Section 5 of the Flood Control Act of 1944 (Act) authorizes the
Secretary of Energy (Secretary), acting through Administrators of
regional Power Marketing Administrations, to fix rates for the sale
of hydroelectric power generated at federally owned dams, and
provides that "the rate schedules [shall] become effective upon
confirmation and approval by the Secretary." Pursuant to the
Secretary's regulatory scheme. new schedules increasing rates were
developed by the Southwestern Power Administration after public
participation, were approved and placed into effect on an interim
basis, effective April 1, 1979, and were ultimately approved on a
final basis by the Federal Energy Regulatory Commission (the
Secretary's delegate) in January, 1982. Respondent cities, who had
entered into power purchase contracts with the Government, paid the
new increased rates and then filed suit in the Court of Claims to
recover money paid pursuant to the interim rate increase between
April, 1979, and January, 1982, contending that the Secretary
violated § 5 of the Act and the terms of the power purchase
contracts by putting the new rates into effect on an interim basis.
The contracts in question provided that rates could be increased or
modified, and that such rates would become effective
"on the effective date specified in the order of the Federal
Power Commission [a predecessor of the Secretary with respect to §
5] containing such confirmation and approval."
The Court of Claims ruled for respondents on the question of
liability (the subsequently organized Claims Court later entered
judgment in their favor), and the Court of Appeals for the Federal
Circuit affirmed.
Held: Neither the Act nor the power purchase contracts
at issue preclude the Secretary from making hydroelectric power
rates effective upon interim confirmation and approval, even though
further administrative review is still pending. Pp.
475 U. S.
665-672.
(a) Although the above-quoted language of § 5 of the Act does
not definitively speak to the question of interim rates, the
relevant federal agencies' practice (at least since the mid-1970's)
of allowing rates to become effective after interim confirmation
and approval is as consistent with the statutory language as is
respondents' preferred arrangement. While the legislative history
of the Act does not resolve the ambiguity, the Secretary's interim
ratesetting practice is a reasonable accommodation
Page 475 U. S. 658
of the Act's conflicting policies of protecting consumers by
ensuring that power be sold at the lowest possible rates consistent
with sound business principles and of protecting the public fisc by
ensuring that federal hydroelectric programs recover their own
costs and do not require subsidies from the federal treasury. The
Secretary's plan is not inconsistent with the congressional scheme,
as respondents contend, on the ground that the plan's refund
process if interim rates are ultimately found to be too high offers
insufficient protection because refunds may not successfully
trickle down to the same ultimate consumers who immediately bore
the excessive charges.
FPC v. Tennessee Gas Transmission
Co., 371 U. S. 145,
distinguished. Pp.
475 U. S.
666-671.
(b) Nor do interim rate increases violate the terms of
respondents' power purchase contracts. The contracts contain no
language unambiguously barring the imposition of interim rates.
Moreover, respondents presented no evidence demonstrating that the
parties intended the contractual language, which tracks that of the
statute, to do anything other than incorporate the statute's
procedural requirements. Pp.
475 U. S.
671-672.
751 F.2d 1255, reversed.
MARSHALL, J., delivered the opinion for a unanimous Court.
JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether the Secretary of Energy
violated § 5 of the Flood Control Act of 1944, 16 U.S.C. § 825s, or
his contractual obligations by putting rates for hydroelectric
power generated at federally owned dams into effect on an interim
basis pending further review by the Federal Energy Regulatory
Commission. The Court of Claims held that the Secretary's actions
exceeded his contractual and statutory authority, and granted
summary
Page 475 U. S. 659
judgment to respondents. 230 Ct.Cl. 635, 680 F.2d 115 (1982).
After further proceedings, the Court of Appeals for the Federal
Circuit affirmed, finding that the Court of Claims' decision was
the law of the case and correct on the merits. 751 F.2d 1255
(1985). We granted certiorari, 473 U.S. 903 (1985), and we now
reverse.
