489 F.2d 1207 (D.C. Cir. 1973), 71-2012, Chemehuevi Tribe of Indians v. Federal Power Commission

Docket Nº:71-2012.
Citation:489 F.2d 1207
Party Name:The CHEMEHUEVI TRIBE OF INDIANS et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Arizona Public Service Company et al., Intervenors.
Case Date:December 19, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1207

489 F.2d 1207 (D.C. Cir. 1973)

The CHEMEHUEVI TRIBE OF INDIANS et al., Petitioners,

v.

FEDERAL POWER COMMISSION, Respondent, Arizona Public Service Company et al., Intervenors.

No. 71-2012.

United States Court of Appeals, District of Columbia Circuit.

December 19, 1973

Argued Sept. 19, 1972.

Decided Nov. 9, 1973.

Intervenors Petition for Rehearing Denied Dec. 7, 1973.

Respondents Petition for Rehearing Denied Dec. 7, 1973.

Intervenors Suggestion for Reconsideration En Banc

Petitioners Motion for Clarification Denied Dec. 11, 1973.

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Joseph J. Brecher, bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for petitioners. Reid Chambers, and Edward Berlin, Washington, D.C., also entered appearances for petitioners.

Daniel Goldstein, Asst. Gen. Counsel, Federal Power Commission, with whom Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., and George W. McHenry, Jr., First Asst. Sol., Federal Power Commission, were on the brief, for respondent. J. Richard Tiano, Deputy Sol., Federal Power Commission, at the time the record was filed, also entered an appearance for respondent.

Harry A. Poth, Jr., Washington, D.C., with whom Richard M. Merriman, Peyton G. Bowman, III, and Robert T. Hall, III, Washington, D.C., were on the brief, for intervenor Arizona Public Service Co. and certain other intervenors.

Edward P. Nelsen, and Robert W. Tollen. San Francisco, Cal., were on the brief, for intervenor San Diego Gas & Electric Co.

Sidney G. Baucom, and Robert Gordon, Salt Lake City, Utah, entered appearances for intervenor Utah Power & Light Co.

Edward C. Farrell Los Angeles, Cal., entered an appearance for intervenor Dept. of Water & Power of the City of Los Angeles.

William Duncan, El Paso, Tex., entered an appearance for intervenor El Paso Electric Co.

Samuel P. Cowley, Las Vegas, Nev., entered an appearance for intervenor Nevada Power Co.

Leroy Michael, Rosemead, Cal., entered an appearance for intervenor Salt River Project Agricultural Improvement & Power Dist.

John R. Bury, Phoenix, Ariz., entered an appearance for intervenor Southern California Edison Co.

Before WRIGHT, TAMM and McCREE, [*] Circuit Judges.

McCREE, Circuit Judge:

Thermal electric power plants, or 'steam plants,' whether fossil-fueled or nuclear-fired, require large amounts of water to cool and thereby condense the steam after it passes through turbine rotors. In this appeal, we must decide whether fossil-fueled steam plants that obtain their cooling waters from a major river system of the United States in a manner affecting its navigability are subject to the licensing jurisdiction of the Federal Power Commission (FPC) under Part I of the Federal Power Act, 16 U.S.C. §§ 791a-823 (1970).

Petitioners contend that the FPC has authority to license these plants; the Commission asserts, as it has since 1921, that it does not.

