Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.
In January 1990, the Federal Energy Regulatory Commission (“FERC”) approved the construction of a pipeline by Kern River Gas Transmission Company (“Kern River”) that would transport natural gas from the Wyoming “Overthrust Region” to California. Kern River negotiated long term contracts with purchasers of its transportation services (“shippers”) using the rate structure prevailing in the industry at the time. The rate structure in the gas pipeline industry passes on pipeline costs to shippers in two components: a reservation charge covering fixed costs, and a usage charge covering variable costs. Under “straight fixed/variable” rating (hereinafter “straight f/v”), all fixed costs are assigned to the reservation charge, which does not vary with use, and all variable costs are assigned to the usage charge, which does. Under “modified fixed/variable” rating (hereinafter “modified f/v”), some of the fixed costs are assigned to the reservation charge, but some of the fixed costs, including return on equity and income taxes, are assigned to the usage charge along with all the variable costs. In 1990, modified f/v prevailed in the pipeline industry; Kern River’s contracts with its shippers used modified f/v.
In 1993, implementing Congress’ gradual deregulation of the natural gas industry, FERC issued its landmark Order No. 636, 1 which changed the basic rate structure in the gas pipeline industry from modified f/v to straight f/v in order to enhance competition between gas producers. In two successive subsequent orders, FERC required Kern River to replace the modified f/v rate design for which it had contracted with straight f/v. Kern River Gas Transmission Company, Docket No. RS92-65-000, et al.: “Order on Compliance with Restructuring Rule,” issued March 2, 1993, 62 FERC (CCH) ¶ 61,191; “Order Accepting Revised Compliance Filing, Denying. Rehearing and Granting Clarification,” issued July 9, 1993, 64 FERC (CCH) ¶ 61,049 (collectively, “Kern River orders”). Petitioners, shippers who contracted with Kern River to use its transportation services, challenge the rate change on the grounds that it arbitrarily and unjustifiably reallocates risk away from Kern River and onto them, and on the grounds that FERC may not abrogate existing contracts unless imperatively demanded by the public interest.
We deny the petition for review. The Kern River orders do not abrogate the parties’ contracts, but rather alter some of their terms in a permissible manner anticipated by the contracts themselves. While the orders do reallocate risk at the expense of Petitioners, FERC articulated a rational, nonarbitrary policy basis for its decision.
I. Background
FERC authorized construction of the Kern River pipeline to transport gas from the Wyoming “Overthrust Region” to California un
*160
der special “Optional Certificate” procedures authorized by the Natural Gas Act (“NGA”) § 7, 15 U.S.C. § 717f.
See Kern River Gas Transmission Co.,
Each contract contained a
“Memphis
clause,” so named for
United Gas Pipe Line Co. v. Memphis Light, Gas and Water Div.,
In 1992, FERC adopted Order No. 636, which effected a variety of changes in the natural gas market. For purposes of this case, the significant aspect of Order No. 636 was its alteration of the required rate design from modified f/v to straight f/v.
See
18 C.F.R. § 284.8(d). This court upheld the rate design change in
United Distrib. Cos. v. F.E.R.C.,
In August 1992, after Order No. 636 took effect, Kern River applied to FERC to adopt straight f/v rate design for all of its shippers except Mobil and Union Pacific. J.A. 1. FERC responded by requiring straight f/v for all Kern River’s shippers.
This challenge followed. The gravamen of Petitioners’ complaint is that modified f/v places the risk of the pipeline’s failure primarily on the pipeline owner, while straight f/v spreads this risk by assigning virtually all the fixed costs to shippers such as Petitioners, who pay reservation charges to guarantee themselves pipeline capacity. If, as here, the shippers reserve nearly all of a pipeline’s capacity for a given period, a pipeline using straight f/v rate design will recover its fixed costs during that period irrespective of how much capacity the shippers actually use. In other words, although Order No. 636 aimed to rationalize pricing of natural gas for end *161 purchasers, implementing straight f/v in this case had a coincidental, different effect: it altered the original risk allocation for which the parties contracted, placing a higher burden on the shippers and reducing significantly the burden on Kern River. Petitioners seek to escape this alteration in risk allocation that will bind them for the length of the contracts.
II. Analysis
A. Standard of Review
We review FERC orders under the arbitrary and capricious standard of 5 U.S.C. § 706(2)(A).
