Federal Power Commission v. Union Electric Company

PETITIONER:Federal Power Commission
RESPONDENT:Union Electric Company
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 123
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 381 US 90 (1965)
ARGUED: Mar 02, 1965
DECIDED: May 03, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 02, 1965 in Federal Power Commission v. Union Electric Company

Earl Warren:

Number 123, Federal Power Commission, Petitioner, versus Union Electric Company.

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, Your Honors.

This case comes here on petition of the Federal Power Commission and presents a rather basic issue as to the scope of the Commission’s licensing jurisdiction over hydroelectric projects one which calls for a construction of Section 23 (b) of the Water Power Act of 1920.

In that Section Congress used the language common to so many federal regulatory statutes affecting interstate or foreign commerce.

Our question here is whether it did so in a specialized or limiting sense or whether on the contrary the concept of affecting commerce is to be given its customary full play.

The Eighth Circuit has held as respondent Union Electric Company here urges that the word commerce in this statute is to be read but although other statute does not say so.

As if it referred solely to commerce on the river only that and nothing else.

Our view is that Congress quite purposefully in the Water Power Act exercised the full scope of its constitutional commerce powers and that it imposed a licensing requirement as well as the other regulatory incidents of the Act upon any hydroelectric project which would affect commerce in the constitutional sense.

Now I shall deal with the facts more fully in a few moments but I would like to make a few essentials clear at the outset.

What year is this statute then?

Ralph S. Spritzer:

1920 Your Honor.

1920.

Ralph S. Spritzer:

The Hydroelectric project in question is known as the Taum Sauk Project and it is located on a non-navigable stream in Missouri known as the East Fork.

The East Fork River is some 4 miles of the location of the project on the East Fork is some 4 miles above the confluence of that stream with the Black River which is a navigable river.

Now there is dispute as to whether the facts justify the conclusion that the Taum Sauk Project will significantly affect downstream navigability on the Black River.

The trial examiner and the Commission concluded that it would the Court of Appeals disagree.

There is no dispute however, no dispute on the proposition that electricity which is generated at the Taum Sauk works will serve Union Electric’s coordinated three-state system of generation transmission and distribution.

The Taum Sauk Project will draw upon sources of energy and other states at certain times and at other times the Taum Sauk Project will generate hydroelectric Power which will be transmitted to other states.

William J. Brennan, Jr.:

Mr. Spritzer is this all tied in with the Interstate Committee?

Ralph S. Spritzer:

Union Electric has a three-state system in Missouri —

William J. Brennan, Jr.:

(Voice Overlap)

Ralph S. Spritzer:

— Iowa and the Illinois.

William J. Brennan, Jr.:

But is it tied in with other —

Ralph S. Spritzer:

This record shows a three-state integrated system.

It does not show whether the system also has arrangements for interchanged with the facilities and other parts of the country.

Now the principal legal issue which the Government brought here is whether a hydroelectric project defects commerce in a statutory sense where project energy will flow in Interstate Commerce even if it be assumed that it will not affect — the project will not affect the navigable capacity of the river or the mainstream of which the river is tributary.

A secondary issue, I’ve already indicated I think and that is whether on the established facts, the Court of Appeals should have rejected the Commission’s conclusion that the project would affect the navigable capacity of the Black River and then not on that impendent ground that require a license.

Now, I referred passingly to the statutory language, let me turn if I may to the precise provisions.

Section 23 (b) appears that pages 2 and 3 of the Government’s brief.

Ralph S. Spritzer:

You will find that it is one long paragraph analytically I think it may be broken down into two parts.

The opening sentence the first part says in substance that it shall be unlawful for any person to construct or to operate any dam, water conduit, reservoir, powerhouse or other works along or in any navigable water of the United States for the purpose of developing electric power without a license.

You will note that this licensing requirement applies irrespective of whether the works constructed would actually impair navigation or have any demonstrable effect upon it.

Now, the next segment beginning with the second sentence deals with the matter of placing such works in a non-navigable stream as the statute puts it in any stream or part thereof other than those defined herein as navigable waters and over which Congress has jurisdiction under its authority to regulate commerce.

A person so proposing the statute continues shall file a declaration of intention with the Committee at which point the Commission fell immediately investigate the proposed construction.

Then the language which is crucial for present purposes, if the Commission finds that “the interest of interstate and foreign commerce would be affected”, the construction is forbidden unless and until a license is sought and obtained.

Now, in those words of broad sweep protecting the interest of interstate commerce there is surely no intimation that the Commission was to be confined either then or for all time to an appraisal of the effect upon commerce on the river.

Potter Stewart:

But Mr. Spritzer you referred to that as the crucial phrase, what do you think of the earlier phrase that you read to us and over which Congress has jurisdiction under it’s authority to regulate commerce with foreign nations and among the federal states talking about non-navigable stream?

Ralph S. Spritzer:

Well, I think that joins with this question because the jurisdiction of commerce over the river.

The jurisdiction of Congress —

Potter Stewart:

Over a non-navigable —

Ralph S. Spritzer:

Over a non-navigable stream would be made out by showing that the waters of that river —

Potter Stewart:

Affected navigable streams —

Ralph S. Spritzer:

— were being used in some way which would affect commerce so I think the question of congress — of the jurisdiction of Congress brings us back to the question of, is commerce affected and therefore I think the — either line of approach from either set of words leads us to the same point.

Potter Stewart:

Well, federal jurisdiction over a non-navigable stream under the Commerce Clause would presumably depend upon the effect of that stream upon a navigable stream, is that the — right or am I (Voice Overlap) —

Ralph S. Spritzer:

It’s plenary (Voice Overlap) — plenary authority over it would certainly, but if the non-navigable stream were being used to generate power which is being sent in interstate commerce I think the Court would have no question that Congress could exercise jurisdiction over the use of the stream in that respect and for that purpose.

Arthur J. Goldberg:

Under the decisions at that time?

Ralph S. Spritzer:

No, no.

I do not think it was —

Arthur J. Goldberg:

(Voice Overlap)

Ralph S. Spritzer:

— clear under the decisions at that time.

Arthur J. Goldberg:

That’s the crucial question (Inaudible).

Ralph S. Spritzer:

I think it is a part of the problem of statutory interpretation and I shall argue that Congress intended to exert all of the power that it had under the Commerce Clause and I shall recognize later in the argument as I acknowledge now that Congress certainly at that time didn’t understand that the Commerce Clause would have the same dimensions as the decisions of this Court —

Arthur J. Goldberg:

The same thing with (Inaudible) — Congress was — it enacted the labor statute to —

Ralph S. Spritzer:

Yes, Congress —

Arthur J. Goldberg:

— the decisions followed that didn’t receive the congressional enactment.

Ralph S. Spritzer:

Yes sir, indeed the Sherman Act would be another example certainly Congress didn’t appreciate.

Sherman Act would reach all freshets of commerce that we now know it reaches.

Hugo L. Black:

When was the act passed?

Ralph S. Spritzer:

1920 Your Honor.

Ralph S. Spritzer:

The Water Power Act of 1920 is the basic provision.

There was —

Hugo L. Black:

It was not after the three courts opinion?

Ralph S. Spritzer:

Yes.

Perhaps before leaving the statutory language I should refer as well to the final sentence which I think is perhaps the suggested.

The Section concludes that if Cong — if the Commission shall not find that the interest of interstate commerce are affected in a given case then Congress says, permission is hereby granted to construct such other — such damn or other project works in such stream upon compliance with state laws.

And this I think suggests that Congress meant to give the Federal Commission jurisdiction overall projects, say, those which would have purely local effects.

And Congress has expressed delegation of authority over those local projects to the states suggests further that Congress regarded its own power as extending to the entire watershed of the river which was certainly not a niggardly conception of the commerce power or one which suggest any intent on Congress’ part to invoke anything less than the full measure of its authority.

Now, it maybe a source of some surprise that a statutory question as basic as this one has not been laid to rest previously the statute having passed some 40 odd years ago.

The reason for that is this.

Under the State of New York in 1920 and indeed until very recently hydroelectric generation of power was confined to harnessing the natural fall of the river or flow of the river.

More over projects which reduced energy in sufficient quantity to serve interstate markets were almost invariably located on navigable streams or its situated on a tributary would impound enough water to affect substantially the navigability of the main stream so that virtually any project of the conventional type which was large enough to have a significant effect on the interest of commerce was subject — well, I should say large enough so that it would have an effect on the interest of commerce with subject to jurisdiction because it would certainly affect downstream navigable capacity regardless of whether it affected commerce in any other sense.

Now, in the istant case the Commission dealt with the prototype of a new kind of hydroelectric project.

One which is going to become more and more familiar as time goes on and will undoubtedly play an increasing role in meeting the country’s massive and accelerating energy requirements.

