237 F.2d 777 (D.C. Cir. 1956), 12988, National Hells Canyon Ass'n v. Federal Power Commission

Docket Nº12988, 13160.
Citation237 F.2d 777
Party NameNATIONAL HELLS CANYON ASSOCIATION, Inc., et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Idaho Power Company, Intervenor.
Case DateOctober 09, 1956
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 777

237 F.2d 777 (D.C. Cir. 1956)

NATIONAL HELLS CANYON ASSOCIATION, Inc., et al., Petitioners,

v.

FEDERAL POWER COMMISSION, Respondent, Idaho Power Company, Intervenor.

Nos. 12988, 13160.

United States Court of Appeals, District of Columbia Circuit.

October 9, 1956

Argued May 15, 1956.

Petition for Rehearing In Banc Denied Nov. 16, 1956.

Page 778

Mrs. Evelyn N. Cooper and Mr. Lucien Hilmer, Washington, D.C., for petitioners.

Mr. John C. Mason, Asst. Gen. Counsel, Federal Power Commission, with whom Messrs. Willard W. Gatchell, Gen. Counsel, Federal Power Commission, and Joseph B. Hobbs, Atty., Federal Power Commission, were on the brief, for respondent.

Mr. R. P. Parry, Twin Falls, Idaho, with whom Messrs. Clifford E. Fix, Twin Falls, Idaho, and A. C. Inman, Boise, Idaho, were on the brief, for intervenor.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit judges.

WILBUR K. MILLER, Circuit Judge.

These petitions for review, which were consolidated for hearing and decision, attack two orders of the Federal Power Commission. The first and more important of the orders, 1 issued August 4, 1955, granted to Idaho Power Company a license to construct, maintain and operate on the Hells Canyon reach of the Snake River in Idaho and Oregon, which extends approximately 100 miles downstream from Weiser, Idaho, three water power developments known as Brownlee, Oxbow and low Hells Canyon.

The petitioners for review are eight Public Utility Districts of certain counties in Washington, the National Rural Electric Cooperative Association and National Hells Canyon Association, Inc. 2 They were not themselves applicants for the license but intervened in the proceeding before the Commission and opposed the grant to Idaho Power Company

Page779

3 on the ground that it was the duty of the Commission under § 7(b) of the Federal Power Act to decide that the United States itself should undertake the development and to recommend that Congress provide for governmental construction of a single high dam in Hells Canyon, such as had been suggested several years before by the Army Corps of Engineers and by the Reclamation Bureau of the Department of the Interior; and on the further ground that the three-dam plan proposed by Idaho Power was not, within the meaning of § 10(a) of the Act, 'best adapted to a comprehensive plan' for developing the water resources of the Hells Canyon reach for public purposes.

Having failed to persuade the Federal Power Commission to adopt their views, the petitioners ask us to set aside the grant to Idaho Power Company because, as they say, the Commission arbitrarily violated § 7(b) of the Federal Power Act 4 by failing and refusing (a) to conclude that the development of the water resources involved should be undertaken by the United States, and (b) to 'cause to be made such examinations, surveys, reports, plants, and estimates of the cost of the proposes development as it may find necessary,' and to 'submit its findings to Congress with such recommendations as it may find appropriate concerning such development.' The petitioners contend not only that the Commission had no choice but to decide for federal development, but also that it was bound to recommend that it be accomplished by the construction of the one high dam which had been suggested by the other two federal agencies. Had the Commission's judgment been that the Government should undertake the development-- as the petitioners say it should have been-- it would have been required by § 7(b) to withhold approval of Idaho Power's applications.

Petitioners further assail the grant to Idaho Power on the ground that in making it the Commission arbitrarily violated § 10(a) of the Act 5 in finding the applicant's three-dam proposal to be 'best adapted to a comprehensive plan' for developing the water resources of the Hells Canyon reach for public purposes. The suggested federal high dam is 'best adapted,' they say, for those purposes.

We observe that the admonitions to the Commission contained in § 7(b) become effective only when 'in the judgment of the Commission' the development should be undertaken by the Government. In like manner, § 10(a) provides that any license issued shall be on condition that the project adopted shall be such as 'in the judgment of the Commission' will be best adapted to a comprehensive plan for developing the water resources for beneficial public uses. The recurrence of the quoted phrase emphasizes the broad discretion as to these technical matters which Congress has committed to the

Page 780

Commission. 'Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine,' said the Supreme Court in the Roanoke Rapids case, 6'so long as it cannot be said * * * that the judgment which it exercised had no basis in evidence and so was devoid of reason.'

Accordingly, our review of the Commission's orders in these cases is quite limited in scope. When we have determined whether the agency violated constitutional or statutory provisions, and whether its decision had a substantial basis in the evidence considered in its entirety, we are done.

Although Idaho Power Company was the only applicant for a license to develop the water resources of the Hells Canyon reach, the Commission conducted what was in effect an adversary hearing for the purpose of comparing the privately proposed three-dam plan with the single high dam installation which had been suggested. The hearing lasted a year or more. Many experts testified as to the engineering and economic aspects of the two plans and a great mass of proof was received. A comprehensive, carefully considered proposed decision was filed by the presiding examiner, after which the Commission handed down a lengthy opinion which contained more than fifty greatly detailed findings of fact upon which the ultimate dicision to grant the license was based.

The Commission found that the three dams-- Brownlee, Oxbow and low Hells Canyon-- will develop the 602 feet of head in the Snake River's Hells Canyon reach. Brownlee will have a maximum head of 277 feet, usable storage of 1,000,000 acre-feet, and an initial installation of 360, 400 kilowatts with provision for an additional 180,200 kilowatts. Oxbow will have a head of 117 feet, usable pondage of 6,200 acre-feet, and an initial installation of 151,000 kilowatts with provision for an additional 75,500 kilowatts. Low Hells Canyon will have a head of 208 feet, usable pondage of 11,200 acre-feet, and an initial installation of 272,000 kilowatts with provision for an additional 136,000 kilowatts.

The high concrete arch dam suggested for federal construction also would develop the 602 feet of head. There would be eight 100,000-kilowatt generating units initially with provision for one additional 100,000-kilowatt generating unit, a total storage capacity of 4,400,000 acre-feet of which 3,880,000 acre-feet would be active storage, a spillway with a capacity of 300,000 cubic feet per second, and an operating head at the power plant varying from a maximum head of 602 feet to a design head of 475 feet and thence to a minimum head of 313 feet.

The Commission received evidence as to the cost of both plans. Estimates of the cost of such large installations are of course elaborate and complicated. It is sufficient for present purposes to summarize by saying the three-dam development will probably cost about $175,000,000, while the high dam suggestion would probably run to something more than twice that sum.

In order to decide, as required by § 7(b), whether, in its judgment, the development should be undertaken by the United States, the Commission compared the evidence as to the public purposes which would be achieved by the three-dam installation privately proposed, and by the suggested federal high dam advocated by the petitioners. It concluded that 'the public purposes such as flood control, navigation and recreation could be effectuated to about the same extent under either plan of development.' This left for consideration and comparison the production of power.

The Commission regarded it as essential, in deciding between the two plans as to power production, to compare the economics of the proposals, since power benefits constitute about 85 per cent of the total benefits to be derived under either plan. It therefore made the

Page 781

comparison, discussed it at some length in its opinion, and reached this conclusion:

'After full consideration of the comparative economics of the power features of the one-dam and the three-dam plans as presented by the evidence of record and as analyzed in the several briefs filed herein we conclude that, assuming financing, construction and operation of both plans by the same entity, the ratio of power benefits to power costs of the three-dam plan is...

To continue reading

Request your trial