## Facts

- Interstate natural-gas pipelines faced shortages and curtailed deliveries to customers during the early 1970s.
- The Federal Power Commission (FPC) issued Order No. 431 (1971) encouraging pipelines to file curtailment tariffs and indicating approved curtailment plans could control despite conflicting private contracts.
- On January 8, 1973, the FPC issued Order No. 467, labeled a “Statement of Policy,” announcing preferred curtailment priorities based on end-use (e.g., higher priority for residential and small-commercial heating than for large industrial uses).
- The FPC issued Order 467 without advance notice and opportunity for public comment.
- Pacific Gas & Electric Company and Mississippi Power & Light Company, as pipeline customers, asserted the policy threatened reduced deliveries and downstream economic and contractual consequences.
- After petitions for rehearing and related requests, the FPC made minor modifications and otherwise denied relief.
- Petitioners sought judicial review under § 19(b) of the Natural Gas Act (NGA), arguing Order 467 functioned as a binding rule requiring APA notice-and-comment and was substantively unlawful (including asserted NEPA defects).

## Issues

1. Whether Order No. 467 was a “general statement of policy” exempt from APA notice-and-comment, or a legislative rule requiring those procedures.
2. Whether Order No. 467 was a reviewable “order” under NGA § 19(b), including whether it had sufficiently immediate and significant impact and an adequate record for judicial review.

## Decision

- The court held Order 467 was a general statement of policy exempt from APA rulemaking requirements.
- The court held Order 467 was not a reviewable order under NGA § 19(b) because it lacked sufficiently immediate and significant impact and the record was inadequate for meaningful judicial review.
- The court dismissed the petitions for review and did not reach substantive challenges, including NEPA arguments.

## Legal Principles

- A general statement of policy is exempt from APA notice-and-comment when it does not itself determine rights or obligations and instead indicates the agency’s intended approach in future proceedings.
- An agency pronouncement is less likely to be treated as a legislative rule when it becomes legally operative only through later, case-specific actions (e.g., approval of particular tariffs), where affected parties can participate and seek review.
- Review under NGA § 19(b) requires an agency action with sufficiently immediate and significant practical impact and a record adequate to permit meaningful judicial review; nonbinding policy announcements that do not compel action typically fail this standard.
- Dismissal for lack of reviewability does not preclude later challenges to the policy when applied in final, case-specific Commission orders with a developed record.

## Conclusion

The D.C. Circuit treated the FPC’s Order 467 as a nonbinding policy statement rather than a procedurally defective legislative rule, and it dismissed the petitions because the order had no immediate legal effect and lacked a record suitable for judicial review under NGA § 19(b), leaving challenges for later, final curtailment-plan proceedings.


Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33 (D.C. Cir. 1974)