Pacific Gas and Electric Company v. Federal Power Commission, General Motors Corporation, Intervenors. Mississippi Power and Light Company v. Federal Power Commission, General Motors Corporation, Intervenors

Edward J. Grenier, Jr., Washington, D.C., with whom Richard P. Noland, Richard J. Pierce, Jr., and David C. Evans, Washington, D.C., were on the brief, for intervenors in No. 73-1358 and intervenors, Gen. Motors Corp., Johns-Manville Corp., Brick Institute of America and Georgia Industrial Group in No. 73-1485.

Arnold D. Berkeley, Washington, D.C., and David R. Straus, Chicago, Ill., were on the brief, for intervenors, State of Louisiana, Louisiana Municipal Association, Louisiana Public Service Commission and St. James Parish Utilities in No. 73-1485.

Raymond P. Buschmann, Chicago, Ill., entered an appearance for intervenor, Illinois Power Co. in No. 73-1485.

Before BAZELON, Chief Judge, and MacKINNON, Circuit Judge, and A. SHERMAN CHRISTENSEN,* United States Senior District Judge for the District of Utah.

Petitioners assert that we have jurisdiction under section 19(b) of the Natural Gas Act1 to review Order No. 467, 49 F.P.C. 85,2 which the Federal Power Commission issued on January 8, 1973. Order No. 467 is a 'Statement of Policy' on 'priorities-of-deliveries by jurisdictional pipelines during periods of curtailment' which the Commission indicated it proposes to implement in all matters arising under the Act. The petitioning customers of pipeline companies, whose deliveries are subject to curtailment during natural gas shortages, contend that Order No. 467 is procedurally defective for failure to comply with the Administrative Procedure Act,3 substantively defective for failure to compile an adequate record, and environmentally defective for failure to comply with the National Environmental Policy Act.4

We hold that as a general statement of policy, Order No. 467 is exempt from the rulemaking requirements of the Administrative Procedure Act. We further hold that Order No. 467 is not reviewable under section 19(b) of the Natural Gas Act because this general statement of policy does not have a sufficiently immediate and significant impact upon petitioners and because the record in this case is inadequate to permit meaningful judicial review.

This country appears to be experiencing a natural gas shortage5 which necessitates the curtailment of supplies to certain customers during peak demand periods. The problem confronting many pipeline companies is whether to curtail on the basis of existing contractual commitments or on the basis of the most efficient end use of the gas. In some instances the pipeline companies are concerned that withholding gas due under existing contracts may subject them to civil liability.

Recognizing these uncertainties and mindful of the desirability of providing uniform curtailment regulation,6 the FPC in 1971 issued a Statement of General Policy in the form of Order No. 431 directing jurisdictional pipeline companies which expected periods of shortages to file tariff sheets containing a curtailment plan.7 Order No. 431 hinted that curtailment priorities should be based on the end use of the gas and stated that curtailment plans approved by the Commission 'will control in all respects notwithstanding inconsistent provisions in (prior) sales contracts . . ..'8 In response to Order No. 431, numerous pipeline companies which had not already done so submitted a variety of curtailment plans for the Commission's approval. As could be expected, the curtailment plans reflected a wide range of views as to the proper priorities for delivery. Some plans were based on end use; others, on contract entitlements. The industry was forced to speculate as to which priorities would later be found to be just and reasonable by the Commission, and the absence of any stated Commission policy hindered effective long range planning by pipelines, distributors and consumers.

Sensing a need for guidance and uniformity in the curtailment area, on January 8, 1973 the Commission promulgated Order No. 467, the order presently under review, which is reprinted in the Appendix to this opinion. Entitled 'Statement of Policy,' Order No. 467 was issued without prior notice or opportunity for comment. The statement sets forth the Commission's view of a proper priority schedule and expresses the Commission's policy that the national interest would be best served by assigning curtailment priorities on the basis of end use rather than on the basis of prior contractual commitments. Order No. 467 further states the Commission's intent to follow this priority schedule unless a particular pipeline company demonstrates that a different curtailment plan is more in the public interest. On January 15, 1973 the Commission issued Order No. 467-A, 49 F.P.C. 217, which corrected an inadvertent omission in Order No. 467 of procedures to provide for emergency situations that may occur during curtailment periods.

