Federal Power Commission v. Union Electric Company

Decision Date03 May 1965
Docket NumberNo. 123,123
Citation85 S.Ct. 1253,14 L.Ed.2d 239,381 U.S. 90
CourtU.S. Supreme Court

See 381 U.S. 956, 85 S.Ct. 1796.

Ralph S. Spritzer, Washington, D.C., for petitioner.

Robert J. Keefe, St. Louis, Mo., for respondent.

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.


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 pump water from the lower pool back to the headwater pool.4 The project is capable 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 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, 85 S.Ct. 41, 13 L.Ed.2d 26, 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.


To focus the inquiry, it is well to state what is not involved in this 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 of Rhode Island v. Attleboro Steam & Electric Co., 273 U.S. 83, 86, 47 S.Ct. 294, 295, 71 L.Ed. 549; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U.S. 419, 432—433, 58 S.Ct. 678, 681—682, 82 L.Ed. 936. 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 National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 40—41, 57 S.Ct. 615, 625—626, 81 L.Ed. 893; National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S.Ct.642, 81 L.Ed. 918; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; Katzenbach v. McClung, 379 U.S. 294, 301—304, 85 S.Ct. 377, 382—384, 13 L.Ed.2d 290. But see United States v. Appalachian Electric Power Co., 4 Cir., 107 F.2d 769, rev'd on other grounds, 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243.7 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 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 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 constiutional 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 of United States, etc. v. National Labor Relations Board, 322 U.S. 643, 647, 64 S.Ct. 1196, 1198, 88 L.Ed. 1509.

The scope of this language is not restricted by the earlier clause in § 23(b) limiting the filing requirements 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, 19 S.Ct. 770, 43 L.Ed. 1136; State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. This language merely designates those who must file a declaration of intention—al 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 licensed. Respondent asserts that commerce must mean the same thing in both the filing and licensing requirements of § 23(b); because of the allusion to water commerce in the filing provision, the Commission's inquiry into the effect of the project on commerce must be limited to the source of Congress' power over the stream. Nothing in the structure or syntax of § 23(b) compels this conclusion. Indeed, in describing in distinct terms the standard for who must file and what must be licensed,9 the more compelling inference is that Congress in- tended the inquiry into the project's effect on commerce to include, but not be limited to, effect on downstream navigability.10

Turning to the purposes of the Federal Water Power Act, enacted in 1920, we 58 Cong.Rec. 1932, 1936—1940; 59 Cong.Rec. 241, 1039—1042, 1173—1174. See indicates that the Commission was to restrict its considerations under § 23(b) to effect on navigability. There is much to indicate the contrary.

The central purpose of the Federal Water Power Act was to provide for the comprehensive control over those uses of the Nation's water resources in which the Federal Government had a legitimate interest; these uses included navigation, irrigation, flood control, and, very prominently, hydroelectric power—uses which, while unregulated, might well be contradictory rather than harmonious.11 Prior legislation in 1890 and the Rivers and Har- bors Act of 1899,12 prohibiting the erection of any obstruction to navigation, including those on nonnavigable feeders, United States v. Rio Grande Dam & Irrivation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136, and requiring the consent of Congress and approval of the Secretary of War before constructing a bridge, dam, or dike...

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