in rejecting FERC’s argument that the court lacked jurisdiction to hear petitioner’s challenge to FERC’s decision that petitioner’s gas purchases were subject to FERC’s regulatory jurisdiction, the court did not rely upon the rule that subject matter jurisdiction may be raised at any time
How later courts described this case
- in rejecting FERC’s argument that the court lacked jurisdiction to hear petitioner’s challenge to FERC’s decision that petitioner’s gas purchases were subject to FERC’s regulatory jurisdiction, the court did not rely upon the rule that subject matter jurisdiction may be raised at any time
- ‘“Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion.’ ” (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917))
Written by the judges who cited it.
The opinion
WALD, Chief Judge,
concurring in part, dissenting in part:
While I concur in Part I of the panel opinion dealing with FERC jurisdiction over the split sale, I have grave doubts about the panel’s decision that the sale from the local distribution company to Farmington is a “first sale” under section 2(21) of the NGPA. Section 2(21), as I read it, is definitely ambiguous as to whether it includes within “first sales” not just sales by the pipeline or distributor or affiliate of the seller’s own production but sales of the production of any affiliate of the pipeline or distributor, as well. While I agree that deference to an agency interpretation is not always mandated when a question of pure statutory construction is involved, see INS v. Cardoza-Fonseca, — U.S. -, 107 S.Ct. 1207, 1220-22 , 94 L.Ed.2d 434 (1987), I would give more deference than the panel does in the case of an ambiguous statute, with no helpful legislative history, in a complex and technical area of the law. Here, the Commission discoursed at length and plausibly as to why it believed a “first sale” classification of Amoco Gas to Farmington would be ill-advised. 31 FERC ¶ 61,290 (June 7, 1985), Joint Appendix at 399-402. Nor do I read Public Service Commission v. Mid-Louisiana Gas Co., 463 U.S. 319 , 103 S.Ct. 3024 , 77 L.Ed.2d 668 (1983), as giving any guidance on this situation, which, of course, involves sales of an affiliate’s gas to a customer, not an intracorporate transfer.
It is also quite clear that even if the statute were to be interpreted to include the sale to Farmington as a “first sale,” the FERC in its regulations has definitely made its choice as to where “first sale” treatment in a situation like this occurs, 18 C.F.R. § 270.203 , and Mid-Louisiana holds that the NGPA permits the Commission to make such a choice. 463 U.S. at 327 , 103 S.Ct. at 3029 . On balance then I see it as both questionable legally and fruitless for the court to remand so that the FERC can exercise a theoretical choice as to whether to allow first sale treatment to this transaction.