United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2000 Decided January 12, 2001
No. 99-1390
Public Utilities Commission of the State of California, et al.,
Petitioners
v.
Federal Energy Regulatory Commission,
Respondent
El Paso Municipal Customer Group, et al.,
Intervenors
---------
Consolidated with
Nos. 99-1399 and 99-1444
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Harvey Y. Morris and David G. Leitch argued the causes
for petitioners Public Utilities Commission of the State of
California, et al. With them on the briefs were Mary Anne
Mason, Douglas Kent Porter, Frederick T. Kolb and Kath-
erine Bourke Edwards. Arocles Aguilar entered an appear-
ance.
Laura J. Vallance, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
the brief were John H. Conway, Acting Solicitor, and Susan
J. Court, Acting Deputy Solicitor.
Kenneth M. Minesinger argued the cause for intervenors
El Paso Natural Gas Company and Dynegy Marketing and
Trade. With him on the brief were Richard C. Green, Judy
A. Johnson and Peter G. Esposito.
Before: Ginsburg, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Petitioners1 seek review of four
orders of the Federal Energy Regulatory Commission
("FERC") relating to three pipeline capacity sale contracts
between El Paso Natural Gas Company ("El Paso") and
Dynegy Marketing and Trade ("Dynegy") (formerly National
Gas Clearinghouse). Petitioners contend that in approving
the contracts, FERC abused its discretion and acted arbi-
trarily and capriciously by (1) not adhering more closely to
__________
1 Petitioners are the Public Utilities Commission of the State of
California ("CPUC"), Southern California Edison Company ("SoCal
Edison"), Amoco Energy Trading Corporation, and Amoco Produc-
tion Company (jointly "Amoco"). The petitioning parties before
FERC in the four challenged orders were Amoco, Burlington
Resources Oil & Gas Company, Marathon Oil Company, Williams
Energy Services Company, Phillips Petroleum Corporation and
Phillips Gas Marketing Company. See El Paso Natural Gas Co., 89
F.E.R.C. p 61,073, at 61,226 n.4 (1999) ("El Paso IV"); El Paso
Natural Gas Co., 88 F.E.R.C. p 61,139, at 61,405 n.14 (1999) ("El
Paso III"); El Paso Natural Gas Co., 83 F.E.R.C. p 61,286, at
62,187 n.2 (1998) ("El Paso II"); El Paso Natural Gas Co., 82
F.E.R.C. p 61,052, at 61,200 (1998) ("El Paso I"). In addition,
CPUC, SoCal Edison, and Exxon Company, U.S.A. participated in
the proceedings before FERC. See El Paso III, 88 F.E.R.C. at
61,406.
antitrust principles, as instructed by the court in Southern
California Edison v. FERC, 172 F.3d 74 (D.C. Cir. 1999)
("SoCal II"), and as manifested by the pro-competitive pur-
poses of FERC Order No. 636,2 and (2) finding that a certain
portion of the sold pipeline capacity, designated as "Block II"
capacity, was not recallable if unused by Dynegy. Because
the contracts expired in December 1999, we hold that the
issues underlying the petitions are moot, and accordingly, we
dismiss the petitions.
I.
El Paso is one of four interstate pipelines delivering natural
gas to California. In 1995, one of El Paso's major firm gas
transportation customers, Pacific Gas and Electric Company
("PG&E"), notified El Paso that it would terminate its entire
contract of mainline capacity effective December 1997.
PG&E's "turnback," along with other smaller capacity relin-
quishments, would leave more than thirty-five percent of El
Paso's firm capacity unsubscribed. Shortly thereafter, in
1996, El Paso negotiated a ten-year rate settlement with all of
its direct customers concerning the impending excess capacity
("1996 Settlement"). The 1996 Settlement reduced El Paso's
reservation charges and established a ten-year moratorium on
general rate increases. The Settlement also divided PG&E's
"turnback" capacity into three "blocks," designated as Blocks
I, II, and III; these blocks had system-wide receipt points
and primary delivery points to Topock, California. According
to the 1996 Settlement, Block II capacity was subject to
certain recall rights, upon notice, in favor of shippers located
in PG&E's service territory in Northern California. FERC
approved the 1996 Settlement on April 16, 1997. See El Paso
Natural Gas Co., 79 F.E.R.C. p 61,028 (1997), reh'g order, 80
F.E.R.C. p 61,084 (1997).
