*1 THE INTERIOR OF SECRETARY v. UDALL, COMMISSION POWER FEDERAL et al. April 11, June 1967* Argued 1967. Decided No. 463. Washington Supply System *Together Public Power with No. al., Federal Power Commission et also on certiorari to the same v. argued April court, 11-12, 1967. *2 petitioner for cause argued Claiborne
Louis F. General Solicitor were the brief him on With 463. No. A. Richard Weisl, General ttorney A Marshall, Assistant J. Hill, Frank Billingsley S. Marquis, P. Posner, Roger J. Ernest Hogan and Harry Weinberg, Edward Barry, briefs filed cause Ely argued Northcutt London. in No. petitioner for respondent for cause argued A. Solomon
Richard him on With cases. both Commission Power Federal Wahrenbrock, Peter H. Howard E. were the brief Schiff cause argued the Hugh Smith Joel Yohalem. al. in both Power Co. et Pacific Northwest respondents Shea, Francis M. were him on the briefs With cases. *3 Moore, Jr., Jr., J. and Dempsey, Ralph William H. Thornton, Attorney Gen- Y. Kramer. Robert John R. Sabin, L. Dale T. Crabtree Leon Richard W. eral, and for the Hagen, Attorneys General, Assistant filed brief Shepard, Attorney Allan G. General of Oregon, State III and T. J. Jones filed a brief for the Idaho Fish Idaho, Frank Commission, Reifsnyder and Game C. filed a brief Federation, Mijich for the Idaho Wildlife Joseph T. Washington filed brief for the Sportsmen’s State Council, Inc., al., respondents et in both cases. Douglas
Mr. opinion delivered the Justice Court.
The Federal Power Commission has awarded Pacific Company (a Northwest Power joint venture of four private power companies) a license hydro- to construct a power electric at Sheep, a site Snake River, upstream a mile from its confluence with the Salmon. 31 F. C. 247, 1051. P. The Court of Appeals approved action, S. App. U. D. C. 209, 840; granted 358 F. 2d and we petitions for certiorari. 385 U. S. primary question
The in the cases an involves inter- pretation of (b)7§ of the Federal Water Power Act of as by amended the Federal Power Act, 49 Stat. 842, 16 U. § S. C. 800 (b), provides: which
“Whenever, judgment of the Commission, the development of any water resources public purposes should be undertaken by the United States itself, the Commission shall approve any appli- cation for any project affecting such development, but shall to be cause made such examinations, sur- veys, reports, plans, and estimates the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may appropriate con- find cerning such development.” question turns on (b) § whether requires a show- ing that licensing of a private, state, or municipal agency1
1Section 4 provides of the Act part: “The Commission is hereby empowered— authorized and “(a) To investigations make and to collect and record con- data cerning the utilization of the water any region resources to be developed, the water-power industry and its relation to other indus- tries and to foreign interstate or commerce, concerning location, capacity, development costs, and relation to markets of power sites, and whether the from Government dams can be advantageously used the United public States for purposes, its *4 and what is a fair value of power, such to the extent the Commis- may sion necessary deem or useful purposes for the of this Act. “(e) To issue licenses to citizens of the United States, any or to association of such citizens, or any to corporation organized under the of laws the any United States or State thereof, any or to State or municipality for purpose the of constructing, operating, and maintaining dams, conduits, water reservoirs, power houses, trans lines, mission or project other necessary works or convenient for development the improvement and navigation of for and the devel opment, transmission, and power utilization of across, along, from, or any in of the streams or other bodies of water over Congress which jurisdiction has authority under regulate its to foreign commerce with 432 We development. federal to satisfactory alternative
ais record present the way because question the put and non- federal of merits relative on the silent largely follows: is as transpired What development. federal Public Power Washington and Northwest Pacific Both (e) § 4 under “municipality” allegedly System, Supply for applications filed Act,2 the of (a)7§ under and con- they were and sites; mutually exclusive licenses hearing Commission the the Before hearing. for solidated the Interior. Secretary of of the views the solicited of either licensing of the postponement Secretary urged and other the salmon protecting means while But March 15,1961. was on That studied. were fisheries the 1962, after June and on forward hearings went the he before closed, but was the Examiner record before the Commission Secretary wrote decision, the his rendered consideration Congress the it to recommend urging The Com- Sheep. High Mountain federal construction Secretary’s letter the to allow the record reopened mission supple- file parties to invited the and incorporated to be the 8, 1962, it. October response On briefs mental Pa- recommending that decision, his rendered Examiner disposed He receive the license. cific Northwest upon any part or among States, several nations (including the States public reservations United lands and surplus utilizing or Territories), purpose of water or for the except any dam, as herein from Government water (e). (a), 839, 840, S. C. provided . .” 49 Stat. 16 . . U. §§797 2 provides: (a) supra, (e). of the Act for Section See n. §4 no permits where issuing preliminary licenses hereunder “In issuing to new permit licenses preliminary has been issued and give prefer- the Commission shall under hereof section licensees by provided municipalities, applications therefor States ence to by equally well are the Commission same deemed plans reasonable time to be fixed adapted, within or shall adapted, equally well conserve utilize be made Commission region . . . .” 49 public the water resources interest (a). 842, 16 U. S. C. Stat. §
433 of development ground issue federal that there “is in development no evidence this record that Federal will provide greater power flood benefits, passage, fish control, navigation or recreation; and there is substantial evidence contrary.”