The Taum Sauk project is a so-called pumped storage project, the first pure pump storage project in the United States.

By their nature pump storage projects as opposed to the conventional hydroelectric project are aught to have far less impact upon downstream commerce on the river or downstream navigable capacity.

Now pump storage very simply stated involves the creation of a man-made waterfall, water is pumped up from river level to a high hill or a mountain.

There the water is stored and in an appropriate time released.

It falls from this upper high altitude pool back into a lower pool in the river which is formed by a dam.

The pumps which force the water upwards during the (Inaudible) — pumping cycle are reversible and serve as turbines during the downward cycle.

In short, the pump storage is like a huge storage battery.

During hours when demand is slack on Union Electric system which would characteristically be the night time hours, Taum Suak project draws energy from other generating facilities and Union Electric System from steam facility, steam generating facilities and uses that energy to pump the water up the hill.

Conversely, during periods when demand upon the system is heavy during the peak hours the water can be released from the upper reservoir and hydropower generated at the Taum Sauk.

Although it requires more energy to pump the water up the hill than is obtained from letting it fall back into the river, projects of this kind provide a great assist to integrated electric systems because of the very wide variation in demand as between the peak and the off peak periods.

Now this new technique of developing additional sources of energy has made it possible for tributaries with relatively small stream flows to produce hydroelectric energy in quantities which were previously obtainable only from large hydro plants on mainstreams or their important tributaries.

The Taum Sauk project itself is one of very considerable magnitude.

An aerial photograph of it appears in a document which I think has been distributed to the Court.

The first volume of the Federal Power Commission’s recent National Power Survey which is a larger volume than the briefs if not available I — what is it?

Potter Stewart:

Your paper back there (Voice Overlap)?

Ralph S. Spritzer:

Yes.

Ralph S. Spritzer:

It’s the same except you have a hard cover one in your hands Your Honor.

Potter Stewart:

Volume One?

Ralph S. Spritzer:

Yes, its page 119 of that first volume of the Power Survey and you’ll see in that aerial photograph — I’m sorry page 122, the chapter begins at 119.

The Taum Sauk project in the lower right hand corner and as you’ll see there’s a huge reservoir there which is perched on a mountain top some 800 feet above river level.

The surface of that is about 50 acres which is roughly the size of 50 football fields and below though not in full evidence in the picture is the lower reservoir of some 370 acres which is impounded by a 60-foot damn.

And this project has a generating capacity of about 350,000 kilowatts which is almost three times as much as Union Electric’s famous hydroelectric development conventional development on the Mississippi River at Keacock.

This survey if I may take another moment with it contains also a discussion of peaking power and of this principle of pumped storage and its importance in an electrical system.

It also lists projects of this kind and operation under construction and in contemplation both the pure pump storage project of this type and the pumped storage project which are used adjuncts or compliments of conventional developments.

One of the pump storage projects currently in contemplation of course is the one proposed by Consolidated, Edison on Cornwall — at Cornwall on the Hudson which has caused something of a furor in the New York Press.

So, there’s many operations —

Ralph S. Spritzer:

This is the first pure pump storage.

There are others in contemplation.

There are a good many more than are used in conjunction with conventional projects for example there’s some pumped storage in Niagara Falls.

One point to emphasize about this type of project of course is that and it’s an obvious point is that it requires two suitable sites one for the upper and one for the lower reservoir.

The availability of such sight is of course very strictly limited by nature.

And I shall develop the framers of the Water Power Act were keenly aware that the matter of appropriation of such sites is one of vital concern from the standpoint of the proper and effective utilization of the nation’s water resource.

Potter Stewart:

You mean Mr. Spritzer back in 1920 they were aware?

Ralph S. Spritzer:

Not in relation to pump storage but very keenly aware in relation to the places where there was an opportunity for a conventional hydroelectric project and the number of sites available for pump storage are also limited by nature.

Potter Stewart:

Mr. Spritzer, this facility as you pointed out since we have a picture of it, it’s already been built?

Ralph S. Spritzer:

Yes.

Potter Stewart:

So obviously what’s going to be done if we decide —

Ralph S. Spritzer:

Well, let me explain that immediately.

A natural question and one I intended to come to, the Commission concluded in this case that the project was sound and should be permitted to go forward while the issue of the requirement of a license was pending and if permitted that.

This does not in any sense make the case academic and let me say why.

If this project requires a license there is a licensed term, a maximum of 50 years there is not a right in perpetuity to use this site.

If it is licensable, Union Electric is subject to the imposition of annual charges under the Water Power Act which help to defray the administration of that Act.

To charge the defendant on the matter of power generator or is it a flat fee?

Ralph S. Spritzer:

It would be a —

— energy —

Ralph S. Spritzer:

— found until that in this case it would be a product of both factors that did — would depend in part on the matter that occurred.

Ralph S. Spritzer:

Union Electric also would be subject to the requirement of establishing amortization reserves under the Act after a certain number of years into the provisions which authorized in certain circumstances ultimately capture the project.

It also —

Potter Stewart:

Because of the limited term of the license?

Ralph S. Spritzer:

Yes.

At the end of the license period there are provisions in the Water Power Act which permit recapture.

Potter Stewart:

And dedicated to the, what —

Ralph S. Spritzer:

It could be —

Potter Stewart:

— United States?

Ralph S. Spritzer:

— could taken over as a public project upon payments made to Union Electric in accordance with the recapture provisions and finally if also — Union Electric also would become subject to the safety and inspection requirements of the Act in respect to the maintenance of the dam that works.

Earl Warren:

Mr. Spritzer.

Ralph S. Spritzer:

I have spoken of the nature of the project and referred to some of the consequence of licensing.

Let me return now if I may to the statutory issue.

I emphasize statutory because I take it that there can be no serious question at least this state of the constitutional power of Congress to reach the result we are urging here.

I take it there is no doubt that Congress could regulate all power projects, hydroelectric or otherwise which generate energy for transmission in interstate commerce.

We know for one thing that the Labor Act has been applied to such facilities.

Potter Stewart:

Respondent doesn’t disagree with you (Voice Overlap) —

Ralph S. Spritzer:

I think that’s quite clear.

And it follows of course of it — Congress can certainly regulate then the lesser included category of projects which not only produce energy for commerce but also generated by use of the nations limited water resources.

Now, I’ve stressed the point already that the language which Congress employed is of the broadest.

In terms it embraces any hydroelectric project which affects the interest of interstate commerce without limitation.

Justice Frankfurter observed in the Labor Board case some 20 or more years ago that half a dozen enactments illustrates the proposition that when Congress wishes to bring aspects of commerce within the full sweep of it’s constitutional authority, it manifests it’s purpose by regulating not only commerce but matters which affect or interrupt or promote commerce.

And so we’re urging here an accepted meaning of the statutory language and the burden of showing we suggest that the statute should be restricted to cases in which the project affects commerce on the navigable waters.

That burden falls upon respondent.

Those that (Inaudible) —

Ralph S. Spritzer:

That’s certainly an element to consider.

I already attempted to indicate the Commission in its early cases had very little occasion to be concerned about whether it could reach a project like this because in the conventional, in the case of the conventional hydro project where there’s enough energy developed to serve interstate markets the project would invariably affect downstream navigability and the Commission having a traditional and not debatable basis of jurisdiction certainly had no occasion to go out of its way to assert a proposition which is — we know from this case is seriously debated.

Arthur J. Goldberg:

On the other hand, we can assume can we not, the Commission, being the expert body, tracked the reservations (Inaudible) —

Ralph S. Spritzer:

Surely, the — actually the Commission didn’t address itself to the question at all for many years.

There is a single dictum of the Commission at which that we don’t have that we have jurisdiction only if in effect on navigability is shown.

That was shear dictum because an affect on navigability was shown in that case.

Ralph S. Spritzer:

On the other hand we have the Commission virtually contemporaneously with the announcement of that dictum taking in litigation the position which are merging here.

This position was urged by the Commission some years ago on the (Inaudible) case which came to this Court.

And this Court did not have to reach it because it concluded on the facts of that case contrary to what the lower courts had concluded that the — there was a demonstration — affect on navigability, the navigability of the new river in that case.

Does the Commission Mr. Spritzer ever sought broadening legislation in the Congress?

Ralph S. Spritzer:

No.

I think not.

Earl Warren:

What year was that dictum?

Ralph S. Spritzer:

It was the California Oregon case which is cited in the brief — pardon?

Hugo L. Black:

1964?

Ralph S. Spritzer:

Thank you Your Honor.

Now, I think that the — what I have called the burden of respondent to justify writing a caveat into the statute.

I don’t think it can be sustained either by reference to the underlying historic purposes of this Act or by reference to the specific history of 23 (b).