I
A
In the Flood Control Act, Congress authorized the construction
of a number of dam and reservoir projects, operated by the Army
Corps of Engineers and producing large blocks of hydroelectric
power. Congress had granted authority for several such projects
before 1944, but had enacted no "general law governing the sale and
distribution of power" so generated. S.Rep. No. 1030, 78th Cong.,
2d Sess., 3 (1944). Intending "to place by law the responsibility
for disposal of such power in an existing Federal agency,"
ibid., Congress provided:
"Electric power and energy generated at reservoir projects under
the control of the War Department and in the opinion of the
Secretary of War not required in the operation of such projects
shall be delivered to the Secretary of the Interior, who shall
transmit and dispose of such power and energy in such manner as to
encourage the most widespread use thereof at the lowest possible
rates to consumers consistent with sound business principles,
the rate schedules to become effective upon confirmation and
approval by the Federal Power Commission. Rate schedules shall
be drawn having regard to the recovery (upon the basis of the
application of such rate schedules to the capacity of the electric
facilities of the projects) of the cost of producing and
transmitting such electric energy, including the amortization of
the capital investment allocated to power over a reasonable period
of years. . . ."
Ch. 666, § 5, 58 Stat. 887, 890
Page 475 U. S. 660
(emphasis added) (codified as amended at 16 U.S.C. § 825s).
In order to sell the hydroelectric power turned over to him
under that statute, the Secretary of the Interior created what
eventually became five regional Power Marketing Administrations
(PMAs). The PMA Administrators were assigned the responsibility of
preparing rate schedules and the supporting accounting and cost
allocation studies. There were no formal procedures for public
participation in PMA preparation of rate schedules, although some
of the PMAs (not including the Southwestern Power Administration
(SWPA), immediately concerned in this suit) began to adopt such
procedures starting in late 1977.
See 45 Fed.Reg. 86976
(1980).
When determining whether to approve a PMA's proposed rates, the
Federal Power Commission utilized its "special expertise" and its
"independent judgment" in measuring the proposal against the
statutory standards.
Bonneville Power Administration, 34
F.P.C. 1462, 1465 (1965). [
Footnote
1] Because the Flood Control Act imposed no particular
procedures for Commission review of rate proposals, the Commission
was largely free to design its own.
See Southeastern Power
Administration, 54 F.P.C. 1631, 1632, n. (1975). It developed
a practice of affording notice and comment to customers and other
affected parties when the Secretary submitted a rate schedule, and
granting requests for oral argument or public hearing on a
case-by-case basis.
The parties differ as to the degree to which Commission practice
included the use of interim rates. The Solicitor General cites
several instances in which the Commission did
Page 475 U. S. 661
implement such rates; respondents answer that those instances
were both isolated and unrepresentative. Our own examination of the
historical record reveals that, beginning in the 1970's, the
Commission announced its intention to examine PMA rate proposals
"on the basis of evidentiary records which are developed during the
course of [adjudicatory] public hearings,"
Bonneville Power
Administration, 54 F.P.C. 808, 810 (1975). It provided for
full administrative hearings with cross-examination of witnesses.
[
Footnote 2] At the same time,
the Commission adopted, in some cases, the practice of examining
rates submitted to it by the Secretary and, if the rates appeared
to lie within the statutory boundaries, approving them on an
interim basis pending the formal hearing. It required that the PMA
refund any overcharges with interest if the Commission found after
a hearing that an approved interim rate had been too high.
See
Southeastern Power Administration, 54 F.P.C. 3 (1975);
Bonneville Power Administration, 52 F.P.C. 1912 (1974);
see also Bonneville Power Administration, 58 F.P.C. 2498
(1977) (Federal Columbia River Transmission System Act). The
Department of the Interior initially took the view that full
evidentiary hearings were inappropriate under the Flood Control
Act, and that, if such hearings were to be held, the Commission had
no power to approve rates on an interim basis. The Commission,
however, explicitly rejected that position.
Southeastern Power
Administration, supra, at 1632-1633;
see also Bonneville
Power Administration, 59 F.P.C. 1194, 1195 (1977) (Federal
Columbia River Transmission System Act). The Interior Department
then acquiesced in the Commission's view.
See ibid.
