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ASARCO, INC. v. F.E.R.C.

Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.

777 F.2d 764 (1985)

ASARCO, INC., Inspiration Consolidated Copper Company and Kennecott Corporation, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern California Edison Company, El Paso Electric Company, Phelps Dodge Corporation, Pacific Gas & Electric Company, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, El Paso Natural Gas Company, Southern Union Company, Southwest Gas Corporation, Intervenors. SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, El Paso Electric Company, Phelps Dodge Corporation, Pacific Gas & Electric Company, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, Southern Union Company, El Paso Natural Gas Company, Southwest Gas Corporation, Intervenors. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Phelps Dodge Corporation, Salt River Project Agricultural Improvement and Power District, Governor Edmund G. Brown, Jr., Arizona Public Service Company, Southern Union Company, Southwest Gas Corporation, El Paso Natural Gas Company, El Paso Electric Company, Intervenors. PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company, El Paso Natural Gas Company, Southern Union Company, Southwest Gas Corporation, Governor Edmund G. Brown, Jr., Public Service Commission of West Virginia, Intervenors. ASARCO, INC., Inspiration Consolidated Copper Company and Kennecott Corporation, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company, Salt River Project Agricultural Improvement and Power District, Phelps Dodge Corporation, Southern California Gas Company, Southwest Gas Corporation, Southern Union Company, Tenneco Oil Company, et al., Intervenors. EL PASO NATURAL GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, El Paso Electric Company, Pacific Gas and Electric Company, Phelps Dodge Corporation, Salt River Project Agricultural Improvement and Power District, Tenneco Oil Company, et al., Southern California Edison Company, Southern California Gas Company, Southern Union Company, People of State of California, et al., Governor Edmund G. Brown, Jr., Arizona Public Service Company, Southwest Gas Corporation, Public Service Commission of West Virginia, Intervenors. EL PASO NATURAL GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company, Pacific Gas and Electric Company, Southern Union Company, Southern California Gas Company, Salt River Project Agricultural Improvement and Power District, Public Utilities Commission of State of California, Southwest Gas Corporation, Governor George Deukmejian, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided November 29, 1985.

As Amended November 29, 1985.

Attorney(s) appearing for the Case

Douglas K. Porter, with whom D.J. Gilmore, Thomas D. Clarke and Eddie R. Island, Los Angeles, Cal., for Southern Cal. Gas Co. petitioner in No. 82-2204, Daniel E. Gibson and Robert B. McLennan, San Francisco, Cal., for Pacific Gas and Elec. Co. petitioner in No. 82-2270, J. Calvin Simpson and Lawrence Q. Garcia, San Francisco, Cal., for Public Utilities Com'n of the State of Cal. petitioner in No. 82-2311, were on joint brief, for petitioners in Nos. 82-2204, 82-2270 and 82-2311. D.J. Gilmore, Los Angeles, Cal., also entered an appearance for petitioner Southern Cal. Gas Co.

Nicholas W. Fels and David N. Heap, Washington, D.C., were on memorandum in lieu of brief for ASARCO, Inc., et al., petitioners in Nos. 82-2173 and 82-2527, intervenor in No. 83-1409.

C. Frank Reifsnyder, with whom Richard C. Green, Washington, D.C., Donald J. MacIver, Jr., Richard Owen Baish, Daniel E. Bappe and Scott D. Fobes, El Paso, Tex., were on brief, for El Paso Natural Gas Co. petitioner in Nos. 83-1409 and 83-1415 and intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311 and 82-2527.

Thomas E. Hirsch, III, Atty., F.E.R.C., with whom Stephen R. Melton, Acting Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on brief, for respondent F.E.R.C., in all cases. Joshua Z. Rokach, Atty., F.E.R.C., Washington, D.C., also entered an appearance for F.E.R.C.

Peyton G. Bowman, III, Daniel J. Wright, Washington, D.C., Steven M. Wheeler and Herbert I. Zinn, Phoenix, Ariz., entered appearances for Ariz. Public Service Co., intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.

J. Michael Marcoux, Washington, D.C., entered an appearance for El Paso Elec. Co. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.

Michael J. Strumwasser and Daniel P. Selmi, Los Angeles, Cal., entered appearances for Governor Edmund G. Brown, Jr., intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311 and 83-1409, and Governor George Deukmejian, intervenor in No. 83-1415.

R. Gordon Gooch, Houston, Tex., Charles M. Darling, IV, Steven R. Hunsicker, John W. Leslie, George B. Mickum, III, Steven H. Brose, Steven Reed, Michael J. Henke, David T. Andril and Ann M. Ashton, Washington, D.C., entered appearances for Tenneco Oil Co., et al., intervenors in Nos. 82-2527 and 83-1409.

Robert J. Haggerty, Washington, D.C., Bruce E. Henderson, Dallas, Tex., and Cameron R. Graham, Albuquerque, N.M., entered appearances for Southern Union Co. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527 and 83-1409.

William A. Claerhout and Charles H. McCrea, Las Vegas, Nev., entered appearances for Southwest Gas Corp. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2311, 82-2527, 83-1409 and 83-1415.

Robert R. Rodecker, Charleston, W. Va., and Richard E. Hitt, entered appearances for Public Service Com'n of W. Va. intervenor in Nos. 82-2311 and 83-1409.

H. Robert Barnes and Larry R. Cope, Rosemead, Cal., entered appearances for Southern Cal. Edison Co. intervenor in Nos. 82-2173 and 83-1409.

Joel L. Greene, Carl W. Ulrich, Washington, D.C., and Richard H. Silverman, Phoenix, Ariz., were on statement in lieu of brief for Salt River Project Agr. Improvement and Power Dist. intervenor in Nos. 82-2173, 82-2204, 82-2270, 82-2527, 83-1409 and 83-1415.

Before TAMM, WALD and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge.

We are required to determine whether we have jurisdiction under § 19 of the Natural Gas Act ("NGA"), 15 U.S.C. § 717r (1982), to consider five petitions for review of orders of the Federal Energy Regulatory Commission. Southern California Gas Company ("SoCal"), Pacific Gas and Electric Company ("PG&E"), the California Public Utilities Commission ("CalPUC"), and ASARCO...

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