Petitioners 1 filed with the FPC on

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September 10, 1971, a complaint and petition for an order to show cause 2 requesting the Commission to require ten public utilities located in the southwestern United States 3 (in the so-called Four Corners area) to obtain licenses for six fossil-fueled plants being constructed along the Colorado River and its tributaries. The complaint asserted that the plants are part of a vast power pool being created in the southwestern United States by the utilities and that the energy generated within the pool will be transmitted in interstate commerce to load centers as far as 600 miles away. The six plants described in the complaint are: 1) the Four Corners Plant, located on the Navajo Indian Reservation near Farmington, New Mexico, which has five coal-fired generating units in commercial operation, a current installed capacity of 2,087 megawatts, and a proposed total capacity of about 6,000 megawatts, 4 and, according to the complaint, withdraws about 34,000 acre feet of water per year from the San Juan River; 5 2) the Mohave Plant, on the Colorado River three miles downstream from the Davis Dam in the southeast corner of Nevada, with two 750,000-kilowatt coal-fired units in commercial operation, which withdraws 30,000 acre feet of water per year from the Colorado River; 3) the Navajo Plant, under construction on the Navajo Indian Reservation four miles east of Page, Arizona, in the extreme north of Arizona, which will have three 770,000-kilowatt coal-fired units in commercial operation by the spring of 1976, and will withdraw 34,100 acre feet of water per year from Lake Powell, the reservoir created by the Glen Canyon Dam on the Colorado River in northern Arizona and southern Utah; 4) the Kaiparowits Plant, to be constructed on federally owned land in southern Utah about 20 miles north of Page, Arizona, with initial planned installed capacity of 2,000 megawatts and possible ultimate capacity of 6,000 megawatts, which will withdraw 102,000 acre feet of water per year from Lake Powell; 5) the San Juan Plant, under construction on federal land near Farmington, New Mexico, with planned initial capacity of 330,000 kilowatts and possible ultimate capacity of 990,000 kilowatts, which is scheduled to begin operation in the summer of this year and will withdraw 20,200 acre feet of water per year from the San Juan River; 6) the Huntington Canyon Plant, being constructed in part on federal land about 29 miles from Price, Utah, which will consist initially of one coal-fired unit of 430,000 kilowatts and will begin operation in 1974, with a second unit planned for 1977 and possibly two additional units thereafter, for a total possible capacity of 2,000 megawatts, and will

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withdraw 30,000 acre feet of water per year from Huntington Creek for use with the initial generating unit.

The complaint asserted that the Commission has licensing authority over the Four Corners plants under § 4(e) of the Federal Power Act, 16 U.S.C. § 797(e) (1973), 6 because the utilities are constructing and operating 'project works,' see 16 U.S.C. §§ 796(11), (12) (1970), 7 for the development, transmission, and utilization of electric power across and along 'navigable waters,' see 16 U.S.C. § 796(8) (1970); 8 that the above-described withdrawals of water from the Colorado River system by the six power plants will affect the navigability of these navigable waters; that the Navajo and Kaiparowitz plants will use 'surplus water,' see 16 U.S.C. § 797(e) (1970), 9 impounded by a 'government dam,' see 16 U.S.C. § 796(10) (1970): 10 and that some of the six plants are or will be located on public lands or reservations of the United States, see 16 U.S.C.§§ 796(1), (2). 11 After alleging that the

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six plants are likely to create severe air and water pollution, threaten the integrity of many natural, historical, and recreational resources, and disrupt the ecology and despoil the environment of the Four Corners region, the complaint stated that only a 'single legal issue' was presented: 'does the Federal Power Commission have licensing jurisdiction over steam plants generating and transmitting energy in interstate commerce, which withdraw large quantities of water from navigable streams for cooling and other plant purposes?' Because the plants were under construction and because only a question of law was involved, petitioners requested an expedited procedure and requested the FPC to order the utilities to show cause why they should not be required to suspend all development and construction of the plants pending the conclusion of this proceeding.

On their request, the utilities, were given until November 9, 1971, to file answers to the complaint. On October 18, 1971, the Utah Power & Light Company filed an answer denying most of the allegations of the complaint and moved to dismiss the complaint for failure to state a claim upon which relief could be granted, for lack of subject matter jurisdiction, and for laches with respect to the Huntington Canyon Plant. Before any other answers were filed, however, the Commission on November 4, 1971, sua sponte issued an order dismissing the complaint for lack of jurisdiction.

In its order, the Commission stated that its licensing authority under Part I of the Federal Power Act extended to the licensing of 'project works' and that thermal electric generating plants are not 'properly classifiable' as project works within the meaning of 16 U.S.C. §§ 796(11), (12) (1970). This conclusion was based on brief references to the preamble of the Act as originally enacted in 1920, to the legislative history of the Act, to the long-standing FPC interpretation of its powers under the Act, and to the decision of the Supreme Court in Federal Power Commission v. Union Electric Company, 381 U.S. 90, 110, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965) (the Taum Sauk case), all of which support the determination that the Commission has licensing authority over hydroelectric plants only, i.e., plants generating electricity by water power.

On November 10, 1971, complainants filed an application for rehearing, pursuant to 16 U.S.C. § 825l(a) (1970). The application asserted that the structures and operations of the six plants came within the literal language of 16 U.S.C. § 797(e) (1970), because

the facts in this case demonstrate clearly that water conduits, power houses and transmission lines have been and are being constructed for the purpose of generating and transmitting electricity in interstate commerce; that surplus water from behind the Bureau of Reclamation's Glen Canyon Dam will be utilized for this purpose; and that much of the facilities in question will be and are located on public lands and reservations of the United States.

In addition, the application contended that consistent...

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