United States Chapman v. Federal Power Commission Virginia Rea Ass v. Federal Power Commission

• Decision Date: 16 March 1953
• Docket Number: Nos. 28,29,s. 28
• Citation: 97 L.Ed. 918,73 S.Ct. 609,345 U.S. 153
• Parties: UNITED STATES ex rel. CHAPMAN, Secretary of the Interior, v. FEDERAL POWER COMMISSION et al. VIRGINIA REA ASS'N et al. v. FEDERAL POWER COMMISSION et al
• Court: U.S. Supreme Court

345 U.S. 153

73 S.Ct. 609

97 L.Ed. 918

UNITED STATES ex rel. CHAPMAN, Secretary of the Interior,

v FEDERAL POWER COMMISSION et al.

VIRGINIA REA ASS'N et al.

v. FEDERAL POWER COMMISSION et al.

Nos. 28, 29.

Argued Oct. 22, 1952.

Decided March 16, 1953.

Mr. Gregory Hankin, Washington, D.C., for Oscar L. Chapman.

Mr. Robert Whitehead, Lovingston, Va., for Virginia REA Ass'n.

Mr. Bradford Ross, Washington, D.C., for respondent Federal Power Comm.

Mr. T. Justin Moore, Richmond, Va., for respondent Virginia Electric & Power Co.

Messrs. Charles F. Rouse, Raleigh, N.C., David W. Robinson, J., Washington, D.C., for respondent Carolina Power & Light Co.

Mr. Herbert B. Cohn, New York City, for respondent Appalachian Electric Power Co.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

In these two cases, the Secretary of the Interior and an association of nonprofit rural electric cooperatives have challenged the authority of the Federal Power Commission to grant to the respondent power company, VEPCO, a license to construct a hydroelectric generating station at Roanoke Rapids, North Carolina. They claim that Congress, by approving a comprehensive plan set out in the Flood Control Act of 1944 for improvement of the Roanoke River Basin, has withdrawn all eleven sites proposed for development in the plan, including Roanoke Rapids, from the licensing jurisdiction of the Commission and has reserved them for public construction. The underlying premise, that the plan approved by Congress presupposed federal development of all sites included in the plan, also underlies petitioners' other main conten- tion here, that the Commission's concurrence in the plan constituted a determination by the Commission that the development of these water resources should be undertaken by the United States itself. Such a determination, they say, requires the Commission under § 7(b) of the Federal Power Act, 41 Stat. 1067, as amended, 49 Stat. 842, 16 U.S.C. § 800(b), 16 U.S.C.A. § 800(b), to make investigations and submit its findings together with appropriate recommendations to Congress and in any event bars the Commission from approving applications for private construction of the project. Petitioners unsuccessfully raised these contentions, along with attacks on the Commission's findings not pressed here, before the Court of Appeals for the Fourth Circuit, which denied their petitions to set aside the Commission's order granting a license to VEPCO. United States v. Federal Power Comm., 191 F.2d 796. We granted certiorari, 343 U.S. 941, 72 S.Ct. 1034, 96 L.Ed. 1346. The cases present questions of importance in that they involve a conflict of view between two agencies of the Government having duties in relation to the development of national water resources. Determination of the issues may affect a substantial number of important potential sites for the development of hydroelectric power. Cf. Rules Sup.Ct. 38(5)(b), 28 U.S.C.A.

Both here and in the court below, petitioners' standing to raise these issues has been questioned. The Secretary of the Interior points to his statutory duty to act as sole marketing agent of power developed at public hydroelectric projects and not required for the operation of the project; § 5 of the Flood Control Act of 1944 directs him to transmit and dispose of such power in a manner calculated to 'encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles'. 58 Stat. 890, 16 U.S.C. § 825s, 16 U.S.C.A. § 825s. This provision, it is said, announces a congressional policy for the guidance of the Secretary that would be disturbed by the respondent company's plan; thus a specific interest of the Secretary, in addition to his more general duties relating to the conservation and utilization of the Nation's water resources, is said to be adversely affected by the Commission's order. The REA Association, an association of cooperatives, asserts that, as an organization of consumers entitled, along with 'public bodies,' to a preference in sales by the Secretary under § 5, it has a substantial interest in the development of low-cost power at the Roanoke Rapids site and consequently in the kind of instrumentality, public or private, to which power development at this site is committed. Respondents say, however, that decisions of policy in the construction of power projects have been entrusted to the Commission, or at most also to the Secretary of the Army, under whom the Corps of Engineers performs its statutory functions of making surveys and constructing public works, and that the interests of petitioners arise only after a public project has been constructed and the Secretary of the Army has determined that there is excess power to be distributed and sold.