The asked for leave to intervene and to file exceptions to the Examiner’s decision.3 The Commission allowed filing exceptions intervention “limited to of the Presiding decision and in participation Examiner’s argument such might oral as subsequently ordered.” The Secretary exceptions filed in participated oral argument. February af- The Commission on saying firmed the Examiner agreed that it with him “that the record supports why no reason federal develop- ment superior,” observing should be that we “[w]hile have extensive material before position us on the the Secretary of the Interior, is in there no evidence presented by record him to support position.” his F. P. atC., Secretary argued The development High that federal Moun Sheep necessary (1) hydraulic
tain because and electrical coordi nation with other projects, particularly Columbia River Basin already federal dams or to be sites, constructed on the downstream effectively could be more Sheep part achieved is a (2) system; development the federal federal will assure maximum use of the federal grid, contributing northwest transmission thus repayment maximum transmission, the federal investment in will, which turn, power redound to consumers; the benefit of the (3) development provide greater flexibility federal would pro management (4) tection in the resources; of fish flood control could (5) storage better be effected operation; flexible federal releases navigation requirements ownership could be made under federal supervision power supply; (6) with less effect on federal development provide expand can better recreational facilities for an ing population. Secretary noted, however, immediate produce construction of the would an excess large the Pacific Northwest which would cause losses to Bonneville Power economy. region’s Administration and severe harm to the *6 record in this “nothing it found say to that on went
It (flood dam purposes public the that indicate” to by adequately as be served would not etc.) control, develop- federal under they would as Northwest Pacific Secretary (or the that agree “We added, itAnd ment. superior a have normally would operator) any single the with HMS of operations the co-ordinate ability to no there But river. on the projects affected other scope the the can determine we which upon evidence system of river in the context matter of this seriousness operators different a number already has which the Northwest e., i. system, co-ordination existing an and at 276-277. Id., Pool.” Power asking that rehearing, for a Secretary petitioned The the supply evi- him permit opened to be the record reopening rehearing, but not A dentiary deficiencies. shortly Commission and the granted; was record, modifications with original decision its reaffirmed here. material been ex- has never development federal
The issue of no introduced applicants record. plored this Commission and the question; to that addressed evidence though his to do so Secretary opportunity an the denied briefed was of timely. The course issue was application Sec- inquiry was undertaken. yet no argued; factual and the Com- “Whenever, judgment (b) says tion public for any water resources development mission, by the States be undertaken United should purposes appli- other approve shall not the Commission itself,” on the rulings its the Commission Yet cations. reopen intervene applications that judgment the informed having it from precluded commands. (b) § do know no merits. We judgment indicate
We waterway Snake-Columbia between on the Mountain Sheep ocean, eight hydroelectric dams been have built and another authorized. These are fed- projects; eral dam built, another is to be question whether it auspices should under federal large. looms Timed releases water at High stored Mountain Sheep may affect navigability; they may hydroelectric affect production of the downstream dams when the river too generators level is low to be at maximum operated capacity; they may affect irri- *7 gation; they and may protect salmon runs when the water downstream too hot or insufficiently oxygenated. Federal versus private or municipal control may con- ceivably make a vast in functioning difference the of the vast river complex.4 agencies Various federal long have engaged develop been comprehensive of a plan ment improvement for the of the Middle early
Snake. As Secretary as 1948 the of the Interior submitted a comprehensive plan development for the of water of resources the Corps Columbia River Basin. In Engineers 1949 the of submitted comprehensive plan development for the of the Columbia River H. 531, Cong., Basin. R. Doc. Sess., 1, pp. 1-3, No. 81st 2d Vol. 4, pp. 1429, 6, p. Vol. 1482, plan recommended, Vol. 2509. The part, in federal construction of nine run-of-the-river dams down High stream from Sheep regulating Mountain and a reservoir for Canyon the nine dams at Hells upper Snake. The nine by Congress dams were all authorized or, have been in one case, will be projects constructed as federal in accordance with the plan. Canyon private Hells later was licensed for development, and, according Secretary to the Interior, adequate regulat without ing Corps Engineers facilities. The of Secretary and the Interior then recommended regulating that the federal built, dam be study, High further Sheep after at Mountain last suitable site. —the 403, Cong., H. R. Doc. Sess., 1, pp. No. 87th iv, viii-ix, 2d Vol. Though congressional it is not contended that authorization of the may pre-empted nine federal dams downstream have the Com authority mission's Sheep license private for (cf. development Chapman Comm’n, v. Federal Power 345 U. S. 153), argued Congress appropriated it is that vast sums for federal any should
Beyond question is the whether dam be constructed.
