Federal Power Commission v. Union Electric Company/Dissent Goldberg

by Arthur Goldberg

United States Supreme Court

381 U.S. 90

Federal Power Commission  v.  Union Electric Company

 Argued: March 2, 1965. --- Decided: May 3, 1965

Mr. Justice GOLDBERG, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

I agree with the Court that there 'is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress,' and that projects generating energy for such transmission, whether they use water or steam, 'are within the purview of the commerce power, quite without regard to the federal control of tributary streams and navigation.' Ante, at 94. The basic question here presented, however, is one of statutory interpretation: whether Congress exercised fully its commerce power, requiring licenses of those whose projects, built on nonnavigable streams, affect interstate or foreign commerce in any way, or whether Congress wished to require licenses only of those whose projects affect interstate or foreign commerce on navigable waters. From the time the provision in question was enacted in 1920 until 1962 the Federal Power Commission believed the latter interpretation to be correct and did not attempt to require a license unless commerce on navigable waters was affected. In 1962, however, the Commission 'ruled for the first time that (a) hydroelectric project to be constructed in and to utilize nonnavigable waters for the purpose of developing power for interstate use * * * cannot be constructed without an FPC license * * * because it would affect the interests of interstate commerce since the power would be used to supply markets in (other States).' 'New Regulatory Policies,' Forty-second Annual Report of the Federal Power Commission 23 (1962). ^[1] I believe that the Commission's earlier interpretation, consistently followed for many years, correctly reflected congressional intent.

The Court's conclusion, supporting the Commission's new theory that a license is required if a project affects the interests of interstate or foreign commerce in any way seems to be based upon an overly literal reading of the statute. The statute provides that a license is required if the Commission finds that 'the interests of interstate or foreign commerce would be affected by such proposed construction.' With all deference, I do not believe that the interpretation of the Court and the Commission that this language establishes that Congress intended to exercise the full reach of its commerce power can be maintained, for the legislative history of this provision clearly reveals that the 'interests of * * * commerce' to which Congress refers are the interests of commerce on navigable waters. Statements by congressional proponents of the Federal Water Power Act and others, when the Act was first enacted in 1920, make clear an intent that licensing be required only when interests of commerce on navigable waters are affected. ^[2] Moreover, after a considerable period during which the Commission consistently interpreted the licensing provision in accordance with this congressional intent, the statute was re-enacted in 1935. At that time statements of the drafters of the Act ^[3] and the Senate and House Reports on the Act ^[4] again clearly indicated an intent to have the licensing requirement apply only when a project affects interests of commerce on navigable waters.

It may well be, as the Court intimates, that some of the Act's proponents believed that Congress constitutionally could require licensing only where navigable waters are affected. ^[5] If the legislative history showed an intent to exercise the commerce power to its full extent, notwithstanding doubts as to the reach of this power, I would accept the reading of the statute given by the Court. However, the history, in my view, reveals an express congressional intent to limit the application of the licensing provision to navigable waters irrespective of the scope of the commerce power. There is no indication that anyone envisaged or desired the application of the licensing provision to the type of project here involved which affects interstate commerce only because the electricity produced crosses state lines.

Moreover, to interpret the provision as the Court does today produces a substantial anomaly, for steam generating plants that affect interstate commerce in a manner identical to that of hydroelectric plants such as the one involved here would not be required to obtain a license from the Commission, yet hydroelectric plants would have to obtain one. The Court attempts to explain away this anomaly, by stating that in view of the original Federal Water Power Act's concern with 'the power potential in water,' 'the distinction between a hydroelectric project and a steam plant is obvious, and meaningful, although both produce energy for interstate transmission.' Ante, at 110. However, even in terms of the 'power potential in water,' I fail to find a relevant distinction between a plant which artificially pumps water to an elevated reservoir in off-peak periods allowing it to fall and generate electricity at peak periods and a plant which heats water to create steam which generates electricity. I see no purpose of the Act that justifies producing this anomaly in the regulatory scheme. Under my view, of course, when interstate or foreign commerce is affected, Congress can constitutionally require licenses of both steam and hydroelectric projects, of either steam or hydroelectric projects, or of neither. The legislative history here, however, establishes to my satisfaction that it has required licenses of neither steam plants nor the type of hydroelectric plant here involved, and in light of this legislative history I agree with the Court of Appeals that Congress intended that a license be required only where the interests of commerce on navigable waters are affected. ^[6]

APPENDIX A TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.

