FPC v. Union Electric Co.,
381 U.S. 90 (1965)

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U.S. Supreme Court

FPC v. Union Electric Co., 381 U.S. 90 (1965)

Federal Power Commission v. Union Electric Co.

No. 123

Argued March 2, 1965

Decided May 3, 1965

381 U.S. 90


Respondent filed a declaration of intention with the Federal Power Commission (FPC) pursuant to § 23(b) of the Federal Power Act to construct a pumped storage plant on a nonnavigable tributary of a navigable stream. A pumped storage plant uses power during periods of non-peak demands to pump water to an upper pool to be used to generate peak period energy by water falling into a lower pool. The FPC found that the nonnavigable tributary is a stream over which Congress has jurisdiction, as it is a headwater of a navigable river system. The FPC held that the project would require a license under § 23(b) because it would use water power for the interstate transmission of electricity and because it would affect downstream navigability. The Court of Appeals reversed, finding that the only relevant "commerce" under § 23(b) is that on the downstream navigable waterway, and that the project would have no significant impact on water commerce.


1. The commerce power of Congress clearly encompasses the interstate transmission of electric energy, and the project here is within the purview of that power, without regard to federal control of tributary streams and navigation. P. 381 U. S. 94.

2. The language of the licensing requirement of § 23(b) invokes the full congressional authority over commerce, and not merely the regulation of navigation or water commerce. Pp. 381 U. S. 95-98.

3. The purposes of the predecessor statute, the Federal Water Power Act, which included the comprehensive development of water power and hydroelectric energy, are more fully served by considering the impact of the project on the full range of commerce interests. Pp. 381 U. S. 98-109.

4. Since the original Federal Water Power Act was concerned with the utilization of water resources, and particularly the power potential in water, there is no anomaly in the FPC's position that steam plants generating energy for interstate transmission are not within the scope of § 23(b), although located on a stream over

Page 381 U. S. 91

which Congress has jurisdiction, while similar hydroelectric facilities are covered by § 23(b). Pp. 381 U. S. 109-110.

326 F.2d 535 reversed.

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