__________
2 See Pipeline Service Obligations and Revisions to Regulations
Governing Self-Implementing Transportation and Regulation of
Natural Gas Pipelines After Partial Wellhead Decontrol, Order No.
636, FERC Stats. & Regs. p 30,939, 57 Fed. Reg. 13,267 (Apr. 8,
1992) (rehearing orders omitted).
Although El Paso continued to seek buyers for the excess
capacity, as of August 1997 more than 1200 MMcf per day of
firm capacity remained unsubscribed. El Paso held an open
season during August and September 1997 to sell the excess
Block II and Block III capacity. In October 1997, El Paso
entered into a transaction contract with Dynegy that commit-
ted most of the unsubscribed Block I, II, and III capacity to
Dynegy for a two-year period, commencing January 1, 1998
and ending December 31, 1999. The transaction was divided
into three separate contracts to reflect the different charac-
teristics of the three blocks of capacity created by the 1996
Settlement. Each contract included a revenue reduction
mechanism ("RRM"), under which Dynegy's minimum pay
obligation would be reduced if El Paso sold interruptible
capacity above certain volume levels in competition with
Dynegy's resale of the firm capacity it had purchased from El
Paso.
On December 24, 1997, El Paso filed for approval of a
revised tariff to include the terms of the El Paso-Dynegy
transaction contract. See Natural Gas Act s 4, 15 U.S.C.
s 717c(d) (1997) ("NGA").3 On January 5, 1998, petitioners
filed a protest, objecting, among other things, to the fact that
the contracts, and particularly the RRM, were anti-
competitive and inconsistent with the 1996 Settlement. In
the first challenged order, dated January 23, 1998, FERC
authorized the contracts to become effective January 1, 1998,
subject to refund and the outcome of a technical conference,
which was held on March 3, 1998. See El Paso Natural Gas
Co., 82 F.E.R.C. p 61,052 (1998) ("El Paso I").
Petitioners filed a request for rehearing of the January 23,
1998 order. As relevant here, petitioners argued that FERC
__________
3 The NGA confers upon FERC rate authority over companies
that engage in either the sale or the transportation of natural gas.
Section 4 requires natural gas companies to file all rates and
contracts with FERC. See 15 U.S.C. s 717c (1997). Section 5(a)
authorizes FERC to modify, prospectively, any rate or contract that
it determines to be "unjust, unreasonable, unduly discriminatory, or
preferential." 15 U.S.C. s 717d(a) (1997).
must apply antitrust principles in examining issues of compe-
tition and discrimination raised by the El Paso-Dynegy trans-
action. Petitioners asserted that in light of established anti-
trust principles, the RRM was per se unlawful because it
tended to restrain competition in the secondary transporta-
tion market, and that the El Paso-Dynegy contracts were
anti-competitive in granting Dynegy excessive market power
upon El Paso's transfer of the purchased capacity. See El
Paso Natural Gas Co., 83 F.E.R.C. p 61,286, at 62,193 (1998)
("El Paso II"). In addition, petitioners asserted that El
Paso's Block II contract with Dynegy contravened the 1996
Settlement by effectively denying Block II shippers access to
the Northern California market. See id. at 62,199-200.
