Amicus Curiae Brief — California v. Federal Energy Regulatory Commission

STATE OF CALIFORNIA,

Petitioner,

V.

FEDERAL ENERGY REGULATORY COMMISSION, ef al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE COUNCIL OF STATE GOVERNMENTS,

U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION, AND

NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RICHARD J. LAZARUS BENNA RUTH SOLOMON

WASHINGTON UNIVERSITY Chief Counsel

SCHOOL oF LAW STATE AND LOCAL L&GAL CENTER

One Brookings Drive 444 North Capitol St., N.W.

St. Louis, MO 63130 Suite 349

(314) 889-6495 Washington, D.C. 20001

Of Counsel (202) 638-1445

Counsel of Record for the

Amici Curiae

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TABLE OF CONTENTS

QUESTION PRESENTEPlñZ

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

—̃——

INTRODUCTION AND SUMMARY OF ARGU-

MENT — T

1 ů— ů—ç———

PURSUANT TO SECTION 27 OF THE FED-

ERAL POWER ACT, HYDROPOWER PROJ-

ECTS LICENSED UNDER THAT ACT ARE

NOT EXEMPT FROM STATE MINIMUM IN-

STREAM FLOW REQUIREMENTS ..............

A. Section 27 Of The Federal Power Act Pre-

serves State Authority To Impose Minimum

Instream Flow Requirements On Federally

B. The Court Of Appeals’ Failure To Honor The

Plain Meaning Of Section 27 Is Not Justified

By The Court’s Assertion Of Ambiguity In Its

Meaning, The Allegedly Comprehensive Na-

ture Of The Federal Hydropower Licensing

Scheme, Or Claimed Conflicts Between Federal

C. This Court’s Discussion Of Section 27 In First

Iowa Should Now Be Disavowed .......................

—— (MU —

(iii)

Page

iv

10

S

iv

TABLE OF AUTHORITIES

CASES: Page

Alabama Power Co. v. Gulf Power Co., 283 F.

fo A „ 29

Askew v. American Waterways Operators, Inc.,

411 U.S. 325 (1973 6 23

Bowen v. Georgetown University Hospital, 109

. a ere ae ne 10

California v. ARC America Corp., 109 S.Ct. 1661

lil TIES EE ESE AR a oe 7,22

California v. United States, 488 U.S. 645 (1978)... passim

California Federal Savings & Loan Ass'n v.

Guerra, 479 U.S. 272 (1987) õ 7 6, 17, 22

Caminetti v. United States, 242 U.S. 470 (1917) 9

Cleveland v. United States, 329 U.S. 14 (1946) 12

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) 9

Community for Creative Non-Violence v. Reid,

re 7, 21

Cutler v. Kouns, 110 U.S. 720 (1884). ................... 12

EEOC v. Associated Dry Goods Corp., 449 U.S.

EE ee . 4

Escondido Mutual Water Co. v. La Jolla Band of

Mission Indians, 466 U.S. 765 (198) 24, 28

ETSI Pipeline Project v. Missouri, 108 S.Ct. 805

, ... 4,9

First lowa Hydro-Electric Cooperative v. FPC,

r ̃ .. passim

Florida Lime & Avocado Growers, Inc. v. Paul,

r ̃ 6, 22, 23

FPC v. Niagara Mohawk Power Corp. 347 US.

ES 1 11, 29

Garcia v. San Antonio Metropolitan Transit Aw

thority, 469 U.S. 528 (19866))) 3,4

Garcia v. United States, 469 U.S. 70 (1984) 12

Hallstrom v. Tillamook County, 110 S.Ct. 304

EERIE eS AE 21

Harrison v. PPG Industries, Inc., 446 US. 578

(1980) 6 12

Hillsborough County + v. Automated Medical Lab-

oratories, Inc., 471 U.S. 707 (1985) . = 23

ä ͤ —

v

TABLE OF AUTHORITIES—Continued

Page

Hines v. Dav dowitz, 312 U.S. 52 (1941) ................. 6

Holy Trinity Church v. United States, 143 U.S.

6 09 21

International Paper Co. v. Ouellette, 479 U.S. 481

„ . . ˙ 17

King v. United States, 379 U.S. 329 (1964) 12

Louisiana Public Service Comm'n v. FCC, 476

FF OE 6,17

Mason v. United States, 260 U.S. 545 (1923) 12

Monongahela Power Co. v. Marsh, 809 F.2d 41

(D.C. Cir.), cert. denied, 484 U.S. 816 (1987).. 24, 28

Northwest Central Pipeline Corp. v. Kansas Cor-

poration Comm'n, 109 S.Ct. 1262 (1989) .......... 6, 17, 18

Organized Village of Kake v. Egan, 369 U.S. 60

“äͤK— — 23

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Comm'n,

. § SS fl ee eee 23

Pavelic & LeFlore v. Marvel Entertainment

Group, 110 S.Ct. 466 (198997 20

Public Employees Retirement System v. Betts, 109

SD SN a ES * Ee 9

Rice v. Rehner, 463 U.S. 713 (1983) 23

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

1ꝙꝛ—ꝗ2—ĩ ñ ͤ t: — 2, 6, 7, 25, 26

// i Be Ea RS 17, 21

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) 6

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984) ......... — 22

Sporhase v. Nebraska ex rel. Douglas, 458 U.S.

1111 —..... .

