United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2000 Decided December 15, 2000
No. 99-1203
Missouri Public Service Commission,
Petitioner
v.
Federal Energy Regulatory Commission,
Respondent
Williams Gas Pipelines Central, Inc., et al.,
Intervenors
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
John E. McCaffrey argued the cause for the petitioner.
David D'Alessandro was on brief for the petitioner. Kelly A.
Daly and Thomas R. Schwarz, Jr. entered appearances.
Lona T. Perry, Attorney, Federal Energy Regulatory
Commission, argued the cause for the respondent. John H.
Conway, Acting Solicitor, and Timm L. Abendroth, Attorney,
Federal Energy Regulaltory Commission, were on brief for
the respondent. Susan J. Court, Special Counsel, Federal
Energy Regulaltory Commission, entered an appearance.
Michael A. Stosser, Stanley A. Berman and Adelia S.
Borrasca were on brief for intervenor Kansas Pipeline Com-
pany. Jane E. Stelck entered an appearance.
Gary W. Boyle and Jay V. Allen entered appearances for
intervenor Williams Gas Pipelines Central, Inc.
James F. Moriarty entered an appearance for intervenor
Missouri Gas Energy.
Dana Charles Contratto and Herbert J. Martin entered
appearances for intervenor Kansas Gas Service Company.
John Justin McNish, Elizabeth Rose Myers-Kerbal and
Richard Greer Morgan entered appearances for intervenor
Kansas Corporation Commission.
Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Petitioner Mis-
souri Public Service Commission (MoPSC) seeks review of
three orders of the Federal Energy Regulatory Commission
(FERC or Commission) setting initial rates for natural gas
transportation by the Kansas Pipeline Company (KPC or
Company).1 The petitioner argues that FERC failed to dem-
onstrate the approved rates are in the public interest, as
required by section 7 of the Natural Gas Act (NGA), 15
U.S.C. s 717f, and failed to reach a conclusion that is the
product of reasoned decisionmaking. We agree. According-
ly, we grant the petition for review and remand the case to
the Commission for further ratemaking proceedings.
I.
Section 7(c) of the NGA provides that "[n]o natural-gas
company . . . shall engage in the transportation or sale of
natural gas, . . . unless there is in force with respect to such
natural-gas company a certificate of public convenience and
__________
1 The orders under review are Kansas Pipeline Co., 87 F.E.R.C.
p 61,020 (Apr. 2, 1999); Kansas Pipeline Co., 83 F.E.R.C. p 61,107
(Apr. 30, 1998); Kansas Pipeline Co., 81 F.E.R.C. p 61,250 (Nov. 25,
1997).
necessity issued by the Commission authorizing such acts or
operations." 15 U.S.C. s 717f(c). In order to issue such a
certificate, the Commission must find that, among other
things, "the proposed service, sale, [or] operation . . . is or
will be required by the present or future public convenience
and necessity." Id. s 717f(e). Reaching this decision "re-
quires the Commission to evaluate all factors bearing on the
public interest." Atlantic Ref. Co. v. Public Serv. Comm'n,
360 U.S. 378, 391 (1959). More specifically, section 7 imposes
on the Commission a duty "to engage in 'a most careful
scrutiny and responsible reaction to initial price proposals of
producers.' That scrutiny demands attentiveness to the evi-
dence presented by the producer with 'price a consideration
of prime importance' in the application of the public conve-
nience and necessity standard." Consumer Fed'n of Am. v.
Federal Power Comm'n, 515 F.2d 347, 356 (D.C. Cir.) (quot-
ing Atlantic Ref. Co., 360 U.S. at 391), cert. denied, 423 U.S.
906 (1975).
II.
KansOk Partnership (KansOk), Kansas Pipeline Partner-
ship (KPP) and Riverside Pipeline Company (Riverside) en-
gage in the transportation of natural gas. Before November
2, 1995 KPP was regulated by the Kansas Corporation Com-
mission (KCC),2 while KansOk and Riverside were regulated
by FERC under section 311 of the Natural Gas Policy Act
(NGPA), 15 U.S.C. s 3371. On November 2, 1995 FERC
determined that KansOk, KPP and Riverside constituted a
single interstate pipeline system subject to FERC jurisdiction
under the NGA. See KansOk P'ship, 73 F.E.R.C. p 61,160, at
61,480 (1995). FERC therefore ordered the three entities,
collectively KPC, to apply for a certificate of public conve-
nience and necessity under section 7 of the NGA. See id. at
61,488. KPC challenged FERC's assertion of jurisdiction and
sought a rehearing, see Kansas Pipeline Co., 81 F.E.R.C.
p 61,005, at 61,006 (1997), but, at the same time, on January
__________
2 KPP operated as a "Hinshaw" pipeline exempt from FERC
jurisdiction pursuant to 15 U.S.C. s 717(c).
