Union Electric Company v. Federal Power Commission

• Decision Date: 13 February 1964
• Docket Number: No. 17142.,17142.
• Citation: 326 F.2d 535
• Parties: UNION ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 535 (1964)

UNION ELECTRIC COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 17142.

United States Court of Appeals Eighth Circuit.

January 13, 1964.

Rehearing Denied February 13, 1964.

COPYRIGHT MATERIAL OMITTED

Robert J. Keefe, St. Louis, Mo., made argument for petitioner and filed brief with Robert G. McClintock, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, Mo., and Charles J. Dougherty and Duane A. Patterson, St. Louis, Mo.

Howard E. Wahrenbrock, Sol., F.P.C., Washington, D. C., made argument for respondent and filed brief with Richard A. Solomon, Gen. Counsel, Washington, D. C., Thomas M. Debevoise, Asst. Gen. Counsel, and Joseph B. Hobbs and Josephine H. Klein, Attys., F.P.C., Washington, D. C.

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and GIBSON, District Judge.

GIBSON, District Judge.

Petitioner, Union Electric Company, seeks review of an order of the Federal Power Commission holding that Union Electric's proposed construction of a Hydroelectric Power Plant on the East Fork of the Black River, in Reynolds County, Missouri, would affect the interests of interstate commerce, thus necessitating a license for a project from the Commission, pursuant to the provisions of the Federal Power Act. § 23(b), 16 U.S.C.A. § 817 (Commissioner's "Opinion No. 356" Apr. 19, 1962).

Section 23(b), Part I of the Federal Power Act (16 U.S.C.A. § 817) provides in part as follows:

"* * * Any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined in this chapter as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this chapter. If the Commission shall not so find, and if no public lands or reservations are affected, permission is granted to construct such dam or other project works in such stream upon compliance with State laws. June 10, 1920, c. 285, § 23, 41 Stat. 1075; Aug. 26, 1935, c. 687, Title II, § 210, 49 Stat. 846."

Pursuant to § 23(b), the petitioner, Union Electric Company, a corporation, hereinafter referred to as "Union", filed a declaration of its intention to construct, operate, and maintain a "high head pumped-storage electric generating station to be known as its `Taum Sauk Plant'" to be located on and near the East Fork of the Black River about four miles above the confluence of the East Fork and Black River. The East Fork is non-navigable, but the Black River, into which it flows, is navigable to a limited extent below its confluence with the East Fork and flows into the White River, which in turn empties into the Mississippi. Ties and logs have been floated down the Black River and apparently flat-bottomed boat floats made on these waters.

This project is to be located solely on private lands and the transmission line leading therefrom located on private right-of-way, except where crossing public roads, and no public lands or reservoirs will be occupied or flooded by the project.

The project is located on the East Fork of the Black River in Reynolds County, Missouri, at an elevation of 700 feet above mean sea level, (all references to elevations are above mean sea level) and contemplates a damsite which would impound approximately 6350 acre-feet of water with a free crest spillway at 750 feet and sluice gates at points between 715 and 734 feet. This would be known as the lower pool. The drainage area upstream from the damsite is 88 square miles. An upper reservoir is to be constructed on the top of an adjoining mountain at an elevation of more than 1500 feet. A pressure tunnel and conduit of approximately 6400 feet will connect the upper pool or reservoir with a pumping and generating station to be located on an open channel running to the lower pool, on which will be housed two reversible pump-turbine units, capable of generating 350,000 kilowatts. This would provide an 8-hour generating cycle, while the pump-back operation would take about 11 hours with an average head of about 392,000 kilowatts.

The operation contemplates the use of only 4350 acre-feet of water which will be pumped from the lower to the upper pool during hours when the demand for electricity is low, by the use of the reversible turbines as pumps, with power supplied from other available generating units, and then allowing the water thus stored in the upper pool to flow through the tunnel and open channel, thus operating the turbines by water power for generation of electricity during periods of peak demands or in emergencies. After passing through the turbines the water will discharge into the open channel to the lower pool, thus completing the cycle of operation. This type of pump-back storage pool operation is in effect a method of storing energy for use at desired times. Union is a public utility under the Federal Power Act and operates both hydroelectric and steam generating plants, selling electricity in parts of Missouri, Illinois, and Iowa over its own transmission lines by which it transmits electric energy in interstate commerce to and from Missouri, Iowa, and Illinois. All of such transmission lines are subject to the jurisdiction of the Federal Power Commission under Part II of the Federal Power Act §§ 201-209, 16 U.S. C.A. §§ 824-824h and the transmission line to be constructed from the Taum Sauk project will be interconnected with the interstate transmission facilities of Union.

The Federal Power Commission, pursuant to § 23(b), Part I of the Federal Power Act, made an investigation of this project, held public hearings, made a finding affirming the Commission's Staff's conclusion "that the construction, operation and maintenance of the proposed project would affect the interest of interstate or foreign commerce" and issued an order that "Union Electric Company is required to obtain a license for its proposed Taum Sauk project works, pursuant to the provisions of the Federal Power Act." The Commission said that "on the basis of the facts stipulated he the examiner found that construction of the proposed project would have an inevitable effect upon the navigable capacity of the Black River during periods of high water; and further that the project would have the capability of substantially affecting that navigability at all times" and further found: (Although he did not base his decision on this finding)

"The proposed Taum Sauk Project will be constructed, operated and maintained for the development of power to supply markets not only in Missouri but also in the state of Illinois, thereby affecting the interest of interstate or foreign commerce."

The Commission in its decision adopted both findings as the basis for its order that it was necessary to obtain a license for such project.

By agreement of the parties, construction was commenced and the project is now completed, Union agreeing to apply for a license from the Federal Power Commission if the Order of the Federal Power Commission is sustained by the courts. State and county consent had been obtained for the project. The conditions imposed for a license may be considered quite onerous, although in the public interest, if the interests of interstate commerce is affected.¹

The petitioner, after filing an application for rehearing, which was denied, petitioned this Court for review of the opinion and order of the Federal Power Commission, pursuant to the provisions of § 313(b) of the Federal Power Act U.S.C.A., Title 16 § 825l(b) and in its petition not only takes issue on the merits of the findings and order of the Commission but contends that the Commission did not have jurisdiction to issue an order and consequently there is nothing for this Court to review. We shall first consider the jurisdictional issue.

Union contends that aforesaid § 313 (b), Part III of the Federal Power Act, U.S.C.A., Title 16, § 825l(b), providing,

"(b) Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the Circuit Court of Appeals of the United States for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part",

comprehends only a review of an order issued by the Commission and that § 23 (b) of the Federal Power Act does not authorize an order but only a finding contending that the order of the Commission in nature and subject matter is void as beyond the jurisdiction of the Commission.

Union in its Declaration of Intention asked that the Commission "by order find that the interests of interstate or foreign commerce would not be affected and that public lands or reservations would not be affected by the construction and operation of the proposed project." Also, Union's exceptions to the examiner's report included a proposed order reading:

"IT IS ORDERED that Union * * * shall be permitted to construct, operate and maintain the Taum Sauk Project upon compliance with applicable state laws."

Union's...