Uncompahgre Valley Water Users Ass'n v. FERC,

785 F.2d 269 (10th Cir.), cert. denied, 479 U.S.

ee. ES ON a 28

United States v. Alpers, 338 U.S. 680 (1950) ........ 12

United States v. American Trucking Ass’ns, Inc.,

i) 5 FF ease ee 21

SS „ r —V— i

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Gooch, 297 U.S. 124 (1936) 12

United States v. Locke, 471 U.S. 84 (1985) 10

United States v. Mescall, 215 U.S. 26 (1909)... 13

United States v. Ron Pair Enterprises, Inc., 109

EE 9

United States v. Turkette, 452 U.S. 576 (1981) 12

Younger v. Harris, 401 U.S. 37 (19717 3

CONSTITUTIONAL PROVISIONS:

Supremacy Clause, U.S. Art. VI, el. 22222 3, 23

STATUTES :

Federal Power Act, § 27, 16 U.S.C. 8811 passim

Flood Control Act, §1, 33 U.S.C. § 701-1 (1952

eT 4

Clean Water Act

§ 101 (g), 88 U.S.C. § 12851 (c)) 4

§ 301(b)(1)(C), 33 U.S.C. ven wee 25

§ 401, 33 U.S.C. § 1341 maar , 25

§ 402(b), 33 U.S.C. 91342 (b) eee ; 25

ff 24

§ 404(g), 88 U.S.C. § 1844 (g 25

§ 510, 33 U.S.C. § 1370 e 25

Reclamation Act, § 8, 43 U.S.C. §383 .................. passim

Electric Consumers Protection Act, Pub. L. 99-495,

EE 0... 25

Cal. Water Code § 1243 (West 1971) — 1 8

Cal. Water Code § 1257 (West 1971) 4

LEGISLATIVE MATERIALS:

51 Cong. Rec. 14066-67 (1914) 3 13, 19

51 Cong. Rec. 14067 (191)))7ʒ) 13

51 Cong. Rec. 14070 (1914)....................... 1 19

51 Cong. Rec. 14070-71 (1914) G 19

51 Cong. Rec. 14071 (1914 n 1 13

53 Cong. Rec. 4204 (1916) 21

56 Cong. Rec. 9114-15 (191 19

56 Cong. Rec. 9115 (191) „„ 20

TABLE OF AUTHORITIES—Continued

56 Cong. Rec. 9290 (191ù)

56 Cong. Rec. 9810 (1918) ene.

56 Cong. Rec .10494 (191)

SL —

MISCELLANEOUS:

W. Blackstone, Commentaries —.... nn.

S. Hays, Conservation and the Gospel of Efficiency:

The Progressive Conservation Movement 1890-

1111 c

Johnson & DuMars, A Survey of the Evolution of

Western Water Law in Response to Changing

Economic and Public Interest Demands, 29 Nat.

8 .

J. Kerwin, Federal Water-Power Legislation

EE .

C. Meyers & A. Dan Tarlock, Water Resource

Co ---

National Water Commission, Water Policies for

ee

L. Tribe, American Constitutional Law (2d ed.

Ee ee

8

17

———

= W a — — — ͤH— — = —

In THE

Supreme Court of the United States

OcToBER TERM, 1989

No. 89-333

STATE OF CALIFCRNIA,

V

FEDERAL ENERGY REGULATORY COMMISSION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Petitioner,

BRIEF OF THE COUNCIL OF STATE GOVERNMENTS.

US. CONFERENCE OF MAYORS,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION, AND

NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

The amici, organizations whose members include state.

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments.

This case is of interest to amici because it concerns

the authority of a state regulatory agency to impose state

law requirements on a private activity also regulated by

a federal agency. The court of appeals in this case ap-

plied, in effect, a presumption in favor of preemption of

any overlapping state authority, in ruling that where, as

here, the Federal Energy Regulatory Commission has

issued a license to a private entity to operate a hydro-

2

power facility, the state water regulatory agency cannot

impose conditions on the facility’s state water permit

that are different in any way from those contained in

the federal license. The court below reached this result

notwithstanding the explicit savings language contained

in Section 27 of the Federal Power Act, which preserves

state laws “relating to the control, appropriation, use,

or distribution of water used in irrigation or for mu-

nicipal or other uses, or any vested right acquired

therein” (16 U.S.C. § 821).

The court of appeals’ ruling is significant to amici in

two respects. First, it reflects an understanding of fed-

eral preemption that threatens to supersede countless

important state regulatory progi ms. Overlapping state

and federal regulatory requirements are the inevitable

product of our federal system and not the presumptive

trigger for federal preemption. Indeed, a contrary rule

would be inconsistent with this Court’s repeated admoni-

tion that preemption analysis start Is] with the assump-

tion that the historic police powers of the States were

not to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.” Rice ».

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (em-

phasis added). Nor is there any room for the court of

appeals’ view that the comprehensive nature of the fed-

eral regulatory scheme can support an inference of con-

gressional intent to supersede overlapping state regula-

tory authority. Such inferences are permitted. if ever,

only in the absence of express congressional guidance

concerning the preemptive reach of a particular federal

law.

Second, the court of appeals’ ruling, if adopted by this

Court, threatens immediate displacement of a critical

area of traditional state concern: regulation of the use

of water. Especially among the Western States, few mat-

ters are so central to the State’s ability to safeguard the

health and livelihood of its citizens as is the State’s au-

thority over water flowing within its borders. Hence,

the court of appeals’ view that Congress intended frag-

— —

3

mentation of state authority by exempting federal hydro-

power licensees from any state oversight is extremely

disturbing.

Amici submit that the decision of the court of appea!s

is wrong. Because this Court’s decision will have a direct

effect on matters of prime importance to amici and their

members, amici submit this brief to assist the Court in

its resolution of the case.*

STATEMENT

Amici adopt petitioner’s statement of the case.

INTRODUCTION AND SUMMARY OF ARGUMENT

Federalism provides strength to our legal system, but

is simultaneously the source of much friction and the

impetus for much compromise. Our laws reflect “a

proper respect for state functions, a recognition of the

fact that the entire country is made up of a Union of

separate state governments, and a continuance of the

belief that the National Government will fare best if

the States and their institutions are left free to perform

their separate functions in their separate ways.” Younger

v. Harris, 401 U.S. 37, 44 (1971). At times, of

course, the tensions that inevitably result from the oper-

ation of federal and state sovereign authority in over-

lapping spheres can become intolerable. In those in-

stances, it is for Congress to decide how the conflict

should be resolved and, in particular, to ascertain

whether federal preemption of state law is warranted

under the Supremacy Clause.

Perhaps because “the composition of the Federal Gov-

ernment was designed in large part to protect the States

from overreaching by Congress” (Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 550-51

(1985) ), however, such congressional oversight typically

results in a compromise of-the federal and state interests.

* The parties’ letters of consent, pursuant to Rule 37 of the Rules

of this Court, have been filed with the Clerk.