Now this statute as Your Honors know was not passed merely to deal with matters involving obstruction or impairment of navigation, subjects with which Congress have previously dealt in the Rivers and Harbors Act.

From first to last, this statute was the work of the conservationist block in Congress which struggled for its enactment for a period of almost 15 years.

It is a Water Power Act and not a Navigation Act.

The beginnings go back to President Theodore Roosevelt’s famous veto message in the Rainy River matter.

Prophetically he stated at that time that the country was on the eve of great developments in water power and he urged — that an administrative authority be created to pass upon plans for river projects and to assure for future generations a complete development of the limited sites, a complete development of the power possibilities.

Those who took up the task of enacting a Water Power Act, Gifford Pinchot, Henry Stimson, Robert La Follette and others unfailingly stressed the same theme.

And as Your Honors know, the statute which ultimately emerged specifically charges the Commission in exercising it’s licensing and its investigatory functions to conserve and utilize the water resources of the nation for navigation, power development, recreation and all other beneficial uses.

In the similar vein the statute directs the Commission not to approve of private development if in its judgment the United States in the public interest should undertake the development of the particular site.

Now all of this has been said before in the Court’s opinions.

I think Justice Burton said it as sharply as anyone in his first Iowa opinion which we’ve quoted in the — which I’d like to quote one sentence from.

We’ve set it out 20 — page 21 of our brief.

He speaks of the Water Power Act as the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of National Regulation which would promote the comprehensive development of the water resources of the nation insofar as it was within the reach of the Federal Power to do so.

Now, I’m not suggesting, arching back to the question Mr. Justice Harlan raised earlier that Congress in 1920 conceived the projects like the present one and consciously decided to cover them.

I am not saying that Congress in that year conceived of the commerce power as we think of it today.

Surely, it did not.

Only two years earlier in 1918 this Court had held the Federal Child Labor Act unconstitutional in Hammer against Dagenhart principally on the theory that manufacturing in commerce were wholly separable concepts and that commerce in essence meant no more than transportation.

And we acknowledge that numerous members of the Congress which passed the Water Power Act tended to equate commerce and navigation.

Our point however is that Congress did not attempt to define commerce here by any words of limitation.

Ralph S. Spritzer:

On the contrary we think that the history of the measures which culminated in this Act show that Congress was doing everything that it thought itself constitutionally empowered to do in the interest of controlling the water resources of their nation — of the nation and of promoting their optimum utilization.

In other words this is not a situation if I may borrow from another of court’s opinions in which Congress chose to freeze the operation of a statute within the mold of the then current judicial decisions defining the commerce power.

Now I’ve spoken of the statutes broad objectives and of the congressional design as we see it to exhaust the commerce power.

There is also a specific history of Section 23 (b) which supports our view, a predecessor bill similar in most of its Sections have been before Congress in 1919, a filibuster in which Senator La Follette figured prominently killed that bill in the closing hours of the 65th Congress.

In this predecessor bill the provision granting the Commission licensing jurisdiction over a project on a non-navigable stream was more confining.

In substance the Commission was told by the language of that bill to determine whether the project would affect navigation in interstate or foreign commerce rather than the interests of Congress.

I am not arguing that this particular provision was the cause of the filibuster.

Senator Lafollete’s primary objection is deterrent rested on quite another point what he regarded in the 1919 bill as an unduly def — unduly narrow definition of navigable waters.

He feared that the definition of navigable waters in that bill would not include shoals or waterfalls which of course are a particular importance from the power standpoint.

To continue with our story of the history in the next session of Congress the provision which is now Section 23 (b) came out of the House in precisely the same form as it had taken in the 1919 Bill that is to say, jurisdiction under non-navigable rivers turned upon a finding that navigation will be affected.

It was changed.

It was changed by the Senate Committee which eliminated the reference to navigation and substituting in its place the words, the interests of interstate and far — or foreign commerce.

Hugo L. Black:

What year was that?

Ralph S. Spritzer:

That was in 1920, the Senate Committee and if the Senate Committees do prevailed at conference and the bill took the form that you now see it.

Now, there is —

Byron R. White:

— just directed at the kind of a finding that the Commission had to make.

Ralph S. Spritzer:

Precisely.

Byron R. White:

As to what kind of an effect on commerce.

It’s not really a question of initial jurisdiction over the non-navigable streams, is it?

Ralph S. Spritzer:

No, it’s a question of making the finding which would —

Byron R. White:

About this project?

Ralph S. Spritzer:

That’s right.

I’m not suggesting that the Commission has plenary authority over a navig — over a non-navigable stream.

Byron R. White:

But you are — but you’re suggesting that Congress does or what?

Ralph S. Spritzer:

No, I’m suggesting that when the Commission finds that commerce will be affected by the project —

Byron R. White:

Whatever that means —

Ralph S. Spritzer:

— on the nav — non-navigable stream that it has jurisdiction and that this affect —

Byron R. White:

But nobody —

Ralph S. Spritzer:

Well, I’m saying this effect maybe shown alternatively either by showing an effect upon commerce on the river or an effect on commerce in the transmission of energy, interstate commerce.

Byron R. White:

But there’s no question that this — that the — that whether you’re right or wrong in this, there’s no question that the initial — well, put it this way, do they say — do your opponents say have no obligation whatsoever to file a declaration of intention?

Ralph S. Spritzer:

No, I don’t think they do.

They wanted a determination as to the Commission’s jurisdiction

Byron R. White:

And so the words over which Congress has jurisdiction — the non-navigable stream over which Congress has jurisdiction.

No one argued to what — this is one of those kind of streams.

Ralph S. Spritzer:

No, the sole argument I think is whether the effect on commerce means effect on commerce on the river as you need electric arches and as we would have been bound to concede if the 1919 Act have passed and has been formed or whether commerce is used in the statute maybe taken as it is in the Labor Act and then the Sherman Act and in other federal regulatory statutes do include the showing of interstate commerce whether on the river or whether on dry land.

Now that’s what the dispute I think comes down to.

Byron R. White:

Well, are there any — given your construction are there any electric projects on a stream of any kind — any kind of stream which have — would be outside the commissions jurisdiction?

Ralph S. Spritzer:

Yes.

It was on a stream and (a) the project did not affect any downstream navigable capacity and (b) the electricity there generated was used intrastate.

Byron R. White:

Let’s assume that the — it’s a project which — where the power is to be used interstate?

Ralph S. Spritzer:

Interstate?

Byron R. White:

Yes, interstate and then what kind of a project would still nevertheless be outside the jurisdiction of the Commission?

Ralph S. Spritzer:

Any project on a stream where the energy developed at that project is transmitted interstate I think would be within the reach of the Commission’s licensing authority.

Byron R. White:

Regardless of the nature of the stream.

Ralph S. Spritzer:

Well, I’m — we’re dealing here with a tributary of a navigable river.

We’re not dealing with a salt lake or some body of water which doesn’t connect

Byron R. White:

Oh, my question is —

Ralph S. Spritzer:

— with the nation’s river system.

Byron R. White:

My question is just directed at one — at giving some context or words in the Act which say over which the non-navigable stream over which Congress had some jurisdiction (Voice Overlap) —

Ralph S. Spritzer:

Certainly the last sentence of Section 23 (b) which I spoke of earlier shows that Congress thought it had some elements of jurisdiction at least overall the tributaries of navigable streams.

Now, I’m not talking about ponds or a body of water which is not part of the nation’s river system.

Certainly that is not our case.

Hugo L. Black:

Well, I — I think while — the words my Brother White’s referred to are important, I think they are modified are they not under its authority to regulate commerce?

Ralph S. Spritzer:

Yes.

Hugo L. Black:

So that it was plain that what they meant I suppose was not that — it’s not to stop to say a non-navigable stream but under its authority which has jurisdiction — under its authority of regulating commerce.

Ralph S. Spritzer:

Yes, I think as a matter — the constitutional matter certainly, Congress can read any generation where there’s an effect on commerce.

Whether the Congress thought about possibility in terms of a pond or some body of water which wasn’t part of the nation’s river system, I’m not prepared to say at the moment but it is —

Hugo L. Black:

Do you know —

Ralph S. Spritzer:

— at least clear that Congress thought that it could regulate — that it could treat it within its jurisdiction the tributaries which were part of the entire watershed of a navigable stream.

Hugo L. Black:

You were discussing the history in the several Congress issues, do you know when this part came in to it, where they I said over which it has authority — jurisdiction under it’s authority to regulate commerce because to me that’s a rather important part?

Ralph S. Spritzer:

That was in both the 1919 and in the 1920 Bills certainly.

The change that I just been adverting to, the change from affecting navigation to affecting the interest of commerce came in 1920.