Page 475 U. S. 662
B
This regulatory scheme was upset in 1977 with the passage of the
Department of Energy Organization Act, 42 U.S.C. § 7101
et
seq. (DOE Act). That statute, designed to "assur[e]
coordinated and effective administration of Federal energy policy
and programs," § 7112, eliminated the Secretary of the Interior's
role in hydroelectric power rate regulation and abolished the
Federal Power Commission entirely. The Interior Secretary's
rate-proposing function was transferred to the new Secretary of
Energy, "acting by and through [the] Administrators" of the PMAs. §
7152(a)(2). The Federal Power Commission's rate approval function
was transferred to the Secretary of Energy as well. [
Footnote 3]
The Secretary of Energy institutionalized an interim
rate-approval process for hydroelectric rates. He delegated to the
Assistant Secretary for Resource Applications
"the authority to develop, acting by and through the [PMA]
administrators, and to confirm, approve, and place in effect on an
interim basis, power and transmission rates for the five
power marketing administrations."
43 Fed.Reg. 60636 (1978) (emphasis added). [
Footnote 4] He simultaneously delegated to the new
Federal Energy Regulatory Commission (FERC)
Page 475 U. S. 663
"the authority to confirm and approve on a final basis, or to
disapprove, rates developed by the Assistant Secretary."
Ibid. Under the new regulatory scheme, the PMAs give
extensive public notice of proposed rates. 10 CFR § 903.13 (1985).
They provide all interested persons the opportunity to consult with
and obtain information from the PMAs, to examine backup data, and
to comment on the proposed rates. § 903.14. In most cases, the PMAs
hold one or more "public information forums" and "public comment
forums" regarding the rate proposal. §§ 903.15, 903.16. Following
this consultation and comment period, the PMA Administrator must
develop rates which, in the Assistant Secretary's judgment, should
be confirmed, approved, and placed into effect on an interim basis.
The Assistant Secretary must prepare a statement explaining the
principal factors on which his decision to confirm and approve the
rates was based. § 903.21.
The Assistant Secretary, after his interim confirmation and
approval, submits the proposed rates to FERC for final confirmation
and approval. FERC views its role in this process as "in the nature
of an appellate body," 45 Fed.Reg. 79545, 79547 (1980); its
function is to determine from the record before it whether
"due process requirements have been met and [whether] the
Administrator's program of rate schedules and the decision of the
[Assistant Secretary] are rational and consistent with the
statutory standards."
Ibid. In exercising that appellate function, FERC
relies on the record before it, remanding for supplementation if
necessary. If it disapproves the interim rates confirmed and
approved by the Assistant Secretary, the Assistant Secretary has
the responsibility to submit acceptable substitute rates.
Overcharges attributable to excessive interim rates must be
refunded with interest to affected customers. 10 CFR § 903.22
(1985).
II
The dispute in this case involves the price charged for the sale
of hydroelectric power by the Southwestern Power Administration
Page 475 U. S. 664
(SWPA) to respondent cities of Lamar, Fulton, and Thayer,
Missouri. Respondents and the United States first signed power
purchase contracts in 1952, 1956, and 1963 respectively; the Lamar
and Fulton contracts were renewed in early 1977. The language of
the 1977 contract is typical:
"It is understood and agreed that the rates and/or terms and
conditions set forth in the said Rate Schedule 'F-1,' with the
confirmation and approval of the Federal Power Commission, may be
increased, decreased, modified, superseded, or supplemented, at any
time, and from time to time, and that, if so increased, decreased,
modified, superseded, or supplemented, the new rates and/or terms
and conditions shall thereupon become effective and applicable to
the purchase and sale of Firm Power and Firm Energy under this
Contract in accordance with and on the effective date specified in
the order of the Federal Power Commission containing such
confirmation and approval."
230 Ct.Cl. at 638, 680 F.2d at 117 (emphasis by Court of Claims
deleted).
Provisions for rate increases under the contracts at issue in
this case went unused for a long time. SWPA did not increase its
basic rate between 1957 and 1977. 44 Fed.Reg. 13068, 13069 (1979).
Unfortunately, SWPA's costs did not also remain constant. As a
result, FERC found by 1979 that SWPA's annual revenues fell about
$20 million short of covering costs and repaying investment.
Ibid.