1

Congress rarely endorses sweeping preemption of over-

lapping state law. The same “national political process

that] systematically protects States from the risk of

having their functions * * * handicapped by Commerce

Clause regulation” curbs national efforts to supersede

States’ exercise of their historic police power authority

to regulate in the public interest. Id. at 555; see, e. g.,

ETSI Pipeline Project v. Missouri, 108 S.Ct. 805, 810

(1988) (discussing federalism concerns reflected in Flood

Control Act, 33 U.S.C. § 701-1 (1952 ed.)

The decision of the court of appeals, however, reflects

an antagonism to state regulation of federally regulated

activities that is antithetical to basic notions of federa!-

ism and inconsistent with this Court’s established frame-

work for ascertainment of congressional intent to pre-

empt. The court improperly relied on inferential

evidence of congressional intent to preempt state law in

the face of explicit statutory language establishing that

Congress struck a different compromise between federal

and state interests.

Section 27 of the Federal Power Act directly refutes

the court of appeals’ ruling that hydropower projects li-

censed under that Act are exempt from minimum in-

stream flow requirements imposed by state law. Section

27 commands that the Act shall not be “construed as

affecting or intending to affect or in any way to inter-

fere with the laws of the respective States relating to

the control, appropriation, use, or distribution of water

used in irrigation or for municipal or other uses, or any

vested right acquired therein.” 16 U.S.C. § 821. The

state minimum instream flow requirement (imposed pur-

suant to Cal. Water Code § 1257 (West 1971)) that re-

spondents here seek to evade is the very type of state law

that Congress intended to preserve. It relates] to the

control, appropriation, use, or distribution of water used

„ for * * * other uses.”

Contrary to the court of appeals’ suggestion, there is

no ambiguity in the literal terms of Section 27 that

would support an alternative construction limiting its

5

scope either to the preservation of “state proprietary

rights” or to state control of water for purposes “re-

lated” to irrigation or municipal uses. No such qualifiers

appear in the language of Section 27. Nor is either sug-

gested by any applicable canon of statutory construction.

Because, moreover, Congress expressly preserved state

water law, it was improper for the court of appeals to

infer congressional intent to preempt from the alleged

“comprehensive” nature of the Federal Power Act’s reg-

ulatory scheme. A court may rely on such evidence of

implicit congressional intent to preempt only in the ab-

sence of explicit statutory language, such as that con-

tained in Section 27, which defines the scope of federal

preemption under the federal statute.

Nor may a court infer preemption based on an alleged

“conflict” between federal and state law where, as in this

case, toleration of such conflict was necessary to secure

the federal statute’s passage. The legislative history

shows that many members of Congress were seriously

concerned about the potential impact of federal water

power legislation on state water law. The language con-

tained in Section 27 was designed to address their

concerns—even at the expense of the “comprehensive”

federal regulatory scheme—and thus break the logjam

that had long stalled congressional enactment of federal

water power legislation prior to 1920. In such circum-

stances, a court may not substitute its vision of the bes“

way to regulate hydropower for the political compromise

actually struck by Congress.

Finally, this Court’s decision in First Iowa Hydro-

Electric Cooperative v. FPC, 328 U.S. 152 (1946),

does not require a different result. The Court’s discus-

sion of Section 27 in First Iowa was technically dictum

and should now be disavowed. Contrary to this Court’s

now settled precedent, the First Iowa Court’s reading of

Section 27 rested on a presumption in favor of federal

preemption instead of the required presumption against

federal preemption of traditional state police power au-

6

thority. First Iowa also relied heavily on an understand-

ing of the meaning of Section 8 of the Reclamation Act

—which served as the model for Section 27—that this

Court has since disavowed in California v. United States,

438 U.S. 645 (1978).

ARGUMENT

PURSUANT TO SECTION 27 OF THE FEDERAL

POWER ACT, HYDROPOWER PROJECTS LICENSED

UNDER THAT ACT ARE NOT EXEMPT FROM

STATE MINIMUM INSTREAM FLOW REQUIRE-

MENTS.

The critical task “{i]n deciding whether a federal law

preempts a state statute * * * is to ascertain Con-

gress’ intent in enacting the federal statute at issue.”

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983);

see Louisiana Public Service Comm'n v. FCC, 476 U.S.

355, 369 (1986). Preemption may be either express or

implied. Congress may, by explicit statutory language,

declare the extent to which it intends to preempt certain

state laws. California Federal Savings & Loan Ass'n v.

Guerra, 479 U.S. 272, 280-81 (1987). Alternatively, in

the absence of explicit congressional guidance, this Court

will

infer such intent where Congress has legislated com-

prehensively to occupy an entire field of regulation,

leaving no room for the States to supplement fed-

eral law, Rice v. Santa Fe Elevator Corp., 331 U.S.

218 (1947), or where the state law at issue con-

flicts with federal law, either because it is impossible

to comply with both, Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 182, 142-143 (1963),

or because the state law stands as an obstacle to the

accomplishment and execution of congressional ob-

jectives, Hines v. Davidowitz, 312 U.S. 52, 67

(1941).

Northwest Central Pipeline Corp. v. Kansas Corporation

Comm’n, 109 S.Ct. 1262, 1273 (1989). In all events,

where, as in this case, a party is claiming “preemption

7

of state law in areas traditionally regulated by the

States,” there is a “presumption against finding pre-

emption.” California v. ARC America Corp., 109 S. Ct.

1661, 1665 (1989). The Court in these cases start Is!

with the assumption that the historie police powers of the

States were not to be superseded by the Federal Act un-

less that was the clear and manifest purpose of Con-

gress.” Id. at 1665, quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. at 230. ‘ |

In this case, that presumption cannot be overcome.

There is no “clear and manifest purpose” evident in the

Federal Power Act to preempt state authority to impose

minimum instream flow requirements on those who pos-

sess a FERC license to operate a hydropower facility.

Indeed, quite the opposite is true.

A. Section 27 Of The Federal Power Act Preserves State

Authority To Impose Minimum Instream Flow Re

quirements On Federally Licensed Hydropower Facil-

ities.

