The general legal framework for minimum bill regulation was developed in the course of a landmark 1960's dispute that produced two rounds of decisions by both the Commission and this court. In Lynchburg Gas Co. v. FPC, 336 F.2d 942 (D.C. Cir. 1964), this court reviewed a Commission order approving a minimum commodity bill under the general rationale that such bills protect a supplier's full requirements customers from potential rate increases resulting from swings. After expressing a broad concern that the anticompetitive impact of minimum bills conflicts with the goals of the Act, we concluded that the Commission could not authorize minimum bills under that general rationale in the absence of specific "subsidiary findings based on the record."
Although the Commission is not bound by the dictates of the antitrust laws, it is clear that antitrust concepts are intimately involved in a determination of what action is in the public interest, and therefore the Commission is obliged to weigh antitrust policy. People of State of California v. F.P.C., 369 U.S. 482, 484-485, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 84 L.Ed. 181 (1939); Lynchburg Gas Co. v. F.P.C., 119 U.S.App. D.C. 23, 27, 30-31, 336 F.2d 942, 946, 949-950 (1964); City of Pittsburgh v. F.P.C., 99 U.S.App.D.C. 113, 126, 237 F.2d 741, 754 (1956); Pennsylvania Water Power Co. v. F.P.C., 89 U.S. App.D.C. 235, 240, 193 F.2d 230, 235 (1951), affirmed, 343 U.S. 414, 72 S.Ct. 843, 96 L.Ed. 1042 (1952). This much is conceded by the Commission and the intervenors.
Compact, supra note 3, tit. II, art. XII, § 17(a).See, e. g., Lynchburg Gas Co. v. FPC, 119 U.S.App.D.C. 23, 336 F.2d 942 (1964); United States v. Public Utils. Comm'n, 80 U.S.App.D.C. 227, 151 F.2d 609 (1945). See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
Furthermore, Seaboard ignores the possibility of off-setting sales elsewhere. Such a test is suggested in Lynchburg Gas Co. v. F.P.C. [119 U.S.App.D.C. 23], 336 F.2d 942, 947 (CADC)."
This contention is utterly without merit. To the extent that it raises a de minimis argument, the facts of the decided cases are squarely against it. E.g., Lynchburg Gas Co. v. FPC, 1964, 119 U.S.App.D.C. 23, 336 F.2d 942; Public Serv. Comm'n v. FPC, 3 Cir., 1958, 257 F.2d 717, aff'd on other grounds sub nom. Atlantic Ref. Co. v. Public Serv. Comm'n, 1959, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312; City of Pittsburgh v. FPC, 1956, 99 U.S.App.D.C. 113, 237 F.2d 741; cf. FCC v. Sanders Bros. Radio Station, 1940, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869; Associated Indus. v. Ickes, 2 Cir., 1943, 134 F.2d 694, vacated as moot, 1943, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414. Other cases holding parties not aggrieved are distinguishable as involving no present injury and no established probability of future injury, see Eccles v. Peoples Bank, 1948, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784; Cincinnati Gas Elec. Co. v. FPC, 1957, 101 U.S.App.D.C. 1, 246 F.2d 688, or no factual showing of aggrievement, Panhandle Eastern Pipe Line Co. v. FPC, 3 Cir., 1955, 219 F.2d 729. In citing Helvering v. Gowran, 1937, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224 and SEC v. Chenery Corp., 1943, 318 U.S. 80, 63 S.Ct. 454, 87 L.
Aggrievement under the Act is found when a party suffers "present and immediate harm," ANR Pipeline Co. v. FERC, 771 F.2d 507, 515 (D.C. Cir. 1985) (per curiam), and when "economic injury is likely to flow from the action sought to be reviewed." Lynchburg Gas Co. v. FPC, 336 F.2d 942, 945 (D.C. Cir. 1964) (per curiam) (finding aggrievement when an order of the Federal Power Commission constrained the petitioner's freedom to purchase gas from the supplier offering the lowest rate), quoted in ANR Pipeline, 771 F.2d at 516. The Commission contends that the at-risk condition does not currently cause financial injury to Great Lakes, because it will not cause injury unless, for the years subsequent to 2005, TransCanada fails to renew its contract for expanded service or the NEB does not issue export licenses for gas to be shipped on the facility, and Great Lakes is unable to use the facility to transport gas for other customers.
Although the partial requirements customer pays for some fixed costs under the demand charge — computed on the basis of the customer's entitlement and not on what the customer takes — the partial requirements customer can avoid that portion of the fixed costs collected through the commodity charge by swinging to an alternative source. See generally Atlantic Seaboard Corp. v. FPC, 404 F.2d 1268 (D.C. Cir. 1968); Lynchburg Gas Co. v. FPC, 336 F.2d 942 (D.C. Cir. 1964). Finally, minimum bills enable pipelines to cover their own "take-or-pay" obligations to gas producers.
Accordingly, we find that the injury-in-fact requirement is met in this case. Lynchburg Gas Co. v. FPC, 336 F.2d 942, 945 (D.C. Cir. 1964) (standing based on "economic injury [that was] likely to flow from the action sought to be reviewed"). It is uncontested that the interest involved is arguably within the zone of interests to be protected or regulated by the Natural Gas Act. Thus, ANR has standing to contest the Commission's T-6 determination.
The load factor is the average daily requirement of gas within a zone divided by the maximum daily requirement within that zone, expressed as a percentage. See Columbia Gas Transmission Corp. v. FERC, 628 F.2d at 584 n. 19; Lynchburg Gas Co. v. F.P.C., 336 F.2d 942, 944 n. 1 (D.C. Cir. 1964). A high load factor is an indication of a relatively stable demand for gas, while a low load factor indicates a widely fluctuating demand for gas. Columbia Gas Transmission Corp. v. FERC, supra. A high load factor indicates a more efficient use of the capital plant without as much unused capacity in nonpeak demand periods as with a low load factor.
A speculative injury does not constitute aggrievement. Cf. LynchburgGas Co. v. FPC, 336 F.2d 942, 946 (D.C. Cir. 1964) (present aggrievement exists if future aggrievement certain because of "intended influence of the order upon the business operations and management decisions of [petitioner]"). Moreover, NCUC has no answer to FERC's position, stated at oral argument and again in its Memorandum Responding to Question at Oral Argument at 5, that petitioner can attack any findings that give rise to aggrievement in the compensation proceeding itself to an ALJ or a review court more fully apprised of the relevance and significance of those findings to that proceeding than we are.