Northeast projects, and (4) the potential impacts on domestic producers due to the importation of significant volumes of Canadian gas being imported into the Northeast. 66 Additionally, in November 1989, a public technical conference was held on Iroquois' proposed rates and, at that time, additional comments on the rate issues were solicited from all interested parties. Moreover, in this proceeding, the Commission issued at least eleven data requests, soliciting information from both the project sponsor and its customers. These responses are all part of the record in this proceeding. Aside from the IPAA, the Oil Dealers, among others, have also had opportunities to express their views and raise issues related to the project. For example, the Oil Dealers participated in not only the Iroquois proceedings before the Commission, but also in the article VII proceeding on Iroquois held before the New York PSC. In this regard, we note that the article VII certificate order67 is a matter of public record, was issued based upon the record evidence adduced during extensive public hearings covering a three-year period, and is a part of the record in the instant proceeding.68 Further, the Oil Dealers, IPAA, and other interested parties were afforded the opportunity to participate in the Oral Argument proceeding addressing rate, market, and environmental concerns regarding the Iroquois/Tennessee Pipeline Project. Oral Argument was convened by the Commission on July 17, 1990. In the proceeding, the applicants, opponents, and supporters of the project were given the opportunity to voice their support or opposition to the project, to raise issues of concern, and to rebut allegations and positions lodged during the course of the Iroquois proceeding. Moreover, in some instances, the parties submitted further documentation in support of their position. Thus, as indicated above, IPAA and the Oil Dealers both have had ample opportunities and have taken advantage of those opportunities to submit whatever evidence they desired throughout this proceeding. In addition to the Oral Argument proceeding, the Commission has also provided an opportunity for the public to raise issues or to submit comments regarding the environmental aspects of the Iroquois/Tennessee Project proposal. For example, in October 1987 and April 1989, scoping meetings were held in the localities through which the proposed pipeline will pass and the public had an opportunity to alert the Commission staff on issues of concern. Additionally, during September and October of 1987 and March and April of 1989, the public was permitted to comment on the scope of the Draft Environmental Impact Statement (DEIS), and after the DEIS was issued, the public was again permitted to file comments during the period November 1989 through February 1990. Thus, the parties and the public have had opportunities to raise relevant issues relating to the environmental aspects of the project and to urge the Commission to obtain more information on specific environmental issues. We reject arguments challenging the assignment of burden of proof at the hearing. To the extent the opponents of the project alleged that the July 30, 1990 order placed the burden of proof on those parties seeking to alter the Commission's "current views" on certain market and rate issues, we advise the parties that at all times during this proceeding, the ultimate burden of persuasion has rested with Iroquois and supporters of the project and of the Commission's current views and preliminary determinations. 66 We note that both the Oil Dealers and IPAA participated in this technical conference. 67 See footnote 68, infra. 68 "Opinion and Order Granting Certificate of Environmental Compatibility and Public Need", (Opinion No. 89-42). Our reference to the article VII record does not indicate any disagreement with National Fuel Gas Supply Corp. v. Public Service Commission of New York, 894 F.2d 571 (2nd Cir. 1990), cert denied, U.S. (June 2, 1990). Contrary to comments received on this issue, opponents of the Commission's current views were never vested with carrying the ultimate burden of persuading the Commission or the ALJ that the project was not in the public convenience and necessity. Rather, the July 30, 1990 order directed the parties that the Commission's current views on rates and markets would serve as a starting point for discussion at the hearing and that it would be incumbent upon each party, depending upon its position, to challenge or support those views. Opponents and supporters of the Commission's current views each were afforded a like opportunity to present evidence at the hearing in support of their position. This did not alter the parties' ultimate burden of proof. The Commission's current views were determined on the basis of the evidence in the record as it existed prior to the hearing. There is nothing improper in the manner in which the ALJ conducted the parties' presentation of evidence. C. The Texas Eastern Exchange Texas Eastern provides a lengthy discussion in support of its request for casespecific authority for the exchange service. For those arguments which are merely restatements of arguments previously lodged in this proceeding, the parties may refer to Opinion No. 357 for their resolution. Remaining arguments, which we will provide further discussion on, are set forth below. Generally, Texas Eastern phrases the issue on rehearing as "[w]hether the Commission can require Texas Eastern to perform 'no-fee' exchanges under its Part 284 blanket certificate when it has not offered to do so, when it has no tariff sheets on file with the Commission to do so, when it is performing openaccess, nondiscriminatory transportation in compliance with Part 284 regulations and when its blanket certificate order specifically permits the filing of section 7 applications for 'no-fee' exchanges." "169 Texas Eastern asserts that Opinion No. 357 is erroneously mandatory in nature, requiring common carriage. In this regard, Texas Eastern argues that if it performs the no-fee exchange under its Part 284 blanket certificate authority, as