After considerable congressional and Commission prodding,
see H.R.Rep. No. 95-1247, p. 59 (1978); S.Rep. No.
95-1067, p. 53 (1978);
Southwestern Power Administration,
58 F.P.C. 2170 (1977);
see also Energy and Water
Development Appropriations for 1980: Hearings before the
Subcommittee on Energy and Water Development of the House Committee
on Appropriations, 96th Cong., 1st Sess., 2995-2998 (1979), SWPA in
April, 1978, finally issued notice of a proposed 42% rate increase.
43 Fed.Reg. 16545 (1978). After the close of the public
participation period, SWPA
Page 475 U. S. 665
developed new studies scaling down its estimate of necessary
revenues, and developed new proposed rate schedules increasing
basic rates only 33%. On March 1, 1979, the Assistant Secretary
confirmed and approved the rates and placed them into effect on an
interim basis, effective April 1, 1979. 44 Fed.Reg., at 13073.
In June, 1981, FERC disapproved the rates as insufficiently
supported, finding them likely to be too low. 46 Fed.Reg. 30877
(1981). On reconsideration in January, 1982, however, FERC
concluded that the rates, while "on the low side," were nonetheless
reasonable; it confirmed and approved the rates through September
30, 1982. 47 Fed.Reg. 4562, 4563 (1982).
Respondents paid the increased rates assessed by SWPA. They then
filed suit, seeking to recover money paid pursuant to the interim
rate increase between April, 1979, and January, 1982. The Court of
Claims ruled for respondents on the question of liability, 230
Ct.Cl. 635, 680 F.2d 115 (1982), the Claims Court entered a
$954,816 judgment in their favor, App. to Pet. for Cert. 19a-21a,
and the Court of Appeals for the Federal Circuit affirmed, 751 F.2d
1255 (1985).
III
Respondents contend that interim approval of rate increases by
the Assistant Secretary violates the Flood Control Act and their
power purchase contracts. They predicate their argument on the
statutory direction that rate increases shall "become effective
upon confirmation and approval by the Federal Power Commission,"
and on the similar contractual language quoted
supra at
475 U. S. 659.
That language, according to respondents, by its terms precludes
interim rate increases.
It is important to note what questions are not before this
Court. Respondents do not contest that the DOE Act transferred the
FPC's rate-approval function to the Secretary of Energy.
See Brief for Respondents 39. They agree that
Page 475 U. S. 666
the Secretary could properly confirm and approve the rates on a
final basis, without any further procedures or FERC involvement,
id. at 43-45, and that he could "delegate and divide that
function amongst subordinate officials and agencies,"
id.
at 44. Further, respondents concede that the contractual language
must be read, to some extent, in the light of the DOE Act: they do
not argue that the contractual language, providing for rate
increases "with the confirmation and approval of the Federal Power
Commission," precludes any rate increase now that that body no
longer exists. Rather, respondents' sole claim is that the statute
and the contracts preclude the Secretary from making hydroelectric
power rates effective before rendering a final determination that
those rates satisfy all statutory requirements. A rate increase,
they argue, can become effective only after the entire
administrative review process has been completed.
A
We turn first to respondents' statutory contention. Section 5 of
the Flood Control Act, on its face, says little about the
appropriate method of rate implementation under that Act. The
relevant federal agencies, however, at least since the mid-1970's,
have interpreted the statute to allow interim rate increases.
See supra, at 661-663. We must uphold that interpretation
if the statute yields up no definitive contrary legislative command
and if the agencies' approach is a reasonable one.
Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837,
467 U. S.
842-845 (1984).
The statutory language, providing only that "the rate schedules
[shall] become effective upon confirmation and approval by the
[Secretary]," does not definitively speak to the question of
interim rates. Respondents argue that the requirement that rate
schedules become effective "upon" confirmation and approval
precludes the Secretary from making rates effective before all
confirmation and approval are completed. The Court of Claims
agreed. We can find, however,
Page 475 U. S. 667
no such unambiguous meaning in the wording of the statute. The
agency's practice of allowing rates to become effective after
interim "confirmation and approval," even though the rates
are subject to further examination, is as consistent with the bare
statutory language as is respondents' preferred arrangement.
