381 U.S. 90 (1965), 123, Federal Power Commission v. Union Electric Co.

Docket NºNo. 123
Citation381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239
Party NameFederal Power Commission v. Union Electric Co.
Case DateMay 03, 1965
CourtUnited States Supreme Court

Page 90

381 U.S. 90 (1965)

85 S.Ct. 1253, 14 L.Ed.2d 239

Federal Power Commission

v.

Union Electric Co.

No. 123

United States Supreme Court

May 3, 1965

Argued March 2, 1965

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus

Respondent filed a declaration of intention with the Federal Power Commission (FPC) pursuant to § 23(b) of the Federal Power Act to construct a pumped storage plant on a nonnavigable tributary of a navigable stream. A pumped storage plant uses power during periods of non-peak demands to pump water to an upper pool to be used to generate peak period energy by water falling into a lower pool. The FPC found that the nonnavigable tributary is a stream over which Congress has jurisdiction, as it is a headwater of a navigable river system. The FPC held that the project would require a license under § 23(b) because it would use water power for the interstate transmission of electricity and because it would affect downstream navigability. The Court of Appeals reversed, finding that the only relevant "commerce" under § 23(b) is that on the downstream navigable waterway, and that the project would have no significant impact on water commerce.

Held:

1. The commerce power of Congress clearly encompasses the interstate transmission of electric energy, and the project here is within the purview of that power, without regard to federal control of tributary streams and navigation. P. 94.

2. The language of the licensing requirement of § 23(b) invokes the full congressional authority over commerce, and not merely the regulation of navigation or water commerce. Pp. 95-98.

3. The purposes of the predecessor statute, the Federal Water Power Act, which included the comprehensive development of water power and hydroelectric energy, are more fully served by considering the impact of the project on the full range of commerce interests. Pp. 98-109.

4. Since the original Federal Water Power Act was concerned with the utilization of water resources, and particularly the power potential in water, there is no anomaly in the FPC's position that steam plants generating energy for interstate transmission are not within the scope of § 23(b), although located on a stream over

Page 91

which Congress has jurisdiction, while similar hydroelectric facilities are covered by § 23(b). Pp. 109-110.

326 F.2d 535 reversed.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

Section 23(b)1 of the Federal Power Act2 requires any person desiring to construct a dam or other project on a nonnavigable stream, but one over which Congress has jurisdiction under its authority to regulate commerce, to file a declaration of intention with the Federal Power Commission. If the Commission finds that "the interests of interstate or foreign commerce would be affected by such proposed construction," the declarant may not construct or operate the project without a license. The issue here is whether the construction of a pumped storage hydroelectric project generating energy for interstate transmission is one which would affect the "interests of interstate or foreign commerce" within the intendment of the Act.

Page 92

I

Respondent Union Electric Co. (Union), operating generating plants and an interconnected transmission and distribution system in Missouri, Illinois, and Iowa, filed a declaration of intention pursuant to § 23(b) to construct a pumped storage hydroelectric facility, the Taum Sauk installation, as a part of Union's interstate system. The pumped storage plant, an engineering innovation of growing use, is to supplement the energy produced by other plants during periods of peak demands. During such periods, it generates energy through use of hydroelectric units driven by water falling from an elevated reservoir into a lower pool.3 During off-peak periods, it uses energy from other sources to [85 S.Ct. 1255] pump water from the lower pool back to the headwater pool.4 The project is capable

Page 93

of creating up to 350 megawatts, and the energy created will be utilized in Missouri, Illinois, and possibly Iowa. Taum Sauk is to be located on the East Fork of the Black River, about four miles above the confluence of these waters.5 The East Fork is a nonnavigable tributary of the Black River, itself a navigable stream along with the White River into which it flows.