required by Opinion No. 357, then in order to avoid a charge of undue discrimination, it will be forced to offer such service to others who request the service. Further, Texas Eastern argues that by requiring it to perform the exchange under its blanket certificate, it will also be subject to performing existing section 7(c) exchanges, upon renewal, under its blanket certificate. Texas Eastern contends that the Commission's action here has an unlawful retroactive effect. After noting that it did not envision performing no-fee exchanges under its blanket certificate at the time its blanket certificate was issued, Texas Eastern argues that Opinion No. 357 effectively forces it, after-the-fact, to act beyond what it is able and willing to do.70 Texas Eastern states that the extent of its agreement and ability to perform the specific exchange at issue here is to perform such service under section 7 of the Natural Gas Act (NGA), all as contemplated by its blanket certificate authorization. Texas Eastern contends that it does not have now (and did not possess at the time it accepted its blanket certificate) tariff sheets to implement no-fee exchanges under its Part 284 blanket certificate." Thus, Texas Eastern argues that since there is no 69 Texas Eastern December 14, 1990 petition for rehearing at 2. 70 Texas Eastern states that by accepting a blanket certificate, it did not waive its right to make filings pursuant to section 7 of the NGA. Texas East ern notes that the regulations do not require such a waiver. 71 Further, Texas Eastern asserts that to file the requisite tariff sheets is not ministerial in nature, provision in its tariff under its Part 284 blanket certificate for no-fee exchanges, "it cannot, by definition, discriminate."72 In addition, Texas Eastern contends that Commission action in this proceeding has wrought a significant change in the blanket certificate requirements, without the necessary adherence to the statutory notice, comment, and constitutional due process requirements. In this regard, Texas Eastern argues that although the Commission has broad latitude in choosing between rulemaking and case-by-case adjudication, the authority is not unlimited, and, here, considering the existence of contrary regulations and industry-wide implications, notice and comment were legally necessary. Texas Eastern argues also that in Opinion No. 357, the Commission has unlawfully impacted the rates approved in a section 4 rate proceeding. Texas Eastern argues that this is not a section 4 proceeding and that there is no record upon which to impact its approved rates. Texas Eastern posits, however, that our requirement that Texas Eastern perform the exchange under its blanket certificate may impact the allocation of costs to transportation as reflected in Texas Eastern's existing approved rates. It is thus argued that Opinion No. 357 erroneously mixes section 7 and section 4 authority, contrary to court case law. Finally, Texas Eastern contends its application to perform the exchange is not redundant given it does not presently have on file the requisite tariff sheets to perform the exchange service. In this regard, Texas Eastern once again explains that the service proposed (i.e., the exchange) is not covered under its blanket certificate and that our action here is contrary to the plain language of section 284.221(e) of the Commission's regulations. At the time of issuance of Texas Eastern's Part 284 blanket transportation certificate,73 no-fee exchanges were not authorized to be performed thereunder.74 During that time, pipelines seeking to perform exchange services applied for and were issued case-specific section 7(c) certificates, usually of limited duration and with policy and log requirements attached to the certificate.75 However, the Commission's policy on no-fee exchanges has evolved since the time that Texas Eastern's blanket certificate was issued.76 The Commission recognizes that exchange services are transportation" and the Commission's refined approach is that (Footnote Continued) given that such filings are subject to protest and comment and may become protracted in nature. 72 Texas Eastern brief at 8. 73 Texas Eastern was issued a Part 284 blanket certificate on December 19, 1986. 37 FERC ¶ 61,260 (1986). 74 See e.g., KN Energy, Inc., and Northern Utilities, Inc., 45 FERC ¶ 61,021; United Gas Pipe Line Company, 41 FERC 61,087 (1987); Columbia Gas Transmission Company, 39 FERC ¶ 61,335 (1987); Texas Eastern Transmission Corporation, 37 FERC 61,260 (1986), reh'g denied, 41 FERC ¶ 61,015 (1987). 75 See New Jersey Zinc Company et al. v. FERC, 843 F.2d 1497 (D.C. Cir. 1988). This policy was based on Commission concern about the potential for undue discrimination in proposals to certificate individual transportation arrangements under section 7(c) of the NGA. United Gas Pipe Line Company and Trunkline 76 We reject Texas Eastern's suggestion that the exchange issue should have been the subject of a rulemaking. First, we remind Texas Eastern that requiring that exchanges be performed under blanket certificates is not a new pronouncement. Moreover, we have the discretion to apply a new policy in an adjudicatory proceeding. See SEC v. Chenery Corp., 332 U.S. 194 (1947); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). In this proceeding, we were well within our discretion in applying the exchange/blanket certificate policy to an individual case. "no-fee exchanges will be permitted under Part 284 without further certification."78 The Commission has affirmed this policy in another Texas Eastern proceeding.79 In this proceeding, Texas Eastern will be permitted to perform the exchange under its blanket certificate authority. As with any other Part 284 service, Texas Eastern will be required to perform the exchange on a nondiscriminatory basis and offer such service to all similarly situated shippers equally.80 Since it has yet to make appropriate rate filings for the service, Texas Eastern will also be required to file the appropriate tariff sheets, all as more fully discussed in Opinion No. 357. Of course, Texas