City of Seattle v. F.E.R.C.,
Whether Mobile-Sierra doctrine applies is a question of contract interpretation:
The rule of Sierra, Mobile, and Memphis is refreshingly simple: The contract between the parties governs the legality of the filing. Rate filings consistent with contractual obligations are valid; rate filings inconsistent with contractual obligations are invalid.
Richmond Power & Light v. F.P.C.,
The contracts between Kern River and Petitioners anticipated rate changes by FERC, and thus
Mobile-Sierra
doctrine does not apply. The contracts were of the type that permitted FERC changes of unjust and unreasonable rates in addition to those contrary to the public interest.
See id.
All of the disputed' contracts included
Memphis
clauses acknowledging FERC regulation of rates and permitting Kern River to request rate changes from FERC. The contracts provided for the possibility of rate changes in other ways, as well. For example, the Mobil and Union Pacific contracts provided that if FERC ordered rate changes raising Kern River’s costs, Kern River could pass on some of those costs.
Kern River’s contracts with Mobil and Union Pacific included an additional clause providing that neither party shall “seek to change ... the modified fixed variable rate design.” This language simply prohibited the parties from
requesting
from FERC, pursuant to NGA § 4, a change away from modified
f/v.
Nothing in the contracts expressly exempted the private agreement from rate changes initiated by FERC under NGA § 5. The parties could have, but did not adopt language that expressly limited FERC’s right to change modified f/v to the public interest standard’required by
Mobile-Sierra. See Papago,
B. Alleged Arbitrariness of Risk Reallocation
Petitioners challenge the rate change on the theory that, as shippers, they entered long term, modified f/v contracts in reliance on Optional Certificate procedures under NGA § 7, and that the switch to straight f/v arbitrarily altered the carefully negotiated risk allocation embodied in those contracts. They claim that FERC did not provide a reasoned explanation for its change, and that Kern River has reaped unearned benefits by the lessening of its share of the economic risk of the pipeline.
In an order granting an Optional Certificate to one of Kern River’s competitors, FERC stated:
Although we cannot bind the actions' of future Commissions, it is our intent that the negotiated rate design would not be subject to change in a future section 4 or section'5 rate proceeding, either by the applicant or by the Commission, because that rate design reflects the assessment of risk agreed to by the parties in order to construct the project.
Petitioners and Kern River probably did intend to negotiate risk allocation when they entered the long term contracts at issue here. It is also likely that they did not specifically anticipate FERC Order No. 636 and the resulting change from modified f/v, on which they relied, to straight f/v. Kern River may well have incurred some unexpected benefits as a result of the change, as Petitioners have incurred unexpected costs. Kern River now shoulders less of the risk of the pipeline, since it can recover return on equity and taxes through reservation charges, which it could not do under the original contracts; Petitioners now shoulder more of the risk.
Even assuming the correctness of all Petitioners’ factual claims, however, it does not follow that FERC’s orders were arbitrary and capricious. This case presents a paradigmatic example of an agency reasonably changing its policies, and implementing the consequences of those changes to the detriment of some parties and the benefit of others. Policy changes sometimes have distributive effects that may appear arbitrary from the perspective of their corporate victims, but in fact proceed logically from the reasoned premises underlying the changes. The policy changes may even have the effect of unsettling other policies that the agency has pursued or continues to pursue; but this is occasionally inevitable given the complexity of economic relations and administrative intervention. The problem of unsettling existing agency policies counsels caution, but does not bar policy changes. By formulating its policy in a reasoned fashion, FERC acted in a non-arbitrary manner; by justifying its decision to apply straight f/v to Kern River on the basis of promoting market efficiency, FERC satisfied its burden of providing reasoned explanation for its change in policy.
FERC’s formulation and structuring of its policies from the outset acknowledged the possibility of policy change. FERC’s statement of its future intent,
supra,
began with the caveat that FERC, like a legislature, cannot bind itself with respect to future policy changes.
See
No doubt, the possibility of FERC intervention in rate design makes it more difficult for the parties to allocate risk by means of contracts adopted pursuant to the Optional Certificate procedures. No rational corporation would, without some trepidation, enter a long term contract whose terms might be altered by highly unpredictable government intervention. The possibility of FERC intervention makes risk allocation difficult. Indeed, the
Kern River
orders conceivably could have the effect of chilling future Optional Certificate contracts, to the extent that pipeline builders and shippers may believe that significant shifts in their bargained-for risk allocations can and sometimes do occur. However, this possibility of future chilling belongs as one among the various factors that FERC could consider in exercising its administrative discretion. The one dissenting Commissioner in the
Kern River
rehearing order raised the issue of regulatory certainty as a concern, and justly so.