Now I should in candor add that the committee reports do not explain why the Senate made that change.

The fact is that it was made and I think the presumption is that it was not inadvertent.

We urge for this and other reasons that unexpressed limitations limiting the commerce power to commerce on the river are not to be read in now.

The second question in this case and I shall deal very briefly with it turns much more on the particular facts.

We acknowledged in our petition that standing alone that issue would not warrant certiorari.

We nevertheless reserved the question as an alternative ground for reversal.

Stating it in our petition in these words whether the Court of Appeals was warranted in rejecting the Commissions finding that the project would affect the navigable capacity of the Black River and on that independent ground was required to be licensed.

Both the examiner and the Commission concluded on the basis of stipulated facts that under usual and ordinary conditions, the operation of the Taum Sauk Project would not affect the navigable capacity of the Black.

However, the examiner found after detailed analysis with which the Commission agreed that when there was a concurrence of certain conditions the project was capable of having a measurable and a pronounced effect upon downstream navigability.

Now, we take it as clear from the cases that the Commission need not find in order to conclude that the interests of navigation would be affected.

That the effect will be continuous or that it will be inevitable.

I don’t suggest of course that it would suffice for us to postulate conditions which border on defense.

Now our first assumption is that on occasion there will be periods of extremely high flow or a flood when the sluices in the dam will not be able to pass all of the water through as rapidly as it accumulates from upstream.

The examiner pointed out that this had happen on a number of past occasions, as I recall there had been floods in 1949 and in 1950.

When during such a period of high flow or flood a generating cycle has begun in order to meet system needs thus adding to the water in the already swollen lower pool, the full impact of the water stored up there upon the mountain top, the stages of the Black River, the examiner concluded will be appreciably rage downstream.

Also during a period of high flow there might be a malfunction or improper operation of some of the facilities.

Potter Stewart:

When was this installation built — finished?

Ralph S. Spritzer:

About 2 years ago.

Completed in the past a year and a half (Voice Overlap) —

Ralph S. Spritzer:

A year and a half from —

Potter Stewart:

(Inaudible)

Ralph S. Spritzer:

(Inaudible)

Potter Stewart:

— understand your reference to the fact that back in 1949 and 1950 this happened, and the sluices were (Inaudible) — overloaded.

There were no sluices there (Voice Overlap)?

Ralph S. Spritzer:

Oh, no.

I’m sorry.

I said there had been floods.

The examiner studied the history of the stream and he said that we’ve had occasions in the past where there has been flood.

Ralph S. Spritzer:

Now, we know if the water will be flowing at a certain amount — at a certain number of feet per second the sluices won’t be able to handle it.

If that have — happens, the elevation in the lower pool will rise.

Potter Stewart:

Yes, but at the same time they are generating (Voice Overlap) —

Ralph S. Spritzer:

And then if at the same time a — an outage occurs somewhere else on the system and Taum Sauk project is pulled in to pick up the load and the generating cycle begins then you’ll have this added accretion.

And similarly he showed that if you had periods of high flow and there were certain types of malfunction you would get the same result.

Potter Stewart:

That ever occurred in fact in the year and a half since this has been (Inaudible)?

Ralph S. Spritzer:

The record does not show and we don’t have any information really as to how the operation has been going on.

The company’s project will be subject to Commission’s inspection and safety requirements —

Potter Stewart:

Yes — (Voice Overlap)

Ralph S. Spritzer:

It is licensable but not otherwise.

The finding as to the effect of malfunction in these periods of high flow I will take time to detail it but it’s set out in some detail at Record 93 by the examiner.

Now it’s perfectly cruel that when an effect upon navigability depends as it does here upon a concurrence of various conditions, the chances of it’s taking place are substantially diminished as any — patron of the racetrack I suppose knows it’s easier to pick one winner than to pick the daily double or the twin double or in here, one needs a concurrence of various conditions.

The fact is however that this project is a patron as it were of the laws of chance day in and day out.

It goes to the well everyday.

And I think no one can say with complete assurance that the events to which I have referred will not take place tomorrow or the day after.

I think the opinion of the Court of Appeals certainly does not demonstrate that these conclusions of the Commission are in error.

Rather the opinion of the Court of Appeals seems to say but this isn’t really very likely and then the Court adds this thought which I think is the key to its opinion.

It appears at record 297.

If in the operation of the project it later develops at any time in the future that the navigability of the Black River is impaired or threatened to be impaired the Commission would have authority under Section 4 (g) to issue an appropriate order including an order to prevent further operation of the project without a license.

Our answer to that is that licensing is essentially a preventive device.

As Your Honors know that the license is required.

The Commission may write conditions into the license to assure that the works are constructed, operated and maintained in a way which will provide maximum safeguards.

It may implement those conditions through its powers of investigation as it does under its dam inspection program.

In short, we think the institutions of these procedures ought not await the occurrence of untoward consequences.

If we read the licensing scheme rightly the Commission is entitled to be forehanded.

Thank you.

Earl Warren:

Mr. Keefe.

Robert J. Keefe:

Mr. Chief Justice, may it please the Court.

Initially I would like to comment very briefly upon a few of the factors that were mentioned in the argument by the Assistant Solicitor General.

There are two points argued in there in the brief for the Commission, the first one being — one relating to the construction of the statute which is the ground upon which certiorari was sought and obtained in this Court and the second being the question of whether the court below erred in rejecting the Commission’s conclusion that this project would substantially effect — affect downstream navigability.

Robert J. Keefe:

We think the second question is not properly before the Court recognizing of course that that’s the matter for the Court’s discretion but we have pointed out for pertinent facts as to why we think is not here and what the nature of the question presented is which without going into the detail, is a factual question along the first of the two phases of the case to which the brief of the — or the Commission is largely devoted.

I have — submit these few comments on what was stated in the beginning of the argument in opposition of — before the Commission.

First, this is not a statute which provides or lays as a test whether or not the project will affect interstate commerce.

Now, that’s a vital point.

Throughout their brief we have assumed that although at places they recognized that the language is somewhat different.

What they treated just as any other case, Your Honor mentioned the — Mr. Justice Goldberg, the Labor Act case, they rely — Labor Act — they rely on the cases under that Act which of course does constituted and exercised by the Congress of its broad power over interstate commerce.

And their old theory and the cases upon which they rely are based upon the essential premise that in this statute Congress exercised its power over interstate commerce generally.

I am happy that it’s stated that way because that’s a precise issue and the one to which we wished to direct our argument as we have directedour brief.

This is a Water Power Act and water power is not only power but water.

And what the Congress was dealing with here was affect on waters.

And I think it was Mr. Justice Harlan who suggested the question what is the jurisdiction of Congress over non-navigable tributaries of navigable streams and that is a vital question to which we have devoted an important part of our brief.

One other comment that I have wished to make as a preliminary matter is that although this Act was passed through — in 1920, Federal Water Power Act.

The vital provisions in the Section with which we’re concerned, well, I won’t say all of the vital provisions but some of the most vital provisions were not put in to the Act until 1935.

It was then that it was made mandatory rather than discretionary for a company before constructing a project in a non-navigable tributary to file a declaration of intention with the Commission.

Before that it had been discretionary, a company might do it for its own protection and obtain the Commission determination.

But in 1935 that was made mandatory.

In that year also —

Byron R. White:

How do you know what (Inaudible)?

Robert J. Keefe:

I beg your pardon?

Byron R. White:

How do you know they should file a declaration of intention?

Robert J. Keefe:

Or — the statute is plain Your Honor.

In any stream over which Congress has jurisdiction under its power to regulate commerce with foreign nations are among the several states.

Byron R. White:

That’s just as clear as it can be.

Robert J. Keefe:

It certainly is.

Byron R. White:

And that regulates when you’re supposed to file a declaration.

Robert J. Keefe:

Absolutely.

Byron R. White:

And — so that has really nothing to do with what kind of a finding the Commission was make later.

Robert J. Keefe:

No, that — it may or may not affect navigable capacity downstream which we think is the tests.

Byron R. White:

So the jurisdiction it could — the jurisdiction is at least goes to the extent of making — a file of declaration?

Robert J. Keefe:

Yes sir.

Robert J. Keefe:

Any —

Byron R. White:

You don’t have any problem at all in deciding whether this is a non-navigable stream over which Congress has jurisdiction?

Robert J. Keefe:

No, this undoubtedly as Congress has jurisdiction over every non-navigable tributary of a navigable water.

The statute says over waters which are not navigable and over which Congress has jurisdiction under its power to regulate commerce.

Byron R. White:

So this provision there — defining where — when you’re supposed to file a declaration has nothing to do with the content of this later language as to the finding that Congress must make?

Robert J. Keefe:

Yes it has Your Honor.