“The starting point for [the Court’s] interpretation

of a statute is always its language” (Community for

Creative Non-Violence v. Reid, 109 S.Ct. 2166, 2172

(1989)). Section 27 of the Federal Power Act directly

addresses the preemption issue raised by this case:

whether Congress intended to preempt a State’s authority

relating to the control, appropriation, or use, of water

used in hydropower facilities. Section 27 explicitly denies

any congressional intent to prohibit such state laws. It

declares that nothing in the Act “shall be construed as

affecting or intending to affect or in any way to interfere

with the laws of the respective States relating to the

control, appropriation, use, or distribution of water used

in irrigation or for municipal or other uses, or any

vested right acquired therein.” 16 U.S.C. § 821.

The exercise of state authority challenged in this case

falls squarely within the four corners of Section 27. It

is a state law “relating to the control, appropriation, use,

or distribution of water used in * * * other uses.” Here,

8

respondent Rock Creek seeks to appropriate the use of

water for hydropower, and the State of California seeks

to control that use for the purpose of protecting the com-

peting values achieved by maintaining a minimum in-

stream flow.'

Nor should this result be surprising. Power to pre-

serve and regulate the exploitation of water is a tradi-

tional state function. See Sporhase v. Nebraska ex rel.

Douglas, 458 U.S. 941, 950-51 (1982); California v.

United States, 438 U.S. 645, 653 (1978). Congress wrote

Section 27 in expansive terms, consistently with its “pur-

poseful and continued deference to state water law” “in

the reclamation of the arid lands of the Western States”

(California v. United States, 438 U.S. at 653); see 33

U.S.C. § 1251(g) (“It is the policy of Congress that the

authority of each State to allocate quantities of water

within its jurisdiction shall not be superseded, abrogated

or otherwise impaired by [the Clean Water Act].”).2

Congress has long understood the “highly interdepend-

ent” nature of water rights and the tremendous “legal

1 The Solicitor General makes the curious suggestion that mini-

mum instream flow may not amount to a “use” of water. See FERC

Br. in Opp. 14 n.6. It is well settled, however, that [water use

consists of (1) intake uses, (2) onsite uses, and (3) instream or

flow uses” and that [flow uses include water for estuaries, naviga-

tion, waste dilution, hydroelectric power and also some fish and

wildlife and recreational uses.” National Water Commission, Water

Policies for the Future 6 (1973). Most Western States, moreover,

protect instream uses through instream flow laws. Johnson &

DuMars, A Survey of the Evolution of Western Water Law in

Response to Changing Economic and Public Interest Demands, 29

Nat. Res. J. 347, 361-67 (1989). Under California law, “recreation,

fish and wildlife, and other uses are recognized as beneficial uses

of water” and are protected “through water terms and conditions

which require maintenance of bypass flows.” Id. at 366, citing Cal.

Water Code § 1243 (West 1971). But, in all events, it is enough

that the State here is regulating respondent Rock Creek’s “use” of

water for hydropower purposes, which presumably all agree con-

stitutes a “use” of water, within the meaning of Section 27.

2 See Pet. Br. 18-22 (description of history of congressional def-

erence to state water law).

9

confusion” that could result from the fragmentation of

state authority. See Colorado River Water Conservation

District v. United States, 424 U.S. 800, 819 (1976);

California v. United States, 438 U.S. at 668-69. Because

“water is a moveable, wandering thing,” * a State cannot,

as a practical matter, effectively regulate the use of

water from a common source if certain users are exempt

from state authority.“

It is, no doubt, for this reason that Congress included

virtually no words of limitation in its express preserva-

tion of state authority to regulate the use of water. Sec-

tion 27 denies any congressional intent to interfere with

or affect such laws “in any way.” And that provision

deliberately extends its disclaimer of preemption beyond

state regulation of water for irrigation or municipal

uses to include regulation of water for “other uses.”

In this case, therefore, Section 27 should be the end

as well as the beginning of the Court’s preemption in-

quiry. [Flor where, as here, the statute’s language

is plain, ‘the sole function of the courts is to enforce it

according to its terms.’” United Siates v. Ron Pair

Enterprises, Inc., 109 S.Ct. 1026, 1030 (1989), quoting

Caminetti v. United States, 242 U.S. 470, 485 (1917).

3 2 W. Blackstone, Commentaries *18.

In its brief, the State provides concrete examples of the practi-

cal problems created by the court of appeais’ exeription of FERC

licensees from state water use regulation. See Pet. Br. 43-45.

5 Because the statutory language is unambiguous, there is no

occasion here to defer to FERC’s construction, which contravenes

Section 27’s plain meaning. See Public Employees Retirement

System v. Betts, 109 S.Ct. 2854, 2863 (1989); ETSI Pipeline Proj-

ect, 108 S.Ct. at 817. But, in any event, FERC’s current view does

not appear to be the same as its predecessor’s (Federal Power

Commission’s) initial contemporaneous reading of the Federal

Power Act, which is the more weighty agency construction (EEOC

v. Associated Dry Goods Corp., 449 U.S. 590, 600, n.17 (1981)).

FERC’s predecessor appears to have read the Act, consistently with

our view, as preserving state authority to apply its state water

laws to federally licensed hydropower projects. See Pet. Br. 35

10

B. The Court Of Appeals’ Failure To Honor The Plain

Meaning Of Section 27 Is Not Justified By The Court’s

Assertion Of Ambiguity In Its Meaning, The Al-

legedly Comprehensive Nature Of The Federal Hydro-

power Licensing Scheme, Or Claimed Conflicts Be-

tween Federal And State Authority.

The court of appeals’ finding of preemption in the face

of Section 27 is flawed in three fundamental respects.

First, the court invented ambiguity in the meaning of

Section 27 where there is none. Second, the court im-

properly inferred congressional intent to preempt state

water law based on the “comprehensive” nature of the

federal licensing scheme for hydropower facilities under

the Federal Power Act, notwithstanding Congress’s ex-

plicit statement that no such inference should be drawn.

Finally, the court inferred congressional intent to pre-

empt based on a conflict analysis that wholly ignores

that the Federal Power Act’s passage was ensured only

by the acceptance of such conflict within its statutory

scheme.

