Udall v. Federal Power Commission

RESPONDENT: Federal Power Commission
LOCATION: El Paso Natural Gas Co. Headquarters

DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 387 US 428 (1967)
ARGUED: Apr 11, 1967 / Apr 12, 1967
DECIDED: Jun 05, 1967

Facts of the case


Media for Udall v. Federal Power Commission

Audio Transcription for Oral Argument - April 12, 1967 in Udall v. Federal Power Commission

Audio Transcription for Oral Argument - April 11, 1967 in Udall v. Federal Power Commission

Earl Warren:

Number 462, Washington Public Power Supply System versus Federal Power Commission, et. al.

Mr. Ely.

Northcutt Ely:

May it please the Court.

In Number 462, we are concerned also with the High Mountain Sheep project.

The antagonist here however are the Washington Public Power and Supply System, an applicant for a license, a public agency of the State of Washington in a municipality, and the Power Company.

The Washington Public Power Supply System is composed of 16 public utility districts operating in its many counties in the State of Washington and the serving of -- about half of the state's population.

Byron R. White:

We're dealing here with Idaho, wasn't it?

Northcutt Ely:

The dam is about 15 miles upstream from the Washington line on the boundaries between Idaho and Oregon.

Potter Stewart:

Is your client authorized under Idaho law?

Northcutt Ely:

No, sir.

The State of Idaho asserts that it has the power to veto the selection by the Federal Power Commission of this public agency of the State of Washington as a licensee and we denied a veto power of the State of Idaho.

We say that under this Court's decisions in the Tacoma case --

Tom C. Clark:

I don't want to hear into your -- into details of your argument.

But your argument is that being a public agency of the State of Washington, it has a standing over the Federal Power Act to be a licensee of a dam in Idaho?

Northcutt Ely:

Yes, sir.

That we have a capacity that we are licensed to carry out all of the terms of the license within the State of Idaho and the State of Oregon.

Tom C. Clark:

But to such, you have to be a municipal?

Northcutt Ely:

A municipality in order to claim the preference under Section 7 (a) that we do claim.

Tom C. Clark:


Do you brief the point as to whether or not you are a municipality?

Northcutt Ely:


So held in the court below and so held by the Commission so to speak.

A map behind me shows the Snake River in this area as Mr. Claiborne told you that flows north toward the top of the map and is joined by two major tributaries in this area.

The Salmon -- I mean in the -- from the east, the Imnaha coming in from the west.

The issue before the Court is whether this municipality is or is not entitled to a preference under Section 7 (a) of the Act which directs that the Commission in granting permits and in granting licenses for a no preliminary permit has been issued, shall give preference to the application of a state or a municipality and it goes on to say provided that the plans are the same or equally well-adopted or may shall within a reasonable time to be fixed by the Commission be made as well-adopted as also its competitor.

We are not concerned here with the proviso of the Section 7, namely the opportunity it gives us to make our plants as well adopted and so as the Power Company for the reason that the power that the plants submitted here by the municipality provided a power installation of more than 30% larger than that which the company proposed.

And while the Commission upon its initial opinion held that the company's plant, this smaller plant, was vested after to the development of the resource.

On rehearing, it found specifically that the plan exactly as we had proposed for the larger plant, 1,200,000 in kilowatts was vested after and substituted that description but licensed the plant which we had developed to the company solely under the compulsion of a permit, a permit which have been issued to the company as Chairman Swidler said in his dissent for the investigation of an entirely different project upon which the Commission itself had rejected their license application.

The primary question before the Court is whether this permit issued for the investigation of another project indeed was intended to encompass the High Mountain Sheep project.

May I have the red overlay here?