As to this in his letter to Commission for a deferment pleading dated November applications consideration of stated: carrying Department’s responsibility “In out this protection for vital conservation light fishery Northwest anadromous resource and the fact that the to be available a result as treaty of ratification of the proposed Columbia River provide with Canada will needed time which can be fishery devoted to further efforts to resolve the problems presently posed by we applications, these unnecessary believe that it is at for this time and years some to come to any project undertake in this area. may
“You be assured that the Fish and Wildlife Department Service will re- continue, this with newed engineering studies emphasis, research that must be done before we can be assured that passage provided fish can be anadromous *8 at these proposed projects.” Since the cases must be Commission, remanded to the appropriate is aspect it refer to that of the cases. (a) provides Section 10 of the Act5 project that “the development hydroelectric of the Columbia River Basin’s resources plan accordance contemplated key with an overall that the system federally operated structure in the would be and that efficiently operated only High downstream dams can be if Sheep federally operated. is following “All licenses issued under this Part shall be on the conditions:
“(a) project adopted, including maps, plans, That specifications, judgment shall be such as in the of the Commission adapted comprehensive plan will improving be best to a for or developing waterway waterways or for the use or benefit of inter- adopted” shall be such “as in the judgment of the Com- will mission be best adapted to a comprehensive plan improving or developing waterway . . . and for other public beneficial uses, including recreational purposes.” (Emphasis added.)
The objective of protecting “recreational purposes” means more than that the reservoir created by the dam will be the best one possible or practical from a recrea tional viewpoint. There are already eight lower dams on this Columbia River system and a ninth one authorized; and if the Secretary is right in fearing that this additional dam would destroy the waterway as grounds spawning for anadromous (salmon fish and steelhead) or seriously impair that function, the project is put in an entirely different fight. The importance of salmon and steelhead in our outdoor fife as well as in commerce so great that there certainly comes a time when their destruction might necessitate a halt in so-called “improvement” or “development” of waterways. The destruction of anadro- state foreign commerce, for the improvement and utilization of water-power development, and for other public beneficial uses, in- cluding recreational purposes; necessary in order to secure such plan the Commission shall authority have to require the modification of any project and plans specifications works before approval.” 49 Stat. 842, 16 U. S. C. (a). §803 6In 1966 the value of the Pacific salmon catch was over $67,000,000 and in 1965 $65,000,000. over United Depart States ment of Interior, Fish & Wildlife Service, Fisheries of the United States, p. 2. As noted the Commission, “the Columbia River is greatest producer of Pacific salmon and steelhead trout in the United States.” “Columbia River salmon have impor been tant in the development of the Pacific Northwest for almost a century.” “The commercial catch of Columbia River salmon is *9 estimated to be worth $12,000,000 annually and the sport fishing attributable to the Salmon River alone . may . . be worth as much $8 as year.” million a 31 F. P. C., at 259.
438 is so we fish in our western waters notorious7 that
mous Congress through present Act cannot believe that authorized their ultimate demise. speculate
We need not as to what the 1920 purpose may have been. For the 1965 Anadromous Fish Act, Stat. 1125, (1964 §§ U. S. C. 757a-757f ed., Supp. II), aspect is on this present parí case in materia with the 1920 Act. 1§ We know from of the 1965 Act that Congress greatly depletion concerned with the of these fish resources “from water developments resources other causes.” Rep. See also H. 1007, R. No. 89th Cong., 1st Sess., pp. 2-5; Rep. S. 860, Cong., No. 89th Sess.; 1st Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Com- mittee on Merchant Marine and Fisheries, 89th Cong., 1st Sess., 133; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee Merchant Marine and Fisheries, 88th 2d Cong., Sess., 11. The rapid depletion of the Nation’s anadromous fish resources Congress led to enact the Anadromous Fish Act which authorizes federal-state cooperation for the conservation, development, and en- hancement of the Nation’s anadromous fish resources prevent and to their depletion from various causes in- cluding water resources development. In passing the Congress Act, was well aware that the responsibility for the destruction of the anadromous fish population par- tially lies with “improvement” “development” of water It resources. directed the In- terior “to conduct such studies and make such recom- mendations as the Secretary determines to be appropriate regarding the development management of any Rep. See H. R. Cong., pp. No. 89th Sess., 2-5; Rep. 1st S. Cong., Sess.; No. 89th 1st Fish, Hearings Anadromous before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., Sess., 2d
439
stream or
body
other
of water for the conservation and
enhancement of anadromous fishery resources.” § 2.