In the first
Kern River
order, FERC justified its application of straight f/v to Kern River in terms of the broad policy change of Order No. 636 under which straight f/v became the rate design for the entire natural gas industry. First sketching the goal of competition at the wellhead, FERC pointed out that Kern River’s usage rates under modified f/v of either $0.1852 or $0.2502 per thousand cubic feet (“Mcf’) would drastically exceed its competitors’ straight f/v charges of $0.0165 and $0.00478 per Mcf.
On balance, we believe that the fundamental changes that are to occur in the natural gas industry under restructuring greatly outweigh the anticipation of the parties and the Commission when Kern River’s original certificate authorization was being considered that the MFV methodology would not change- Kern River’s customers are in essentially no different a position now than the customers of any other pipeline who, in the past expected the Commission’s former policy favoring MFV to continue.
Id.
FERC’s explanation for its decision sufficiently articulated the basis for its actions: the purposes of straight f/v “greatly outweigh” whatever harm might befall the parties as the result of a change in their initial expectations. Similar harms affected all natural gas customers who relied on the continuity of modified
f/v,
yet the cpurt found the change from modified f/v to straight f/v to be permissible in
United Distrib. Cos.,
In its second, clarificatory order on rehearing, FERC explained once more that, by implementing straight f/v, it intended to serve the general policy aim of Order No. 636: facilitating competition at the wellhead for natural gas sales. Noting the usage rate disparity between Kern River and its competitors that would result from allowing Kern River to maintain modified i/v, FERC observed:
Shippers with different supply options would look to the usage charges of the competing pipelines to make market decisions. Therefore, Kern River’s usage charge would cause distortions in the wellhead markets where merchants purchase gas for sale in the California market.
Thus, in both Kern River orders, FERC provided reasoned explanation for its decision to impose straight f/v. This decision resulted from the broad policy reorientation that favored creating competition at the wellhead by making gas prices reflect only the marginal cost of extraction and transportation, and not any fixed pipeline costs. Applying this policy generally meant that if Kern River, and none of its competitors, used modified f/v, the goal of price transparency and comparability would not be achieved in its market. It thus made regulatory sense to require Kern River to use straight f/v, even though the consequence of this decision was to reallocate risk that Kern River and Petitioners had already allocated. This was a reasoned trade-off, not an arbitrary decision, and lay within FERC’s discretion.
C. Subsequently Granted FERC Exceptions
Since the time when the
Kern River
orders were issued, FERC has permitted exceptions to its straight f/v rate requirement in several cases, including those of two of Kern River’s competitors. Joint Initial Brief of Petitioners 34-36; Joint Reply Brief of Petitioners 20-21. Because these exceptions occurred after the orders under review, they play no role in our determination of the orders’ legality. Although we may remand where FERC has formally altered its policy after issuing an order challenged before us,
see, e.g., Panhandle Eastern Pipe Line Co. v. F.E.R.C.,
D. Factual Hearing Request
Petitioners requested a hearing before FERC to determine whether justification existed for an exception to the straight f/v requirement, and now ask this court to remand for a hearing on the question because cost allocation “involves judgment on a myriad of facts.”
United Distrib. Cos.,
III. Conclusion
FERC’s orders reasonably instituted policy decisions whose distributive effects disadvantaged Petitioners. The orders were not arbitrary, capricious, or otherwise in violation of law, and they were adequately explained by FERC. The petition for review is denied.
So ordered.
Notes
. Order No. 636, Pipeline Service Obligations and Revisions to Regulations Governing Self-Implementing Transportation Under Part 284 of the Commission's Regulations, and Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, III F.E.R.C. Stats. & Regs. (CCH) ¶ 30,-939, order on reh'g, Order No. 636-A, F.E.R.C. Stats. & Regs. (CCH) ¶ 30,950, order on reh’g, Order No. 636-B, 61 F.E.R.C. ¶ 61,272 (1992), reh'g denied, 62 F.E.R.C. ¶ 61,007 (1993).