The jurisdiction — jurisdiction is a general term.

Now, one of the points I want to get at and an important one and I think one that was suggested from the bench earlier is, what is that jurisdiction of Congress over a non-navigable tributary?

Is it plenary?

They have a right to prohibit any use of the water or is it a jurisdiction that’s related to the use of navigable waters downstream and we think and the historic interpretation of the Act has been that it’s the latter.

Congress under the commerce power, I’m a little out of my orders in making the comment but it’s as well here as any place of the commerce power of course is the power to regulate commerce.

And in early cases way back in Gibbon (Inaudible) — Gibbon versus Ogden, it was pointed out that that part regulated commerce implies the power to regulate the media of commerce among which are navigable waters, navigable waters.

Byron R. White:

If you wouldn’t — I suppose you would say that the Congress could have wanted to require the licensing of any interstate electrical —

Robert J. Keefe:

Oh, I think —

Byron R. White:

— claim

Robert J. Keefe:

The interstate feature has nothing to do with it in our opinion.

Byron R. White:

Well, I know but I’m just saying that you would agree that Congress could regulate all —

Robert J. Keefe:

I have —

Byron R. White:

— steam and water plants, if they’re going to carry electricity interstate?

Robert J. Keefe:

Oh, I would not — well, I am — under its general commerce power, Your Honor, it may.

Byron R. White:

Yes, yes.

Robert J. Keefe:

Yes, I have admitted in the brief.

If Congress — undoubtedly a generating plant affects interstate commerce, if that’s all that’s involved here why — there’s no lawsuit.

We admit that.

Byron R. White:

Well, aren’t they — isn’t the Government in effect arguing or saying that Congress is saying that you require a license for all plants which carry power interstate if they’re build on the stream?

Robert J. Keefe:

That’s right.

That’s my understanding, a non-navigable stream.

Now, in a navigable stream Congress has in effect made a legislative finding that you can’t create any obstruction in a navigable stream regardless of what the purpose of it is.

But on these non-navigable streams, Congress has said if the project will affect the interests, not affect the interstate commerce but the interest of interstate commerce then it can’t be constructed on the non-navigable tributary without a license.

Now, that word interest is another word which has been left out of account that I mentioned there before, it’s a word I mentioned before.

Robert J. Keefe:

That word as we think under general rules of construction must be related to the subject matter of the Act and particularly to the context.

Now, if I may get to my points.

I’m glad to have the questions however but a little — they anticipate some of the points but there is — well one place as in other.

We have this statute poses for the Commission to decide the question of whether construction in a non-navigable — in a stream of a defined class will have an effect on interests such as those referred to in the statute.

Now what is a steam — stream of a defined class and what are interests.

Those are the questions I think that we’re concerned with primarily.

A stream of a defined class as I’ve already said is a stream over which Congress — a tributary of a navigable water over which Congress has jurisdiction, under its power to regulate interstate and foreign commerce.

Interests, what are the interests of commerce?

Well, the interest in non-related fields that the statute refers to are the interest relating to this water about which Congress was legislating and exercising its jurisdiction.

Now, the first point we have into the brief is 1 (a), that word — the jurisdiction of con — jurisdiction of the streams over which Congress has jurisdiction under his power to regulate commerce.

The Commission decision goes into that in great extent but only to demonstrate that Congresshas jurisdiction, had jurisdiction, of course it have.

That’s obvious.

No demonstration was needed.

This is a tributary of a navigable water and therefore Congress has jurisdiction.

But, the important question which the Commission did not go into and which the brief of counsel for the Commission does not deal with it as I read it is, what is that jurisdiction?

What is the nature of it?

What is the extent of it?

What’s the purpose of it?

That jurisdiction we see on the authority of uniformed decisions in this Court, that is the jurisdiction to take appropriate measures or to take measures which in the judgment of Congress are appropriate to protect, that is measures with reference to a non-navigable tributary to take measures with reference to that stream or the protection or improvement of navigable water into which the stream flows.

That’s our point.

And that’s the point that’s decisive — well, it’s not self-decisive but it’s a principal factor because that term is used in the statute.

It’s part of a subject matter of the statute.

It’s an essential part of the subject matter and it’s a thing that must be determined before we know what the statute means.

Now, I’m not — I’ve stated the proposition, it goes back, I — if I may divert for a moment, there’s some comment here and there about the evolving commer– evolving concepts of the commerce power.

Well, there is no evolving common concept of the commerce power in this case at least and I think incidentally in many others too.

But here this concept of the commerce power was decided, there was — perfectly delineated in 1899 —

(Inaudible)

Robert J. Keefe:

— in the case which is often been cited in the decisions of this Court since of United States against Rio Grande.

I have trouble with that word, I’m trying to say Rio Grande but I understand its Rio Grande Dam and Irrigation Company.

That was the case in which the Government attempted and did ultimately — well, it attempted to enjoin the construction of a project dam over a non-navigable river in the territory of New Mexico.

Robert J. Keefe:

I say a non-navigable river because the Rio Grande which is navigable downstream but at that point was found by the District Court to be non-navigable.

And the Court in 1899 went into that thoroughly.

What was the jurisdiction of Congress over the non-navigable part of the stream, the head waters and laid down the very parts upon which we’re rely here and upon which Your Honors have relied and which Your Honors have applied in subsequent cases.

They said — I don’t want to burden the Court by reading but here — ordinarily, but here is some language on the Rio Grande case which I think is important.

In other words the jurisdiction of the general Government over interstate commerce and it’s natural highways vest in that Government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against state action.

And further on it said it was construing there the — a section of the River and Harbor Act of 1890 that this — there was a later one of 1899, this was 1890, which prohibited obstructions in streams.

And it said, it would be to improperly ignore the scope of this language.

That is the language of a statute to limited — to acts done within the very limits of navigable — of navigation of a navigable stream.

In other words, the head waters are controllable — reg — and maybe regulated in use of — they maybe regulated by Congress but always for the purpose of protecting or improving the navigability of waters downstream over which Congress has jurisdiction because they’re highways of commrce.

We’ve cited other cases.

There is an important case, State of Oklahoma and Maxwell Phillips, the Governor of that State against Guy F. Atkinson in which that — the exact principle was applied and reaffirmed and the Rio Grande case was cited as the primary authority.

The opinion was written by Mr. Justice Douglas and it went in thoroughly to the nature of the jurisdiction of Congress to the effect that I have stated.

There have been other cases.

We’ve cited some — a few United States versus Grand River Dam Authority decided in 1960.

All of them without any suggestion of any evolving concept of the commerce power and it changed in it — applying the very principle that was enunciated in 1899 and prior to that even in other cases.

Now they are — they make up the counsel for the Commission make a great point of other purposes and motives by the conservationist who were interested in — passage of the Water Power Legislation.

And they are correct.

They did have a lot of other motives and purposes by many of them.

Those motives and purposes are immaterial under clear decisions of this Court.

Once you have a constitutional objective as here to protect or improve navigability of streams which are highway of — highways of commerce then the fact that they’re — that Congress — that the proponents of the legislation or the Congressmen who voted for it may have had other motives.

They may have wanted to develop electric power and may have wanted to provide water for irrigation.

It may have wanted to provide recreational areas.

None of those is a constitutional objective.

They couldn’t do that if that were the only objective of the legislation.

But if the legislation is first reasonably adapted to the protection or improvement of navigability then the other purposes maybe added to it and that has been pointed out expressly.

I think it was very clearly stated by Mr. Justice Brandeis in Arizona against California as I recall and it’s been recently pointed out to him the Oklahoma case that I mentioned where there was a so-called multiple purpose project providing water for irrigation and recreation and generation of power and perhaps other things.

The constitutional purpose and the thing that made the statute valid is within the power of Congress was that it would improve or protect the navigability of the Red River downstream from the non-navigable part of it in which the project was constructed and of the Mississippi River into which that stream flowed.

We have dealt with that in some detail in the brief and I think I’m leaving — go into — in detail all in here unless there is a question about it.

Now, there are two cases I’d like to mention in that connection at which you relied on by counsel for the Commission.

One is the Appalachian case, so-called, that’s United States against Appalachian Power Company in which the Government sought to enjoin and did enjoin the construction of a project without a license.

Robert J. Keefe:

There were some language written in — the language in that opinion which was written by Mr. Justice Reed, we — upon which they rely and which may superficially seem to depart somewhat from the doctrine enunciated in the Rio Grande cases and others but he — in fact does not.

And he — the — what I referred to is this, I may have quoted it and if I may impose Your Honors I can do it more briefly than by describing it.

The Court said, “In our view, it cannot properly be said that the constitutional power of Congress over its waters is limited to control for navigation”.

Oh, that much looks against beyond the — on the face of it but notice the rest of it.