Mr. Justice Holmes once
“A
wrote that
river is more
8
an
than
it
amenity,
is a treasure.” New
v.
Jersey New
York,
“The finds that some of the free-flowing rivers of the possess United States unique water conservation, scenic, fish, wild- life, and outdoor recreation present values of potential bene- fit to the people. American Congress also finds that our established policy national of dam and other appro- construction at priate sections of the rivers of the United needs States to be com- plemented by policy preserve that would other selected rivers or sections thereof in their free-flowing protect condition to the water quality of such rivers and to fulfill other vital national conservation purposes. It is policy Congress to preserve, develop, reclaim, and make accessible for the benefit of all of the people American parts selected of the Nation’s diminishing resource of free-flowing rivers.” And (d) see 2 and 4 §§ the Wilderness Act of 1964, Stat. evi- introduce intervene, to appear, standing
special program, development river proposed dence proceedings. administrative fully participate river use recreational obviously one Fishing legis- *11 as the implications vast commercial has it also The Commis- Act indicates. the history of lative phase this wholly neglect did not sure, sion, to to the anadromous it adverted report In its problem. controversial” “highly was that it stating problem, fish reservoir on record.” “clearly resolved was not mi- upstream both to hazard” important “the most is can migrants Upstream migrants. downstream grants and those by fish ladders. But effectively quite be handled turbines; and through the go must traveling downstream are Chinook salmon Moreover, mortality high. is their the adapt to to appear not “basically river fish do C., P. by a reservoir.” 31F. presented conditions different from the river is different of a ecology (cid:127)at 260. The What the full behind ecology of a reservoir built a dam. get a But we on salmon will be is not known. effect As to this report. glimmering from the Commission’s the Commission said: peculiar
“A exhibits a thermal structure. reservoir regard to During homogeneous the it with winter is the a horizontal temperature, but as season advances sinking with the colder water stratification results Since River water is than lower. Salmon colder water, possible, probable, Snake River it is in Nez Perce from the reservoir the water the layers in separate rivers would be found and be two Presumably up- off at different times. drawn migrants reaching might fish stream ladders one at with presented time be water from one river and at from time another water other river. If water important attracting quality the upstream proper streams, many their as migrants experts of con- believe, this stratification would be a source delay. fusion and Also a source of confusion upstream migrants tend- predicted would be the ency by the record from the Salmon shown for water arm up River of the Nez Perce to flow reservoir Again Snake River arm and vice versa. complicated problem finding fish are faced with a way. their velocity
“The of flow in or HMS the Nez Perce very compared reservoir would be low with the flowing free compared stream or even flow of McNary reservoir dam on the Colum- bia. Since the upstream migrants follow water migrants flow and downstream are carried cur- rent, such low velocities a further obstacle to offer the passage of anadromous fish.
“The record also shows during *12 that the summer oxygen the months content of water the reservoir at lower fall the levels will amounts which dangerously are insufficient salmon. The in oxygen appears decrease content to be due to de- sinking organisms composed (plankton) dead from upper layers the of water. The record indicates require oxygen salmon an approxi- that of content mately parts per million, yet five oxygen the con- at tent the 250-350 foot level fall in August would parts per to less than three million.” 31 C., F. P. at 261.
The Commission further noted that salmon re- some main in the reservoir due to of “loss water velocity accumulation of dissolved salts” and are lost “as perpet- species.” uators of the But it did not have statistics showing loss of the the downstream migrants as a result through the turbines. passing We are told from studies of the Bureau of Commercial Fisheries greatest that the migration downstream at night occurs when turbine loads that are told from these studies We are lower.9 migration salmon the downstream of dams on effect reported that may be disastrous.10 It and steelhead designed, are such as practical alternatives unless their above the dams and juvenile fish collection of an may inquest we witness it, transportation below asset of great “recreational” industry and great Nation. Secretary of 21, 1960,
In his letter November present the adverse effects this the Interior noted pro- anadromous facilities fish, would have on that and that “unproved,” the fish were posed protect while in the fullest sense calls for a deferral “conservation presented advantage opportunity full is taken Libby storage Canadian The Commis- [Dam].” “high present sion that dams and reservoirs admitted obstacles to major fish,” opti- anadromous it was not that efficacy “as to passage high mistic of fish facilities on 9Long, Day-night Occurrence and Vertical Distribution of Juve (U. nile Anadromous Fish in Turbine Intakes S. of Com .Bureau Fisheries, Fish-Passage Program) 12,13, mercial Research data, appear passage juve From the it would that successful highly unlikely through impoundments nile salmonoids is that will implies be created in the Middle Snake River Basin. This passed area, migrants natural runs to be in this downstream are must the head of a reservoir or in streams above collected transported the reservoir and below.