The Commission immediately received numerous petitions for rehearing, reconsideration, modification or clarification of Orders Nos. 467 and 467-A, and several parties requested permission to intervene. Most of the petitioners were customers of pipeline companies subject to curtailment, particularly electric generating companies to whom Order No. 467 had assigned a low priority. Few pipeline companies objected to Order No. 467, apparently because the pipelines sell all the gas they can during periods of shortage and consequently are not overly concerned with which customers receive it. On March 2, 1973 the Commission issued Order No. 467-B, 49 F.P.C. 583, which affirmed the policy expressed in Order No. 467, amended that order in some minor instances and otherwise denied the petitions for rehearing and intervention.

Petitioners seek review of Order No. 4679 in this court under section 19(b) of the Natural Gas Act10 and advance the following three arguments: (1) that Order No. 467 is in effect a substantive rure which the Commission should have promulgated after a rulemaking proceeding under the Administrative Procedure Act (APA);11 (2) that there is an insufficient factual basis for the priorities announced in Order No. 467; and (3) that the Commission failed to comply with the National Environmental Policy Act.

The principal issue is whether this court has jurisdiction to review Order No. 467 under section 19(b) of the Natural Gas Act. In resolving this issue it is necessary first to determine whether Order No. 467 is a substantive rule or merely a general statement of policy. We recognize that a decision on the latter question effectively disposes of petitioner's procedural challenge under the APA. However, since many of the same considerations are relevant to both issues, disposition of the APA issue is an unavoidable incident to disposition of the jurisdictional issue.

The APA requires that before an agency adopts a substantive rule, it must publish a notice of the proposed rule and provide interested persons an opportunity t0 comment. 5 U.S.C. 553. The FPC did not utilize this rulemaking procedure in adopting Order No. 467. However, section 553(b)(A) of the APA provides an exception to the general rulemaking requirements:

Except when notice or hearing is required by statute, this subsection does not apply--

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; . . ..

Id. 553(b)(A).12 The Commission maintains that Order No. 467 was exempt from the rulemaking requirements because it is a 'general statement of policy' within the meaning of section 553(b)(A).

The APA never defines 'general statements of policy' but it does define 'rule' to

(mean) the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . ..

Id. 551(4). This broad definition obviously could be read literally to encompass virtually any utterance by an agency, including statements of general policy.13 But the statutory provision of an exception to the rulemaking requirements for 'general statements of policy' indicates that Congress did not intend the definition of 'rule' to be construed so broadly. Congress recognized that certain administrative pronouncements did not require public participation in their formulation. These types of pronouncements are listed in section 553(b)(A) and include 'general statements of policy.'14

Professor Davis has described the distinction between substantive rules and general statements of policy as a 'fuzzy product.'15 Unfortunately the issues in this case compel us to attempt to define the fuzzy perimeters of a general statement of policy.

An administrative agency has available two methods for formulating policy that will have the force of law. An agency may establish binding policy through rulemaking procedures by which it promulgates substantive rules, or through adjudications which constitute binding precedents.16 A general statement of policy is the outcome of neither a rulemaking nor an adjudication; it is neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications.¹⁷ A general statement of policy, like a press release, presages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications.

As an informational device, the general statement of policy serves several beneficial functions. By providing a formal method by which an agency can express its views, the general statement of policy encourages public dissemination of the agency's policies prior to their actual application in particular situations. Thus the agency's initial views do not remain secret but are disclosed well in advance of their actual application. Additionally, the publication of a general statement of policy facilitates long range planning within the regulated industry and promotes uniformity in areas of national concern.