In its second challenged order, El Paso II, dated June 11,
1998, FERC denied the rehearing request. See El Paso II,
83 F.E.R.C. at 62,187-205. In El Paso II, FERC held that,
"[w]hile [it] may apply anti-trust concepts in analyzing com-
petitive issues ... [, it] is not charged with administering or
enforcing the antitrust laws." Id. at 62,194. Rather, its
obligation was to examine each transaction "in the context of
[FERC's] current regulatory paradigm under the Natural
Gas Act." Id. The relevant regulatory structure, FERC
stated, was set forth largely in its Order No. 636 and subse-
quent rehearing orders, which provide, among other things,
that interstate gas pipelines are not required to discount
below the maximum lawful rate contained in their tariffs. See
id. (citing Order No. 636-B, 57 Fed. Reg. 57,911 (Nov. 27,
1992); Order No. 636-A, 57 Fed. Reg. 36,128 (Aug. 3, 1992)).
Further, FERC stated, Order No. 636 "specifically rejected
assertions that anti-trust style regulation should play a cen-
tral role in developing [its] regulatory paradigm." Id. Thus,
FERC stated, the relevant analysis was whether, in light of
the regulatory structure set forth in Order No. 636, the
contracts at issue were unduly discriminatory. See id.
Applying this analytical structure, FERC concluded that,
while the RRM reduced El Paso's incentive to compete and
was therefore anti-competitive, it did not result in an unduly
discriminatory situation in the gas transportation market to
California. See id. at 62,196. First, the rate established by
the contracts was far below the maximum transportation rate
authorized by El Paso's tariff. See id. at 62,197. Second, the
anti-competitive effect of the transaction was diminished by
the "large amount of unutilized capacity that [was] available
on pipelines serving California, the fact that this [was] a two-
year transaction, that gas demand [was] not expected to
increase in California in the next two years, and [that]
capacity release rates remain[ed] well below the maximum
ceiling." Id. at 62,198. In rejecting petitioners' anti-
competitiveness arguments, FERC also cited Southern Cali-
fornia Edison Company v. Southern California Gas Compa-
ny, 79 F.E.R.C. p 61,157, reh'g denied, 80 F.E.R.C. p 61,390
(1997) ("SoCal I"), where FERC dismissed a complaint alleg-
ing abuse of market power by the Southern California Gas
Company in the secondary release market for pipeline capaci-
ty on the ground that because the company had complied with
the maximum tariff rate established by Order No. 636, there
was "no need to engage in a further inquiry into market
power." 80 F.E.R.C. at 62,302. Finally, FERC concluded
that the contracts' provisions concerning the recall of Block II
capacity were not unduly discriminatory, holding that ship-
pers located in Northern California could not "recall Block II
capacity simply because the capacity [was] not actually used
by [Dynegy]." El Paso II, 83 F.E.R.C. at 62,200.
After El Paso II, the parties submitted two compliance
filings, protests to those filings, and two additional requests
for rehearing. In their second and third rehearing requests,
petitioners again raised two principal issues: FERC's obli-
gation to address the allegedly anti-competitive nature of the
transaction, and the right of certain shippers under the 1996
Settlement to recall Dynegy's unused capacity to serve the
Northern California market. See El Paso Natural Gas Co.,
88 F.E.R.C. p 61,139 (1999) ("El Paso III"). In the mean-
time, the court reversed FERC's decision in SoCal I and
remanded the case to the agency, holding that FERC's
decision not to examine the market power issues raised by
the petitioner was arbitrary and capricious. See SoCal II,
172 F.3d at 76.
In the third challenged order, El Paso III, dated July 29,
1999, FERC generally denied rehearing on the anti-
competitiveness and Block II capacity issues. See El Paso
III, 88 F.E.R.C. p 61,139. FERC interpreted the recent
SoCal II decision as requiring it to examine allegations of
anti-competitive behavior under its NGA authority to prevent
undue discrimination. See id. at 61,406. Relying on Su-
preme Court and District of Columbia Circuit case law,4
FERC stated that it need not "pursue only the competitive
concerns embodied in antitrust principles." Id. at 61,407.
