GREENWOOD UTILITIES COM'N v. Schlesinger

• Decision Date: 05 June 1981
• Docket Number: No. 77-179-MAC.,77-179-MAC.
• Citation: 515 F. Supp. 653
• Parties: GREENWOOD UTILITIES COMMISSION, Plaintiff, v. James R. SCHLESINGER et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

515 F. Supp. 653

GREENWOOD UTILITIES COMMISSION, Plaintiff, v. James R. SCHLESINGER et al., Defendants.

No. 77-179-MAC.

United States District Court, M. D. Georgia, Macon Division.

June 5, 1981.

Charles F. Wheatley, Jr., Wheatley & Wollesen, Washington, D. C., for plaintiff.

Ellen J. Sazzman, Dept. of Justice, Washington, D. C., Clinton A. Vince, C. Emerson Duncan, II, Duncan, Allen & Mitchell, Washington, D. C., L. Clifford Adams, Jr., Heard, Leverett & Adams, Atlanta, Ga., L. Clifford Adams, Jr., Heard, Leverett & Adams, Elberton, Ga., Reuben Goldberg, Goldberg, Fieldman & Letham, P. C., Washington, D. C., Charles R. Adams, Jr., Fort Valley, Ga., Paul T. Michael, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Washington, D. C., Robert B. Schwentker, Raleigh, N. C., S. Eason Balch, Jr., Robert A. Buettner, James H. Miller, III, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, Ala., Robert P. Gaines, Beggs & Lane, Pensacola, Fla., James S. Eaton, Eaton, Cottrell, Galloway & Lang, Gulfport, Miss., Bill M. Guthrie, Senior Vice President, Southern Company Services, Inc., Birmingham, Ala., Gene Nuss, Electric Cities of Georgia GMA, Atlanta, Ga., Robert B. Langstaff, Langstaff, Campbell & Plowden, Robert H. Forry, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., William T. Crisp, Crisp, Smith & David, Raleigh, N. C., Curtis H. Bell, Sol. South-eastern Power Administration, Elberton, Ga., Richard K. Pelz, Dept. of Energy, Office of the General Counsel, Washington, D. C., H. G. Baker, Jr., Senior Vice President, Georgia Power Co., Atlanta, Ga., Denver L. Rampey, U. S. Atty., Macon, Ga., for defendants.

OWENS, Chief Judge:

This case is before the court on a motion for partial summary judgment. The plaintiff, Greenwood Utilities Commission, is a public agency of the City of Greenwood, Mississippi. It is engaged in the generation, transmission, and retail distribution of electric power and energy to its residents. The original defendants in this action were the Secretary of the United States Department of the Interior and the Administrator of the Southeastern Power Administration (SEPA). Subsequently, intervention was permitted pursuant to Rule 24(b) of the Federal Rules of Civil Procedure and the following were added as defendants: various power supply and power distribution cooperatives; the Water, Gas, and Light Commission of the City of Albany; the Georgia Power Company; the Georgia Municipal Association, Electric Cities of Georgia Section, and the Cities of Acworth, Georgia, et al.; and the Municipal Electric Authority of Georgia (MEAG). The motion before the court was filed by defendant MEAG and adopted by the other defendants. For convenience, the court will refer only to defendants MEAG and SEPA.

The case pertains to events occurring over more than a five-year period and involves multiple parties and issues. Despite the apparent complexity, the basic nature of this dispute can be succinctly stated as follows: SEPA is responsible for distributing electric power from certain electric generating projects operated by the United States Army Corps of Engineers. In carrying out this responsibility it has developed a marketing system in which it provides power within a certain geographic boundary. Plaintiff, located in northwest Mississippi, is outside of that boundary; nevertheless it wants SEPA to "wheel" power to it and claims that it is entitled to obtain this power. SEPA has refused and continues to refuse to sell any power to plaintiff.

Defendant MEAG filed its motion for partial summary judgment in this action pursuant to Rule 56 of the Federal Rules of Civil Procedure, claiming the existence of no genuine issue as to any material fact relating to the issues listed in the motion, and that as a matter of law defendant is entitled to a favorable judgment on each issue. These issues which MEAG claims are appropriate for summary disposition in favor of the defendants are: (1) Whether Section 5 of the Flood Control Act of 1944, 16 U.S.C.A. § 825s ("Section 5"), prohibits SEPA from allocating capacity and energy to numerous entities in a defined geographic marketing area which does not include Greenwood's geographic location; (2) Whether Section 5 of the Flood Control Act or the Due Process Clause of the Fifth Amendment to the United States Constitution prohibit SEPA from selling capacity and energy to certain preference entities unless SEPA also sells to Greenwood; (3) Whether SEPA was legally required by the Administrative Procedure Act to develop rules or regulations relating to the development of a federal power marketing plan; (4) Whether Due Process required SEPA to afford Greenwood more procedural process than was afforded to Greenwood; (5) Whether the record developed by SEPA in formulating its federal power marketing plan is inadequate, assuming that SEPA was required to develop such a record; and (6) Whether SEPA was required by Section 102 of the National Environmental Policy Act, 42 U.S.C.A. § 4332 (1977), to prepare an environmental impact statement in connection with its development of a federal power marketing plan.