23, 1996 filed under protest a certificate application proposing
an initial rate base of $100,647,042 and a cost of service of
$36,708,843, see id. at 61,006-07, 61,017.
On October 3, 1997 the Commission confirmed its Novem-
ber 2, 1995 decision asserting jurisdiction over KPC.3 See id.
at 61,036. FERC then proceeded to examine KPC's pro-
posed initial rates, terms and conditions and concluded that
the rates were not in the public interest. See id. at 61,017.
In the end, FERC adopted a rate base of $39,011,785 and a
cost of service of $21,817,483. See id.
On November 3, 1997 KPC sought rehearing of the October
3, 1997 order. The Company argued that the rates estab-
lished by the order would drive KPC into bankruptcy because
they did not allow KPC to recover its operating expenses and
make payments on two outstanding loans. On November 10,
1997 KPC sought a stay of the October 3, 1997 order, which
the Commission granted on November 25, 1997. See Kansas
Pipeline Co., 81 F.E.R.C. p 61,250, at 62,136 (1997).
On February 27, 1998 KPC filed with the Commission a
document titled "Motion of Kansas Pipeline Company Acced-
ing to FERC Jurisdiction, and Requesting Interim Relief, Or,
in the Alternative, Request for a Rehearing" in which it made
the following proposal: KPC would dismiss its appeal chal-
lenging FERC's jurisdiction, see supra note 3, if FERC
permitted KPC to continue charging the contractual rates
that had been agreed to by KPC and its customers and had
been approved by KPC's prior regulators (Motion Rates)
until such time as section 4 rates were approved by FERC.
FERC agreed with KPC's proposal and on April 30, 1998
issued an order permitting KPC to grandfather its old rates
pending a section 4 proceeding. See Kansas Pipeline Co., 83
F.E.R.C. p 61,107, at 61,518 (1998). In support of its decision
FERC declared: "As discussed below, the Commission has
determined that granting the motion is in the public interest
__________
3 On December 2, 1997 KPC filed a petition for review with this
court challenging FERC's decision. See Kansas Pipeline P'ship v.
FERC, No. 97-1710 (D.C. Cir. Dec. 2, 1997) (voluntarily dismissed
on May 8, 1998).
because it will result in rates that are in the public interest,
will remove the jurisdictional issue from the proceeding, and
preserve the financial integrity of the applicant." Id. at
61,505.
FERC's conclusion that the rates are "in the public inter-
est" warrants some explanation. At the beginning of its
analysis, the Commission noted that KPC's November 3, 1997
request for rehearing of the October 3, 1997 order was
"largely moot" in light of its approval of the Motion Rates.
Nevertheless FERC proceeded to discuss the issues raised by
the rehearing request in order to "provide a context for our
decision to grant the applicant's February 27 motion." Id. at
61,506. In the discussion, FERC reversed its October 3, 1997
position on several issues. See id. at 61,506-09. Ultimately,
FERC concluded that, if the initial rates set by the October 3,
1997 order were adjusted "based on the rehearing arguments
that the Commission found to be persuasive," those rates
(Rehearing Rates) would be higher than KPC's Motion Rates.
Id. at 61,511. Because approval of the Motion Rates also
resolved the jurisdictional issue, the Commission concluded
that "it is in the public interest to grant Kansas Pipeline's
motion." Id.
Petitioner MoPSC sought a rehearing of FERC's April 30,
1998 order, challenging FERC's conclusion that the Rehear-
ing Rates would be higher than the Motion Rates.4 MoPSC
asserted that FERC's analysis was plagued by numerous
errors and unexplained departures from settled FERC po-
lices. On April 2, 1999 FERC denied rehearing, explaining
that in the April 30, 1998 order it had not relied strictly on a
comparison of the Motion Rates and the Rehearing Rates but
rather had "concluded that the motion rates were in the
public interest because they were negotiated among the par-
ties and approved by the prior regulatory regime." Kansas
__________
4 MoPSC has standing in this case pursuant to section 15 of the
NGA. See 15 U.S.C. s 717n ("In any proceeding before it, the
Commission in accordance with such rules and regulations as it may
prescribe, may admit as a party any interested . . . State commis-
sion, . . . whose participation in the proceeding may be in the public
interest."); see also 18 C.F.R. s 385.214 (FERC rules of practice
and procedure).
Pipeline Co., 87 F.E.R.C. p 61,020, at 61,064 (1999). FERC
also emphasized the advantage of the Company's concession
on the jurisdiction issue as well as the importance of preserv-
ing the Company's financial integrity. See id. Unsatisfied,
MoPSC filed this petition for review.
III.