Rather, its duty, under the NGA and SoCal II, was to balance
the transaction's possible anti-competitive impact against the
public policy goals in the NGA, namely, to protect consumers
against "undue discrimination" while also assuring that the
pipeline has a "reasonable opportunity to recover its costs
and earn an adequate return." Id. at 61,407. Given these
considerations, FERC concluded that because Dynegy's com-
petitors were able to obtain capacity and reach the California
market, and because the transaction allowed El Paso an
improved opportunity to recover its costs and benefitted firm
shippers receiving payments under the 1996 Settlement, the
transaction was consistent with the NGA's public policy goals.
See id. at 61,408. While continuing to recognize that the
RRM was anti-competitive, FERC concluded that this was an
"ancillary" restraint on competition that was necessary to
allow El Paso to earn an adequate rate of return. FERC
reiterated that the transaction was "not inconsistent with ...
Order No. 636, particularly since Order No. 636 did not
require pipelines to discount in response to competitive pres-
sures." Id. at 61,426.
As to the Block II issues, FERC affirmed its previous
holding that a shipper could only recall Block II capacity
under contract to Dynegy if Dynegy was using the capacity
for delivery to points outside Northern California. FERC
__________
4 See El Paso III, 88 F.E.R.C. at 61,407 (citing FPC v. Hope
Natural Gas Co., 320 U.S. 591 (1944); Associated Gas Distribs. v.
FERC, 824 F.2d 981, 995 (D.C. Cir. 1987); Northern Natural Gas
v. FPC, 399 F.3d 953, 959-73 (D.C. Cir. 1968)).
reversed, however, its prior requirement that the Block II
recall rights apply only if there were capacity constraints.
See id. In addition, FERC rejected petitioners' argument
that any Block II capacity that was not used by Dynegy after
the first six months of the transaction be made available for
recall by other shippers, finding nothing in the language of
the 1996 Settlement to suggest a temporal limitation of
Dynegy's rights. Id. at 61,421. FERC noted that petitioners
did not suggest that any other shipper that might have
acquired Block II capacity be subject to the same limitation.
See id. In view of the excess capacity in the California
market, FERC concluded that it was unreasonable to impose
such a stringent standard on Dynegy. See id.
Petitioners' request for rehearing of El Paso III was
denied by FERC in its fourth and final challenged order,
dated October 19, 1999. See El Paso Natural Gas Co., 89
F.E.R.C. p 61,073 (1999) ("El Paso IV"). Relying in large
part on its prior reasoning, FERC rejected petitioner Amo-
co's arguments that the transaction was inconsistent with the
NGA, that the RRM should be held unlawful under all
circumstances, and that Block II shippers had a right to
recall Block II capacity to Northern California if Dynegy was
not using it. See id. at 61,226-27. FERC also made clear
that "[its] finding applie[d] only in the context of this Trans-
action." Id. at 61,226.
Amoco submitted a petition for review by this court on
November 9, 1999. On December 31, 1999, the two-year
contracts underlying the El Paso-Dynegy transaction ex-
pired. Shortly before the contracts' expiration, however, El
Paso entered into two contracts with other parties--Enron
North American Corporation ("Enron") and Williams Energy
Marketing and Trading Company ("Williams")--for the ca-
pacity that would become available on January 1, 2000. In
December 1999, El Paso proposed to revise its tariff to
include the terms of the new contracts. FERC modified the
new contracts in an order issued on January 19, 2000. See El
Paso Natural Gas Co., 90 F.E.R.C. p 61,050 ("Enron Order").
On January 28, 2000, however, Enron withdrew from the
contract. After Enron's withdrawal, El Paso contracted with
its marketing affiliate, El Paso Merchant, to use the capacity
that Enron turned back ("El Paso Merchant Transaction").
Because that contract conformed to the standard contract in
El Paso's tariff, El Paso was not required to obtain FERC's
approval.
II.