By navigation respondent means no more than operation of boats and improvement of the waterway itself.

In truth, the authority of the United States is the regulation of commerce on it’s waters and it goes on navigability in the sense you just stated that is by the respondent, limited and “in the improvement of the navigable portion is but a part of this whole flood protection, watershed development, recovery of the cost of improvements through utilization of power or likewise parts of commerce controlling”.

Now, when that is read, there is not anything in that that’s contrary to what I have said.The flood control as pointed out in the Oklahoma case of course, if floods are uncontrolled they’ll impair navigation where navigation is possible.

And so you may control floods, Congress may, not only on the navigable water but on the headwaters or up to the top of the headwaters to prevent the sources of floods and watershed development falls in the same category as pointed out in the Oklahoma case and in of it.

Of this power production recovery of the cost, of improvements through utilization of power, that is Your Honors will note — perhaps recall in the case of Ashwander against Tennessee Valley Authority where that was a principal issue.

(Inaudible)

Robert J. Keefe:

The — that was put upon the ground that the Government.

That was in a navigable stream, a Government building, a dam in a navigable stream.

It became a proprietor of the water power, potential water power that was made available and the Court said it needn’t waste it, it may use it.

I don’t think that limits it.

I don’t think it’s limited to that precise concept that it may very well be that the Government has a right to provide for generation of power or other reasons or motives than merely that of not wasting the water power.

But the point about it is that it must first have a constitutional purpose which is the improvement or preservation of navigability and that — unless that’s (Inaudible), none of the other things may be done.

That’s the Appalachian case.

The other case upon which they principally rely, and it is mentioned here in argument is the first Iowa case and there’s some language in that that stresses the objectives of the conservationists or when that case is read I’m not going to — I know Your Honors provide any more reading from that but they are on me.

When that case is read, it will be found that what the Court is dealing with there was it contention by the State of Iowa that there must — be affirmed, that was for a project, I should have said, a project was proposed to be constructed on a river in Iowa which was navigable.

I think the — Cedar River and would affect another river, the Iowa River both of which were navigable streams.

The proposed constructor or the company proposing they construct the project applied with the Commission, the Federal Power Commission for a license, contention was made that you — they first had to get a permit from Iowa under the Iowa law.

And that contention was made in reliance so — in Section 9 of the Federal Power Act which requires compliance with state laws.

So the Federal Power Commission denied the license solely in order to enable the — to permit the case to be brought before this Court to determine whether or not the stae of — a permit from the State of Iowa would be required as a condition of constructing the (Inaudible) — of obtaining the Federal Power Commission license.

And in that connection dealing with that contention the Court pointed out that that would be all to give it con — inconsistent with the purposes of the Act and with the objectives of it which was national control over the water system of a country that affected navigable waters.

And that’s I think the essence of what’s involved in that case and what they quote from it does not in any ways affect the primary fundamental proposition that the jurisdiction of Congress over a non-navigable tributary is the jurisdiction to protect or improve downstream navigable waters.

Now, that’s a fundamental point and the Section of the statute, Section 23 must be read to the — question the crucial provisions in which we’re interested of course must be read with all of the context but that one — that element among others — and fundamentally that element.

Of the second point I have to make is largely related to that and I may deal with it more briefly and that is the proposition that the other terms in the Section 23 confirm that the idea that this was intended.

The interest of interstate commerce referred to in the Section are those related to commerce on the waters, downstream navigable waters.

I shan’t devote very much attention to that and it’s a matter that appeals rather to the — to the eye then to the ear of — when you look at the language of the statute with these terms — the specific terms related to their immediate context, the point appears clear as — at least it does to me.

We’ve cited out at page 45 of our brief, any person, association or state or municipality and so on intending to construct a dam or other project works.

Robert J. Keefe:

Now, project works as defined as physical structures of a project.

Construct of dam or other project works along, over, across, along, over or in any stream over which Congress has jurisdiction under its commerce power shall file a declaration of intent with the Commission.

And if the Commission determines that the proposed construction will affect the interests of interstate or foreign commerce then the construction may not be carried on without a license.

Now there are a number of significant terms there.

The word construction of itself is an important one.

I don’t want to claim too much for that term but I think it certainly implies at least this much that what Congress was driving against there was structure so placed as to affect those waters, construction of a dam or other physical structures across, along, over or in a stream.

Obviously, the purpose of that is to deal with what might affect that stream and thereby in turn affect downstream navigable waters.

At least the language is perfectly consistent with that intent and it would seem by the same token would be inept if what they were intending to do was to prohibit interstate transmission of electricity which has nothing to do with the use — well, I won’t say, nothing to do with the use of the waters.

They use water to generate power but it has nothing to do with downstream navigability and that’s their point here.

They say that this independently of any effect on downstream navigability if you intend to transmit energy from your plant in interstate commerce that it’s within the jurisdiction of Congress and under this Act.

So I have — I’ve — we’ve dealt with that in the brief and it’s a matter of detail and I think I need not dwell upon it any further but there are two things that I want to mention.

Hugo L. Black:

May I ask you one question?

Robert J. Keefe:

Yes sir, Mr. Justice Black.

Hugo L. Black:

What would be — What would be your position if the sole object or purpose of the project was to send all of its power into interstate commerce?

Would that make any difference?

Robert J. Keefe:

Offhand, I don’t see that it would Your Honor.

Hugo L. Black:

Logically it would (Inaudible).

Robert J. Keefe:

It would not.

I think the sole test of the requirement for a license here in a non-navigable water is what’s indicated by the jurisdiction to Congress.

That is to protect downstream navigable waters or to improvement them.

And if the project would affect those waters it doesn’t make any difference what you do with the power generated whether you generate it to — for local distribution or for interstate transmission.

That’s another matter.

Incidentally, as has been pointed out in some cases here, some of Your Honors will remember a case against the Idaho Power Company, its been pointed forcibly that part 2 of this Act deals with transmission.

That’s where Congress took jurisdiction over transmission of electricity and incidentally as long as the point is of now, in that Section it said, “However, Congress shall have — however, the Commission shall have no jur — well, first the Commission shall have jurisdiction over transmission in interstate commerce and over facilities for such transmission but you’ll have no jurisdiction over generating facilities except to the extent specifically provided in part 2 and part 3.

Oh, I don’t claim that that provision governs this question here because this is under part 1.

And if the license is required then the Commission automatically gets jurisdiction under the license.

But it is significant to me as an evidence of its policy — of Congress that they were not intending to give this Commission jurisdiction over generating facilities generally.

I repeat it doesn’t govern the question here.

Have I answered Your Honors question or —

Hugo L. Black:

I asked you that question because I’m reading the part of the Act to which you referred on page 45 of your brief?

Robert J. Keefe:

Yes sir.

Hugo L. Black:

It seems to be divided into two parts I would like to add the (Inaudible).

Any person, association, corporation, state or municipality intending to construct a dam or other contract projects across, along, over or in any stream are part thereof other than those defined here in its navigable streams and over which Congress has jurisdiction under its power to regulate commerce for foreign nations among the several states shall before such construction file a declaration and so forth.

All of which, it has jurisdiction, it has two.

And one of them, it’s jurisdictions in navigable water.

The other one is where they’re going to construct the dam along, over or in a stream.

If Congress has jurisdiction under its authority to regulate commerce to foreign nation over which.

Now, are they talking there about dams or are they talking about (Voice Overlap) —

Robert J. Keefe:

Oh, this is all.

That may be of —

Hugo L. Black:

Projects, are they talking about projects or are they talking about water?

Robert J. Keefe:

They’re talking about projects in a stream other than a navigable stream.

Hugo L. Black:

That’s right.

Project —

Robert J. Keefe:

Project.

Hugo L. Black:

— it says over which Congress has jurisdiction.

Robert J. Keefe:

They’re talking about the water.

Hugo L. Black:

And you say there, they’re talking about the water?

Robert J. Keefe:

Yes Your Honor.

I think that’s agreed here on both sides.

And I thought Your Honor was going to mention the point which I was about to overlook and I might have overlooked it.

This has not been on — for that question although its — that question didn’t reach it.

In 1903rd as I have said, this Section 23 is not the same Section that was passed in 1920.

It was amended in 1935 in four particulars, in fact the whole Act was radically amended in 1935 and revised and then supplemented by parts 2 and 3.

But in Section 23, one of the things that they did which is of — I think of more than ordinary importance and in fact, I think of great importance, is they put in to this Section 23 a provision which had not been in it before relating to navigable waters.

Now they first said, no one shall (Inaudible) — construct any project in the navigable water without a license.

Now that had been taken from the old River and Harbors Act of 19 — 1899.

So the fact that they pushed it in there did not impose a new substantive requirement of law.

