U.S. Supreme Court
Udall v. FPC, 387 U.S. 428 (1967)
Udall v. Federal Power Commission
Argued April 11, 1967
Decided June 5, 1967
387 U.S. 428
Pacific Northwest Power Co. (a joint venture of four private power companies) and Washington Public Power Supply System, allegedly a "municipality," applied to the Federal Power Commission (FPC) for mutually exclusive licenses to construct hydroelectric power projects at High Mountain Sheep, on the Snake River. On the Snake-Columbia waterway between High Mountain Sheep and the ocean eight hydroelectric dams have been built and another authorized, all federal projects. Section 7(b) of the Federal Water Power Act of 1920 provides that, whenever, in the FPC's judgment, the development of water resources for public purposes should be undertaken by the United States itself, the FPC shall not approve any application for any project affecting such development, but shall cause to be made such necessary examinations, reports, plans, and cost estimates and "shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development." Before a hearing on the license applications, the FPC asked for the views of the Secretary of the Interior, who urged postponement of either project until means of fish protection were studied. The hearings went forward, and after the record was closed, the Secretary wrote the FPC urging it to recommend to Congress the federal construction of the project. The FPC reopened the record to permit the parties to file supplemental briefs in response to the letter. The Examiner then recommended that Pacific Northwest receive the license. The Secretary, after asking for leave to intervene and file exceptions, filed exceptions and made oral argument. The FPC in 1964 affirmed the Examiner, stating that "the record supports no reason why federal development should be superior," and "there is no evidence in the record presented by [the Secretary] to support his position." The Secretary petitioned for a rehearing and a reopening of the chanrobles.com-red
record to permit him to supply the evidentiary deficiencies. A rehearing, but not a reopening, was granted, and the FPC reaffirmed its decision. The Court of Appeals upheld the FPC's decision.
1. Although the issue of federal development of water resources must, pursuant to § 7(b) of the Federal Power Act, be evaluated by the FPC in connection with its consideration of the issuance of any license for a hydroelectric project, the issue has not been explored in the record herein. Pp. 387 U. S. 434-450.
(a) The applicants introduced no evidence addressed to the issue, and the FPC, by its rulings on the Secretary's applications to intervene and reopen, precluded itself from having the informed judgment that § 7(b) commands. P. 387 U. S. 434.
(b) If another dam is to be built, the question whether it should be under federal auspices looms large, in view of the number of federal projects on the Snake-Columbia waterway and the effect of the operation of a new dam on the vast river complex. Pp. 387 U. S. 434-435.
(c) Under § 10(a) of the Act, the FPC must protect "recreational purposes," and by § 2 of the 1965 Anadromous Fish Act, the Secretary comes before the FPC with a special mandate to appear, intervene, and introduce evidence on the proposed river development program, and to participate fully in the administrative proceedings. Pp. 387 U. S. 436-440.
(d) The wildlife conservation aspect of the project must be explored and evaluated. Pp. 387 U. S. 443-444.
(e) The urgency of the hydroelectric power project, discounted by the Secretary, was not fully explored, especially in view of the probable future development of other energy sources. Pp. 387 U. S. 444-448.
(f) The determinative test is whether the project will be in the public interest, and that determination can be made only after an exploration of all relevant issues. P. 387 U. S. 450.
2. No opinion is expressed on the contention of Washington Public Power Supply System that it is a "municipality" within the meaning of § 7(a) of the Federal Power Act and entitled to a statutory preference, an issue which may or may not survive the remand. Pp. 387 U. S. 450-451.
123 U.S.App.D.C. 209, 358 F.2d 840, vacated and remanded in No. 462, and reversed and remanded in No. 463. chanrobles.com-red