# City of Farmington, New Mexico v. Federal Energy Regulatory Commission, Amoco Production Company, Amoco Gas Company, Intervenors

> Court of Appeals for the D.C. Circuit · June 16, 1987 · 820 F.2d 1308

URL: https://www.frixlaw.com/law-library/cases/9476307

## Case

- **Full name:** CITY OF FARMINGTON, NEW MEXICO, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Amoco Production Company, Amoco Gas Company, Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 16, 1987
- **Citations:** 820 F.2d 1308; 261 U.S. App. D.C. 129; 1987 U.S. App. LEXIS 7568
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wald
- **Judges:** Wald, Williams, Will
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476307

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476307. Public record. Not legal advice.