On appeal, petitioners contend that FERC acted arbitrarily
and capriciously and abused its discretion, first, by failing to
accord appropriate importance to the highly anti-competitive
nature of the El Paso-Dynegy contracts, particularly in light
of the court's decision in SoCal II and FERC's Order No.
636, and second, with regard to the Block II issues, by
adopting an erroneous interpretation of the 1996 Settlement.
FERC, in turn, responds that the court should dismiss the
petitions for lack of jurisdiction because the contracts at issue
expired in December 1999, thereby eliminating petitioners'
constitutional standing and rendering moot the issues pre-
sented in the petitions; and, alternatively, assuming jurisdic-
tion, the court should affirm the challenged orders because
FERC acted reasonably and on the basis of substantial
record evidence. We agree that the appeal is moot.5
Article III, Section 2 of the Constitution restricts federal
courts to resolving "actual, ongoing controversies," Honig v.
Doe, 484 U.S. 305, 317 (1988), rather than issuing advisory
opinions or "decid[ing] questions that cannot affect the rights
of litigants in the case before them." Better Gov't Ass'n v.
Department of State, 780 F.2d 86, 90-91 (D.C. Cir. 1986)
(citation omitted). "For that reason, if [ ] event[s] occur while
a case is pending on appeal that make[ ] it impossible for the
court to grant 'any effectual relief whatever' to a prevailing
party, the appeal must be dismissed [as moot]." United
States v. Weston, 194 F.3d 145, 147-48 (D.C. Cir. 1999)
(alterations in original) (quoting Church of Scientology v.
__________
5 Because the jurisdictional questions arise from issues of tim-
ing, namely the expiration of the El Paso-Dynegy contracts, we
approach the jurisdictional question in terms of mootness and, in
light of our disposition, do not reach FERC's contentions concern-
ing petitioners' alleged lack of standing.
United States, 506 U.S. 9, 12 (1992)); see also Northwest
Pipeline Corp. v. FERC, 863 F.2d 73, 76 (D.C. Cir. 1988).
Ordinarily, it would seem readily apparent that a challenge to
an expired contract is moot, because the court could provide
no relief to the allegedly aggrieved parties. Petitioners,
however, contend that their challenge falls within the excep-
tion to the mootness doctrine for cases that are "capable of
repetition yet evading review." Southern Pac. Terminal Co.
v. ICC, 219 U.S. 498, 515 (1911). To invoke this exception,
petitioners have the burden to demonstrate that "(1) the
challenged action [is] in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will]
be subject to the same action again." Spencer v. Kemna, 523
U.S. 1, 17 (1998) (alterations in original) (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 481 (1990)); see also
Weston, 194 F.3d at 148.
Petitioners meet their burden as to the "evading review"
requirement. Both the Supreme Court and this court have
held that "orders of less than two years' duration ordinarily
evade review." Burlington N. R.R. Co. v. Surface Transp.
Bd., 75 F.3d 685, 690 (D.C. Cir. 1996); see also Southern
Pacific, 219 U.S. at 514-16; In re Reporters Comm. for
Freedom of the Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985).
FERC issued its first substantive order on June 11, 1998.6
See El Paso II, 83 F.E.R.C. p 61,286. Pursuant to NGA
s 19(a), 15 U.S.C. s 717r(a) (1997), petitioners were obligated
to seek rehearing of the June 11, 1998, order before seeking
judicial review. See ASARCO, Inc. v. FERC, 777 F.2d 764,
771 (D.C. Cir. 1985). FERC responded to petitioners' re-
quest for rehearing on July 29, 1999--five months before the
December 31, 1999 expiration of the El Paso-Dynegy con-
__________
6 The initial order by FERC, dated January 23, 1998, merely
deferred the substantive issues for resolution after the March 3,
1998, technical conference. See El Paso I, 82 F.E.R.C. at 61,200-
201. Because this order did not rule upon the merits of the issues,
it was not a final order from which petitioners could have sought
judicial review. See ASARCO, Inc. v. FERC, 777 F.2d 764, 771
(D.C. Cir. 1985).
tracts. Even if petitioners had not sought further rehearing
at that time, and had instead filed petitions for review in the
court, it is unlikely that the issues would have been litigated
and resolved before the contracts' expiration. Hence, it is
clear that FERC's review of the two-year contracts at issue in
this appeal did not provide "enough time to allow [the con-
tracts'] validity to be fully litigated." Maryland People's
Counsel v. FERC, 761 F.2d 768, 773 (D.C. Cir. 1985).
