Lake Ontario Land Development & Beach Protection Ass'n v. Federal Power Commission
Lake Ontario Land Development & Beach Protection Ass'n v. Federal Power Commission
Opinion of the Court
The Federal Power Commission granted a license to the Power Authority of the State of New York, an agency of the State,
Section 4(e) of the Federal Power Act
The language of this section is obviously broad. Of particular interest in the present controversy are two features. (1) The section authorizes licenses not only to citizens and corporations but specifically to any “municipality”, and elsewhere
The legislative history of the Act demonstrates that the Congress fully realized the licensing authority included authority over projects in international boundary streams. We need not discuss these various references in detail; they may
Petitioners’ contentions rest in large part upon the erroneous premise that the Power Commission licenses projects as such. The Federal Power Act is not cast in that form. The Commission licenses facilities — dams, powerhouses, transmission lines, and other “project works” of various sorts — not projects as such. Care must be taken in any consideration of this statute lest an inadvertent shifting of the terms “project” (which is a whole development)
Petitioners say then that the Act authorizes the licensing of facilities but not of parts of facilities. They say that the Commission can license a dam but not half a dam. But the argument falls when other facilities listed, along with “dams”, in the same sentence in the Act
The answer is made clear if we assume a case in which one private concern seeks to build a whole project across an international stream, making its own arrangements with the governments involved. It would have to have licenses. Surely an- agency of the United States could issue the license for the structures in United States territory. The fact that such structures would constitute only part of the project, or only part of a completed structure, could not make Government licensing impossible.
Petitioners contend that, since completion of the project requires the construction of facilities on the Canadian side of the river and thus requires a compact or agreement with the Canadian
Petitioners urge that a license for facilities designed and located as these are must as a matter of Constitutional necessity be approved by Congress itself. We are shown no reason why the authority to license structures in United States territory could not be delegated, and, as we have seen, such authority was delegated in the Federal Power Act. That antecedent or concomitant arrangements for the order here challenged were international in character and so were managed by other means, based on treaty, presents no defect in the validity of the licensing authority for local structures. Domestic operations stemming from domestic law certainly lose none of their effectiveness because treaties may have dealt with the same or broader subject matter. Indeed a treaty may provide cogency for domestic measures to implement its objectives.
It is argued that the provisions of Section 14 of the Federal Power Act preclude the possibility that the Commission could license facilities which are part only of a project partly inside and partly outside the United States. This section, 14, provides that in certain events the United States shall have the right to take over any project “covered in whole or in part by the license”. It is said that unless the United States is able to take over the whole project — not just the facilities licensed but the “complete unit of improvement or development,”
In the second place, although the recapture provision, Section 14, is a term or condition imposed upon all licenses, there is nothing to indicate that it was intended to be or is a limitation upon the scope of the licensing power under Section 4(e). Generally speaking, the recapture provision applies to the whole of a project in which some or all of the project works are licensed, but, if circumstances are such that the full scope of both the licensing and the recapture provisions cannot be made to fit, one provision does not nullify the other; both apply to the fullest practicable extent. In such a case the license would be valid and the recapture provision would be applied to the extent possible.
. [17] The application of Section 14 to this.project is clear. The section means that the United States shall have the right to take over the whole- of the project so far as it has jurisdiction to. take it over. The section clearly contemplates the taking over of property of the licensee, but not any other property. The- detailed provisions in this section and in the following section make this meaning clear. Moreover, as we have pointed out, the amendatory act of 1953, specifically directs that the recapture section shall apply to. any license issued by the Federal Power Commission for this particular development. The only way the United States could take pv.er the project of its licensee under a license issued by the United States or its agent for a hydroelectric development in the St. Lawrence River, would be, for it to take over the facilities on the United States side of the stream, and no more. What Section 14 means, therefore, when applied to the project as covered in part by this license, is that the United States has the right, in the events described in the section, to take over its licensee’s property involved in the development.
The Federal Power Commission clearly — and correctly- — so interpreted the statute. In its July 15th order granting the license, Article 17 provided in pertinent part:
“ * * jn £he event the project is taken over by the United States upon the termination of the license, as provided in Section 14 of the Act, or is transferred to a new licensee under the provisions of Section 15 of the Act, the Licensee, its successors and assigns, will be responsible for and will make good any defect of title to or of right of user in any of such project property which is necessary or appropriate Or valuable and serviceable in the maintenance and operation of the project, and will pay and discharge, or will assume responsibility for payment and discharge, of all liens or incumbrances upon the project or project property created by the Licensee. or created or incurred after the issuance of ■ the license: *■ * $_»
Moreover,' the Federal Power Commission had before it the record of all procedures which had been followed preliminary to the application of the Power Áüthority. It certainly must-have been aware, that.the Government, of the United States,, in its application of June 30, 1952, to the International Joint Commission, in.paragraph 12, had specified certain reservations to attach to the license and to bind the licensee. It was-therein provided that:
“ * * * This application is submitted with the. understanding that approval thereof by the International Joint Commission, will not relieve any entity which may be authorized to construct or operate the United Státés 'part, of the project from compliance with valid laws of the Unit*235 ed States, now in force or hereafter enacted by the Congress, or with regulations now in force or hereafter issued by the Federal Power Commission, applicable to the development and utilization of the United States’ share of the waters of the International Rapids section of the St. Lawrence River.”