1. The court of appeals’ assertion that the meaning of

Section 27 is ambiguous makes a mockery of this Court’s

repeated admonition that “deference to the supremacy

of the Legislature, as well as recognition that Congress-

men typically vote on the language of a bill, generally

requires us to assume that ‘the legislative purpose is ex-

pressed by the ordinary meaning of the words used.“

United States v. Locke, 471 U.S. 84, 95 (1985), quoting

Richards v. United States, 369 U.S. 1, 9 (1962). There

is simply no merit to the court of appeals’ conclusion that

the language of Section 27 “can support two conflicting

readings” (Pet. App. A8): (1) Aimit ling! state author-

ity to the area of property rights involving water for

irrigation, municipal use, and related activities” (ibid.);

n.17. Indeed, because the federal agency seems to have shifted its

view in response to litigation—in cases such as First lowa Hydro-

Electric Coop. v. FPC, 328 U.S. 152 (1946)—its current construc-

tion, for that reason alone, may not be entitled to judicial deference.

Bowen v. Georgetown Univ. Hosp., 109 S.Ct. 468, 473 (1988).

11

or (2) „givling] the states final authority over all issues

connected to the control and use of water by a project

licensed under the FPA” (id. at A9). Only the latter

coincides with the ordinary meaning of the words of

Section 27.

Section 27 preserves “the laws of the respective States

relating to the control, appropriation, use, or distribu-

tion of water used in irrigation or for municipal or other

uses, or any vested right acquired therein” (emphasis

added). Hence, congressional intention to preserve “any

vested right acquired” in water pursuant to state law is

in addition to its intention to preserve state water reg-

ulatory authority generally and not to the exclusion of

such continuing state authority.

Likewise lacking in merit is the court of appeals’ con-

clusion that Section 27 can naturally be read as limiting

state authority to “water for irrigation, municipal use,

and related activities” (Pet. App. A8).* Section 27 pre-

serves state authority relating to “water used in irriga-

tion or for municipal or other uses“ (emphasis added).

The modifier “related” appears nowhere in the statute.’

FERC’s contrary view (see FERC Br. in Opp. 14),

must rest on the application of the principle of ejusdem

This is the basis for the court of appeals’ most narrow reading

of Section 27, which is that even if the State possesses property

rights in fish and fish uses, Section 27 is unavailing because it pro-

vides protection only to “municipal and irrigation proprietary

rights” (Pet. App. All n.3).

TIn FPC Y Nagara Mohawk Power Corp., 347 U.S. 239, 256

(1954), this Court embraced the view that the language of Section

27 “is applica to proprietary rights for power purposes,” reject-

ing the contention that Section 27 is more narrowly confined. Be-

cause Niagara Mohawk concerned the propriety of the federal li-

censee’s paying the expenses for the use of state water rights, the

Court did not have to address the issue whether Section 27 protects

only state proprietary rights. The Court’s refusal, however, to

limit Section 27 to “municipal” or “irrigation” uses is inconsistent

with the court of appeals’ narrow reading of “other uses” in this

case.

12

generis, the canon of statutory construction expressing

the notion that “where general words follow an enumera-

tion of specific terms, the general words are read to ap-

ply only to other items like those specifically enumer-

ated.” Garcia v. United States, 469 U.S. 70, 74 (1984).

Reliance on this doctrine, however, is misplaced. “ [The

rule of ejusdem generis, while firmly established, is only

an instrumentality for ascertaining the correct meaning

of words when there is uncertainty.’” Ibid., quoting

Harrison v. PPG Industries, Inc., 446 U.S. 578, 588

(1980); United States v. Turkette, 452 U.S. 576, 581

(1981) ; see also Cleveland v. United States, 329 U.S. 14,

17-18 (1946). Here, as in Garcia (“other property of the

United States”), Harrison (“any other final action“),

and Turkette (“any union or group of individuals as-

sociated in fact”), there is no initial uncertainty requir-

ing invocation of the principle. Ejusdem generis “cannot

be employed to render general words meaningless, since

that would be to disregard the primary rules, that effect

should be given to every part of a statute, if legitimately

possible, and that the words of a statute or other docu-

ment are to be taken according to their natural mean-

ing.” Mason v. United States, 260 U.S. 545, 554 (1923)

(“other form of appropriation“).“

Application of ejusdem generis is inappropriate also

because the legislative history surrounding Section 27’s

8 See note 31, infra.

In addition, application of the principle is not justified where,

as in Section 27, the “terms in question are made separate and dis-

tinct from one another by Congress’ use of the disjunctive” (Garcia

v. United States, 469 U.S. at 75). Here, Congress has deliberately

set “other uses” apart from “irrigation or municipal” in order to

ensure the provision’s expansive construction. Hence, application

of ejusdem generis is not warranted because “it may not be used

to defeat the obvious purpose of legislation.” United States v.

Gooch, 297 U.S. 124, 128 (1936); see King v. United States, 379

U.S. 329, 336-37 (1964) (“other person“); United States v. Alpers,

338 U.S. 680, 683-84 (1950) (“other matter of indecent character“);

see also Cutler v. Kouns, 110 U.S. 720, 728 (1884) (“other crimes”).

13

enactment (see pages 18-20, infra) establishes that Con-

gress was aware of the potentially expansive meaning of

adding “other uses” in the disjunctive. In particular,

Section 27 was modelled after Section 8 of the Reclama-

tion Act of 1902, which is virtually identical to Section

27, except that the Reclamation Act does not include the

catch-all category “other uses” that the framers of Sec-

tion 27 were careful to add.”

Finally, the court of appeals’ narrow reading of Sec-

tion 27 is precluded by this Court’s decision in California

v. United States, 488 U.S. 645 (1978). The Court in

that case rejected a similarly narrow proposed construc-

tion of statutory language that is essentially identical to

that contained in Section 27.

At issue in California v. United States was the mean-

ing of Section 8 of the Reclamation Act of 1902, which

provides that the Secretary of the Interior, in operating

federal reclamation projects, must comply with state

laws relating to the “control, appropriation, use, or dis-

tribution of water used in irrigation, or any vested right

10 Nor did the addition of this phrase go unnoticed during the

legislative process. Efforts were made to amend predecessor bills

containing similar language in order to prevent a State from exer-

cising the type of authority asserted by California here. See, e. g.,

51 Cong. Rec. 14066-67 (1914) (remarks of Rep. Mann) (“The

provision says that any law that a State passes for any use of

water shall prevail over this law.“); id. at 14067 (remarks of Rep.