We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases.

Petitioners' main contention, that Congress has, by a series of enactments to be construed as part of an evolving assumption by the Federal Government of comprehensive authority over navigable waters, reserved the Roanoke Rapids site for public development and so has placed it beyond the licensing power of the Federal Power Commission, requires us to consider with some partic- ularity the steps by which plans for the Roanoke Rapids project have unfolded. Petitioners' contention reduces itself to the claim that the authority of the agency to which Congress has delegated the responsibility for safeguarding the public interest in the private development of power resources has been revoked pro tanto by congressional action as to this particular site.

In 1927, the Army Engineers were authorized to make a specific survey of the Roanoke River by § 1 of the Rivers and Harbors Act, 44 Stat. 1010, 1015, which 'adopted and authorized' enumerated 'works of improvement' including 'Surveys in accordance with' H.R.Doc.No. 308, 69th Cong., 1st Sess. (1926). That document, a milestone in the development of integrated federal planning for the use of the Nation's water resources, had recommended surveys of a large number of streams throughout the country, including the Roanoke River, 'either for the preparation of plans for improvement to be undertaken by the Federal Government alone or in connection with private enterprise, or to secure adequate data to insure that waterway developments by private enterprise would fit into a general plan for the full utilization of the water resources of a stream.' H.R.Doc.No. 308, 69th Cong., 1st Sess. 4. The detailed survey of the Roanoke River was transmitted to Congress in 1934; in it the Chief of Engineers stated that a comprehensive plan for navigation and power, flood control or irrigation 'is not economically justifiable at the present time,' H.R.Doc.No. 65, 74th Cong., 1st Sess. 2 (1935), and concurred in the judgment of the investigating engineer that '(t)here is no justification for any Federal expenditures for either flood control or power.' Id., at 53; cf. id., at 14—15.

In 1936 Congress enacted the Flood Control Act of 1936, 49 Stat. 1570, defining the public interest in flood control as follows: 'It is hereby recognized that destruc- tive floods upon the rivers of the United States * * * constitute a menace to national welfare; that it is the sense of Congress that flood control on navigable waters or their tributaries is a proper activity of the Federal Government * * *; that the Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected.' 49 Stat. 1570, 33 U.S.C. § 701a, 33 U.S.C.A. § 701a. In the same Act, the Secretary of War was authorized to continue surveys at a number of localities, including 'Reservoirs in Roanoke and Tar Rivers, North Carolina.' ¹ § 7, Act of 1936, 49 Stat. 1596. In § 6 of the Act, Congress provided that 'the Government shall not be deemed to have entered upon any project for the improvement of any waterway mentioned in this Act until the project for the proposed work shall have been adopted by law'. 49 Stat. 1592.

Following a destructive flood on the Roanoke River in 1940, the House Committee on Flood Control adopted a resolution requesting reappraisal of the previous reports on the Roanoke River to determine 'whether any improvements in the interests of flood control and allied purposes are advisable at this time.' See H.R.Doc.No. 650, 78th Cong., 2d Sess. 12 (1944). A similar resolution was adopted later by the House Committee on Rivers and Harbors, see ibid., and as a result, the Corps of Engineers submitted its recommendations in a report which became H.R.Doc.No. 650, 78th Cong., 2d Sess. (1944). This report recommended the comprehensive Roanoke Basin plan here in issue. The report proposed a system of eleven dams and reservoirs, eight of them on the Roanoke River, and recommended authorization of two of those projects, designated Buggs Island and Philpott, 'as the initial step.' Id., at 2.

Petitioners rely most strongly on two features of this report for their claim that Congress has, by approving the plan outlined in the report, withdrawn all sites in the plan from the licensing jurisdiction of the Federal Power Commission. As the report moved up through the hierarchy of the Corps of Engineers, comments upon the plan were made by the different responsible officers. The detailed report of the investigating engineer estimated costs,...