The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. See Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416-417, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942); Public Service Comm'n of New York v. FPC, 126 U.S.App.D.C. 26, 37, 373 F.2d 816, 827 (1967), rev'd on other grounds, 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388 (1968). A properly adopted substantive rule establishes a standard of conduct which has the force of law. In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance. The underlying policy embodied in the rule is not generally subject to challenge before the agency.

A general statement of policy, on the other hand, does not establish a 'binding norm.'18 It is not finally determinative of the issues or rights to which it is addressed. The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy. A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.19 An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.

Often the agency's own characterization of a particular order provides some indication of the nature of the announcement. The agency's express purpose may be to establish a binding rule of law not subject to challenge in particular cases. On the other hand the agency may intend merely to publish a policy guideline that is subject to complete attack before it is finally applied in future cases. When the agency states that in subsequent proceedings it will thoroughly consider not only the policy's applicability to the facts of a given case but also the underlying validity of the policy itself, then the agency intends to treat the order as a general statement of policy.20

Airport Commission v. CAB, 300 F.2d 185 (4th Cir. 1962), provides a good illustration of the proper effect of a general statement of policy in subsequent administrative proceedings. In that case the CAB issued a press release jointly with the Chairman of the FAA stating that it generally favored the rendition of air line service to reasonably adjacent communities through a single airport rather than through separate airports. When the Board later directed consolidated service to a tri-city area in North Carolina, petitioners contended that the Board's decision was illegally based upon a policy pronouncement which was never published in the Federal Register in compliance with the APA. Affirming the Board's decision, the court described the effect of a general statement of policy:

(The statement) did not involve a rule which the public is required to obey or with which it is to avoid conflict . . . It was intended as a general statement of policy to guide the public in future planning . . .. The so-called policy or pronouncement did not operate in and of itself to deny any rights to the petitioners.

Id. at 188. The court emphasized that the Board's decision under review was firmly grounded upon substantial and extensive record evidence and that the Board had not attempted to apply the policy statement as a rule of law.

The tentative effect of a general statement of policy has ramifications in subsequent judicial review proceedings as well as in administrative proceedings. Because a general statement of policy is adopted without public participation, the scope of review may be broader than the scope of review for a substantive rule. The rulemaking process prescribed by the APA insures a thorough exploration of the relevant issues. The public is notified of the proposed rule and interested parties submit arguments supporting their positions. The rulemaking process culminates in the agency applying its experience and expertise to the issues. A court reviewing a rule that was adopted pursuant to this extensive rulemaking process will defer to the agency's judgment if the rule satisfies the minimal criterion of reasonableness.21

But when an agency promulgates a general statement of policy, the agency does not have the benefit of public exploration of the issues. Judicial review may be the first stage at which the policy is subjected to full criticism by interested parties. Consequently a policy judgment expressed as a general statement of policy is entitled to less deference than a decision expressed as a rule or an adjudicative order. Although the agency's expertise and experience cannot be ignored, the reviewing court has some leeway to assess the underlying wisdom of the policy and need not affirm a general statement of policy that merely satisfies the test of reasonableness.22

Applying these general principles to the problem at hand, we conclude that Order No. 467 is a general statement of policy. Order No. 467 is entitled and consistently referred to by the Commission as a general statement of policy.23 Recognizing the 'need for Commission guidance in curtailment planning,' the Commission announced in Order No. 467 the curtailment policy which it 'proposes to implement,' the 'plan preferred by the Commission' which 'will serve as a guide in other proceedings.' See Appendix. Thus, the stated purpose of Order No. 467 was not to provide an inflexible, binding rule but to give advance notice of the general policy with respect to curtailment priorities that the Commission prefers.

Order No. 467 does not establish a curtailment plan for any particular pipeline. The effect of the order is to inform the public of the types of plans which will receive initial and tentative FPC approval, but there is no assurance that any such plan will be finally approved. As the Commission stated:

When applied in specific cases, opportunity will be afforded interested parties to challenge or support this policy through factual or legal presentation as may be appropriate in the circumstances presented.