Again, in paragraph 14 of its application, the United States Government left open the door for supersession through possible later Congressional action and for the “enactment by the Congress at any future time of legislation consistent with this application governing the United States part of any project for the development and utilization of the United States share of the waters of the International Rapids section of the St. Lawrence River.” (Emphasis supplied.)
Thus it was that the Federal Power Commission order of July 15, 1953, included Article 18, which reads:
“The terms and conditions expressly set forth in the license shall not be construed as impairing any terms and conditions of the Federal Power Act which are not expressly set forth herein.”
And Article 19 of that same order completed the chain of international agreement, legislative pronouncement, and procedural circumstance by directly setting forth that:
“In the design, construction, maintenance and operation of the project covered by this license, the Licensee shall comply with all applicable provisions and requirements of the Order of Approval (International Joint Commission Docket 68) issued October 29, 1952, by the International Joint Commission to the Governments of the United States and Canada for the construction of certain works for the development of power in the International Rapids Section of the St. Lawrence River.”
Petitioners’ argument therefore falls, particularly in the face of Congressional recognition of the integrated whole, which is so clearly evinced by the amend-atory act of August 15, 1953, supra.
Petitioners urge that the New York Power Authority has no authority under its enabling act to seek or receive the license in question. They say the State of New York has never released any of its sovereign or proprietary rights and therefore the United States could not recover under Section 14 from the Power Authority. Doubts on this point having been expressed by the Trial Examiner of the Commission in 1949, the New York statute was amended in. 1951
“ * * * provided, however, that nothing herein contained shall be construed as limiting the power of the authority to accept a license issued by the federal power commission pursuant to the provisions of the federal power act, as amended, and the terms and conditions therein imposed pursuant to law.”
It is thus amply clear that the legislature of the State of New York specifically authorized its Power Authority to agree to the terms and conditions of a federal license “pursuant to the provisions of the federal power act,” and in so doing cannot be supposed to have overlooked so striking a condition as the one spelled out in Section 14.
Petitioner Lake Ontario Land Development and Beach Protection Association, Inc., is an association composed of homeowners whose properties border on Lake Ontario. They say that the construction of the Iroquois Dam will raise the level of the water in Lake Ontario to such a point that in stormy weather
Petitioner Public Power and Water Corporation contends that the Power Commission disregarded factors essential to national defense. It also contends that the Power Commission erred in permitting the government of Canada to intervene in the proceeding to maintain that the Power Authority of New York alone was a suitable licensee. We find these contentions not well taken.
We find no violations of the requirements of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.
Contentions are made by respondent and intervenors concerning the standings of the several petitioners to bring these appeals.
Affirmed.
. Created by the Power Authority Act, Laws of N.Y. c. 772 (1931), amended by Laws of N.Y. c. 146 (1951), Public Authorities Law, § 1001 et seq., McK. Consol.Laws, c. 43-A.
. 41 Stat. 1065 (1920), as amended, 16 U.S.C.A. § 797(e).
. Section 3(7), 41 Stat. 1063 (1920), 49 Stat. 838 (1935), 16 Ü.S.C.A. § 796(7).
. 56 Cong.Rec. 9768-69 ; 58 Cong.Rec. 2027, 2034 ; 59 Cong.Rec. 1101, 1483, 1492-95.
. Pub.L.No.278, 83d Cong., 1st Sess., 16 U.S.C.A. § 828 et seq.
. 41 Stat. 1071 (1920), 49 Stat. 844 (1935), 16 U.S.C.A. § 807.
. 41 Stat. 1064 (1920), 16 U.S.C.A. § 796 (11).
. 41 Stat. 1064 (1920), 16 U.S.C.A. § 796 (12).
. Supra note 2.
. See note 7, supra.
. U.S.Const. art. I, § 10, cl. 3.
. 36 Stat. 2448.
. Koki Hirota v. General of the Army MacArthur, 1948, 338 U.S. 197, 69 S.Ct. 1238, 93 L.Ed. 1902.
. Definition of “project” in Section 3(11), supra note 7.
Supra note 5.
. Laws of N.T. c. 146, § 1005(3) (1951).
. 41 Stat. 1088 (1920), 49 Stat. 842 (1935), 16 U.S.C.A. § 803(c).
. See Sen.Rep.No.441, 83d Cong., 1st Sess. 25-26 (1953).
. Cf. Sec. 7(a) of the Federal Power Act, 41 Stat. 1067 (1920), as amended, 16 U.S.C.A. § 800.
Reference
- Full Case Name
- LAKE ONTARIO LAND DEVELOPMENT & BEACH PROTECTION ASS'N, Inc. v. FEDERAL POWER COMMISSION PUBLIC POWER & WATER CORP. v. FEDERAL POWER COMMISSION CENTRAL PENNSYLVANIA COAL PRODUCERS' ASS'N v. FEDERAL POWER COMMISSION
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