191 F.2d 796 (4th Cir. 1951), 6273, United States ex rel. Chapman v. Federal Power Commission

Docket Nº6273, 6274.
Citation191 F.2d 796
Case DateOctober 01, 1951
CourtUnited States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 796

191 F.2d 796 (4th Cir. 1951)

UNITED STATES ex rel. CHAPMAN, Secretary of the Interior






Nos. 6273, 6274.

United States Court of Appeals, Fourth Circuit.

October 1, 1951

Argued Sept. 5, 1951.

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Gregory Hankin, Counsel, Department of the Interior, Washington, D.C. (Jesse L. Ballard, Southwestern Power Administration, Tulsa, Okl., Curtis H. Bell, Southeastern Power Administration, Elberton, Ga., and Milton C. Mapes, Jr., Portland, Or., Bonneville Power Administration, on the brief), for petitioner United States et al.

Robert Whitehead, Lovingston, Va. (Whitehead & Marshall, Lovingston, Va. on the brief), for petitioners Virginia REA Assn. et al.

Bradford Ross, Gen. Counsel, and Willard W. Gatchell, Asst. Gen. Counsel, Federal Power Commission, Washington, D.C. (Howard E. Wahrenbrock, Asst. General Counsel, and Sherman S. Poland, Washington, D.C., and Harry R. VanCleve, Jr., Los Angeles, Cal., on the brief), for Federal Power Commission, respondent.

T. Justin Moore, Richmond, Va. (Patrick A. Gibson, Washington, D.C., and Hunton, Williams, Anderson, Gay & Moore, Richmond, Va., on the brief), for Virginia Electric & Power Co., respondent.

Charles F. Rouse, Raleigh, N.C., and David W. Robinson, Washington, D.C., on the brief for Caroline Power & Light Co., Intervener.

Herbert B. Cohn, New York City, on the brief for Appalachian Electric Power Co., Intervener.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are petitions by the Secretary of the Interior and a cooperative association engaged in supplying electricity to its members, asking that we review and set aside an order of the Federal Power Commission granting a license to the Virginia Electric and Power Company to construct a dam at Roanoke Rapids, North Carolina, some distance down the Roanoke River from the government project at Buggs Island. Petitioners contend that the Roanoke Rapids project was removed from the licensing power of the Commission by reason of the comprehensive plan for the development of the Roanoke River basin approved by Congress in the adoption of the Flood Control Act of Dec. 22, 1944, 58 Stat. 887; that the Commission is precluded from granting the license because of its approval of the comprehensive plan; and that, at all events, the Commission transcended its authority and abused its discretion in granting the license because the project as licensed was substantially different from the project as set forth in the plan approved by Congress, because it was not economically feasible and because it involved the surrender to a private corporation of valuable

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public power rights. All of these contentions were rejected by the Commission, and in addition the right of petitioners to raise the contentions was questioned on the ground that neither petitioner is a party aggrieved within the meaning of the statute, providing for review of the Commission's orders, 16 U.S.C.A. § 825l(b).

Four questions are presented for our consideration: (1) Is either of petitioners an aggrieved party within the meaning of the statute providing for review? (2) Has Congress withdrawn the proposed development at Roanoke Rapids from the licensing power of the Commission? (3) Is the Commission precluded from granting the license here questioned by reason of its approval of the comprehensive plan for the development of the Roanoke River basin? And (4) has the Commission transcended its authority or abused its discretion in granting the license? We think that all of these questions must be answered in the negative.

1. Standing of Petitioners to Sue

Review of the order of the Commission is asked under 16 U.S.C.A. § 825l(b), which allows review upon the petition of 'any party * * * aggrieved by an order issued by the Commission'. While petitioners were permitted by orders of the Commission to intervene in the proceedings before that body, this was upon condition that such permission not be construed as recognition that they might be aggrieved by any orders entered in the proceeding. The Solicitor General gave his permission that the Secretary of the Interior file a petition for review of the Commission's order; but it is clear that this could not confer any right to seek the review unless the Secretary is a party aggrieved within the meaning of the statute. The inquiry, then, is whether either the Secretary or the cooperative association can be held to be aggrieved by the order granting the power company the license to construct the dam at Roanoke Rapids.

The only grievance which the Secretary puts forward is that, if the power dam were built by the Government, he would have the right to sell the electric power produced; and the only grievance asserted by the cooperative association is that, if the Secretary should sell the power, it would have a preference in the right to purchase same. The language of the statute relating to the matter is as follows, 58 Stat. 890, 16 U.S.C.A. § 825s: 'Sec. 5. Electric power and energy generated at reservoir projects under the control of the War Department and in the opinion of the Secretary of War not required in the operation of such projects shall be delivered to the Secretary of the Interior, who shall transmit and dispose of such power and energy in such manner as to encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles, the rate schedules to become effective upon confirmation and approval by the Federal Power Commission. Rate schedules shall be drawn having regard to the recovery (upon the basis of the application of such rate schedules to the capacity of the electric facilities of the projects) of the cost of producing and transmitting such electric energy, including the amortization of the capital investment allocated to power over a reasonable period of years. Preference in the sale of such power and energy shall be given to public bodies and cooperatives. * * * .'

It is perfectly clear that this statute confers no right or interest in any power project or its development, or any responsibility with regard thereto, upon the Secretary of the Interior, or upon the cooperatives mentioned; but merely provides how the surplus power developed at government projects shall be disposed of. Whether a project shall be developed by the government or under license by private enterprise is a matter which Congress has committed, not to the Secretary or to cooperatives who may desire to purchase power from him, but to the discretion of the Commission. Section 7(b) of the Federal Power Act, 16 U.S.C.A. § 800(b), provides: '(b) Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development,

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but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development.'

That the United States, representing the people of the country, may have an interest in the construction of a power project does not confer upon the Secretary of the Interior any authority to go into court for its protection. The safeguarding of that interest has been confided to the Power Commission; and before a member of the cabinet may attack the Commission's action before the courts he must be able to point to some special interest for which he is charged with responsibility that may be adversely affected by the action attacked. The only responsibility of the Secretary relates to the disposal of surplus power from government projects; and no duty or responsibility with regard thereto can possibly arise until the government has authorized the project and entered upon its construction. 1 Until then he has no more duty or responsibility in this connection than has the Postmaster General. A fortiori the cooperative association, whose only possible interest is to purchase power which the Secretary may sell, has no such right, duty or responsibility with respect to the construction of a power project as would give it standing in court to question an order of the Commission. No case has been cited which supports the right of either the Secretary or the association to ask review of the Commission's order, and we know of none. For cases holding generally that some right or interest of a complaining party must be invaded to justify him in asking relief in court, see Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Federal Communications Commission v. National Broadcasting Co., 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374; United States Cane Sugar Refiners Ass'n v. McNutt, 2 Cir., 138 F.2d 116.

There is nothing in United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, which supports the position of petitioners. That case holds merely that suit by the United States to protect its interests is not precluded merely because the suit must be brought against a governmental agency. Nothing is said to indicate that an officer of the government may go into court against such agency to protect the public's interest with respect to a matter as to which he is charged with no duty or responsibility.

For the reasons stated, we are of opinion that petitioners are not parties aggrieved within the meaning of the statute and consequently have no standing in court to ask that the order of the Commission be reviewed or set aside. Assuming, however, that they have such standing, we do not think that they have made a case...

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