Mann) (“Is the gentleman willing to accept an amendment to strike

out the words ‘and other,’ in line 17”); id. at 14071 (remarks of

Rep. Stevens) (“Not the same provision [as Section 8 of the Rec-

lamation Act]. * * * It referred merely to irrigation. But you

have got in here ‘or other uses,’ which covers the use of water for

the development of power. It seems to give the State the authority

to make laws governing the development of water power on these

Government lands. The words ‘or other uses’ ought to be stricken

from this section.”). Because these efforts ultimately failed to

prevent Congress from including the more expansive language, it

would be especially improper now to use ejusdem generis to obtain

the very result rejected by Congress in enacting the Federal Power

Act. See United States v. Mescall, 215 U.S. 26, 32 (1909).

14

acquired thereunder” (43 U.S.C. § 383). The Solicitor

General, on behalf of the Secretary of the Interior in that

case, like the Solicitor General on behalf of FERC in

this case, resisted the plain meaning of the statutory

language by positing that its sole legal effect was to re-

quire just compensation for any vested rights in water

adversely affected by the federal activities. In a ruling

directly applicable to the case at hand, the Court flatly

rejected the Solicitor General’s proffered construction.

According to the Court, “Section 8 cannot be read to re-

quire the Secretary to comply with state law only when it

becomes necessary to purchase or condemn vested water

rights. That section does, of course, provide for the

protection of vested water rights, but it also requires the

Secretary to comply with state law in the ‘control, appro-

priation, use, or distribution of water.“ 438 U.S. at 674-

75.

Respondents try to avoid the obvious force of Califor-

nia v. United States by claiming that Section 8 of the

Reclamation Act is distinguishable from Section 27 of

the Federal Power Act. See FERC Br. in Opp. 15-16;

Pet. App. Al2; Rock Creek Br. in Opp. 10-13. Compari-

son of the language of the two provisions and the legis-

lative history of Section 27’s adoption, however, show

that the only difference was Congress’s intent in Section

27 to provide even broader protection of state water laws

than that provided for in Section 8.“ Section 27 was

modelled after Section 8 of the Reclamation Act, but ex-

plicit!y extended beyond water used for irrigation to in-

11 Section 8, 43 U.S.C. § 383, provides:

Nothing in this Act shall be construed as affecting or intended

to affect or to in any way interfere with the laws of any State

or Territory relating to the control, appropriation, use, or dis-

tribution of water used in irrigation, or any vested right ac-

quired thereunder, and the Secretary of the Interior, in carry-

ing out the provisions of this Act, shall proceed in conformity

with such laws * * *.

12 U.S. Br. in California v. United States, at 52 (“Section 27 * * *

is similar to Section 8 of the Reclamation Act, but broader.“

15

clude water for “municipal and other uses” (see pages

12-13, supra). In all other relevant respects, the two

provisions are, as the court of appeals itself acknowil-

edged, “virtually identical” (Pet. App. A9).

Indeed, in light of the Solicitor General’s prior re-

peated acknowledgements of the close relationship be-

tween Sections 8 and 27, his current position that “Sec-

tions 8 and 27 would properly be interpreted as parts of

two quite different statutory schemes” is surprising. See

FERC Br. in Opp. 16 n.9. In his briefs before this Court

in California v. United States, the Solicitor General re-

peatedly analogized Sections 8 and 27. In discussing Sec-

tion 8, he argued that the “same analysis has governed

this Court’s interpretation of comparable statutory pro-

visions such as Section 27 of the Federal Water Power

Act.” U.S. Br. in California v. United States, at 23

The Solicitor General also referred to a decision of this

Court construing Section 27 as “[pJerhaps the closest

analogous case” because the “Court there interpreted a

provision similar to Section 8” (id. at 51). Indeed, the

13 The Solicitor General alternativ its (Br.

that Section 8 is distinguishable e —

8 further provides that the Secretary of the Interior, in —

out the provisions of this Act, shall proceed in conformity with' such

[state] laws” (43 U.S.C. § 383). That is a distinction that makes

no difference to the outcome of this case. Section 27 does not in-

clude comparable language for the obvious reason that under the

Federal Power Act, unlike the Reclamation Act, it is generally

private parties (not a federal agency) that must comply with state

water law. Hence, there was no need in the Federal Power Act to

include a specific provision declaring that the federal agency must

itself comply with state water law.

In any event, this case concerns the scope of state authority

preserved by the savings portion of Section 27, and Sections 8 and

27 are “virtually identical” in that respect. The additional lan-

guage in Section 8 upon which the Solicitor General relies does not

purport to increase the scope of laws preserved. Rather it expressly

confines the Secretary’s compliance to “such” state laws as are pre-

served by the first clause of the provision.

16

Solicitor General argued that the Court’s holding in that

earlier case “applies a fortiori here” (id. at 129).

Nor is the Solicitor General’s recognition of the close

relationship between Sections 8 and 27 either of recent

vintage or confined to his representation of the Secretary

of the Interior. In arguing over 45 years ago in favor

of the very same narrow reading of Section 27 that he

currently propounds, the Solicitor General, on behalf of

the FERC’s predecessor, the FPC, happily embraced the

analogy from which he now makes a hasty retreat. He

argued that a] restricted construction of Section 27 is

supported by the legislative history of that Section which

shows that it was derived from Section 8 of the Reclama-

tion Law of 1902.” FPC Br. in First Iowa Hydro-

Electric Cooperative v. FPC, 328 U.S. 152 (1946), at

39 n.23. Indeed, FERC’s predecessor argued in that liti-

gation that [in the case of Section 27 the outstanding

fact in its legislative history is its derivation through

the public lands bills from Section 8 of the Reclamation

Law of 1902.” See First Iowa Pet. App. 58 (reproduc-

ing portion of the FPC brief filed in the court of

appeals).

The Solicitor General cannot have it both ways. His

loss in California v. United States may provide him with

a strategic need to abandon his prior position concerning

the close relationship of Section 8 to Section 27, but it

in no sense deprives that position of its logical force. The

relationship of Section 27 to Section 8 cannot be gainsaid.