The FPC found the East Fork was a stream "over which Congress has jurisdiction under its authority to regulate commerce," since it is a headwater of a navigable river system. The project would affect the interests of commerce and would require a license, the FPC also held, both because it contemplated the utilization of water power for the interstate transmission of electricity and because it would affect downstream navigability, 27 F.P.C. 801. The Court of Appeals reversed, 326 F.2d 535 (C.A.8th Cir.) holding that the only "commerce" which is relevant to the FPC's determination under § 23(b) is commerce on the downstream navigable waterway, and that the project in question would have no significant impact on water commerce.6 Absent an

Page 94

effect on downstream navigability, or on irrigation development, flood control projects or planned utilization of water resources, matters which might affect the interests of water commerce, a water power project located on the headwaters of a navigable river is a "local" activity beyond the licensing power and consequent regulatory controls of the FPC. Because the question is an unresolved one of jurisdiction over an important class of hydroelectric projects, we granted certiorari, 379 U.S. 812, and now reverse the judgment of the Court of Appeals. We have determined that its limitation of the FPC's licensing power to projects affecting commerce on navigable waters is founded upon an erroneous reading of the language of § 23(b) and the design and purposes of the Federal Water Power Act.

II

To focus the inquiry, it is well to state what is not involved in this [85 S.Ct. 1256] case. There is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress. Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 86; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U.S. 419, 432-433. Nor is there any doubt today that projects generating energy for such transmission, such as Taum Sauk, affect commerce among the States, and therefore are within the purview of the commerce power quite without regard to the federal control of tributary streams and navigation. See Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 40-41; Labor Board v. Fruehauf

Page 95

Trailer Co., 301 U.S. 49; Consolidated Edison Co. of New York v. Labor Board, 305 U.S. 197; Katzenbach v. McClung, 379 U.S. 294, 301-304. But see United States v. Appalachian Electric Power Co., 107 F.2d 769, rev'd on other grounds, 311 U.S. 377.7 Thus, there are no constitutional doubts or barriers to the FPC's interpretation. The only question is whether Congress has required a license for a water power project utilizing the headwaters of a navigable river to generate energy for an interstate power system. We think an affirmative answer is required by both the language and purposes of the Act.

The language of the Act, in our view, plainly requires a license in the circumstances of this case. Section 23(b)8

Page 96

prohibits construction of nonlicensed hydroelectric projects on navigable streams, regardless of any effect, detrimental or beneficial, on navigation or commerce by water and requires those proposing a [85 S.Ct. 1257] project on a nonnavigable stream to file a declaration of intention and to come before the Commission for a determination of whether the "interests of interstate or foreign commerce would be affected," a determination which obviously does not speak in terms of the interests of navigation or water commerce. Plainly, the provision does not require a license only where "the interests of interstate or foreign commerce on navigable waters would be affected." Although transportation on interstate waterways is interstate commerce, the phrase "affect the interests of commerce" on its face hardly supports any claim that Congress sought to regulate only such transportation. Rather, it strongly implies that Congress drew upon its full authority under the Commerce Clause, including but not limited to its power over water commerce.

[H]alf a dozen enactments, other than the National Labor Relations Act, are sufficient to illustrate that, when [Congress] wants to bring aspects of commerce within the full sweep of its constitutional authority, it manifests its purpose by regulating not only "commerce," but also matters which "affect", "interrupt," or "promote" interstate commerce. . . . In so describing the range of its control, Congress is not indulging stylistic preferences.

Polish National Alliance v. Labor Board, 322 U.S. 643, 647.

The scope of this language is not restricted by the earlier clause in § 23(b) limiting the filing requirements

Page 97

to projects on nonnavigable streams "over which Congress has jurisdiction under its authority to regulate commerce" that is, tributaries of river systems necessitating supervisory power to preserve or improve downstream navigability or water commerce generally. See United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690; Phillips v. Guy F. Atkinson Co., 313 U.S. 508. This language merely designates those who must file a declaration of intention -- all those who would locate a water power project on a nonnavigable stream within the jurisdiction of Congress are required to declare their intention so that the Commission may determine the necessity for a license. Congress then proceeds to invoke its full authority over commerce, without qualification, to define what projects on nonnavigable streams are required to be...