We review FERC's orders under the familiar arbitrary and
capricious standard of the Administrative Procedure Act.
See 5 U.S.C. s 706(2)(A); Williston Basin Interstate Pipeline
Co. v. FERC, 165 F.3d 54, 60 (D.C. Cir. 1999). Although
"[j]udicial scrutiny under the National Gas Act is limited to
assuring that the Commission's decisionmaking is reasoned,
principled, and based upon the record," Columbia Gas Trans-
mission Corp. v. FERC, 628 F.2d 578, 593 (D.C. Cir. 1979);
accord Williston Basin Interstate Pipeline Co., 165 F.3d at
60, the Commission's orders must nonetheless articulate "a
rational connection between the facts found and the choice
made." Association of Oil Pipe Lines v. FERC, 83 F.3d
1424, 1431 (D.C. Cir. 1996) (citations and internal quotation
marks omitted). To carry out our reviewing task,
it is imperative that the Commission articulate the criti-
cal facts upon which it relies when it decides [the rele-
vant rates]. Similarly, when the Commission finds it
necessary to make predictions or extrapolations from the
record, it must fully explain the assumptions it relied on
to resolve unknowns and the public policies behind those
assumptions. Where the Commission balances compet-
ing interests in arriving at its decision, it must explain on
the record the policies which guide it. Only if the
Commission observes these minimum standards can we
be confident that missing facts, gross flaws in agency
reasoning, and statutorily irrelevant or prohibited policy
judgments will come to a reviewing court's attention.
Moreover, by requiring that the Commission fully articu-
late the basis for its decision, we assure the Commission,
itself, the first opportunity to correct any defects which
may emerge from such disclosure.
Columbia Gas Transmission Corp., 628 F.2d at 593 (footnote
omitted); accord Great Lakes Gas Transmission Ltd. P'ship
v. FERC, 984 F.2d 426, 432 (D.C. Cir. 1993).
Defending its approval of the Motion Rates as in the public
interest, FERC asserts that it relied on the following
grounds: (1) approval of the Motion Rates ended the jurisdic-
tional dispute, thus eliminating regulatory uncertainty and
avoiding protracted litigation; (2) the Motion Rates had been
negotiated among the parties; (3) the Motion Rates had been
approved by KPC's prior regulators; (4) the Commission's
adjustment of the October 3 rates preserved KPC's financial
integrity and prevented KPC's bankruptcy; and (5) the Mo-
tion Rates were lower than the Rehearing Rates. MoPSC
challenges each ground.5
In evaluating the Commission's arguments, we bear in
mind the "time-honored rule that a reviewing court 'must
judge the propriety of [agency] action solely by the grounds
invoked by the agency.' " Western Resources, Inc. v. FERC,
9 F.3d 1568, 1576 (D.C. Cir. 1993) (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)). The court does not "give an
agency the benefit of a post hoc rationale of counsel." Loui-
siana Ass'n of Indep. Producers & Royalty Owners v. FERC,
958 F.2d 1101, 1123 n.12 (D.C. Cir. 1992).
In our view, the record does not manifest that FERC
originally invoked all of the grounds it now relies on to
__________
5 FERC argues that MoPSC is precluded from mounting a chal-
lenge to the first four grounds because it failed to make those
arguments in its petition for rehearing as required by section 19(a)
of the NGA. See 15 U.S.C. s 717r(a) ("The application for rehear-
ing shall set forth specifically the ground or grounds upon which
such application is based."). We find no merit in FERC's argu-
ment. As is clear from our discussion infra, the Commission's April
30, 1998 order did not include all of the grounds it asserts here and,
therefore, the petitioner had no reason to question unaddressed
matters in seeking rehearing. See 15 U.S.C. s 717r(b) ("No objec-
tion to the order of the Commission shall be considered by the court
unless such objection shall have been urged before the Commission
in the application for rehearing unless there is reasonable ground
for failure so to do." (emphasis added)).
support its action. First, the Commission did not use the
second and third rationales in its April 30, 1998 order.
FERC's entire discussion of these two points is contained in
one sentence: "In its motion, [KPC] proposes to charge rates
that have been negotiated among the parties and approved by
the prior regulatory regime, until such time as the Commis-
sion directs [KPC] to file a NGA Section 4 rate case."
Kansas Pipeline Co., 83 F.E.R.C. p 61,107, at 61,510. The
order does not explain the significance of the two rationales
or how they relate to the choice made by the Commission.
Moreover, FERC's own conclusion shows no reliance on these
factors.6 Thus, we reach the inescapable conclusion that
FERC's reference to the negotiations among parties and to
the approval by prior regulators was merely descriptive of the
Motion Rates rather than a declaration of what FERC now
argues are two of its primary reasons for reaching its deci-
sion.