Nor does the legislative history of the Flood Control Act
resolve the ambiguity. Respondents draw on that legislative history
in arguing that the drafters of § 5 of the Flood Control Act (like
the drafters of § 6 of the Bonneville Project Act of 1937, on which
§ 5 of the Flood Control Act was based) intended to "protec[t] the
power consumers." 90 Cong.Rec. 9283 (1944) (statement of Rep.
Rankin). Respondents point out that, during the pendency of an
interim rate increase, power consumers pay more than they would
have paid otherwise, and perhaps more than they should pay. Yet, as
we shall discuss more extensively below, the goal of protecting
power customers is not the only policy embodied in the Flood
Control Act. The existence of that policy, without more, hardly
supplies an unambiguous legislative command barring any imposition
of interim rates. Respondents rely on a statement by Secretary
Ickes that the Federal Power Commission would have final yes-or-no
authority over rates under the Bonneville Project Act, Columbia
River (Bonneville Dam), Oregon and Washington: Hearings on H.R.
7642 before the House Committee on Rivers and Harbors, 75th Cong.,
1st Sess., 150 (1937), but that statement is not particularly
helpful in determining Congress' intent regarding interim
rates.
In the absence of a clear legislative command, we must consider
whether the Secretary's choice "
represents a reasonable
accommodation of conflicting policies that were committed to the
agency's care by the statute.'" Chevron, supra, at
467 U. S. 845,
quoting United States v. Shimer, 367 U.
S. 374, 367 U. S. 383
(1961). The Secretary has a dual obligation under the Flood Control
Act. He is required to protect consumers
Page 475 U. S. 668
by ensuring that power is sold "at the lowest possible rates . .
. consistent with sound business principles."
See United States
v. Tex-La Electric Cooperative, Inc., 693 F.2d 392, 399-400
(CA5 1982). He is also, however, required by the plain language of
the statute to protect the public fisc by ensuring that federal
hydroelectric programs recover their own costs and do not require
subsidies from the federal treasury.
See H.R.Conf.Rep. No.
2051, 78th Cong., 2d Sess., 7 (1944);
see also S.Rep. No.
2280, 74th Cong., 2d Sess., 2 (1936) (Bonneville Project Act);
H.R.Rep. No. 2955, 74th Cong., 2d Sess., 2 (1936) (same).
Interim ratesetting appears well suited to accommodating that
dual goal. That process protects consumers by subjecting proposed
rates to initial review before they are made effective, and by
allowing for refunds if the rates are ultimately disapproved. It
protects the Government by allowing it to collect rate increases
that are necessary for recovery of its costs, without having to
wait for time-consuming final review. It helps eliminate the
possibility that delay in implementation of rate increases,
particularly in a period of high inflation, will cause the
Government constantly to be playing catchup in its attempt to
secure an appropriate rate.
Respondents argue that the Secretary's plan is inconsistent with
the congressional scheme because it allows the implementation of
rates that may not meet the statutory standards, and that may
ultimately be found to be too high. Congress, respondents argue,
intended to eliminate just such a possibility when it interposed
the requirement of FPC "confirmation and approval" in the
ratesetting process. The refund process, they contend, offers
insufficient protection because, while excessive charges are
immediately passed on to the ultimate consumers, refunds of those
charges may not successfully trickle down to those same consumers.
Yet ratesetting agencies charged with protecting the public
commonly have the power to allow rates to go into effect
Page 475 U. S. 669
prior to the completion of administrative review.
See,
e.g., Natural Gas Act, § 4(e), 15 U.S.C. § 717c(e); Federal
Power Act, § 205(e), 16 U.S.C. § 824d(e); Federal Communications
Act, § 204, 47 U.S.C. § 204; Interstate Commerce Act, § 15(7), 49
U.S.C. § 10708.
See generally W. Jones, Cases and
Materials on Regulated Industries 122-126 (2d ed.1976). Congress
plainly has not found that practice necessarily incompatible with
the goal of consumer protection.