“Passage juveniles Escapement has not been successful. from year year, ranging the reservoir from approximately varied from *13 percent 10 to 55 passage of the calculated recruitment. The best conjunction occurred in 1964 in with drawdown, high a substantial inflows, spring fill-up and a large discharges slow that in resulted (up 50,000 s.) during migration. Progeny to c. f. spring- smolt of appear run chinook stocks to fare better than from those the fall run, suggest and limited species may data steelhead that this be having greater difficulty passing through even than salmon in Elling, Summary Progress reservoir.” Collins & of Fish-Passage in p. 1964, 2, 1, Fish-Passage Research Vol. Program, Research Progress (U. of 1964). Review S. Bureau Commercial Fisheries dams,” and concluded with the forlorn that, statement can hope “We for the best and we will continue insist to that any building licensee a high dam at a site which presumably involves major fish runs everything pos- do sible within the limits of reasonable expense preserve to the fish runs. But as now we must understandably assume that only best efforts will be partly successful and real damage may and probably will be done any such fish 31 F. runs.” P. C., at 262.
Equally relevant is the effect the project on wild- life. In his letter of November 21, 1960, Secretary of the Interior noted that areas of proposed proj- ects important were wildlife sanctuaries, by inhabited elk, deer, partridge, variety game of small and by used ducks, geese, mourning during migration. doves He concluded that “adverse effects the proposed project on wildlife could mitigated.” [HMS] [not] Letter (Joint November App. 133), as corrected letter of December 7, 1960 (J. 137). A.
concluded that “Several thousand acres of mule deer range would be inundated and there would be a moderate reduc- tion of deer number as a result of loss of range. There would be losses of upland game, fur animals, waterfowl. margins Reservoir would be barren unat- tractive all to wildlife groups. Waterfowl use of the reser-
voir insignificant. would be There does not appear be any feasible means of mitigating wildlife losses.”
The Fish and Wildlife Coordination Act, 48 Stat. as amended, 72 Stat. seq., 563, 16 U. S. §C. 661 et estab- lishes a policy national of “recognizing the vital contribu- tion of our wildlife resources to the Nation, the increasing public significance interest and thereof due expansion of our national economy and other and to factors, provide that wildlife conservation shall receive equal considera- tion and be co-ordinated with other features of water- resource development programs . . . .” Section 2 (a), 16 U. S. 662§C. (a), provides that an agency evaluating a *14 any or other waters of stream which “the
license under impounded” “first proposed are to be body of water ... States Fish and Wildlife with the United shall consult to the of the Interior ... with a view Service, Department of by preventing resources loss conservation of wildlife Certainly resources . . the wild- damage to such . .” aspect explored life conservation must be and evaluated.
These factors of the anadromous fish other may wildlife indeed in all-important light be energy emerging. alternate sources of are Secretary In his letter of November noted 21, 1960, the that, power projects due to increased resources, the could safely projects deferred. “These could extend the time still as could also in be the case the event further, power nuclear materialized at Hanford the 1960-1970 period. This possibility, you know, as has been under study by your intensive staff for Energy the Atomic Commission . . . .” urgency hydroelectric power High at Moun-
tain Sheep was somewhat discounted petition his to intervene:
“Power needs the Northwest do require immediate construction of Mountain Sheep Project. One the reasons which leads the Sec- retary to intervene now is that the Examiner’s decision of October 10, 1962, was handed down just prior to Congressional action which substantially altered the federal program resource Pacific Northwest. Congressional This action re- quires complete re-examination and re-appraise- ment of the conclusions stated as the basis for findings. Examiner’s
“The action of Congress in the session just con- cluded has provisions made for new federal power producing facilities. Eddy with Dam, Bruc[e]s *15 of peak capacity 345,000 KW, was authorized an appropriation for the start construc- received of in Fiscal Year Dam, peak tion 1963. Asotin awith of capacity 331,000 KW, was authorized. also peak 466,000 Little with a of capacity Goose Dam, which KW, previously had been received authorized, appropriation an for the of in start construction important 1963. Most of all, generation the at Hanford Thermal Project, approxi- which would add mately 905,000 power kilowatts to Northwest’s approved. was also resources “There are other possibilities power new regarding sources which have prospects of realiza- reasonable They tion. include Canadian of storage, realization which dependent upon is consummation Cana- of the Treaty. dian firm capacity Additional would which accrue United from storage States such would be 1,300,000 kilowatts. In Treaty addition, would allow the Libby construction of Dam which initially would capacity have a 397,000 of kilowatts. There also possibility availability United States power from the entitle- Canadian ment under Treaty of 1,300,000 kilowatts. Plans are way also under for construction a 500,000 kilowatt plant steam by Kittitas PUD and Grant County A PUD. number of different agencies have proposed the construction the Pacific Northwest- Southwest transmission intertie which, electrical integration, would an add additional 400,000 kilo- watts of firm capacity for the Pacific Northwest.