It was a requirement that existed under another statute but their reason for putting it into this Section 23 is very significant.

It were stated in both the House and the Senate Committee Reports and that as I shall point out in a minute — a few minutes was following the issuance of a member of the Federal Power Commission which sponsored the 1935 Amendments.

Robert J. Keefe:

It was in both the reports that the purpose of putting that provision regarding navigable waters in this Section was so that all provision — that all — and that everything — every project which might affect any navigable water would be covered by Section 23 if I have made that clear.

Arthur J. Goldberg:

(Inaudible)

Robert J. Keefe:

Your Honor, there is a non-expressed legislative finding that any obstruction in a navigable stream may have an effect.

That’s the effect of it.

There’s no effect to require it all.

You can’t construct any project in a navigable water without a license.

I understand (Inaudible) — the assumption is that any construction would have to have —

Robert J. Keefe:

Well, the first part of the Section as Your Honor will notice applies only to navigable waters.

Arthur J. Goldberg:

(Inaudible)

Robert J. Keefe:

Congress might prohibit any construction in the navigable stream.

That’s been established in prior decisions.

There — that’s a matter over Congress.

Arthur J. Goldberg:

(Inaudible) on non-navigable streams?

Robert J. Keefe:

Well, now that’s a question —

Arthur J. Goldberg:

(Inaudible)

Robert J. Keefe:

Not —

Arthur J. Goldberg:

(Inaudible)

Robert J. Keefe:

Well, that’s an interesting question Your Honor and the — but it’s not governed by the same principle as to the navigable stream.

There’s no question about that.

That’s a highway of commerce.

And if the Congress may think, “Well, we cant’ allow any obstruction in a navigable stream preventing the free flow of commerce on that highway without a license”.

Now they’ve — that’s the effect of what they have done and that’s perfectly within the constitutional power and the proper constitutional objective.

When you come to a non-navigable tributary whether Congress could prohibit any construction there without a license it has in the power, but perhaps it could and I — that’s a — was a second — what I call the second part of it — the question is difficult, the first part is easy.

The constitutional purpose or objective would be clear enough if they were doing it to be certain that there’ll be un — no untoward effect on downstream navigability.

Hugo L. Black:

Before you leave that, may I ask you this one more question?

Robert J. Keefe:

Yes Your Honor.

Hugo L. Black:

Suppose this plant has just been put up in the middle of Missouri away from any stream, navigable or non-navigable, the sole purpose was to generate power and sell it to the every state in the union, that’s all it’s going to do.

What (Inaudible)?

Could the state — could the Government require a license?

Robert J. Keefe:

Could it — not under the statute —

Hugo L. Black:

But could it require — could it require this right?You said, could not under this statute?

Robert J. Keefe:

Could it do it under any statute?

Hugo L. Black:

Is there any other statute which permits this?

Robert J. Keefe:

Yes, I think the generation of electric — when you get to the general commerce power which is what they’re — my opponents are relying on, undoubtedly generation of power although it’s a local activity, the generation itself although it’s a split second until the power generated is a thousand miles away or a million for that matter.

Nevertheless the generation is separable and is a local function but I don’t think there’s any question with what generation of power on — the generation of power is an activity that will — for interstate transmission; if you intend to transmit it interstate, the generation of power is matter that will affect interstate commerce and therefore it might be regulated by Congress.

Hugo L. Black:

But it would affect it whether its on the river or off the river, wouldn’t it?

Robert J. Keefe:

Yes, it would.

That would make more difference.

Hugo L. Black:

Your argument here is that at least so far as this statute is concerned, Congress didn’t exercise its power to advise, if it happen to be along side of the stream.

Robert J. Keefe:

Exactly Your Honor, in fact Congress not only did not exercise it’s power but I — its other parts and factors involved showed carefully refrained from exercising any power except in this statute and except it’s power over waters.

William J. Brennan, Jr.:

Well, you’re really arguing aren’t you that the very fact that they required the licensing, I mean, or rather required a — filing a declaration — intention in this instance, establishing that they —

Robert J. Keefe:

(Inaudible)

William J. Brennan, Jr.:

— that they were doing this only and so that they could be a proper protection against interference with downstream navigation.

Robert J. Keefe:

That’s right.

That’s the question to be —

William J. Brennan, Jr.:

They don’t ask — they — there’s no comparable provision for the installation that my Brother Black referred to (Inaudible) in Missouri.

Robert J. Keefe:

Oh, no, I’m only saying that Congress under its general commerce power could (Inaudible) — regulate generation of electricity.

William J. Brennan, Jr.:

But that they didn’t in this instance (Voice Overlap) —- in this instance.

Robert J. Keefe:

They did not —

William J. Brennan, Jr.:

I gather you say it —

Robert J. Keefe:

— this is a Water Power Act and they are only dealing with water power.

And what effects navigable waters and that’s’ the point.

That’s what the statute is involved (Voice Overlap) —

Byron R. White:

I take it, do you also in your brief really — to me anyway, you pose the question of why Congress — how you can possibly ascribe to Congress an intention, to require a license for a plant on a river without regard to navigability.

Require a license for a plant on a river and yet not require a license for a plant 10 miles away, a steam plant 10 miles away and both of them generating interstate power.

Robert J. Keefe:

Well, not quite Your Honor, along the river if the river is navigable.

Byron R. White:

Well, I know but what dif — if the Government is right, navigability has — got anything to do with whether or not a license is required except by saying that the only interstate power plants we’re going to regulate are ones that just happen to be on a river.

Robert J. Keefe:

Or if the Government is right, if you’re going to make the test interstate transmission —

Byron R. White:

Oh, I know but if the Government is right, they’re saying that Congress intended to regulate only interstate power plants which are located on a river, none others.

Robert J. Keefe:

That’s what they’re saying and it’s a —

Byron R. White:

But what possible motive could there be for them?

Robert J. Keefe:

None whatever.

It’s in — another anomaly.

In my opinion, if they wanted to regulate plants to generate for interstate transmission they should have regulated them all.

In fact the water — all the water (Voice Overlap) —

Byron R. White:

Or at least the larger ones.

Robert J. Keefe:

Pardon?

Byron R. White:

Or at least the larger ones (Voice Overlap) —

Robert J. Keefe:

Well, out of the — all of the — all of the hydroelectric plants in the country together is shown by one of these reports which I have — had distributed to Your Honors, the 1962 Reports, all of the hydroelectric generation in the country.

That includes the huge TVA plants and all of the Government plants produce only a little over 19%, at least 20 or less than 20% of the total amount of electric power produced in the country.

Steam plants produce — well, steam plants fueled by coal or oil or gas produce the other 80%.

Yet they — concededly, those plants are not subject to any license requirement merely because they transmit in interstate commerce.

That’s Your Honor’s point I take it then.

When we — we have made that point in the brief.

Now —

(Inaudible)

Robert J. Keefe:

Well this is a little — this is of — it’s a sizable plant, it generates 350,000 — has a capacity of 350,000 —

(Inaudible)

Robert J. Keefe:

That’s the whole a standby plan, a standby plan for times of peak demand or that’s what it is.

Now, I want to call the attention — I start to call the attention, the two points here and I regret the one thing.

I want to say here that I read — I haven’t complied with my whole duty to the Court here in one respect.

I overlooked something that should’ve been stated in the brief and that’s important.

And I’d like to call the attention to it now because —

Well, are you —

Robert J. Keefe:

It’s not a new point.

What it’s — a confirmation to the point I made about the extent of which — into which jurisdiction is exercised by Congress in this statute.

I have dealt with what the jurisdiction of Congress is.

Now, if Your Honors look at the — this also is a matter that is visually impressive rather than orally.

In Appendix C of the brief of the Commission, they’ve set out the provisions of Section 4 which define the licensing jurisdiction of the Commission.

And in Section 4 (e) which appears at page 40 of their Appendix A, Page 40 of Appendix A, here is the — the Commission is hereby authorized and empowered to issue licenses to citizens of the United States and so on.

Robert J. Keefe:

Now, this probably be skipping down a few lines, for the purpose of constructing, operating and maintaining dams, water conduits, reservoirs powerhouses, transmission lines or other project works.

Here’s the important part, necessary or convenient for the development and improvement of navigation.

It goes on, and for — notice the word, “and” for the development transmission and utilization of water of power across, along, from or in any of the streams or other bodies of water over which Congress had a jurisdiction.

Later on in that Section it’s — in the second proviso, kind of near at the top of page 41, provided further that no license affecting the navigable capacity of any navigable waters of the United States shall be issued until the plants have been approved by the chief of engineers.

Now that Section as I say it confirms I think the point we made about the jurisdiction of Congress and the jurisdiction it exercised in this Act.