Eastern is under no obligation to perform the exchange service. However, to the extent the service is performed, it must be performed under Texas Eastern's Part 284 blanket transportation certificate. In this regard, we reject Texas Eastern's contention that the authority that would be granted under a section 7(c) certificate would not be redundant to the authority granted under the blanket certificate. The absence of the appropriate tariff sheets on file to perform a service does not, in this instance, translate into a lack of authority to perform the subject service. The authority is there, all Texas Eastern need do is to file appropriate tariff sheets.81 Contrary to Texas Eastern's protestations, the record contains sufficient information supporting our determination requiring that Texas Eastern perform the exchange arrangement under its blanket certificate authorization. Furthermore, the issue does not arise here as to whether there will be an impact on Texas Eastern's rates as a result of a tariff filing to implement the exchange. We are not requiring a change in the level. of the rates to be charged by Texas Eastern. This is not a section 4 rate proceeding and our action here will have no impact on Texas Eastern's approved rates.82 Finally, we find that contrary to Texas Eastern's view, our dismissal of Texas Eastern's application is entirely consistent with the Commission's regulations governing the availability of individual and blanket certificates. Section 284.221 of those regulations provides that: (a) Blanket certificate. Any interstate pipeline may apply...for a single blanket certificate authorizing the transportation of natural gas on behalf of others in accordance with [Subpart G]... (b) Availability of regular certificates. [Subpart G] does not preclude an interstate pipeline from applying for an individual certificate of public convenience and necessity for any particular transportation service.83 Commission found Midwestern's rate design for backhauls and exchanges reasonable. Since Midwestern had very little operational experience with these services, Midwestern used the same maximum rates for backhauls and exchanges as for forward hauls, with a minimum rate of zero. The Commission found: (1) that since these services could be performed without the incurrence of variable costs, it was appropriate that the minimum rate could be zero and (2) that given the lack of experience with these transactions on Midwestern's system and the flexibility of Midwestern's rate design, under which Midwestern could discount backhaul and exchange rates to the extent they produce system benefits or otherwise justify a discount, the backhaul and exchange rates were reasonable). 83 18 C.F.R. § § 241.221(a) and (e). The Commission reasonably interpreted this regulation as generally permitting a pipeline to obtain either a blanket certificate or individual certificates and as not mandating issuance of both types of certificates to the same pipeline. Tennessee Gas Pipeline Company 84 Our interpretation of section 284.221 is fully consistent with the language of the regulation. Section 284.221(e) only provides that the existence of regulations permitting a pipeline to apply for a blanket certificate does not preclude a pipeline from applying for individual certificates. The regulation, on its face, leaves it entirely up to the Commission to decide whether and under what circumstances to issue both types of certificates to the same pipeline. Furthermore, our interpretation is supported by Order No. 436 [FERC Statutes and Regulations, Regulations Preambles 1982-1985 ¶ 30,665] et al., through which we initially promulgated section 284.221. In Order No. 436-D, we held that Order No. 436: clearly stated that we would continue to accept and review individual section 7(c) applications on a case-by-case basis. Thus any pipeline not willing to apply for a new blanket certificate, may, as an alternative, request authority under section 7(c),85 The availability of blanket certificates does not in itself foreclose pipelines from applying for individual certificates. However, the decision of whether to grant a section 7(c), case-specific certificate is within the discretion of the Commission. Under the circumstances of the instant case, we find that an individual certificate to perform the exchange would be redundant to the authority granted Texas Eastern under its Part 284 blanket transportation certificate. D. Alternatives Once again, GASP/Mueser and other project opponents charge that the Final Environmental Impact Statement (FEIS) does not meet the requirements of the National Environmental Policy Act (NEPA) of 1969,86 that the FEIS does not adequately consider alternatives to the project, and that the Iroquois/Tennessee Project is not the superior alternative. GASP/Mueser claims that during the U.S. Northeast Open-Season process, the presiding ALJ assured parties that all of the requirements of NEPA would be met during the processing of the Iroquois application. GASP/Mueser explain therefore that they had every reason to expect that alternatives to the Iroquois/Tennessee Project would be fully considered even when such alternatives were, as a result of the settlement, no longer being actively pursued by the applicant involved. GASP/Mueser argue that these alternatives were not considered and that Opinion No. 357 mischaracterized its attempt as a collateral attack on the open-season proceedings. Arguments attacking the Commission's consideration of alternatives to the Iroquois/Tennessee Project are rejected. Although we believe that an adequate discussion of this issue is contained in Opinion No. 357, we make the following comments. Section 102(2)(c) of NEPA requires Federal agencies to prepare a detailed statement of the impacts of any proposed "major actions significantly affecting the quality of the human environment." The purpose of this provision has been held to be two-fold. First, it provides the decisionmaker with sufficiently detailed information to decide whether 84 43 FERC 61,042, at p. 61,126 (1988). 86 42 U.S.C.A. § 4321 et seq. (1969). |