New England Power Company v. New Hampshire

PETITIONER: New England Power Company
RESPONDENT: New Hampshire
LOCATION: Haag Hall at University of Missouri – Kansas City

DOCKET NO.: 80-1208
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New Hampshire Supreme Court

CITATION: 455 US 331 (1982)
ARGUED: Dec 07, 1981
DECIDED: Feb 24, 1982

Donald K. Stern - on behalf of the Appellants in No. 80-1471 and No. 80-1610
Gregory H. Smith - Attorney General of New Hampshire, on behalf of the Appellees
Samuel Huntington - on behalf of the Appellant in No. 80-1208

Facts of the case


Media for New England Power Company v. New Hampshire

Audio Transcription for Oral Argument - December 07, 1981 in New England Power Company v. New Hampshire

Warren E. Burger:

We will hear arguments next in the New England Power Company against New Hampshire.

It appears that the Attorney General has been able to get out of the snows and arrive, and we will put him on in due course.

He must be anxious to get back to those snows some time today.

Mr. Huntington, I think you may proceed whenever you are ready.

Samuel Huntington:

Mr. Chief Justice, and may it please the Court, these consolidated cases are here on appeals from the Supreme Court of New Hampshire.

The key issues are whether New Hampshire's restriction on hydroelectric exports places an undue burden on interstate commerce in violation of the commerce clause, and whether the restriction is pre empted by the Federal Power Act.

The facts are straightforward.

New England Power Company is part of a holding company system that serves customers in Rhode Island, Massachusetts, and New Hampshire.

It owns several hydroelectric units along the Connecticut River located in New Hampshire.

Energy from these units is delivered to an integrated regional transmission grid and flows freely in interstate commerce.

In 1980, the New Hampshire Public Utilities Commission invoked a 1913 state statute and ordered New England Power Company to sell within New Hampshire the output from the units.

The Commission did not order NEP to interrupt physically the way the power is being generated or transmitted.

Rather, it sought to capture exclusively for the benefit of New Hampshire citizens the economic benefits of these units.

New Hampshire's attempt to retain the economic benefits of an important natural resource exclusively for its own citizens violates the commerce clause.

There are two mainstream cases by this Court which are directly on point.

West versus Kansas Natural Gas Company involved a state prohibition against the export of natural gas.

And in a case even more on point, in Pennsylvania against West Virginia, this Court struck down a statute that required natural gas companies to serve local needs first, before exporting any natural gas.

So you say that the Federal Power Act of '35 doesn't either hinder or help you, or at any rate you don't need it?

Samuel Huntington:

Well, our commerce clause argument is based on the commerce clause itself.

In addition to that we have a pre emption argument that the New Hampshire restriction is pre empted by the Federal Power Act.

Now, New Hampshire seeks to rebut our commerce clause argument by relying on Section 201(b) of the Federal Power Act, so the Federal Power Act is involved in our commerce clause argument to that extent.

And I would like to turn now to that clause.

New Hampshire's argument is that that is an affirmative grant of authority, and therefore Congress affirmatively authorized them to burden interstate commerce.

What is, Mr. Huntington?

Samuel Huntington:

Section 201(b) of the Federal Power Act.

Let me turn immediately to the language of that section, which I think itself is dispositive.

201(b) provides,

"The provisions of Part 2 of the-- "

Where have you cited that?

Samuel Huntington:

--This is at Page 19 of our brief.