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51 practice notes
  • 384 F.2d 200 (4th Cir. 1967), 11023, Nantahala Power & Light Co. v. Federal Power Commission
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • September 14, 1967
    ...and WINTER, Circuit Judges. SOBELOFF, Circuit Judge: Under the decision of the Supreme Court in F.P.C. v. Union Electric Co. (Taum Sauk), 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965), hydroelectric developments situated on the headwaters and tributaries of navigable waterways, and prev......
  • 661 P.2d 741 (Idaho 1983), 13794, Idaho Power Co. v. State, By and Through Dept. of Water Resources
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    • Idaho Supreme Court of Idaho
    • March 31, 1983
    ...while unregulated, might well be contradictory rather than harmonious." (emphasis added) Federal Power Comm'n v. Union Electric Co., 381 U.S. 90, 98, 85 S.Ct. 1253, 1257, 14 L.Ed.2d 239 (1965). While that language might arguably be dicta, it supports the interpretation we have made of ......
  • 211 A.2d 536 (Pa. 1965), Commonwealth v. One 1958 Plymouth Sedan (Plaza)
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • June 30, 1965
    ...[3] Mr. Justice Black's concurring opinion in One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, supra, 380 U.S. at 703, 85 S.Ct. at 1253. [4] Whence this knowledge arose is not upon this record. [1] Act of April 12, 1951, P.L. 90, 47 P.S. § 6-602. [2] 414 Pa. 540, 547, 201 A.2d 427, ......
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    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • January 13, 1992
    ...falls, shallows, or rapids.... This statute must be interpreted in the light of the Supreme Court's observation in FPC v. Union Elec. Co., 381 U.S. 90, 101, 85 S.Ct. 1253, 1259, 14 L.Ed.2d 239 (1965), that "[i]n order to insure comprehensive control over the utilization of the Nation's......
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47 cases
  • Jack August Enterprises, 881 (1977)
    • United States
    • September 30, 1977
    ...Lumber Company v. N.L.R.B., 380 F.2d 838, 841 (C.A. 4, 1967); N.L.R.B. v. EasternDie Co., 340 F.2d 607, 608 (C.A. I, 1965), cert. denied 381 U.S. 95 1; FlorencePrintingCo. v. N.L.R.B., 333 F.2d 289, 290-291 (C.A. 4, 1964); N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d 614, 616 (C.A.......
  • 384 F.2d 200 (4th Cir. 1967), 11023, Nantahala Power & Light Co. v. Federal Power Commission
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • September 14, 1967
    ...and WINTER, Circuit Judges. SOBELOFF, Circuit Judge: Under the decision of the Supreme Court in F.P.C. v. Union Electric Co. (Taum Sauk), 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965), hydroelectric developments situated on the headwaters and tributaries of navigable waterways, and prev......
  • 661 P.2d 741 (Idaho 1983), 13794, Idaho Power Co. v. State, By and Through Dept. of Water Resources
    • United States
    • Idaho Supreme Court of Idaho
    • March 31, 1983
    ...while unregulated, might well be contradictory rather than harmonious." (emphasis added) Federal Power Comm'n v. Union Electric Co., 381 U.S. 90, 98, 85 S.Ct. 1253, 1257, 14 L.Ed.2d 239 (1965). While that language might arguably be dicta, it supports the interpretation we have made of ......
  • 211 A.2d 536 (Pa. 1965), Commonwealth v. One 1958 Plymouth Sedan (Plaza)
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • June 30, 1965
    ...[3] Mr. Justice Black's concurring opinion in One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, supra, 380 U.S. at 703, 85 S.Ct. at 1253. [4] Whence this knowledge arose is not upon this record. [1] Act of April 12, 1951, P.L. 90, 47 P.S. § 6-602. [2] 414 Pa. 540, 547, 201 A.2d 427, ......
  • Request a trial to view additional results
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