Petitioners do not, however, satisfy the "capable of repeti-
tion" element of the mootness exception. The Supreme
Court has held that "capable of repetition" means "a reason-
able expectation that the same complaining party would be
subjected to the same action again." Weinstein v. Bradford,
423 U.S. 147, 149 (1975) (per curiam); see also Honig, 484
U.S. at 318-19; Murphy v. Hunt, 455 U.S. 478, 482 (1982);
Southwestern Bell Telephone Co. v. FCC, 168 F.3d 1344, 1351
(D.C. Cir. 1999). The Supreme Court has further required
not merely a "physical or theoretical possibility" of recur-
rence, Murphy, 455 U.S. at 482, but a "reasonable expecta-
tion" if not a "demonstrated probability" that petitioners will
be subject to the same action. Honig, 484 U.S. at 319 n.6;
Weinstein, 423 U.S. at 149. Generally, courts have interpret-
ed "same action" to refer to particular agency policies, regula-
tions, guidelines, or recurrent identical agency actions. See,
e.g., Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 123-26
(1974); Southwestern Bell Telephone Co., 168 F.3d at 1351;
Burlington N. R.R., 75 F.3d at 688-90; Doe v. Sullivan, 938
F.2d 1370, 1376-79 (D.C. Cir. 1991); American Trading
Transp. Co. v. United States, 841 F.2d 421, 425-26 (D.C. Cir.
1988); Better Gov't Ass'n, 780 F.2d at 91. Petitioners main-
tain that they satisfy the "capable of repetition" requirement
by adopting a more general definition of "same action": (1)
continued supra-competitive transportation and fuel prices,
and (2) FERC's continuing application of an erroneous inter-
pretation of the 1996 Settlement concerning the Block II
recall issue. Specifically, petitioners maintain that FERC's
approval of El Paso's post-Dynegy contracts with Enron and
El Paso Merchant for the capacity that would become avail-
able after December 31, 1999, demonstrates that petitioners
will be subjected to the same anti-competitive harm and the
same flawed legal analysis that FERC tolerated in its approv-
al of the Dynegy transaction. We are unpersuaded.
As to the allegedly continuing anticompetitive effects, peti-
tioners do not demonstrate a "reasonable expectation" that
they will be subjected to the future harm that they consider
the "same action." Rather, they contest FERC's method of
analysis concerning possible contract approval, namely,
FERC's practice of balancing the possible anti-competitive
effects of a transaction with the objectives of the NGA and
FERC's own policies. Implicit in petitioners' contentions,
however, is a challenge to FERC's case-specific, factual deter-
minations concerning the California market. Yet in approv-
ing the El Paso-Dynegy contracts, FERC made clear that its
future balancing of competition concerns with the goals of the
NGA and existing FERC policies may yield different results
than those of the El Paso-Dynegy order: "A change in
market conditions, for example, a significant increase of the
demand for firm transportation to California, or a change in
[FERC] policies on the right of pipelines not to discount,
might result in a different conclusion." El Paso III, 88
F.E.R.C. at 61,414. Further, in its final order, dated October
19, 1999, FERC reiterated that its "finding applie[d] only in
the context of [the El Paso-Dynegy] transaction," and that it
thus did not "reach the question of whether an RRM or
similar provision must be prohibited in any future contracts."
