42 U.S.C. § 8441 — Preservation of contractual interest

Page 7610 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8434 1 So in original. The comma probably should not appear. which shall be assessed by the Secretary. The amount of such civil penalty may not exceed $10 per barrel of petroleum or $3 per Mcf of natural gas which was used in excess of that use allowed by such exemption.’’ Subsec. (c). Pub. L. 100–42, § 1(c)(20)(C), struck out subsec. (c) which set forth civil penalties for violation of section 8372 of this title. § 8434. Injunctions and other equitable relief Whenever it appears to the Secretary that any person has engaged, is engaged, or is about to engage in acts or practices constituting a viola- tion of this chapter, or any rule or order there- under, a civil action,1 may be brought, in ac- cordance with section 7192(c) of this title, in the appropriate district court of the United States to enjoin such acts or practices, and, upon a proper showing, the court shall grant, without bond, mandatory or prohibitive injunctive relief, including interim equitable relief. (Pub. L. 95–620, title VII, § 724, Nov. 9, 1978, 92 Stat. 3335.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Powerplant and Industrial Fuel Use Act of 1978, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of this title and Tables. § 8435. Citizens suits (a) General rule Except as otherwise provided in subsection (b), any aggrieved person may commence a civil ac- tion for mandatory or prohibitive injunctive re- lief, including interim equitable relief, against the Secretary or the head of any Federal agency which has a responsibility under this chapter if there is an alleged failure of the Secretary or such agency head to perform any act or duty under this chapter which is not discretionary. The United States district courts shall have ju- risdiction over actions brought under this sec- tion, without regard to the amount in con- troversy or the citizenship of the parties. (b) Notice to Secretary or agency head No action may be commenced under sub- section (a) before the 60th calendar day after the date on which the plaintiff has given notice of such action to the Secretary or the agency head involved. Notice under this subsection shall be given in such manner as the Secretary shall pre- scribe by rule. (c) Authority of Secretary to intervene In any action brought under subsection (a), the Secretary, if not a party, may intervene as a matter of right. (d) Costs of litigation The court, in issuing any final order in any ac- tion brought under subsection (a), may award costs of litigation (including reasonable attor- ney and expert witness fees) to any party, when- ever the court determines such award is appro- priate. (e) Other remedies to remain available Nothing in this section shall restrict any right which any aggrieved person (or class of ag- grieved persons) may have under any statute or common law to seek enforcement of this chapter or any rule thereunder, or to seek any other re- lief (including relief against the Secretary or the agency head involved). (Pub. L. 95–620, title VII, § 725, Nov. 9, 1978, 92 Stat. 3335.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (e), was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Powerplant and In- dustrial Fuel Use Act of 1978, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of this title and Tables. PART D—PRESERVATION OF CONTRACTUAL RIGHTS § 8441. Preservation of contractual interest (a) Right to transfer contractual interests (1) If any person receives natural gas, the use of which is prohibited by the provisions of sub- chapter III or any rule or order thereunder, and if such natural gas is received pursuant to a con- tract in effect on April 20, 1977, between such person and any other person, such person receiv- ing such natural gas may transfer all or any por- tion of such person’s contractual interests under such contract and receive consideration from the person to whom such contractual interests are transferred. The consideration authorized by this subsection shall not exceed the maximum consideration established as just compensation under this section. (2) Any person who would have transported or distributed the natural gas subject to a contract with respect to which contractual interests are transferred pursuant to paragraph (1) shall be entitled to receive just compensation (as deter- mined by the Commission) from the person to whom such contractual interests are trans- ferred. (b) Determination of consideration (1) The Commission shall, by rule, establish guidelines for the application on a regional or national basis (as may be appropriate) of the cri- teria specified in subsection (e)(1) to determine the maximum consideration permitted as just compensation under this section. (2) The person transferring contractual inter- ests pursuant to subsection (a)(1) and the person to whom such interests are transferred may agree on the amount of, or method of deter- mining, the consideration to be paid for such transfer and certify such consideration to the Commission. Except as provided in paragraph (4), such agreed-upon consideration shall not ex- ceed the consideration determined by applica- tion of the guidelines prescribed by the Commis- sion under paragraph (1). (3) In the event the person transferring con- tractual interests pursuant to subsection (a)(1) and the person to whom such interests are to be Page 7611 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8441 transferred fail to agree, under paragraph (2), on the amount of, or method of determining, the consideration to be paid for such transfer, the Commission may, at the request of both such persons, prescribe the amount of, or method of