Excerpts from Senate debate on May 27, 1920, 59 Cong.Rec. 7730.

'Mr. KING. This bill, as I interpret it, would make every stream navigable, even to the headwaters of the smallest stream, or up to the snow line, where the snow melts and finds its way by little trickles and rivulets into some other stream. For instance, this language, if the Senator will pardon me_ _

'Mr. NELSON. Let me call the attention of the Senator to the first part of the amendment, which reads:

'Navigable waters' means those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States_ _

'Mr. KING. The Senator will see that that does not impose any limitation upon the Federal Government as to what it may regulate. When it confers the power to regulate commerce among the States, et cetera, that is not a definition of what commerce is or the extent to which Congress may control streams. The Supreme Court has held, as I understand, that tributaries of tributaries of other tributaries, if any part of such tributary of the final stream was navigable, would be under the cognizance of the Federal Government. That would carry up to the snow line.

'Mr. NELSON. The court's decision only goes to this extent and the facts in the case must be considered-that as to the tributaries that supply water to the main stream, which is in fact and in law navigable, Congress of necessity must have sufficient jurisdiction over those feeders to prevent their being dammed up and thereby preventing the supply of water running into the main stream. That is the extent of the decision and the Senator ought to see that that is inevitable, for if all the feeders of our great rivers, such as the Mississippi, the Missouri, and other navigable rivers, could be dammed up so that water would be kept away from them they would cease to be navigable.

'Mr. KING. I am not arguing that question.

'Mr. NELSON. So the Government has jurisdiction to the extent that the supply of water can not be cut off from a navigable stream.

'Mr. KING. Obviously, then, under the Senator's contention, the Federal Government would have jurisdiction over the snow line, and, as the Senator from Colorado (Mr. Thomas) sotto voce says, it would have jurisdiction of the clouds which produce the snow which melts and produces the spring which produces the tributary flowing into the river which is navigable. So that the Federal Government may stretch out its powerful and omnipotent hand until it can grasp the snow in the mountains and say, 'We have jurisdiction over that.'

'Mr. NELSON. That is a forced construction.

'Mr. KING. I think that the Senator's position leads to that.

'Mr. NELSON. It does not lead to that, and that is not my position. The Senator a few moments ago referred to the Rio Grande case. The court intimated incidentally in that opinion that the control of Congress extended to the feeders of the stream, but when it comes to applying the principles of law to the facts in each case they must be measured by the facts. The court did not mean to decide that the feeders were navigable. What the court meant to say was that the Federal Government has sufficient jurisdiction over the feeders to see to it that the supply of water shall not be destroyed or so diminished in the feeders as to prevent the main stream from being navigable. The Senator on reflection ought to see that if the Government had no control whatever of the feeders if such a thing were possible, although I can not conceive it if it were possible for the States or individuals to dam up the feeders and prevent a drop of water flowing into the main navigable stream, they could dry up the main stream and destroy navigation on it. Except in those sections where the water is exhausted for irrigation, the erection of dams in feeders, as a matter of fact, for instance, in the East and in the Middle West, does not diminish the supply of water, for the water flows over the dam in one way or another and enters the feeders and then the main stream. It is only in the arid West where it is possible to divert water entirely for irrigation purposes from the main stream.

'To what extent can that be done? I take it that if a case of that kind should come before the court, the court would consider both the rights of the farmers, who needed the water for irrigation, and the interests of commerce requiring water for navigation, and the question would be one of fact in each case. Does the diversion of the water of a certain feeder of a certain stream for irrigation purposes diminish the quantity of the water to such an extent as to destroy the navigability of the main stream? If the diversion of the water did not diminish the navigability of the main stream, the Government would have no control whatever. Furthermore, it would only have control to the extent of the supply of water needed to subserve the purposes of real navigation.