As to the first and fourth rationales, the April 30, 1998
order does include them as grounds for the decision. See
Kansas Pipeline Co., 83 F.E.R.C. p 61,107, at 61,505 ("[T]he
Commission has determined that granting the motion . . .
will remove the jurisdictional issue from the proceeding, and
preserve the financial integrity of the applicant."). A passing
reference to relevant factors, however, is not sufficient to
satisfy the Commission's obligation to carry out "reasoned"
and "principled" decisionmaking. We have repeatedly re-
quired the Commission to "fully articulate the basis for its
decision." Columbia Gas Transmission Corp., 628 F.2d at
__________
6 FERC's conclusion reads:
A comparison of [the Rehearing Rates] with the proposed
motion rates shows that the combined motion rates for the
three zones are lower. In addition, approving the motion rates
would remove the jurisdictional issue from the proceeding,
since [KPC] has agreed to accede to federal jurisdiction if its
motion is granted. Under these circumstances, the Commis-
sion concludes that it is in the public interest to grant [KPC's]
motion.
Kansas Pipeline Co., 83 F.E.R.C. p 61,107, at 61,511.
593; accord Great Lakes Gas Transmission Ltd. P'ship, 984
F.2d at 432; City of Charlottesville v. FERC 661 F.2d 945,
950 (D.C. Cir. 1981). Here, the Commission fell short of
meeting the "minimum standards" with which it is required to
comply. Columbia Gas Transmission Corp., 628 F.2d at 593.
Having addressed the first four rationales upon which the
Commission relies on appeal, we turn now to the Commis-
sion's hypothetical calculation of the Rehearing Rates. The
April 30, 1998 order concludes that the Motion Rates are
lower than the rates FERC would have approved had it
granted a rehearing. See Kansas Pipeline Co., 83 F.E.R.C.
p 61,107, at 61,511. The record makes clear this was the
Commission's primary reason for approving the Motion
Rates. Nevertheless, both in its April 2, 1999 order and
before this court, FERC has avoided defending its computa-
tion of the Rehearing Rates, dismissing it as mere "context."
See Kansas Pipeline Co., 87 F.E.R.C. p 61,020, at 61,064.
Indeed, during oral argument, FERC counsel could not even
assure this court that the Commission's arithmetic in calculat-
ing the adjusted hypothetical cost of service was correct.
Given that the only record basis on which FERC's decision
could be affirmed is minimized by the Commission itself, we
are compelled to remand the case to the Commission so that
it can reach a conclusion that is the product of reasoned
decisionmaking.7
__________
7 In view of the Commission's own limited defense of its calcula-
tions, we need not reach the merits of MoPSC's related calculations
arguments (e.g., rate of return computation, debt prepayment treat-
ment, reliance on stale data) raised in its request for rehearing of
the April 30, 1998 order. On remand, if the Commission decides to
recalculate the Rehearing Rates, it should consider MoPSC's argu-
ments and, if it chooses to depart from existing applicable ratemak-
ing policies, it must explain its reasoning on the record. See Great
Lakes Gas Transmission Ltd. P'ship, 984 F.2d at 433 ("A full and
rational explanation is especially important to this court when the
condition imposed reflects a shift in FERC's policy or a departure
from its typical manner of granting certificates and imposing condi-
tions.").
We note, however, that our decision does not mean that at
least some of the rationales offered by FERC could not
support the approval of initial section 7 rates pending a
section 4 proceeding. See Atlantic Ref. Co., 360 U.S. at 391
(approval of certificate of public convenience and necessity
"requires the Commission to evaluate all factors bearing on
the public interest"); Tejas Power Corp. v. FERC, 908 F.2d
998, 1003 (D.C. Cir. 1990) ("[T]his court has consistently
required the Commission to give weight to the contracts and
settlements of the parties before it.") (citing Union Elec. Co.
v. FERC, 890 F.2d 1193, 1194-95 (1989)); Jersey Cent. Power
& Light Co. v. FERC, 810 F.2d 1168, 1177-78 (D.C. Cir. 1987)
("In reviewing a rate order courts must determine whether or
not the end result of that order constitutes a reasonable
balancing, based on factual findings, of the investor interest in
maintaining financial integrity and access to capital markets
and the consumer interest in being charged non-exploitative
rates."); cf. Arctic Slope Regional Corp. v. FERC, 832 F.2d
158, 167-68 (D.C. Cir. 1987) (upholding FERC decision that
termination of lengthy litigation served public interest). In
this case, however, the rationales fail because FERC has not
adequately explained how the rationales, alone or together,
satisfy the "public interest" standard of section 7.
For the foregoing reasons, we remand to FERC for further
proceedings consistent with this opinion.
So ordered.