determining, such consideration. Upon the re- quest of either such person, the Commission shall make such determination on the record, after an opportunity for agency hearing. In any such latter case, the determination of the Com- mission shall be binding upon the party request- ing that such determination be made on the record of the agency hearing. The consideration prescribed by the Commission shall not exceed the maximum consideration permitted as just compensation under this section. In prescribing the amount of, or method of determining, con- sideration under this paragraph, to the max- imum extent practicable, the Commission shall utilize any liquidated damages provision set forth in the applicable contract, but in no event may the Commission prescribe consideration in excess of the maximum consideration permitted as just compensation under this section. (4) In the event that the consideration agreed upon under paragraph (2) exceeds the consider- ation determined by application of the guide- lines prescribed by the Commission under para- graph (1), the Commission may approve such agreed-upon consideration if the Commission de- termines such agreed-upon consideration does not exceed the maximum consideration per- mitted as just compensation under this section. (5) If consideration is agreed upon under para- graph (2) and such consideration exceeds the consideration determined by application of the guidelines prescribed under paragraph (1), but does not exceed the maximum consideration per- mitted as just compensation under this section, the Commission may not require a refund of any portion of the agreed-upon consideration paid with respect to deliveries of natural gas occur- ring prior to the Commission’s action under paragraph (4) approving or disapproving such consideration unless the Commission deter- mines— (A) such agreed-upon consideration was fraudulently established; (B) the processing of the request for ap- proval of such agreed-upon consideration under paragraph (4) was willfully delayed by a party to the transfer; or (C) such agreed-upon consideration exceeds the maximum consideration permitted as just compensation under this section. (c) Restrictions on transfers unenforceable (1) Any provision of any contract, which pro- hibits any transfer authorized by subsection (a)(1) or terminates such contract on the basis of such transfer, shall be unenforceable in any court of the United States and in any court of any State. (2) No State may enforce any prohibition on any transfer authorized by subsection (a)(1). (d) Contractual obligations unaffected The person acquiring contractual interests transferred pursuant to subsection (a)(1) shall assume the contractual obligations which the person transferring such contractual interests has under such contract. This subsection shall not relieve the person transferring such contrac- tual interests from any contractual obligation of such person under such contract if such obli- gation is not performed by the person acquiring such contractual interests. (e) Definitions For purposes of this section— (1) The term ‘‘just compensation’’, when used with respect to any transfer of contractual in- terests authorized by subsection (a)(1), means the maximum amount of, or method of deter- mining, consideration which does not exceed the amount by which— (A) the reasonable costs (excluding capital costs) incurred, during the remainder of the period of the contract with respect to which contractual interests are transferred under subsection (a)(1), in direct association with the use of a fuel, other than natural gas, as a primary energy source by the applicable exist- ing electric powerplant, exceed (B) the price of natural gas under such con- tract during such period. For purposes of subparagraph (A), the reason- able costs associated with the use of a fuel, other than natural gas, as a primary energy source shall include an allowance for the amor- tization, over the remaining useful life, of the undepreciated value of depreciable assets lo- cated on the premises containing such electric powerplant, which assets were directly associ- ated with the use of natural gas and are not usa- ble in connection with the use of such other fuel. (2) The term ‘‘just compensation’’, when used with respect to subsection (a)(2), means an amount equal to any loss of revenue, during the remaining period of the contract with respect to which contractual interests are transferred pur- suant to subsection (a)(1), to the extent such loss (A) is directly incurred by reason of the dis- continuation of the transportation or distribu- tion of natural gas resulting from the transfer of contractual interests pursuant to subsection (a)(1), and (B) is not offset by revenues derived from other transportation or distribution which would not have occurred if such contractual in- terests had not been transferred. (3) The term ‘‘contractual interests’’, with re- spect to a contract described in subsection (a)(1), includes the right to receive natural gas as affected by any applicable curtailment plan filed with the Commission or the appropriate State regulatory authority. (4) The term ‘‘State’’ means each of the sev- eral States, the District of Columbia, Puerto Rico, any territory or possession of the United States, and any political subdivision of any of the foregoing. (5) The term ‘‘interstate pipeline’’ means any person engaged in the transportation of natural gas in interstate commerce subject to the juris- diction of the Commission under the Natural Gas Act [15 U.S.C. 717 et seq.]