,'we are not seeking to interfere with the present situation, and no matter what we put into this bill, if the Senator from Maine will excuse me a moment longer, we can not change the dicisions of the Supreme Court as to their determination of the words 'navigable stream.' We could not undo by this legislation, if we should make the effort, what they have decided. We have made no such attempt. We have simply said that those parts of streams or bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which in either their natural or improved conditions, and so forth, are navigable, shall be considered to be navigable streams. That is all we have said. We have simply left the matter where the courts have left it; and if we undertook to change the law as it is and to say that a certain class of streams which are navigable in fact are not nevigable the Supreme Court would overrule us.' (Emphasis added.)

APPENDIX B TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.

A memorandum prepared by the Federal Power Commission and submitted to the House Committee on Interstate and Foreign Commerce explaining the amendments to the Federal Water Power Act states:

'Section 210 of the bill amends section 23 of the Water Power Act. * * * In subsection (b) the present provision that those intending to undertake projects on a nonnavigable tributary of a navigable stream may in their discretion file declaration of such intention with the Commission is changed so as to make it a duty to file such a declaration before proceeding with the construction, maintenance or operation of any project on such waters. Furthermore, a provision is inserted expressly making it unlawful to construct a project on any navigable waters without a license granted pursuant to the act. This latter provision is in substance the result achieved by the River and Harbor Act of 1899 when read with the Water Power Act. It is thought desirable to bring together the regulations dealing with power projects in a single act. Under this section as amended, every person intending to construct a project which might conceivably affect any navigable waters would be under the duty of coming to the Commission. The act would be greatly strengthened by enabling the Commission to preserve control over all projects with which the Federal Government has any valid concern.' Hearings before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess., 391. (Emphasis added.) Dozier DeVane, Solicitor for the Federal Power Commission, testified as follows concerning the amendments which the Commission had prepared:

'Mr. MARTIN. Although it may be rather in the form of repetition, the memorandum impresses me that the contention of Mr. Mapes in section 3 is broader, from the standpoint of commerce in the way of a power, than the language in section 4.

'It occurred to me that you could just leave those words 'navigable waters in the United States' in the section and then add as defined in section 3.

'Mr. DEVANE. No, sir; what we are attempting to do is to make it clear that the Commission has the authority to issue (a) license under section 4 in cases that arise under section 23 of the act.

'Mr. MARTIN. The addition of the words defined in section 3, added to 'navigable waters of the United States,' however, would incorporate the section 3 definition of navigable waters.

'Mr. DEVANE. Of course, we think it exists without that amendment.

'Mr. Ryan calls my attention to the fact that section 3 might be considered to apply only to navigable waters, while section 23 applies to nonnavigable waters as well.

'The jurisdiction of Congress extends beyond the navigable waters. It extends to nonnavigable waters where anything you do in those rivers or streams might affect navigation and those are the cases which fall under section 23 of the act.

'Mr. CROSSER. What was that last statement? I did not quite hear it.

'Mr. DEVANE. Section 23 applies to nonnavigable waters, where anything that is done in those waters might affect interstate or foreign commerce.

'The CHAIRMAN. I think the committee has your position on that. You may pass on.

'Mr. MAPES. Does the Commission arrive at its conclusion, reach about the same conclusion, as to whether a plant should obtain the license or not, as Congress and the Board of Engineers do when they determine that a stream is navigable and that, therefore, people who desire to build a bridge across it, must get the consent of Congress to do it?

'Mr. DEVANE. The Commission in the first instance refers these declarations of intention to the War Department, the Engineer Corps of the War Department, and an investigation and recommendation is made by that Department, with reference to the effect upon interstate or foreign commerce, and the Commission, if it is necessary after that investigation and report is made, holds hearings, takes evidence, and makes its findings.

'The Commission attempts to act according to the facts as they are shown. In very few of the cases is there ever any controversy.

