Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and FAHY, Circuit Judge.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1963.CDC.86
Gas Company, Intervenors. OWENS-ILLINOIS GLASS
Gas Corporation, Missouri
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDGERTON
EDGERTON, Senior Circuit Judge.
Mississippi River Fuel Corporation (Mississippi) operates a natural gas pipeline from Louisiana to the St. Louis region. We have for review *fn1 orders of the Federal Power Commission issued April 18, 1962 and June 15, 19622 which reallocated Mississippi's capacity between its direct industrial customers and its public utility customers. The proceedings before the Commission began with applications by several utility customers for more gas under § 7(a) of the Natural Gas Act, 52 Stat. 824 (1938), 15 U.S.C. § 717f(a), and Laclede's demand for more gas under 5(a) of the Act, 52 Stat. 823, 15 U.S.C. § 717d(a). No applications for certification of new or additional transmission facilities under § 7(c) of the Act as amended, 56 Stat. 83 (1942), 15 U.S.C. § 717f(c), are involved.
Petitioners for review are direct industrial customers of Mississippi. Such customers use one or both of two classes of service. A higher priced service, called "firm", may be curtailed on cold days if utility customers exceed their stated demands. A lower priced service, called "interruptible", may be interrupted at any time on two hours' notice. 27 F.P.C. at 705. According to uncontradicted testimony of a witness for Mississippi, both Mississippi and its "firm" industrial customers "understand and expect that firm service means continuous service without curtailment except under occasional, extraordinary circumstances. That is the kind of service they have been receiving and Mississippi has been rendering. Our interruptible customers expect and receive what is generally recognized as interruptible service; namely, service on a 'when available' basis, which means they expect and are set up to operate on the basis of frequent and extensive interruptions during the winter period."
The Commission has said that by the order of April 18, 1962, "we assigned to certain of Mississippi Fuel's existing utility (resale) customers, some 35,000 Mcf per day which Mississippi Fuel had been delivering to its direct industrial customers on an alleged 'firm basis'. This left approximately 25,000 Mcf per day available for delivery to said industrial customers. . . . There can be no dispute that by our action as reflected in Opinion No. 355 the volume of 35,000 Mcf of natural gas per day was taken away from industrial consumers in the St. Louis area." It does not appear to be disputed that unless Mississippi either has capacity substantially in excess of what the Commission found to be its "sustained dependable delivery capacity",3 or else obtains additional gas, ...