49 F.P.C. at 85.

(Order No. 467 is) not finally determinative of the rights and duties of a given pipeline, its customers or ultimate consumers; it expressly envisions further proceedings.

49 F.P.C. at 585.

Many applicants seek clarification of Order No. 467 by Commission definition of all terms used, or modification of the substance of Order No. 467 by a reordering of priorities. These applicants err in treating Oorder Nos. applicants err in treating Order Nos. which precisely defines the curtailment rights and obligations of all pipelines and all pipeline customers. We ascribe no such effect to Order Nos. 467 and 467-A, for, as already stated, these Orders are intended only to state initial guidelines as a means of facilitiating curtailment planning and the adjudication of curtailment cases.

49 F.P.C. at 586. Not only will petitioners have an opportunity to challenge the merits of the proposed plan, they will also have an opportunity to demonstrate that the plan is inappropriate in particular circumstances.

As discussed below, Order No. 467 is a policy statement and is not intended to initiate a proceeding or to provide a binding rule without further proceedings directed towards curtailment problems on specific pipelines.

49 F.P.C. at 583.

The stated priorities are intended to be a safe starting point from which deviations may be made based on an evidentiary record.

Order Denying Motions for Reconsideration, Clarification or Modification of Order 467-B (April 25, 1973); Jt.App. at 80.

We recognized that some flexibility is essential as curtailments first occur, in order to ameliorate the economic dislocations which necessarily ensue, and for that reason we made clear in Order No. 467 that the policy therein stated could, and would, be adjusted in appropriate cases where the hearing record so required.

49 F.P.C. at 584.

We, of course, recognize that extraordinary circumstances may preclude the strict adherence to the priorities established and, consequently, we will permit those persons who allege that their circumstances require such extraordinary treatment to file petitions for relief under Section 1.7(b) of our Rules of Practice and Procedure. Barring such circumstances, our review of those curtailment proceedings and our knowledge of the industry convinces us that the priorities-of-delivery set forth below should be applied to all jurisdictional pipeline companies during periods of curtailment.

49 F.P.C. at 85-86.

This does not mean that the parties may not propose or the commission may not adopt variations on the Sec. 2.78(a) plan, but there must be evidence in the record to support any such variations. Nor does it mean that adversely affected pipeline customers may not claim a right to special relief from the operation of a Sec. 2.78(a) plan, but in such instances there must be evidence to support any such claim. In this way, Sec. 2.78(a) will assist the parties and the Administrative Law Judge in arriving at a curtailment plan which will meet the problems created by diverse needs for gas in the face of a nation-wide gas shortage and at the same time be adapted to the peculiarities, if any, of the particular pipeline system involved.

49 F.P.C. at 586. Thus it is apparent from Order No. 467 itself that there is no final, inflexible impact upon the petitioners. And since the statement will be applied prospectively, the courts are in a position to police the Commission's application of the policy and to insure that the Commission gives no greater effect to Order No. 467 than the order is entitled to as a general statement of policy.

The FPC of course was under no compulsion to issue Order No. 467. The Commission issued the policy statement because the curtailment plans being submitted reflected sharp differences in philosophy which necessitated Commission guidance in the curtailment area. In the absence of such a policy statement, the Commission could have proceeded on an ad hoc basis and tentatively approved curtailment plans filed under section 4 of the Act which the Commission found to be just and reasonable. In following such a course the only difference from the present situation would be that the Commission would be acting under a secret policy rather than under the publicized guidelines of Order No. 467. The argument that an agency must follow rulemaking procedures when it elects to formulate policy by a substantive rule24 has no application in this case. Order No. 467 does not establish a substantive rule. Although the Commission is free to initiate a rulemaking proceeding to establish a binding substantive rule, the Commission apparently intends to establish its curtailment policies by proceeding through individual adjudications. Order No. 467 merely announces the general policy which the Commission hopes to establish in subsequent proceedings.