El Paso IV, 89 F.E.R.C. at 61,226. Because FERC has made
clear that its conclusions concerning the El Paso-Dynegy
transaction did not represent continuing FERC policy, and
because the conditions on which FERC bases its balancing
admittedly change over time, petitioners fail to establish a
reasonable expectation that FERC's method of balancing will
yield anti-competitive harm to them in the future. Cf. Co-
lumbian Rope Co. v. West, 142 F.3d 1313, 1317 (D.C. Cir.
1998); Ramsey v. Kantor, 96 F.3d 434, 446 (9th Cir. 1996).
To the extent that petitioners rely on the Enron and El
Paso Merchant contracts as indicative of future supra-
competitive harm that will result from FERC's flawed analy-
sis, petitioners fail to show the necessary parallels between
these new contracts and the contracts upheld in the El Paso-
Dynegy orders. The Dynegy contracts are materially differ-
ent from the subsequent contracts entered into by El Paso.
As petitioners acknowledge, the Enron contract, from which
Enron later withdrew, did not contain the RRM, which was
the key element that petitioners claimed made the El Paso-
Dynegy transaction impermissibly anticompetitive. That
FERC considered the competition issues raised by the El
Paso-Enron transaction and drew upon its analysis in El
Paso II, El Paso III, and El Paso IV to approve the Enron
transaction, see Enron Order, 90 F.E.R.C. p 61,050, does not
necessarily indicate that FERC was implementing the same
policy or that FERC incorporated the same factors in its
balancing. Further, the El Paso Merchant contract involved
a sale of pipeline capacity to an El Paso affiliate; because the
contract with El Paso Merchant conformed to the standard
contract in El Paso's tariff, El Paso was not obligated to seek
approval from FERC. Were FERC to examine this contract,
however, the relationship between El Paso and El Paso
Merchant would trigger different concerns than a transaction
between unrelated parties. Hence, petitioners' challenge to a
method of reasoning that may or may not lead to the approval
of future pipeline capacity sale contracts with anti-competitive
features fails to establish a "reasonable expectation" that
petitioners will be subjected to the same alleged harm.
Petitioners' contentions concerning the Block II issues
would generally satisfy the "capable of repetition" prong.
Because the El Paso tariff has not yet expired, it is likely that
FERC will continue to interpret the 1996 Settlement as
barring the recall of idle block capacity. FERC has already
invoked this same interpretation in its approval of the El
Paso-Enron contract. See Enron Order, 90 F.E.R.C.
p 61,050. Despite this potential for lasting effect, however,
the court is limited to evaluating only the arguments that
petitioners presented to FERC. See United Transp. Union
v. Surface Transp. Bd., 114 F.3d 1242, 1244-45 (D.C. Cir.
1997); United Transp. Union v. ICC, 43 F.3d 697, 701 (D.C.
Cir. 1995); Washington Ass'n for Television and Children v.
FCC, 712 F.2d 677, 680 (D.C. Cir. 1983). Before FERC,
petitioners challenged FERC's interpretation only insofar as
FERC had failed to apply a temporal limitation to Dynegy:
Petitioners "propose[d] that any Block II capacity that was
not actually used by Dynegy to serve customers in northern
California within the first six months of the Transaction
should be available for recall by other shippers." El Paso
III, 88 F.E.R.C. at 61,421. As FERC noted, petitioners
"[did] not suggest that any other shipper that may acquire
Block II capacity should be subject to the same limitation."
Id.; see also El Paso IV, 89 F.E.R.C. at 61,227. Because
petitioners' challenge before the agency was limited to the
specifics of the Dynegy situation, seeking to impose a tempo-
ral limitation only upon Dynegy but not upon any other
present or future Block II shipper, the specific claim raised
by petitioners is not "capable of repetition."
Accordingly, we dismiss the petitions for review as moot.
Pub Util Cmsn St CA v. FERC
Court: Court of Appeals for the D.C. Circuit
Date filed: 2001-01-12
Citations: 236 F.3d 708
Copy Citations