Mobil Alaska Pipeline Company v. United States

*951 Mr. Justice Brennan, with whom Mr. Justice Marshall joins,

dissenting.

I initially joined in granting a stay in these cases. Upon further consideration, however, I am convinced that our stay was improvidently and precipitately issued and that it should now be dissolved.

Applicants will be able to collect approximately $1.5 million per day by virtue of our stay that would not be collected were the suspension order of the Interstate Commerce Commission— which is the subject of petitions for certiorari in this case1 — to remain in effect. Because of the enormous sums of money that will be collected under our stay, over $100 million by January 28, 1978, when the suspension order of the ICC ends by its terms, the Court should be very clear before continuing this stay that it is really needed to protect applicants and, more importantly, that the provisions of the stay adequately protect the interests of anyone who may be affected by this litigation. On the pleadings so far before us, I am not convinced that the Court is in a position to act with any such conviction.

First, with respect to the need for the stay, it is important to recognize that each applicant comes before this Court in a dual capacity: Each is both a part owner of the Trans Alaska Pipeline System and a shipper of oil over the pipeline. ' Therefore some amounts which an applicant would be prevented from collecting under the suspension order would immediately be recouped as extra profit to that applicant in its capacity as a shipper. This is not to suggest that the gains would offset the losses with any precision, but only that’the net losses may be sufficiently small that extraordinary equitable relief would not be appropriate.

My greater concern, however, is that the form of our stay may not adequately protect the ultimate consumers of oil *952 shipped over the pipeline or the interests of shippers or holders of royalty interests in the oil at Prudhoe Bay. Although the applicants aver that the “landed price” of oil in the United States will not be affected by our stay and therefore that consumers of Alaskan oil will not face higher prices because of our order, I am not prepared to accept these unexplained statements on the record presently before us. Nor do I think the interest which applicants are today ordered to pay on any amounts ultimately ordered refunded is sufficient to reimburse shippers and royalty holders for the costs they may incur as a consequence of our stay. The only information we have as to what those costs may be is the statement of the Arctic Slope Regional Corp.2 that it will have to borrow at an estimated interest of 10% amounts equal to the royalties it would have had but for our stay. Nonetheless, the Court today sets the interest to be paid on amounts refunded at the rate prescribed by 49 U. S. C. § 15 (8)(e) (1976 ed.), which applies only to railroad tariffs and is today somewhere below 7%.3 Indeed, in adopting this rate, the Court today rejects what is to me the much more reasonable suggestion of the Solicitor General that the interest be set at 9%, which is the rate prescribed by the Federal Power Commission for tariff refunds from natural gas pipelines.4

For the reasons stated above, I would vacate the stay ordered by this Court on October 20, 1977, and order proceedings on the petitions for certiorari to be expedited. Barring *953 this, I would have entered the form of stay order suggested by the Solicitor General.

For a discussion of the background of this litigation, see Mobil Alaska Pipeline Co. v. United States, 557 F. 2d 775 (CA5 1977).

Arctic Slope is the representative of the Inupiat Eskimos who have a claim to be paid 2% of the wellhead value of Alaskan crude oil up to a total of $500 million as consideration for their surrender of aboriginal land claims in the Prudhoe Bay area.

Section 15 (8) (e) sets the rate of interest at "a rate which is equal to the average yield ... of marketable securities of the United States which have a duration of 90 days.”

See 18 CFR § 154.67 (c) (2) (1977).