Opinion for the Court filed by Senior Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Senior Circuit Judge:
On April 10, 2000 the Federal Energy Regulatory Commission, exercising authority it claimed under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331-1356, issued regulations affecting companies providing natural gas transportation service—including "gathering" service—in the Outer Continental Shelf. The regulations required the companies to periodically file information with FERC concerning their pricing and service structures, thereby implementing FERC's view that the resulting transparency would enhance competitive and open access to gas transportation. Order No. 639, FERC Stats. & Regs. (CCH) ¶ 31,097, at 31,514 (April 10, 2000). On petitions for rehearing and clarification, the Commission essentially adhered to its initial decision. Order No. 639-A, FERC Stats. & Regs. (CCH) ¶ 31,103 (July 26, 2000). Several of the subject companies sought judicial relief from the orders, suing in federal district court because FERC's action was under OCSLA rather than the Natural Gas Act. Compare 43 U.S.C. § 1349 (providing jurisdiction in district court for most challenges to orders under OCSLA), with 15 U.S.C. § 717r (providing for circuit court review of FERC decisions under the Natural Gas Act). Gas producers who ship or expect to ship on the covered pipelines intervened.
On January 11, 2002 the district court granted the plaintiffs' motion for summary judgment, denied FERC's motion for dismissal, and denied the intervenors' motion for summary judgment. Chevron U.S.A., Inc. v. FERC, 193 F.Supp.2d 54, 58-59 (D.D.C.2002). It ruled among other things that OCSLA did not give the Commission the authority it claimed to establish a general open access regime on the Outer Continental Shelf. Of course the Natural Gas Act gives the Commission broad authority over pipelines transporting gas in interstate commerce, but § 1(b) of that act, 15 U.S.C. § 717(b), expressly withholds jurisdiction over gathering, see, e.g., Sea Robin Pipeline Co. v. FERC, 127 F.3d 365, 368 (5th Cir.1997), which the Commission's new regulations explicitly covered.
FERC appealed, arguing that the court had interpreted FERC's OCSLA authority too narrowly. We affirm.
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The case turns entirely on the meaning of certain provisions of OCSLA, 43 U.S.C. §§ 1331-1356. Congress initially adopted the statute in 1953 and amended it in 1978.
OCSLA §§ 5(e) & (f), 43 U.S.C. §§ 1334(e) & (f).
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The statutory language
The crux of § 1334(e) is to require the Secretary (of the Interior) to impose open access conditions in his or her issuance of rights-of-way through submerged lands of the Outer Continental Shelf. To help achieve the open access goal, § 1334(e) grants FERC a single power: to determine, along with the Secretary of Energy, the proportions of oil, gas, or other minerals that each member of any relevant group of pipelines may be required to transport or purchase pursuant to those conditions. The resulting orders appear to be what in ordinary oil and gas industry parlance are called "ratable take" orders. See Howard Williams & Charles J. Meyers, Manual of Oil and Gas Terms 613-14 (1981). In a rhetorical device that it also uses with respect to § 1334(f), FERC likes to paraphrase subsection (e) in a way that completely omits the means selected by Congress to achieve non-discrimination on the Outer Continental Shelf. It argues before us, for example, that both (e) and (f) "require that gas service providers offer nondiscriminatory access on the OCS." Appellant's Initial Br. at 19. Not so. In fact the provision simply requires the Secretary of the Interior to condition grants of rights-of-way on the holder's agreeing to non-discriminatory transportation duties. Without some explicit provision to the contrary (as exists for quantification of the ratable take duty), Congress presumably intended that enforcement would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions
Section 1334(f) similarly fails to provide FERC with a general power to enforce OCSLA's open access provisions. Subsection (f)(1) states that permits, licenses, easements, etc., granted to pipelines for transportation through the OCS, "shall require" the firms in question to operate their pipelines in accordance with the "following competitive principles," which it then sets forth in subparts (A) and (B). Obviously when FERC issues a license covered by § 1334(f), such as a certificate of convenience and necessity under § 7(c) of the Natural Gas Act for transportation of gas through the Outer Continental Shelf, 15 U.S.C. § 717f(c), it is to include terms meeting the requirements set out in § 1334(f)(1). Subsection (f)(3) recognizes FERC's role as licensor, directing FERC (as well as the Secretary of Energy) to consult with the Attorney General on the "specific conditions" to be imposed when crafting any "license," etc., governed by (f)(1). FERC, indeed, has not hesitated to impose such conditions. See Tennessee Gas Pipeline Co. v. FERC, 972 F.2d 376, 381 (D.C.Cir.1992) (reviewing orders imposing conditions on pipelines operating in the OCS in respect to services within FERC's jurisdiction under the Natural Gas Act).