A comparison of the present case with Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), provides a good illustration of the difference between a substantive rule and a general statement of policy. After conducting extensive hearings with public participation, the Federal Communications Commission promulgated regulations purporting to require the Commission to refuse to grant or renew a license to any station which entered into certain types of contracts with a chain broadcasting network. Plaintiff, a chain broadcasting network, sued in district court for injunctive relief against the regulation. Although the FCC maintained that the regulations merely announced a general policy and were no more subject to review than a press release similarly announcing policy, id. at 422, 62 S.Ct. 1194, the Supreme Court concluded that the regulations had the effect of a substantive rule and were subject to immediate judicial review.25

A distinguishing feature of the regulations in Columbia Broadcasting was their immediate and significant impact upon plaintiff's business. There was evidence that the issuance of the regulations caused the immediate cancellation of or failure to renew plaintiff's contracts. These 'wholesale cancellations' seriously disorganized plaintiff's organization and impaired plaintiff's very 'ability to conduct its business.' Id. at 413, 414-415, 418, 423, 62 S.Ct. 1194. The effect of Order No. 467 in the present case is not so direct or immediate. Any abrogation of contractual commitments will occur only after individual curtailment plans have been filed and approved by the Commission. In those proceedings all interested parties can appear, present their case and, if aggrieved, obtain judicial review.26 Assuming the Commission approves curtailment plans that override some contractual obligations, the result will be that during occasional periods of shortage coupled with high demand, deliveries to some customers rather than others might be curtailed. The possibility that petitioners might receive a lower curtailment priority at some future time as the result of a subsequent tariff filing does not compare with the significant and immediate impact of the regulations in Columbia Broadcasting.

A further important distinction between Columbia Broadcasting and the present case is that the FCC regulations in that case had the 'force of law.' Unlike Order No. 467, the FCC regulations were the product of a full rulemaking procedure, see id. at 409, 62 S.Ct. 1194, were 'avowedly' adopted in the exercise of rulemaking power, and were 'couched in terms of command.' There was no assurance that the underlying validity of the regulations could be challenged in subsequent adjudications-- the only issue in future proceedings would be whether a particular contract was within the regulations. Indeed, the FCC acknowledged that the regulations afforded a 'legal basis' for subsequent administrative action. Id. at 417-423, 62 S.Ct. 1194. None of these features are present here. In this case the FPC has consistently viewed Order No. 467 as a general statement of policy and, as discussed at length above, the order does not have the binding force of a substantive rule.

Petitioners contend that Order No. 467 has an immediate and significant practical effect by shifting the burden of proof in curtailment cases from the pipeline companies to their customers because the order 'established a presumption that the curtailment rules prescribed are consistent with the Natural Gas Act in any and all situations . . ..'27 Under section 4 of the Natural Gas Act a pipeline company filing a new curtailment plan has the burden of proving that its plan is reasonable and fair. FPC v. Louisiana Power & Light Co., 406 U.S. 621, 645, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972); see 15 U.S.C. 717c(e) (1970). Petitioners maintain that by stating that tariffs which conform to the proposed plan will be permitted to become effective, Order No. 467 relieves the pipeline companies of their burden of justifying their plans. However, the language of Order No. 467 is as follows:

Proposed tariff sheets which conform to the policies expressed in (Order No. 467) will be accepted for filing, and permitted to become effective, subject to the rights of intervenors to hearing and adjudication of any claim of preference, discrimination, unjustness or unreasonableness of the provisions contained in the proposed tariff sheets, and subject to the further right of anyone adversely affected to seek individualized special relief because of extraordinary circumstances.

