Anadarko Petro Corp v. FERC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed January 21, 2000

No. 98-1227

Anadarko Petroleum Corporation, et al.,
Petitioners

v.

Federal Energy Regulatory Commission,
Respondent

Amoco Production Company, et al.,
Intervenors

Consolidated with
Nos. 98-1228, 98-1229, 98-1230, 98-1231,
98-1232, 98-1297 & 98-1298

On Petition for Rehearing

---------

Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.

Opinion for the Court filed Per Curiam.

 Per Curiam: Subsequent to our decision of October 29,
1999, the Commission petitioned for rehearing seeking clarifi-
cation on the issue of the effective date for refunds discussed
in Part V of our opinion. See Anadarko Petroleum Corp. v.
FERC, 196 F.3d 1264, 1269-70 (D.C. Cir. 1999). Information
presented to the Commission in other proceedings indicated
that two of the factual assumptions upon which our opinion
was premised were incorrect. First, contrary to this panel's
understanding, see id. at 1270, the tax assessment sent to the
producers by the State of Kansas between October and
November of a given year was for the same calendar year and
not the previous year. Second, the Commission discovered
that producers most commonly sought reimbursement of the
Kansas ad valorem tax from their customers in lump sum
transactions and not by "raising their prices in individual
transactions." Id. Thus, the Commission was uncertain how
to give effect to the court's holding that "it is the overcharges
made in those individual transactions (plus interest) that the
producers must now repay." Id.

Whatever the nature of these transactions, the principle
embodied in our decision remains unchanged. The Kansas
tax should not have been subject to reimbursement for sales
exceeding the maximum lawful price under s 110 of the
Natural Gas Policy Act of 1978, 15 U.S.C. s 320(a)(1) (1988)
(repealed). However, the producers did not have notice that
this practice was questionable until October 4, 1983. See
Anadarko, 196 F.3d at 1266 (describing our earlier holding in
Public Service Co. of Colorado v. FERC, 91 F.3d 1478, 1490
(D.C. Cir. 1996)). If the producers collected tax reimburse-
ments from their customers after that date, whether by lump-
sum transactions or by any other means, they did so unlaw-
fully and must refund the amounts collected with interest,
provided that the tax reimbursements caused their sales to
exceed the maximum lawful price. We leave to the Commis-
sion the unenviable task of applying this principle to the facts
of ancient transactions.

 * * *

The petition for rehearing is granted. The portions of our
opinion of October 29, 1999, which are inconsistent with this
opinion are withdrawn. The orders under review are vacated
insofar as the question of refund dates is concerned and this
issue is remanded to the Commission for further proceedings
consistent with this clarification.