FACTS

There is no genuine dispute as to the following material facts. Plaintiff Greenwood Utilities Commission, City of Greenwood, Mississippi ("Greenwood") is located in northwest Mississippi and in FPC Power Supply Area 25.¹ Plaintiff is not and has never been located in any of SEPA's marketing areas and has never received an allocation of power from SEPA.

Defendant SEPA is a federal power marketing agency. It neither owns nor controls any transmission lines and therefore is unable to move the output of the projects to its customers without obtaining the use of transmission lines owned by others. SEPA also lacks the capability to adequately "firm up" the output of its hydroelectric projects with thermal generating units.² Demand of potential customers for SEPA-marketed power far exceeds the supply.

During the mid-1970's, SEPA found it necessary to develop a federal power marketing plan for the disposition of the output of three new hydroelectric projects,³ known as the Carters, Jones Bluff, and West Point projects, located in the States of Georgia and Alabama. These projects are a part of SEPA's "Georgia-Alabama System." This system is composed of six other hydroelectric projects in addition to these three. Because the output of the six other projects was already committed when the Carters, Jones Bluff, and West Point projects came on line in 1975-76, it was necessary to devise this separate plan for marketing the output of the three projects.

Operating in the general geographic region in which the projects are located are four operating companies of the Southern System.⁴ The four companies operate as a single integrated generation and transmission system. Their transmission system is the only one covering the entire geographic marketing area adopted by SEPA for the output of the Carters, Jones Bluff, and West Point projects. In addition, they possess thermal generating units capable of firming-up the output of SEPA's three projects. All preference entities⁵ located in the service areas of the four Southern Companies were interconnected with the Southern Companies' transmission network.

SEPA ultimately determined to market the output of the three projects in the Service areas of the Southern Companies, which generally comprise FPC Power Supply Areas 22 and 23.⁶ After selecting this geographic marketing area, SEPA offered to sell power to every preference entity located in the defined area and connected to one of the four Southern Companies. There are approximately 125 preference entities located within the Southern Companies' service areas, all of which receive allocations from the three projects under SEPA's marketing plan.

On November 19, 1975, Mr. Charles Mathews, Manager of Greenwood, mailed a brief letter to SEPA expressing an interest in obtaining an allocation of power from SEPA. On that same date, Mr. Mathews mailed another letter to the Assistant Secretary of Energy and Minerals of the Department of the Interior, with a copy also sent to the Administrator of SEPA. This letter also expressed Greenwood's interest in receiving power from SEPA.

By letter dated December 18, 1975, SEPA's Chief of Division of Power Sales replied to Mr. Mathews stating that SEPA was unable to offer power to Greenwood.

The Department of Interior also responded to Mr. Mathews by letter dated January 20, 1976. This letter explained that the output of the projects was to be marketed in FPC Power Supply Areas 22 and 23. The letter also advised Greenwood of factors considered by SEPA in reaching its decision to market the output of the three new projects in that geographic area.

On January 28, 1976, a meeting was conducted between representatives of SEPA and Greenwood to discuss in greater detail Greenwood's request for an allocation of power. In attendance at this meeting were the present and former Administrators of SEPA, SEPA's General Counsel, and the Chief of SEPA's Division of Power Sales. Greenwood was represented by its Chairman, Manager, and Assistant Manager.

At this meeting Greenwood was afforded an opportunity to offer information to SEPA and to question SEPA's representatives. SEPA explained the nature of its marketing plan, the fact that it had only peaking capacity with little energy, and that its power was already "spread very thin" among its existing customers.

After the meeting Greenwood mounted a campaign to exert Congressional pressure on SEPA. Correspondence and telephone inquiries transpired between Senators Eastland and Stennis of Mississippi and SEPA, in which Greenwood's interest in SEPA marketed power and SEPA's inability to meet this request were again aired. The former and present Administrators of SEPA then personally met with certain staff personnel from the offices of Senators Eastland and Stennis in two separate meetings. These...