Chemehuevi Tribe of Indians v. Federal Power Commission Arizona Public Service Company v. Chemehuevi Tribe of Indians Federal Power Commission v. Chemehuevi Tribe of Indians 8212 1380, 73 8212 1666 73 8212 1667

• Decision Date: 03 March 1975
• Docket Number: Nos. 73,s. 73
• Citation: 43 L.Ed.2d 279,420 U.S. 395,95 S.Ct. 1066
• Parties: CHEMEHUEVI TRIBE OF INDIANS et al., Petitioners, v. FEDERAL POWER COMMISSION et al. ARIZONA PUBLIC SERVICE COMPANY et al., Petitioners, v. CHEMEHUEVI TRIBE OF INDIANS et al. FEDERAL POWER COMMISSION, Petitioner, v. CHEMEHUEVI TRIBE OF INDIANS et al. —1380, 73—1666, and 73—1667
• Court: U.S. Supreme Court

420 U.S. 395

95 S.Ct. 1066

43 L.Ed.2d 279

CHEMEHUEVI TRIBE OF INDIANS et al., Petitioners,

v FEDERAL POWER COMMISSION et al.

ARIZONA PUBLIC SERVICE COMPANY et al., Petitioners,

v. CHEMEHUEVI TRIBE OF INDIANS et al.

FEDERAL POWER COMMISSION, Petitioner,

v. CHEMEHUEVI TRIBE OF INDIANS et al.

Nos. 73—1380, 73—1666, and 73—1667.

Argued Jan. 13, 1975.

Decided March 3, 1975.

Syllabus

Under § 4(e) of Part I of the Federal Power Act, the Federal Power Commission (FPC) is authorized to issue licenses to individuals, corporations, or governmental units organized for the purpose of constructing 'project works necessary or convenient . . . for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction . . . or for the purpose of utilizing the surplus water or water power from any Government dam . . ..' Section 23(b) prohibits the unlicensed construction of such works on any navigable stream as well as the unlicensed utilization of such surplus water for the purposes of developing electric power. Held: These provisions of Part I of the Act giving the FPC licensing jurisdiction over hydroelectric facilities do not also confer such jurisdiction over thermal-electric power plans. Pp. 400-422.

(a) The structures constituting thermal-electric power plants are not 'project works' within the meaning of § 4(e), as is clear from the language of that provision when read together with the rest of the Act (none of whose provisions refers to the development or conservation of steam power), the Act's legislative history (which manifests a congressional intent to regulate only hydroelectric generating facilities), the FPC's consistent interpretation of its authority as not including jurisdiction over thermal-electric power plants, and this Court's decision in FPC v. Union Electric Co., 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239. Pp. 400-412.

(b) The surplus water clause of § 4(e) does not authorize FPC licensing of water used for cooling purposes in thermal-electric power plants, nothing in the Act's language or legislative history disclosing any congressional intent that that clause should serve any broader interests than the project works clause. And, con- trary to the Court of Appeals' holding, the Act does not vest the FPC with all the responsibilities that prior legislation had given to the Waterways Commission, responsibilities that in any case did not include licensing the use of surplus water by steam plants. Pp. 412-422.

160 U.S.App.D.C. 83, 489 F.2d 1207, vacated and remanded.

Lawrence G. Wallace, Washington, D.C., for the F.P.C.

Northcutt Ely, Washington, D.C., for Arizona Public Service Company and others.

Joseph J. Brecher, Boulder, Colo., for the Chemehuevi Tribe of Indians and others.

Mr. Justice STEWART delivered the opinion of the Court.

In these three cases we review a single judgment of the Court of Appeals for the District of Columbia Circuit, to determine whether thermal-electric power generating plants that draw cooling water from navigable streams are subject to the licensing jurisdiction of the Federal Power Commission under Part I of the Federal Power Act, c. 285, 41 Stat. 1063, as amended, 16 U.S.C. §§ 791a—823.

I

On September 20, 1971, two Indian tribes, five individual Indians, and two environmental groups¹ (hereinafter the complainants) filed a complaint with the Commission requesting it to require 10 public utility companies located in the Southwestern United States² to obtain licenses for six fossil-fueled thermal-electric generating plants being constructed by the companies along the Colorado River and its tributaries.³ The plants are part of a projected vast electric power complex, and the energy generated within this new South- western power pool will be transmitted in interstate commerce to load centers as far as 600 miles from the sites of the plants.

