(concurring in part and dissenting in part):
The FERC decision that Point Conception is seismically suitable to be a liquified natural gas terminal site has no legal effect since it does not constitute a final judgment on an application to construct and' operate a liquified natural gas receiving and regassification facility. The majority seems to reach this conclusion, Maj.Op. at 901-902, but then reviews the decision of the FERC ultimately to find that it was not supported by substantial evidence. The majority apparently takes this tack so that it may on the merits reverse the FERC’s declaratory order, an order that the FERC concedes gives nobody the right to do anything. The majority confidently declares the 1970’s data on the need for LNG in California are hopelessly obsolete. No doubt they are, but reaching this conclusion without so much as citation to the Wall Street Journal sits ill with telling the Commission their lengthy and expensive investigation of the Point Conception site is not supported by substantial evidence.
The majority states that “... under the circumstances we decline to depart from the Commission’s own interpretation of its 1983 decision solely so that we may affirm the order as vacuous.” Maj.Op. at 903. But the majority should depart from the Commission’s interpretation of its own decision if that interpretation is wrong, as it manifestly is. It should not adopt an incorrect interpretation just so it can reverse on the merits what is really just a free standing, nonbinding advisory opinion, no matter how ill founded that opinion may be.
If the FERC order has no legal effect, moreover, it is rather difficult to see how there is any “controversy” over which this court has jurisdiction. This court cannot reach the merits of what is merely the FERC’s non-final, tentative conclusion about what seismic investigation of the site has revealed so far, beyond vacating the order insofar as it purports to be a final “declaratory order” under 5 U.S.C. § 554(e). The 1983 order, stripped of its pretenses to be “declaratory” under § 554(e), should be taken as the FERC’s opinion that seismic risks alone do not permanently disqualify Little Cojo Bay as a LNG terminal site. But this interpretation, according to the majority, would deprive it of “significant legal content.” Maj.Op. at 903. Even so, this does not justify construing the FERC’s order as something that it clearly is not, a declaratory order, so that the underlying issue of the merits of the proposed site may be reached. What the majority may have inadvertently accomplished, inter alia, is the creation of a precedent that the Commission can issue such ethereal declaratory orders, quite apart from any application. The majority declares it does not reach this issue of whether FERC can issue such orders, Maj.Op. at 902, but it is unclear how this declaration is consistent with reviewing just such an order on its merits. The majority broadens the scope of 5 U.S.C. § 554(e), to say the least. It is hoped that the majority’s opinion will be viewed as vacating the 1983 declaratory order as lacking legal effect and criticizing in dicta the FERC’s efforts. This seems to be, in fact, one of the two independent, if perhaps inconsistent, positions espoused by the majority. Nonetheless, the 1979 and 1983 orders are vacated, the first order for the right reason, the second order for reasons less clearly so, and in these results I concur.