'Mr. MAPES. Are these two expressions synonymous, or not: the effect upon interstate commerce, and the navigability of a stream?

'Mr. DEVANE. Mr. Mapes, I think they are. Do you want to hear argument on the other side as to whether they are or not?

'Mr. MAPES. No.

'Mr. DEVANE. I see that you have some knowledge at least of the fact that that question has been debated, but to me it is a question of 'tweedledee and tweedledum.' I cannot take my legal processes to that refinement. There may be a difference; yes, sir. It is conceivable, at least in somebody's mind, that the construction of a project in a certain stream will not at the time in fact have any effect upon interstate or foreign commerce, but that the construction of the project has a potential possibility of affecting interstate or foreign commerce at some future time which will prevent a man from spending money to put commerce on that stream.

'Now that is the way the argument runs.

'Mr. DEVANE. We are not seeking by any amendment that we propose to enlarge the jurisdiction of the Commission in the waters of the United States over which Congress has control.

'Mr. HOLMES. I understood you to say you were, so that you could control other than navigable waters.

'Mr. DEVANE. That is the law today.

'Mr. HOLMES. Then I misunderstood you in that regard.

'Mr. DEVANE. Well, I would like to make that perfectly clear.

'We are not extending the power. We are not proposing any amendment that extends the power of the Commission over any waters of the United States that they do not have power over today-not at all.

'At this point, Mr. Mapes, I think we might clear up the difficulty that I had in answering a question that you asked me on Saturday.

'You will observe that under subsection (b) of section 23, persons desiring to construct projects in waters over which Congress has jurisdiction, but which may not be looked upon as navigable waters, as such, may come to the Commission under a declaration of intention and have determined in advance of the construction whether or not a license is necessary.

'That provision in section 23 is broader than the language in section 3, where the definition of navigable waters is used, the one that you were asking me about, on Staturday.

'The definition of navigable waters in section 3 applies only to those waters that are in fact navigable.

'Section 23 applies to waters that are not in fact navigable, but where construction may affect interstate or foreign commerce.

'Mr. MAPES. Yes. Has the court sustained the Commission in that respect, the jurisdiction of the Commission?

'Mr. DEVANE. Of nonnavigable waters?

'Mr. MAPES. Yes.

'Mr. DEVANE. You are asking about the jurisdiction of Congress over these nonnavigable waters, that affect navigation?

'Mr. MAPES. Yes.

'Mr. DEVANE. Yes; the jurisdiction of Congress over such streams was upheld in the case of the United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. That was decided under the Rivers and Harbors Act of 1899, which in effect is the same as section 23 of this act.'

Hearings before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess., 471-472, 474, 476, 489, 490. (Emphasis added.)

Notes

1. Moreover, in 1935 Congress re-enacted the relevant statutory provisions. The long-standing administrative interpretation of the licensing provision both before and after its re-enactment is an important factor in construing the statute. See, e.g., Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438; Commissioner v. Estate of Noel, 380 U.S. 678, 85 S.Ct. 1238; 1 Davis, Administrative Law § 5.07 (1958).
2. See Appendix A. See also 56 Cong.Rec. 8917, 9038; 57 Cong.Rec. 4638-4639; 59 Cong.Rec. 6529-6531, 7723, 7725, 7730.
3. See Appendix B.
4. Both the Senate and House Reports on the 1935 amendments to the Federal Water Power Act make clear that the licensing provision was to apply where navigable waters are affected. The Senate Report states: 'Under this subsection with the two amendments here made every person intending to construct a project which might conceivably affect any navigable waters would be under the duty of coming to the Commission.' S.Rep. No. 621, 74th Cong., 1st Sess., 47. The House Report expresses similar views. H.R.Rep. No. 1318, 74th Cong., 1st Sess., 25-26.
5. See n. 2, supra.
6. In light of the majority decision in this case, I do not feel it necessary to deal with the Court of Appeals determination that the Commission erred in finding that the hydroelectric project here involved affected navigable waters.