“The total power resource of the area is therefore predictably in excess of all foreseeable requirements thereon for period through 1968-1969 and suffi- cient to meet all requirements until at least 1972- 1973 and potentially years beyond that date. The addition of High Mountain Sheep Dam will not 1972-1973, until at least and construction be needed planned bring production it into at should developing picture or later as the resource power time indicates. generating facilities,
“New which are not corre- power power lated to the resources and demands marketing within the area of the responsibility of necessarily BPA result in power on the surpluses system federal which is the supplier basic wholesale thereby area and result financial deficits on the marketing system. federal In view system role of the Federal sup- as the base *16 plier for the area, this threatens stability permanent area’s resources and hence of the area’s economy. The High Sheep project at this time would have such an effect.” We are also hydroelectric told that power promises to occupy relatively place small supply world’s energy. It is estimated that when the world’s population reaches 7,000,000,000 it will in a few decades—the —as energy total requirement11 will be 70,000,000,000 metric tons of coal or equivalent annually and that it will be supplied as follows: „„ ,, .. ^^ Equivalent metric tons of Source (billions) coal energy (for Solar space two-thirds of heating). 15.6 Hydroelectricity . 4.2 Wood for lumber paper. 2.7 Wood for conversion liquid fuels and chemicals. 2.3 Liquid “petro” fuels and produced chemicals via nuclear energy . 10.0 Nuclear electricity. 35.2 Total 70.0 Brown, The Next Hundred Years (1957), p. 11Projections of energy sources for coming years have been R, in Energy summarized & D and National Progress, prepared for the Interdepartmental Energy Study by Energy Study
By 1980 nuclear energy represent a significant “should proportion power production.” Id., world By at 109. century end of the “nuclear energy may account for about one-third of our total energy Ibid. consumption.” “By the middle of the next century it likely seems most of our energy needs will be satisfied nuclear energy.” Id., at 110.
Group, Under Direction of A. B. Cambel, at following 22. The table is taken from that source. energy requirements
*17 Percent total supplied by hydro, nuclear, and fossil fuels nuclear rate.” percent Therefore, [5] 4 Concerning [3] 2Although [6] [1] Nuclear Nuclear use is for Estimates were made in terms of conventional Calculations based on power of the total the this forecast should insinuate [1975] nuclear included with coal. values which are might electricity power, goes figures come from atomic fuels. to itself generation. the after report given into the values for that adjusting hydropower to the in a table aie used here. adds energy economy “* * * sources, year but but text indicates that 2.5 to 3.75 are there should be no of the fuel shown input country only basis. at a in graphic much faster surprise form. Note: according U.S. percent; nuclear, a. Actuals for 1960 to the Bureau of Mines: 3.9 Hydropower, percent. fossil percent; fuels, 0.1 96.0 Hydropower equivalent b. is on a fuel basis. by types a fuel but are in a presented c. Week’s estimates show breakdown cumulative which makes estimation of annual values difficult. form period are within the schedules time of these
Some by the Commission. granted licenses 50-year the basin River the Columbia coming is energy Nuclear on the plant to build are plans afoot 1975. For This one Helens. north of St. 14 miles site, Trogan This em- kws. 1,000,000 capacity will have plant reference Secretary’s relevancy of the phasizes the energy at the nuclear distribution production impor- called “most which he Project Thermal Hanford Congress has authorized. which of all” and tant 604. Stat. and the reasoning of the Commission
Implicit be project must that this assumption Examiner the In now. view it must be built built and against militating the factors Commission, one of of In- Department was that development “[t]he federal inten- present no frankly it . . . admitted [had] terior to commence construction seeking authorization tion C., P. project.” an HMS F. to construct planning compre- stated that report Examiner’s at “[a] multi- optimum provides prompt plan hensive of the water and that development resource” purpose on a proposed projects “turn the relative merits component of the costs and benefits of devel- comparison adapted is best to attain and on which opments at time development earliest with optimum sacrifice of natural (emphasis smallest values.” J. A. 394 added). neither the Examiner nor the But Commission specifically found that deferral of the project would in interest or public development be that immediate public interest than would more construction at some time or no at future construction all. Section 4 (e) authorizing the section Act, the Commission grant licenses, provides part: the contemplated improvement
“Whenever inis, *18 judgment the Commission, desirable and justified
449 improving purpose interest for the public the use waterway waterways for a or developing or finding a foreign commerce, or or benefit of interstate by shall be made the Commission to that effect of the Commis- of the records part become shall (e). 797 16 U. C. § sion.” Stat. S. that: provides of the (a) And Act § as in the adopted . . shall be such “the . adapted will be best of the Commission judgment improving developing or comprehensive plan to a waterway waterways or for the use or benefit foreign improvement for the commerce, interstate and for water-power development, and utilization of public including recreational uses, other beneficial purposes (a). § . . .” 49 Stat. S. C. 803 . U. The issues of whether deferral of construction would public be more in the interest than immediate construc- preservation tion and whether reaches river be more and in public affected would desirable interest proposed than the are development largely unexplored in this record. cannot We assume that the Act com- mands the many projects immediate construction of as possible. as did Commission discuss the that, power of Interior’s claim due to sources, alternate will region power by not need the supplied Sheep dam for some time. And concluded it regional significance power more . . . than the “[o]f are situation the load resources North- [Pacific companies which Company] themselves,” west Power near 31 F. power C., could use the future. P. at summary “In as to added, power, It the need for sponsoring companies we conclude that PNPC will power HMS as soon as it be able use is available.” C., rehearing, 31 F. P. at 273. On the Commission stated that “HMS will be needed on a regional basis _” 1970-1971 31 F. P. C. 1051, 1052.