2. Because, moreover, the meaning of Section 27 is

unambiguous, the court of appeals’ and FERC’s reliance

on the alleged “comprehensive” nature of federal regula-

tion of hydropower facilities to support an inference of

congressional intent to preempt is misguided. See Pet.

App. A7-A9, A35; FERC Br. in Opp. 15-16. Simply put,

any such inference is impermissible where, as in this

case, Congress has expressly addressed the preemption

issue. There is no room for a court to conclude that

Congress impliedly preempted state law by enacting fed-

17

eral legislation that “occupied the field” when Congress

has included in that legislation a provision such as Sec-

tion 27 that expressly denies any such intention.

A savings provision such as Section 27, like a provi-

sion limiting agency jurisdiction, “provides its own rule

of statutory construction.” Louisiana Public Service

Comm’n v. FCC, 476 U.S. at 376-77 n.5. Thus, this

Court has acknowledged that “Congress explicitly may

define the extent to which its enactments pre-empt

state law” and has indicated that it is only “[i]n the

absence of explicit statutory language” that a court may

conclude that Congress has “implicitly indicated]! an

intent to occupy a given field to the exclusion of state

law.” Schneidewind v. ANR Pipeline Co., 108 S.Ct. 1145,

1150 (1988). See International Paper Co. v. Ouellette,

479 U.S. 481, 492 (1987) (“Although Congress intended

to dominate the field of pollution regulation, the savings

clause negates the inference that Congress ‘left no room’

for state causes of action.“); California Federal Savings

& Loan Ass’n, 479 U.S. at 282 (“there is no need to

infer congressional intent to pre-empt state laws from the

substantive provisions of Title VII; these two [express]

sections provide a ‘reliable indicium of congressional in-

tent with respect to state authority’”); id. at 295

(Scalia, J., concurring).'* A finding of implied preemp-

tion therefore cannot validly be derived from the alleged

“comprehensive” nature of FERC regulation of hydro-

power facilities pursuant to the Federal Power Act.“

14 Cf. Northwest Central Pipeline, 109 S.Ct. at 1276 (“To find

field pre-emption of Kansas’ regulation merely because purchasers’

costs and hence rates might be affected would be largely to nullify

that part of [Natural Gas Act] §1(b) that leaves to the States

control over production * * *.”) ; Louisiana Public Service Comm'n

v. FCC, 476 US. at 370 (“We might be inclined to accept this

broad reading of § 151 were it not for the express jurisdictional

limitations on FCC power contained in § 152 (b) [of the Federal

Communications Act].”). See generally L. Tribe, American Con-

stitutional Law, § 6-26, at 482 n.8 (2d ed. 1988).

18 Nor, for this same reason, can FERC properly use the com-

prehensive nature of its regulatory authority under the Federal

18

3. The court of appeals’ conflict analysis likewise fails

to take adequate account of the significance of Section 27.

The court of appeals embraced the sweeping notion that

Congress intended to preempt any state law that “could”

affect the economics of a project or that otherwise might

“create a different type of hydropower project from the

one described in the license.” Pet. App. Al2; see id. at

Al11-A13. What the court ignored, however, is that the

language and legislative history of Section 27 evince con-

gressional intent to tolerate state laws that seemingly

conflict with federal policy.“

Section 27 reflects, at bottom, a compromise of com-

peting interests. Prior to the enactment of the Federal

Power Act in 1920, federal water power legislation had

been stalled for years, largely because of the concerns

expressed by representatives of Western States about the

impact of such federal legislation on state authority over

water. See generally J. Kerwin, Federal Water-Power

Legislation, 105-263 (1926). Section 27’s uneasy fit

within a statutory scheme that seemed otherwise to pur-

port to leave no room for continuing state authority did

not go unnoticed either by those generally in favor of or

opposed to the legislation. For the former, who tended to

be less concerned about the impact on state law, the lan-

guage ultimately included in Section 27 improperly al-

lowed a State to exercise significant regulatory authority

over a federally licensed hydropower facility and thus

threatened to undo much of the purpose of federal leg-

Power Act as an excuse for avoiding the plain meaning of Section

27 through the guise of “reconcil[ing] the provisions of Section 27

of the FPA with the comprehensive planning authority vested ex-

clusively in [FERC] by Section 10(a)” (Pet. App. A30).

16 While conflict analysis for preemption purposes may be war-

ranted, notwithstanding an express nonpreemption provision, that

analysis must still be tempered by it, lest that provision be

rendered meaningless. See Northwest Central Pipeline, 109 S.Ct.

at 1276-77 & n.12.

19

islation.“ For those more sensitive to the potentially

adverse effect of the legislation on state sovereignty, how-

ever, the inconsistency between the language ultimately

included in Section 27 and the rest of the statute, which

would otherwise leave the impression that a federal li-

cense trumped state water law, was the very feature of

the language that they found the most inviting.“ At the

7 See, e.g., 51 Cong. Rec. 14066-67 (1914) (remarks of Rep.

Mann (commenting on language identical to Section 27 contained in

predecessor bill) ) ; see note 10 supra.

18 This is evident in several exchanges on the House floor. For

instance, Representative Mondell, in commenting on identical lan-

guage contained in a predecessor bill, remarked that “the amend-

ment [to delete ‘other uses’] ought not to be adopted, and yet it

is a perfectly logical amendment from the standpoint of the other

provisions of the bill * * *.” 51 Cong. Rec. 14070 (1914). He

further added that [olf course [the savings provision] ought to

stay. It is one of the few provisions in the bill that ought to be

enacted into law.” Jbid.

Numerous other exchanges leave no doubt that those who favored

the savings provision that ultimately became law in Section 27

viewed it as preserving state authority to require a federal licensee

to comply with state water law requirements even where different

from the conditions of the federal license. An exchange between

Representatives Stevens and Raker is one of the more telling:

Mr. Stevens: Suppose the State of Colorado has laws govern-

ing the use of water for the development of power, which laws

vary materially from the rules and regulations set out in this

act, which would govern, the State law or this law?

Mr. Raker: In answer to the gentleman’s question, as I view

it, and as we are trying to arrange it, the State law in re

gard to water rights * * *.

Mr. Stevens: Let me understand. You answer that question,

then, by saying that the State law would control?

Mr. Raker: Yes.