49 F.P.C. at 585. We interpret the italicized proviso to mean that in appropriate cases the Commission will conduct a section 4 proceeding to consider a challenge to the underlying validity of a curtailment plan, even though the plan conforms to Order No. 467. Section 4 renders unlawful curtailment plans which are preferential, discriminatory, unreasonable or unfair and provides for a hearing concerning the lawfulness of newly filed curtailment plans. See FPC v. Louisiana Power & Light Co., supra at 642-645, 92 S.Ct. 1827. The Commission has processed curtailment plans under section 4 in the past, and the Supreme Court recently emphasized that section 4 is by far the most appropriate mechanism for evaluating such plans. Id. at 643-645, 92 S.Ct. 1827. We expect the Commission generally to continue processing curtailment plans in section 4 proceedings, in which the pipeline company has the burden of proof, and to refrain from treating Order No. 467 as anything more than a general statement of policy.28

Petitioners rely heavily upon the Third Circuit's decision in Texaco, Inc. v. FPC, 412 F.2d 740 (3rd Cir. 1969). In Texaco the court considered the validity of FPC Order No. 362 which established for the first time a compound interest rate that would be required on amounts ordered refunded when a proposed rate increase was disallowed. The order had been adopted without complying with the APA rulemaking procedures. In deciding that Order No. 362 was not a general statement of policy, the court rejected arguments by the Commission that the order was merely a public announcement of the policy which otherwise would be applied on an ad hoc basis29 and that the order did not harm the petitioner until a refund was actually required. According to the Texaco court, the petitioner's burden of overcoming the general rule embodied in Order No. 362 was evidence of the substantive nature of the order.30

The situation in Texaco was quite different from the present case. Texaco arose in part from an adjudication in which the Commission had refused to waive Order No. 362 as a substantive rule. Since the inception of Order No. 362 the Commission had treated it as a substantive rule. Indeed, the order itself stated that 'the amendments herein prescribed may be interpreted as substantive amendments under 553 of Title 5 of the United States Code . . ..' 412 F.2d at 742 & n. 4. The Commission had maintained that section 553(b)(B) of the APA31 made a rulemaking procedure unnecessary because Order No. 362 was minor, routine, insignificant and unimportant, and it was only on appeal that the Commission suggested for the first time that the order was excused from rulemaking under section 553(b)(A) as a general statement of policy. Id. at 743, 744 n. 9. Under these circumstances, and having just concluded that Order No. 362 was not minor, routine, insignificant or unimportant, the court was unwilling to treat the order as a general statement of policy without substantive effect.

Order No. 467 is not the first instance where the FPC has utilized a general statement of policy to advise the public of the manner in which it intends to regulate the natural gas industry. For example, after the Supreme Court held in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), that the Commission's jurisdiction extends to independent producers of natural gas, the Commission promulgated a 'Statement of General Policy' which tentatively designated various geographic areas as producing units for the purpose of rate regulation and established maximum rates for each area. 24 F.P.C. 818 (1960). This statement provided that rates exceeding the maximum levels would not be approved and announced that the tentative rates would remain in effect until final rates and geographic boundaries were determined in future proceedings. Id. at 820. The first of the future proceedings to be completed culminated in the landmark Supreme Court decision in Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). Order No. 467 is similar in both purpose and effect to the general statement of policy which led to the area rate structure adjudicated in the Permian case.

We conclude that Order No. 467 is a general statement of policy and that it was therefore unnecessary for the Commission to conduct rulemaking proceedings under the Administrative Procedure Act.

Having concluded that Order No. 467 is a general statement of policy, we must now decide whether this court has jurisdiction to review the order. Although circumstances might arise under which a general statement of policy is subject to immediate judicial review,32 Order No. 467 does not present such a situation.

Petitioners contend that we have jurisdiction to review Order No. 467 under section 19(b) of the Natural Gas Act, 15 U.S.C. 717r(b) (1970), which provides:

Any party to a proceeding under this chapter aggrieved by an order issued by the commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.33

Under this statute this court has jurisdiction only where there is a 'party to a proceeding' who is 'aggrieved by an order.'

The Commission first contends that petitioners were not 'parties' to a proceeding before the Commission because petitioners' only involvement with Order No. 467 was the filing of petitions for rehearing. The Commission argues that for petitioners to have been 'parties' to the proceeding, it was necessary to file petitions to intervene. Whatever merit the Commission's argument may have in another context,34 in the present case petitioners need not ha