450 project aof proponents the whether question
The to is relevant supplied power the to able use” “will be regional the is So too interest. public of issue the the should inquiry the But power. additional the for need the empowers Act the license under A there. stop not hydro- benefit, and use its own for construct, to licensee and waters navigable flow of utilizing the projects electric the from resources water appropriate effect, to thus, in Commis- authority to the grant of The domain. public of not, does resources federal water alienate sion to bene- bewill project whether the on simply turn course, the whether solely the test is licensee. the ficial to .Nor test The power. additional to use the will be able region And interest. public will be the whether is explora- an after only made can be that determination includ- interest,” “public to the relevant of all issues tion sources alternate supply, demand ing future of reaches preserving public interest the power, preservation areas, the and wilderness wild rivers pur- recreational fish for commercial anadromous wildlife. protection the poses, and the waterway, as a destroy river The need satisfy the choices available demise, of its desirability all relevant energy are demands future —these un- they largely 10 but were § 7§ under decision by the Commission. touched these exploration an be there should remand our On points other as well as the cases, phases of neglected Secretary. by the raised our not opinion no on merits. It express
We should built any whether dam at all be determine task to or private it be is authorized should whether one (b) is that ruling § under If the ultimate public. site Sheep should concerning the decision mentioned factors we have Congress, by be made will it many considerations doubtless among the will (b)7 is the § If ultimate decision under appraise. discharged its will have the Commission way, other an informed makes Act unless under the it functions of the cases. phases judgment these by Wash- questions presented with the This leaves us System No. 462. Supply Power ington Public “municipality” it are that it is points main raised entitled to meaning (a) and therefore § within the *20 preference power site, a over this Commission that while Pacific statutory preference, violated that prior preliminary permit granted Northwest had a under Act, unlawfully expanded § 5 of the the Commission toit express opinion include this site. We no on the merits they may may these contentions because or not survive a remand. If in time the project, any, becomes Washington federal one, Supply System Public Power would be along excluded with Pacific Northwest, points by now it would If in raised become moot. time a new Northwest, license is issued to Pacific points by Washington now raised Supply Public Power System can preserved. Accordingly in No. 462 we vacate the judgment and remand the case to the Court Appeals with instructions to remand to the Commis- sion. In No. 463 judgment we reverse the and remand the case to the Appeals with instructions to Court remand the Commission. Each remand is for further proceedings opinion. consistent with this
It is so ordered. part took no in the consideration Mr. Justice Fortas of these decision cases. Harlan, whom Mr. Justice Mr. Justice Stewart dissenting. joins, first,
I thought had it indisputable, may that a court by overturn determination made an administrative agency upon a question committed to the agency’s judg- 452
ment is “unsupported by unless determination sub- 1 stantial evidence,” and, second, that the substantiality of the evidence must be measured through, only 2 an after, examination of the “whole record.”