. (6) The term ‘‘Commission’’ means the Federal Energy Regulatory Commission. (7) The term ‘‘contract’’, when used with re- spect to a contract for receipt of natural gas, which contract was in existence on April 20, 1977, does not include any renewal or extension Page 7612 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8451 1 So in original. Probably should be ‘‘jurisdiction’’. occurring after such date unless such renewal or extension occurs pursuant to the exercise of an option by the person receiving natural gas under such contract. (f) Coordination with Natural Gas Act (1) Consideration paid by any interstate pipe- line pursuant to this section shall be deemed just and reasonable for purposes of sections 4, 5, and 7 of the Natural Gas Act [15 U.S.C. 717c, 717d, 717f]. The Commission shall not deny a passthrough by such interstate pipeline of such consideration based upon the amount of such consideration paid pursuant to this section. (2) No person shall be subject to the jurisdic- tion of the Commission under the Natural Gas Act [15 U.S.C. 717 et seq.] or to regulation as a common carrier under any provision of Federal or State law solely by reason of making any sale, or engaging in any transportation, of nat- ural gas with respect to which the transfer of contractual interests is authorized under sub- section (a)(1). (3) Nothing in this section shall exempt from the jurisdiction of the Commission under the Natural Gas Act [15 U.S.C. 717 et seq.] any trans- portation in interstate commerce of natural gas, any sale in interstate commerce for resale of natural gas, or any person engaged in such transportation or such sale to the extent such transportation, sale or person is subject to the juridiction 1 of the Commission under such Act without regard to the transfer of contractual in- terests under subsection (a)(1). (4) Nothing in this section shall exempt any person from any obligation to obtain a certifi- cate of public convenience and necessity for the transportation by an interstate pipeline of nat- ural gas with respect to which the transfer of contractual interests is authorized under sub- section (a)(1). The Commission shall not deny such a certificate for the transportation in interstate commerce of natural gas based upon the amount of consideration paid pursuant to this section. (g) Volume limitation No supplier of natural gas under any contract, with respect to which contractual interests have been transferred under subsection (a)(1), shall be required to supply natural gas during any rel- evant period in volume amounts which exceed the lesser of— (1) the volume determined by reference to the maximum delivery obligations specified in such contract; (2) the volume which such supplier would have been required to supply, under the cur- tailment plan in effect for such supplier, to the person, who transferred contractual inter- ests under subsection (a)(1), if no such transfer had occurred; (3) the volume which would have been deliv- ered, or for which payment would have been made, pursuant to such contract but for the prohibition on the use of such natural gas under subchapter III of this chapter or any rule or order thereunder; and (4) the volume actually delivered or for which payment would have been made pursu- ant to such contract during the 12-calendar- month period ending immediately before such transfer of contractual interests pursuant to this section. (h) Judicial review Any action by the Commission under this sec- tion is subject to judicial review in accordance with chapter 7 of title 5. (Pub. L. 95–620, title VII, § 731, Nov. 9, 1978, 92 Stat. 3336; Pub. L. 100–42, § 1(c)(21), May 21, 1987, 101 Stat. 314.) Editorial Notes REFERENCES IN TEXT The Natural Gas Act, referred to in subsecs. (e)(5) and (f)(2), (3), is act June 21, 1938, ch. 556, 52 Stat. 821, which is classified generally to chapter 15B (§ 717 et seq.) of Title 15, Commerce and Trade. For complete classifica- tion of this Act to the Code, see section 717w of Title 15 and Tables. AMENDMENTS 1987—Subsec. (a)(1). Pub. L. 100–42, § 1(c)(21)(A), struck out reference to subchapter II of this chapter. Subsec. (e)(1). Pub. L. 100–42, § 1(c)(21)(B), struck out ‘‘or major fuel-burning installation’’ after ‘‘power- plant’’ in subpar. (A) and ‘‘or major fuel-burning instal- lation’’ after ‘‘powerplant’’ in last sentence. Subsec. (g)(3). Pub. L. 100–42, § 1(c)(21)(A), struck out reference to subchapter II of this chapter. PART E—STUDIES § 8451. National coal policy study (a) Study The President, acting through the Secretary and the Administrator of the Environmental Protection Agency, shall make a full and com- plete investigation and study of the alternative national uses of coal available in the United States to meet the Nation’s energy require- ments consistent with national policies for the protection and enhancement of the quality of the environment and for economic recovery and full employment. In particular the study should identify and evaluate— (1) current and prospective coal require- ments of the United States; (2) current and prospective voluntary and mandatory energy conservation measures and their potential for reduction of the United States coal requirements; (3) current and prospective coal resource production, transportation, conversion, and utilization requirements; (4) the extent and adequacy of coal research, development, and demonstration programs being carried out by Federal, State, local, and nongovernmental entities (including financial resources, manpower, and statutory author- ity); (5) programs for the development of coal mining technologies which increase coal pro- duction and utilization while protecting the health and safety of coal miners; (6) alternative strategies for meeting antici- pated United States coal requirements, con- sistent with achieving other national goals, including national security and environmental protection;