Respondents rely on
FPC v. Tennessee Gas Transmission
Co., 371 U. S. 145
(1962), for the proposition that refunds are an inadequate remedy
for excessive rates. In
Tennessee Gas, the Commission was
faced with a statutory scheme under which a private utility could
put a rate increase into effect, after an initial suspension
period, without any governmental review of the legality of the
increase. The utility argued that, once an increased rate went into
effect, it should be allowed to collect that rate until the
completion of all Commission proceedings on the legality of the
rate, since any illegal charges ultimately would be subject to
refund. We rejected that position, holding that the Commission did
not have to rely solely on its refund procedure to protect
consumers, and could instead order an interim reduction of the
increased rate.
Tennessee Gas does not support respondents' argument. Where the
Government seeks to implement an increase under the Flood Control
Act, there is no danger of unreviewed illegal rates, as in
Tennessee Gas. The rate when implemented has already been
the subject of extensive public participation and review by the
Assistant Secretary. The Secretary does not rely solely on the
refund procedure to protect consumers, and thus the concerns that
led the
Tennessee Gas Court to find that process
inadequate are not present. Instead,
Tennessee Gas
illustrates the authority this Court repeatedly has given
regulatory agencies to do precisely what respondents claim they
should not be able to do --
Page 475 U. S. 670
to issue interim rate orders prior to final determinations
whether proposed rates meet statutory requirements.
Respondents argue that the Secretary should be barred from
setting interim rates absent explicit congressional authorization.
The Secretary, they contend, cannot create a complex regulatory
structure out of thin air. The provisions of the Flood Control Act,
however, are general, and are in all respects less complex than the
analogous provisions of the Federal Power Act governing regulation
of private utility charges. Congress, in declining to set out a
detailed mandatory procedural scheme, apparently intended to leave
the agency substantial discretion as to how to structure its
review. There is no support in the legislative history for the
proposition that Congress intended to bar the Secretary from taking
all steps regarding power rate regulation not explicitly set out in
the general terms of § 5 of the Flood Control Act, and Congress may
reasonably have intended to allow more administrative discretion
with regard to this federal proprietary activity than with regard
to control of private rates. Limiting the agency as respondents
suggest would thus disserve Congress' goal of establishing "a
convenient and practical method of disposing of power at [federal
hydroelectric] projects." S.Rep. No. 1030, 78th Cong., 2d Sess., 3
(1944).
Indeed, this Court has in other contexts allowed agencies to set
interim rates even though their governing statutes did not
explicitly so provide. In the
Trans Alaska Pipeline Rate
Cases, 436 U. S. 631
(1978), we held that it was "an intelligent and practical exercise
of [the agency's rate] suspension power,"
id. at
436 U. S. 653,
for the Interstate Commerce Commission to set out, without a
hearing, interim rates that it would allow to go into effect. We
further held that the Commission had authority to condition such an
action on the carriers' promise to refund charges ultimately found
to be too high. That refund scheme, although nowhere explicitly
approved in the statute, was a "'legitimate, reasonable, and direct
adjunct to the Commission's explicit statutory power
Page 475 U. S. 671
to suspend rates pending investigation.'"
Id. at
436 U. S. 655,
quoting
United States v. Chesapeake & Ohio R. Co.,
426 U. S. 500,
426 U. S. 514
(1976). The
Trans Alaska Pipeline Rate Cases were decided
under a quite different statutory scheme from the one at issue
today, and analogies between the two statutory schemes are loose,
at best. We see no reason, however, why we should take a narrower
approach to the Secretary's powers under the Flood Control Act than
we took to the ICC's under its enabling statute. [
Footnote 5]
We therefore hold that the procedures established by the
Secretary to exercise his powers under the Flood Control Act both
are within his delegated authority and constitute a reasonable
accommodation of the policies underlying that Act. At bottom,
respondents seek to strike down the Secretary's scheme on the
ground that it gives power customers
too much process.
They concede that there could be no objection to a scheme under
which rate review was simply cut off after the Assistant
Secretary's examination, but contend that the administrative plan
must be invalidated because the Secretary has allowed still another
layer of review. We would not be disposed to accept such a claim
absent particularly compelling argument in its favor. Respondents
have not supplied such argument here.