The Commission has determined, the basis of 14,327 pages of testimony and exhibits, of “extensive material” submitted after the close of the record Secretary of the Interior,4 and of the “general Commission’s own 1Administrative (e), Procedure Act (2)(E) U. S. C. §10 §706 (1964 ed., Supp. II). Corp. See also Universal Camera v. Labor Board, 340 474, 488; Jaffe, U. S. Judicial Control of Administrative seq. (1965). Action 600 et (1964 2 5 U.S. C. ed., Supp. II). §706 247, F. P. C. 4The history Secretary’s extraordinary series belated and apparently indecisive interventions in proceedings these warrants a complete
more chronicle than given. the Court 31, has On March 1958, applied Pacific Northwest for a license for the Sheep site, and on October the Commission solicited the views of the of the Interior. On 21, 1960, November *21 Secretary replied substantively, urged and that the entire postponed, be power since supply the region available was, the view, in his then hearings sufficient. The nonetheless continued. On 15, 1961, March Secretary the more, wrote once first to indicate that he withdrawing permission was Department for Interior employees testify to hearings questions the at. the alternative protection sources and of the fish, the anadromous and second to suggest hearings that the should be suspended or recessed until the end of years more than three was, later. There in these vari ous communications, no intimation that development federal of the site was or desirable even appropriate. The hearings concluded on September 12, 1961. On 28, 1962, June the Secretary suggested, for the time, first that development might federal suitable; be not, he did however, urge that either or he the immediately Commission should seek con- gressional approval of such a project, precondition federal to its commencement. Nor Secretary did the intimate evidentiary that the record that compiled had been by the might Commission be in-
complete, request reopened that it be so might supple- that he knowledge of System,” the Columbia River C. F. P. that 247, 277, application the of Pacific was Northwest adapted to a comprehensive plan,” “best 49 Stat. C. 803 (a), development portion § U. S. for this River Basin, that, Columbia as a consequence, this site should not now develop- be reserved for later ment the United States.5 The Appeals Court of unanimously concluded that this evidentiary record that establishes “the Commission was amply justified in refusing to recommend federal development and in issuing a private license for con- Nonetheless, sponte ment it. the Commission sua ordered the parties respond Secretary’s suggestion. to to the 8, 1962, completed On October the Examiner recommendations, his concluding proposal Pacific adapted” Northwest’s was “best development, part river’s development because federal could not reasonably immediately anticipated. Secretary The there- upon sought time, to intervene out of exceptions. and to file He did request reopened. that the record be granted, His were motions very exceptions extensive argument were filed. Oral exceptions subsequently was exceptions heard. Neither in nor, apparently, argument Secretary reopen oral did the seek to supplement record the evidence before the Commission. decision, rejecting
The Commission’s Secretary’s suggestions, February 5, was announced on sought 1964. The a re- hearing 26, 1964, only on March then did he ask that reopened. only record be general He offered the most indications he evidence would granted. introduce his motion were surprisingly, Not motion, and, Commission denied the after “pleadings,” consideration various affirmed, with certain minor modifications, its first order. 31 F. P. C. 1051. These actions for review Secretary, apparently followed. time, for the first an- petition nounced in his this Court a writ of certiorari that prepared he now congressional was to seek immediate approval for *22 High federal construction a dam at Sheep. 5 (b) Section 7 Act, the Federal Power 49 842, Stat. 16 U. S. C. (b), requires 800 any application Commission to refuse § it when concludes that should be undertaken the United States. 358 F. App. 209, 217, 840, D. C. 2d U. S.
struction.” was not, I Doubtless much evidence agree. to a determina- submitted, pertinent labeled as as it was responsibilities (b), § of the Commission’s under tion I had before understood that evidence marshaled but agency’s finding must, in of an it is to be support tidily at credited, categorized hearing have been according purposes might to the for which it subsequently employed. be only
I despite can conclude the Court, that its self- ante, serving disclaimer, pp. in 450-451, has, its haste to give findings force to its own breeding fact on the re '6 quirements of anadromous fish and on the likelihood that solar shortly and nuclear will be alternative sources of supply, substituted its own preferences for given the discretion by Congress to the Federal Power Commission. In emphasized it must be particular, that the Court, among alone the Secretary of the Interior, Commission, Pacific Northwest, the Washington Public Supply Power System, and the various other intervenors, apparently supposes that no dam may at all now be 6It must nothing noted that terms, purposes, legis history lative of the Anadromous Fish 1965, Act of 79 Stat. suggests any way expected provide it was or this any Court with retroactive “mandate” to overturn the judgment. Commission’s only pertinent portions legisla history plain tive are acknowledgments uncontradicted from the Federal Power Commission that the Act any would not “have effect” authority. on its Fish, Anadromous Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 45; Rep. H. R. No. Cong., 89th Sess., 1st 21. Ironically, the Commission during twice hearings course those called atten tion, any rejoinder without from the Secretary, to the Moun Sheep project tain as an illustration continuing of its and earnest concern protection for the of anadromous fish. Hearings, supra, 45; at Report, supra, at 22.
needed at Sheep.7 right Wherever the lies on issue, only it need be said that Congress has entrusted its resolution to the Commission’s informed discretion, and that, on the basis of an ample evidentiary record, the Commission has determined that Pacific Northwest should now be project. licensed construct the
I affirm judgments would in both cases substan- tially for the given reasons in Judge opinion Miller’s as below, amplified by the considerations contained in opinion. this
7 Contrary his position, supra, p. earlier Secretary, as noted, apparently has been now no entertains doubt that the immediately should commenced.