas is produced primarily in Texas and Kansas, and and is transported eastwardly from the producing states by Panhandle across intervening states (including Illinois) to Montezuma, Indiana, where it is delivered by
The Commission found as its conclusions in the matter that (1) public convenience and necessity do not require the issuance of a certificate of public convenience and necessity to Kentucky Natural; (2) it is in the public interest that Central Illinois be authorized to construct and operate the proposed transmission pipeline between Tuscola and Mattoon, Illinois, as an integral part of its transmission pipeline system, and obtain its natural gas supply directly from Panhandle; (3) the delivery of the natural gas requirements of Central Illinois will not place any undue burden upon Panhandle, and will not impair its ability to render adequate service to its customers; (4) the construction and operation by Central Illinois of the facilities referred to are and will be required by the present and future public convenience and necessity, and a certificate authorizing such proposed construction and operation should be issued; and (5) Central Illinois is able and willing properly to do the acts and perform the service proposed, and to conform to the provisions of the Natural Gas Act as amended and the requirements, rules and regulations of the Commission thereunder. The order complained of followed.
The question is controlled by the provisions of § 717f, Title 15 U.S.C.A., which provides, with certain exceptions not material here, that no natural gas company shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction of any facilities therefor, or operate any such facilities, unless there is in force with respect to such natural gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations. The section provides for a hearing upon an application for such a certificate and for the giving of reasonable notice of the hearing to all interested persons, and that “a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, .to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.” It is well settled that it is for the Commission to
Kentucky Natural presented to the commission several factors favorable to its application. But the failure of the Commission to consider them decisive in the matter is not grounds for setting aside the Commission’s order. The Commission was empowered to consider other factors favorable to Central Illinois of more controlling importance. We believe that the fact that the construction of the proposed new facilities at an estimated cost of $182,-900 would eliminate the necessity of the expenditure of at least $350,000 by Central Illinois for otherwise necessary improvements and additions to its present facilities, and the fact that the proposed new facilities will enable it to obtain its gas requirements for the Mattoon area direct from
In this case the Commission made a finding as follows: “Central Illinois proposes to reduce its rates to ultimate consumers if it is able to obtain its natural gas supply directly from Panhandle Eastern. On the other hand, Kentucky Natural proposes to keep in force and effect its present rates to Central Illinois which will be in excess of the rates to be charged by Panhandle Eastern.” Kentucky Natural challenges the authority of the Commission to make such a finding and to base a ruling upon such a ground. It points out that while the Act as originally enacted in 1938 authorized by specific language in § 717f(c), Title 15 U.S.C.A., such a finding and ruling, yet the 1942 amendment eliminated this specific authorization in its rewording and reenactment of the section. We do not believe the decision in the present case requires a ruling on that question. While such a finding gives added support to the ruling of the Commission, we believe that the finding can be disregarded in this case and the ruling of the Commission fully sustained on the remaining established facts for the reasons herein-above indicated.
The Commission’s order, now under review, is accordingly affirmed.