B
Respondents also argue that interim rate increases violate the
terms of their power purchase contracts. Respondents make no claim
that the contracts must be read literally, to bar any rate increase
absent approval by a nonexistent Federal Power Commission. They
nonetheless argue that the
Page 475 U. S. 672
contractual language unambiguously bars the imposition of
interim rates. We can detect no such absolute bar.
Respondents have presented no evidence demonstrating that the
parties intended the contractual language, which tracks that of the
statute, to do anything other than incorporate the statute's
procedural requirements. The Court of Claims based its acceptance
of respondents' position on its desire to construe the contracts
"in harmony with" its interpretation of the statutory language,
which, it noted, "is incorporated into the contract terms"; on its
conclusion that there was no significant administrative practice of
interim rate increases; and on its conclusion that the plain
meaning of the contractual language unambiguously bars such rate
increases. 230 Ct.Cl. at 641-645, 680 F.2d at 119-121. The first
premise is no longer helpful to respondents, since we have
determined that the statute allows the imposition of interim rate
increases. We have also rejected the second premise,
see
supra at
475 U. S.
661-663. We now reject the third. The contractual
provision that rate increases will become effective "on the
effective date specified in the order of the Federal Power
Commission containing such confirmation and approval" is, by its
terms, no more of a bar to rate increases becoming effective upon
interim "confirmation and approval" than is the parallel
statutory language. If the Government had meant by that contractual
language to bind itself with restrictions going beyond those
contained in the statute, we believe that such restrictions would
have been set out more explicitly.
IV
We conclude that nothing in the Flood Control Act or the power
purchase contracts at issue in this case precludes the Secretary
from making hydroelectric power rates effective upon interim
confirmation and approval, even though further review is still
pending. The judgment of the Court of Appeals for the Federal
Circuit, accordingly, is reversed.
It is so ordered.
[
Footnote 1]
The cited proceeding arose under both the Flood Control Act and
the Bonneville Project Act of 1937, 50 Stat. 731, codified as
amended at 16 U.S.C. §§ 832-832
l. The relevant provisions
of the two statutes are essentially identical, however, and the
Commission and Secretary have treated them interchangeably.
See 34 F.P.C. at 1466-1470;
infra at
475 U. S.
667.
[
Footnote 2]
See Southeastern Power Administration, 54 F.P.C. 3
(1975), citing 18 CFR § 1.20 (1976) (superseded in 1978);
Bonneville Power Administration, 52 F.P.C.1912, 1912-1913
(1974).
But see Southwestern Power Administration, 56
F.P.C. 795 (1976) (confirming new rate schedule without
adjudicatory hearing, where SWPA had held on-the-record proceedings
before proposing new rate).
[
Footnote 3]
42 U.S.C. § 7151(b) (transferring to the Secretary of Energy all
FPC functions not explicitly transferred in Subchapter IV of the
Act to the new Federal Energy Regulatory Commission). The Court of
Claims' suggestion that FERC, rather than the Secretary, inherited
the FPC's rate-approval function has been abandoned by respondents,
see infra, at
475 U. S. 665,
and is unsupported by the statutory language.
See United States
v. Tex-La Electric Cooperative, Inc., 693 F.2d 392, 395 (CA5
1982).
[
Footnote 4]
The Assistant Secretary of Resource Applications' interim rate
approval and implementation responsibilities were later transferred
to the Assistant Secretary for Conservation and Renewable Energy.
See 47 Fed.Reg. 4562, and n. 1 (1982). We shall refer to
both of those officers as the "Assistant Secretary" throughout this
opinion.
After FERC's final approval of the rates at issue in this case,
the Secretary further modified the delegation order in certain
respects. 48 Fed.Reg. 55664 (1983). The propriety of the
administrative plan, as modified in 1983, however, is not now
before us.
[
Footnote 5]
Respondents finally point to § 501(a)(1) of the DOE Act, 42
U.S.C. § 7191(a)(1), which provides that that Act was not intended
to abrogate "administrative procedure requirements" imposed by
other statutes, including the Flood Control Act. Because we find in
the Flood Control Act no "administrative procedure requirement"
barring interim rates, this provision adds nothing to respondents'
case.