Before ROBINSON, Chief Judge, THORNBERRY,* Senior Circuit Judge for the Fifth Circuit and WILKEY, Circuit Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
COUNCIL OF FARMER COOPERATIVES, W.R. GRACE & CO., TERRA
CHEMICALS INTERNATIONAL INC., FARMLAND INDUSTRIES, INC.,
GENERAL CAROLINA FARMERS EXCHANGE, INTERVENORS; UNITED
AGRICULTURE, RESPONDENTS FERTILIZER INSTITUTE, AGRICO
CHEMICAL COMPANY, COLUMBIA NITROGEN CORP. and NIPRO, INC.,
AMERICAN FEED MANUFACTURERS ASSOCIATION, NATIONAL COUNCIL
OF FARMER COOPERATIVES, W.R. GRACE & CO., INTERVENORS
Nos. 80-1558, 80-1603 1981.CDC.140
Date Decided: 30 June 1981
Petitions for Review of Orders of the United States Department of agriculture.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY
At issue in this case is the meaning of the term "process fuel" as it is used in section 401(f)(1)of the Natural Gas Policy Act of 1978 (NGPA or the Act). *fn1 I. BACKGROUND
The Natural Gas Policy Act creates a system of priorities for the allocation during times of shortage of natural gas distributed through interstate pipelines. Whenever there is an insufficient supply, under the Act first in line to receive gas are schools, small businesses, residences, hospitals, and all others for whom a curtailment of natural gas could endanger life, health, or the maintenance of physical property. *fn2 After these "high-priority" users have been satisfied, next in line are those who will put the gas to "essential agricultural uses," *fn3 followed by those who will use the gas for "essential industrial process or feedstock uses," *fn4 followed by everybody else. We are concerned in this case with what can properly be included within the second priority category, that of "essential agricultural uses."
The NGPA provides a list of natural gas uses which are candidates for the "essential agricultural use" priority. *fn5 But to qualify, a candidate use must also meet two additional requirements: first, there must be no substitute fuel both "economically practicable " and "reasonably available." *fn6 And second, the Secretary of Agriculture must certify the application as "necessary for full food and fiber production." *fn7
Finally, uses within a disfavored subcategory of "essential agricultural uses" defined in section 401(f)(1)of the Act are required to meet one more test before qualifying for the priority. Whereas most applications of natural gas can qualify for the priority without restriction as to how the gas is used, these disfavored applications of natural gas ("in the production of fertilizer, agricultural chemicals, animal feed, or food")8 qualify for the priority only if the gas is used "as a process fuel or feedstock."9
To summarize, to qualify for the "essential agricultural use" priority, a use in this disfavored subcategory 401(f)(1)must: (1) be without an "economically practicable" and "reasonably available" substitute; (2) be certified by the Secretary as "necessary for full food and fiber production"; and (3) be a use as a "process fuel or feedstock." The ...