The six plants involved in these cases, like all thermal-electric power plants, will require large amounts of water to cool and condense the steam utilized in the process of generating electricity. See generally 1 FPC, The 1970 National Power Survey I—10—1 to I—10—20. The water needed for cooling purposes will be obtained by withdrawing substantial quantities of water from the Colorado River system. The complaint filed with the Commission asserted that it had licensing jurisdiction over the plants pursuant to § 4(e) of Part I of the Federal Power Act, 16 U.S.C. § 797(e), because all six plants are 'project works' for the development, transmission, and utilization of power across and along navigable waters, and because two of the plants will use 'surplus water' impounded by a Government dam.⁴

The Commission on November 4, 1971, issued an order dismissing the complaint for lack of jurisdiction. The Commission stated that 'the legislative history (of the original Federal Water Power Act) shows that it was not intended that the licensing of thermal stations be included. This construction of the Commission's licensing jurisdiction under Part I of the Federal Power Act has been the long standing interpretation of the Commission (and) has been recognized favorably by the Supreme Court.' 46 F.P.C. 1126, 1127 (citations omitted).

Following denial by the Commission of an application for a rehearing, 46 F.P.C. 1307, the complainants filed a petition in the Court of Appeals for the District of Columbia Circuit to review the Commission's order. The Court of Appeals undertook a scholarly and comprehensive review of the executive and legislative antecedents of the Federal Water Power Act of 1920, and traced in detail the Act's legislative history and the administrative and judicial interpretations of the Act since its passage. 160 U.S.App.D.C. 83, 489 F.2d 1207. Based on this voluminous material, the Court of Appeals affirmed the Commission's conclusion that thermal-electric plants are not 'project works' under § 4(e) and that the Commission's licensing jurisdiction under that clause extends only to hydroelectric generating plants. 'Steam plants,' the court held, 'were purposely omitted from the congressional scheme.' 160 U.S.App.D.C., at 107, 489 F.2d, at 1231. The Court of Appeals also held, however, that the Commission's licensing authority under the 'surplus water' clause of § 4(e) is not similarly limited. The use of 'surplus water' for cooling purposes by thermal-electric generating plants is sufficient, the court concluded, to bring those plants within the Commission's licensing jurisdiction. 160 U.S.App.D.C., at 111 117, 489 F.2d, at 1235—1241. Accordingly, the court remanded the case to the Commission to determine in the first instance whether any of the six plants involved in this case fall under that branch of its licensing authority. Id., at 118, 489 F.2d, at 1242. We granted the parties' petitions for writs of certiorari to consider the important questions of statutory construction presented by this litigation. 417 U.S. 944, 94 S.Ct. 3067, 41 L.Ed.2d 664.

II

The question whether thermal-electric generating plants are subject to the licensing jurisdiction of the Commission involves no issue as to the extent of congressional power under the Commerce Clause. It is well established that the interstate transmission of electric energy is fully subject to the commerce power of Congress. FPC v. Union Electric Co., 381 U.S. 90, 94, 85 S.Ct. 1253, 1255, 14 L.Ed.2d 239; Public Utilities Comm'n v. Attleboro Steam & Elec. Co., 273 U.S. 83, 86, 47 S.Ct. 294, 295, 71 L.Ed. 549; Electric Bond & Share Co. v. SEC, 303 U.S. 419, 432 433, 58 S.Ct. 678, 681—683, 82 L.Ed. 936. And it is equally clear that projects generating energy for interstate transmission, such as the six plants involved in this case, affect commerce among the States and are therefore within the purview of the federal commerce power, regardless of whether the plants generate electricity by steam or hydroelectric power. FPC v. Union Electric Co., supra, 381 U.S. at 94—95, 85 S.Ct. at 1255—1256; see NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 40—41, 57 S.Ct. 615, 625 626, 81 L.Ed. 893; Katzenbach v. McClung, 379 U.S. 294, 301—304, 85 S.Ct. 377, 382—384, 13 L.Ed.2d 290. The only question before us is whether Congress has exercised that power in Part I of the Federal Power Act by requiring a license for the construction and operation of thermal-electric power generating plants that withdraw large quantities of water from navigable waters for cooling and other plant purposes.

A.

Consideration of the Commission's statutory licensing authority under Part I of the Federal Power Act must, of course, begin with the language of the Act itself. Section 4(e), 16 U.S.C. § 797(e), authorizes the Com- mission to issue licenses to individuals, corporations, or governmental units organized for the purpose of constructing 'project works necessary or convenient . . . for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction . . . or for the purpose of utilizing the surplus water or water power from any Government dam . . ..' Section 23(b) of the Act, 16 U.S.C. § 817, in turn, prohibits the unlicensed construction of such works on any navigable stream as well as the unlicensed utilization of the surplus water from a Government dam for the purpose of developing electric power.⁵ 'Project' is defined as the complete unit of development of a power plant, 16 U.S.C. § 796(11); and 'project works' means the physical structure of a project. § 796(12).

Emphasizing that these provisions do not require that the project works be used to generate 'hydroelectric power,' but rather merely 'power,' the complainants assert that the six thermal-electric power plants in this case fall squarely within the statutory language defining the Commission's licensing jurisdiction. Each of the thermal-electric...