Federal Power Commission v. Union Electric Company/Dissent Goldberg

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). 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. 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 and the Senate and House Reports on the Act 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. 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.

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.)