Section 1334(f)(1)(B) grants FERC narrow and specific authority similar to that supplied by subsection (e). It allows FERC, on application by shippers and after a hearing and suitable findings, to order a pipeline to expand the capacity of an OCS pipeline for which a permit, license, etc., "is approved or issued after September 18, 1978," the date of the 1978 amendment adding subsection (f) to OCSLA. Such a narrow (and reactive) grant of power cannot be read as creating general enforcement authority.
Nor is subsection (f)(2) of any use to FERC. It permits FERC to exempt from subsection (f)(1) any facility that first collects, separates, dehydrates, or processes gas. A provision allowing FERC to exempt a subset of facilities from (f)(1)'s competitive principles is plainly not an authorization for it to impose and enforce such principles over all facilities.
Finally, as we have seen, § 1334(f)(3) simply adds a consultation procedure to the way in which FERC is to go about its specification of open access requirements, under (f)(1), in licenses that it issues within the scope of authority provided elsewhere-most obviously § 7(c) of the Natural Gas Act.
Legislative history and Shell Oil Co. v. FERC
The statutory language being of no help to FERC, even to create an ambiguity that might enable it to claim deference under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Commission makes the ritual turn to legislative history. While such history can be used to clarify congressional intent even when a statute is superficially unambiguous, the bar is high. See U.S. Telecom Ass'n v. FBI, 276 F.3d 620, 625 (D.C.Cir. 2002) (noting Supreme Court's observation in Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994), that "we do not resort to legislative history to cloud a statutory text that is clear"). FERC cites two items that are clearly inadequate to the task. First, it points to a House Report stating that § 1334(f) "is a reaffirmation and strengthening" of § 1334(e). H.R. Cong. Rep. No. 95-1474 at 87, reprinted at 1978 U.S.C.C.A.N. 1674, 1686. So? FERC lacks the authority under either section to constitute itself a general regulator of open access for oil and gas on the OCS, regardless of whether the sections are
The second item is the following colloquy between Senators Johnston and Kennedy:
123 Cong. Rec. S23,253 (daily ed. July 15, 1977) (emphasis added). FERC argues that this exchange demonstrates Senator Kennedy's desire that the ICC should be able to enforce the conditions that, under subsections (e) and (f), were to be included in OCS transportation permits, licenses, etc., by agencies issuing such grants. (The ICC was in the end supplanted by FERC, an entity created after the colloquy and then substituted for the ICC in a later amendment to the OCSLA amendments as they worked their way through Congress.) As we have seen, FERC does issue such licenses, namely, certificates of convenience and necessity under § 7(c) of the Natural Gas Act, and doubtless enforces the attached conditions. The emphasized passage explicitly states Senator Kennedy's recognition that the Secretary of the Interior would enforce the conditions in licenses issued by Interior; his suggestion about a theoretical "agreement on implementation" is too frail a basis for the statutory rewrite that FERC invites. What we said in an earlier case where a litigant invoked "bits and pieces of legislative history surrounding the 1978 Amendments to OCSLA" is equally true today: "[S]nippets of legislative history do not a law make." ExxonMobil Gas Marketing Co. v. FERC, 297 F.3d 1071, 1088 (D.C.Cir.2002).
Finally, FERC argues that in Shell Oil Co. v. FERC, 47 F.3d 1186, 1199-1200 (D.C.Cir.1995), we have already upheld its broad reading of §§ 1334(e) & (f). In fact Shell is far narrower.
In Shell, FERC had ordered Pennzoil, operator of the "Bonito" pipeline in the OCS, to interconnect Bonito with Shell's pipeline and to carry its oil. All parties appear to have accepted the proposition that as a general matter FERC had authority to order such interconnections. After we rejected Pennzoil's claim that the order was really a capacity allocation order under subsection (e), and thus could occur only through its procedures, id. at 1198-99, we considered its argument that the
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Sections 5(e) and (f) of OCSLA do not grant FERC general powers to create and enforce open access rules on the OCS, but merely assign it a few well-defined tasks. As FERC was without authority to issue the regulations at issue here, the judgment of the district court is