But it also relates to a jurisdiction of a commission and I have no excuse and I’m sorry to say for having the omission of that from the brief.

It should have been put in and I think Your Honors will want to consider it.

In the same connection, I say we have no excuse.

It was not due to any lack of industry.

But it was one of those things where you’re concentrating on a number of points and here’s one that we — confirmatory of one of our main points and we unfortunately overlooked.

Page 42, they set out the provisions of Section 10 upon which they rely on some respects.

And that Section deals with the conditions to be put in to licenses.

When the Commission issues a license it shall impose conditions.

The first part of that Section 10 (a) on page 42 of their append — their brief, part of Appendix C, the first condition is this, if the project adopted including the maps, plans and specification shall be such as in the judgment of the Commission will be and this is the important part, best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce.

And it goes along with other conditions but there’s a man – at the end of the second — last condition and that first one is a mandatory condition.

And similarly in Section C on paragraph C on the same page 42, of the line, other conditions that the licensee shall maintain the project works in a condition of repair adequate for the purposes of navigation.

That has to go into a license or how would such a condition go into a license here on a non-navigable tributary concededly so.

If — it might go in but only in relation to downstream waters which are navigable confirming in my judgment the whole basic theory of our position about it and the position followed by the Court of Appeals in contrary to theirs.

I want to come to another important point unless Your Honors have another question about that.

That’s the history of this Act which we rely on and I think if there are any use, the vernacular clincher needed for these points I have been making there in the history of the Act.

I don’t know about the Act, of the proposed Act of 1919 which never passed.

I do know about the Act of 1920 which did pass and the — submitted in the Commission’s brief.

They have cited some instances in which as the they say individual Congressmen expressed the view that Congress had no power except essentially the power I’ve been trying to delineate here, the power to protect navigable capacity or to improve it.

But what is important here are not those expressions of — by individual Congressmen although they’re of some importance but the assurance is given by the sponsors of the bill.

And we have set out in Appendix A of our brief which is back at page — ends at — Appendix B rather of our brief beginning at page 87, we attempted to make this easy to find by running heads and caption, Appendix B begins at page 87.

And there — well, I’ve quoted from it that the — in an earlier part of the brief in page 49.

There Senator Nelson who is one of the proponents of the bill and entirely in charge of it in the Senate or one of them was in charge of it.

I judge from the debates and he was a member of the Senate Delegation that conferred with the House Delegation.

He’d — he explicitly reaffirmed all that I have said and all that is held in the Rio Grande case saying that the jurisdiction of Congress was limited to what they called feeders that is tributaries of navigable waters.

The jurisdiction was never limited to what would affect the downstream waters and assured his fellow Senators who were somewhat apprehensive about an extension of federal power in that respect that he went no farther than that and they were not attempting to interfere with the present situation.

Robert J. Keefe:

That’s of some importance.

But a much greater importance in my judgment is the history of the 1935 legislation.

There in 1935 this whole — the Water Power Act was revised thoroughly.

As I have said, Section 23 was amended in four respects, important respects, three of them.

Parts 2 and 3 were added into the Act and most of that whole bill incorporating those amendments was part 2, Title 2 of the Public Utility Act of 1935.

And those amendments were sponsored by the Federal Power Commission.

We’ve set out in Appendix C of the brief — of our brief the statements made by some of the members of the Commission, the Chairman appeared and tendered the services of the — his associates and of the Solicitor.

And then — I’m only going to mention one or two important things here, Commissioner CV of the Federal Power Commission filed a memorandum which is set out at page 93, set out in — a part of it relating to Section 210 which is the Section that amended what’s now 23 (b), relating to this various section it’s involved here.

He set out a memorandum and first referred to the fact that they were incorporating into the Section the provisions prohibiting any unlicensed construction in the navigable stream.

Hugo L. Black:

Is that page 103 —

Robert J. Keefe:

It’s page 93 of our brief sir, Your Honor of — in Appendix C –(Voice Overlap)

Hugo L. Black:

I have it.

Robert J. Keefe:

Its entitled amendments of present sections of the Water Power Act and Section 210.

We’ve emphasized the court below.

He first referred to the fact that they were writing this first sentence of bringing the control over navigable waters into this Section.

And then we’re making it mandatory to file a declaration of intent — intention for a construction in non-navigable tributary and then he said contrary to my promise, I’d like to read this if Your Honors will indulge me.

Under this Section, has amended every person intending to construct a project which might conceivably affect any navigable waters.

Waters would be under the duty 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.

The effect of that I think without taking anymore time about it is that the concern of the Federal Government, the valid that concern is protection there and — improvement of navigable waters and that that’s what this Section 23 does.

Now that — my time is very limited I see by my white light here and I want to cover a point if I may here before I close.

That assurance given by Commissioner CV was adopted by both the House Committee and Senate Committee and reported on this bill.

They had — they received and accepted that insurance — assurance and incorporated it in their own reports and no doubt thereby relieved the apprehensions of many members of both Houses of Congress that this Section might carry further.

(Inaudible)

Robert J. Keefe:

Are affirmed —

(Inaudible)

Robert J. Keefe:

Well, the first thing I have to say about it Your Honor is stated 2.2a of our brief that they did not raise the question as a ground for certiorari.

As I’ve — the facts are stated about that and that’s up to the Court.

The second thing about it in the same connection is that it’s a factual question.

If Your Honors wish to take it — important to consider it.

Robert J. Keefe:

That should be taken in.

It’s of — it’s a factual question.

What the court below decided contrary to their appraisal of its decision.

What the court decided was that there was no substantial evidence to support that finding.

That the downstream navigability would be affected, so it’s factual.

Now on the thing they argued the exact thing they argue and it was argued here orally.

They surveyed — indicate — in part say that the basis of the Court’s decision was that if there should be any untoward effect, it could be corrected later by action under what’s called Section 4 (g) of the Act.

That’s the Section that gives the Commission the very broad power of investigation of any project — any construction in the stream and to correct anything that maybe wrong.

And to issue such orders as maybe appropriate.

Now the Court did point that out by way of a comment to the end of its opinion but not by — not as the basis of his — of its opinion.

All it said about that was that if in effect — I’m not quoting, if there should be any change in the future this decision that we’re rendering won’t bar appropriate commission action.

They have full authority under Section 4 (g) to make an investigation and to issue an appropriate order but they’ve taken that comment by the Court as the basis of the Court’s decision which it is not and upon the basis — upon that theory, they argued here that the — that Congress and the Commission are not limited to remedial action, to correct an injury that’s already been done but may take preventive measures to issue preventive regulations.

But of course they may — we never disputed that and if that’s the question,well, of course it isn’t the question.

But we could know possible doubt about that.

It isn’t necessary and argued but that issue hasn’t anything to do with this case.

Now, that’s the only thing they argue under this — about the navigability, the only thing.

What the Court actually decided was that the Commission’s finding was based upon mere speculation.

It ignored positive evidence contrary to it.

For one thing, it ignored the opinion of the — from the office of the chief of engineers that this project would not affect a navigability of the Black River and that the plans of the project were satisfactory so far as the interest of navigation were concerned that positive opinion it ignored.

It indulged in a great — like the examiner did this.

The Commission was not much concerned about this point.

It was concerned about the other point about statutory interpretation and warded nearly all of its opinions of that.

But it had adopted the examiner’s findings.

Well, the examiner’s findings are wrong in many respects but among others in ignoring that and in ignoring also another fact which was stipulated, the facts about this were stipulated by the parties.

And one of the facts was that the maximum possible effect on what’s — on the stage in flow, stage of course being the level of the water and flow — the rate at which the water flowed.

The maximum possible effects were less and frequently occurred without any project being there at all.

And the language of the stipulation unless you have time — I’ll take time to find it but I know it so well that I think I can state it accurately that on numerous occasions, natural conditions have produced greater changes in stage and flow in equal periods of time.

Now we’re talking about the navigability of the stream (Inaudible) that has — that is very limited.

This a little stream in Missouri.

It’s shown historically that it has — it’s capable of floating logs, timber and that’s historic.

Robert J. Keefe:

Floating logs and timber and here are — the only thing the examiner had were changes in the stage of the river, the maximum would be a change of 3.4 feet raising the level of the water that much at the Annapolis gate over a period of 14 and a half hours at a rate of 6/10ths of 1 foot per hour and the maximum decrease would be 35 points .35 feet, 30 to 40.

But he never did get to the point of whether the — those changes in stage and flow would affect navigability, for floating logs and timber, railroad ties which is the only commercial navigability shown and that was shown historically.

My time has expired and I —

(Inaudible)

Robert J. Keefe:

Yes Your Honor.

(Inaudible)

Robert J. Keefe:

Well, that was long before there.

The — what they’re talking about is —