51 Cong. Rec. 14070-71 (1914). See 56 Cong. Rec. 9114-15 (1918)

(remarks of Rep. Mondell); id. at 9810 (remarks of Rep. La

Follette) ; id. at 10494, remarks of Sen. Myers); see also 59 Cong.

Rec. 6537 (1920) (remarks of Rep. Sinnott).

“4

m =

end of the day it was those who sought the deliberate

retention of that conflict within the statutory scheme

that prevailed. The language of Section 27 was approved

in congressional committee after strenuous efforts“

by a vote of 8 to 7 (see 56 Cong. Rec. 9115 (1918)

(remarks of Rep. Taylor)), and the resulting compro-

mise struck the balance that broke the legislative deadlock

and ultimately secured approval of both chambers of

Congress.“

For this very reason, FERC's invitation to ignore the

plain meaning of Section 27 in order to embrace FERC’s

(or the court of appeals’) vision of a more “workable”

federal regulatory scheme must be declined. Congress

struck a different compromise by including Section 27,

and the courts must honor the legislative judgment. This

Court’s “task is to apply the text, not to improve upon

it” (Pavelic & LeFlore v. Marvel Entertainment Group,

110 S.Ct. 456, 460 (1989) ).*°

19 Representative Sinnott described well the nature of the com-

promise (56 Cong. Rec. 9290 (1918) ):

[Oln account of the sharply divergent views persisted in with

great tenacity by the respective advocates of Federal and

State ownership and control of our water-power resources

Congress has no more perplexing legislation to vex it than

that embodied in the bill now before the House.

* * * * *

[Als most legislation is a compromise, this bill is as fair a

compromise as can be expected to issue from ingenious and

positive minds wedded to pet theories of government, un-

willing to stultify long preconceived convictions, but regard-

ful that the needs of the country demand that the deadlock

which has for years tied up one of our most valuable resources

should be broken.

Because the session ended before the Senate approved the com-

promise legislation, it was not passed until 1920 when both cham-

bers approved an identical bill. See Pet. Br. 34.

20 It is no matter that Congress apparently considered, and

declined to enact, a proposal that would have required state con-

sent to hydropower projects. See First Jowa, 328 U.S. at 179. The

language not enacted was not confined, as is Section 27, to preser-

— —

21

It is wholly beside the point whether the compromise

embodied in Section 27 best serves the interests of fed-

eral hydropower development. Nor is it at all relevant

whether that legislative result minimizes duplication of

federal and state regulatory efforts. The sacrifice of

some valuable interests is the essence of compromise.

Here, those favoring the maintenance of state control

of the regulation of water prevailed at the expense of

other potentially legitimate interests. The courts are

not free in these circumstances, in the guise of statutory

interpretation, to strike a different balance. Instead,

“|s]trict adherence to the language and structure of the

federal statute] is particularly appropriate where, as

here, a statute is the result of a series of carefully

crafted compromises.” Community for Creative Non-

Violence v. Reid, 109 S. Ct at 2177 n.14. For only gl iv-

ing full effect to the words of the statute preserves the

compromise struck by Congress.” Hallstrom v. Tillamook

County, 110 S.Ct. 304, 310 (1989) .2"

Finally, there is no merit to the court of appeals’ and

respondents’ implicit suggestion that the plain meaning

of Section 27 should be avoided because toleration of a

state “veto” of a federally licensed hydropower facility

would produce “absurd or futile results.” See United

States v. American Trucking Ass’ns, Inc., 310 U.S. 534.

543 (1940); Holy Trinity Church v. United States, 143

U.S. 457 (1892). There is nothing inherently anomalous

about a private entity having to comply with overlapping

federal and state regulatory requirements.

vation of state water law. But, in any event, the central inquiry in

statutory construction is the plain meaning of the language

actually enacted, rather than speculation concerning the motives

that might have prompted the failure of other versions of the bill

to become law. Cf. Schneidewind v. ANR Pipeline Co., 108 S.Ct.

at 1153-54.

21 See 53 Cong. Rec. 4204 (1916) (remarks of Sen. Myers) (“I

do not care with whom I disagree. I agree with the bill, which says

there is no intention to control or interfere with the waters of

the States. I am satisfied to agree with the printed terms of the

bill in its plain language“

ie

22

In this case, for instance, the State of California is not

requiring respondent Rock Creek to violate any terms of

its federal license. The State is not asserting any right

to compel Rock Creek to violate the minimum instream

flow requirements contained in its FERC license. To the

contrary, the State is, consistently with the federal re-

quirement that a specified “minimum” flow be allowed,

requiring Rock Creek to allow a greater flow to be main-

tained. “Ordinarily, state causes of action are not pre-

empted solely because they impose liability over and

above that authorized by federal law.” California v. ARC

America Corp., 109 S.Ct. at 1667; see Silkwood v. Kerr-

McGee Corp., 464 U.S. 238, 257-58 (1984).

State regulatory requirements that apply to a feder-

ally licensed hydropower project, moreover, do not neces-

sarily preclude a private party from proposing to FERC

a project that satisfies both state and federal concerns.

As in California Federal Savings & Loan Ass’n, [this

is not a case where ‘compliance with both federal and

state regulations is a physical impossibility,’ Florida

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

142-143 (1963), or where there is an ‘inevitable collision

between the two schemes of regulation.’ Id. at 143.”

479 U.S. at 290-91. Indeed, there is not even a threshold

showing here that compliance with the state standards

would render respondent Rock Creek’s project economi-

cally infeasible over the life of the project. To the con-

trary, based on a preliminary analysis, FERC found that

the project “would be economically feasible over the 50-

year term of the license with a levelized net annual bene-

fit of approximately $26,000 if [the State’s] recom-

mended flows were adopted.” Pet. App. A20.*

22 Nor is the State in any way interfering with a federally re-

quired activity. The hydropower facility is not a federal project

undertaken by the federal government itself. It is an entirely

private endeavor that, based on its compliance with applicable

federal requirements, has obtained a federal license from FERC.

The legal significance of that federal license, however, is no more

23

In any event, the specter of a state law resulting in

further regulation of some aspect of a private activity

otherwise in compliance with a federal agency’s require-

ments is anything but the anomaly suggested by the

court of appeals and respondents. Such “veto” authority

is the inevitable and healthy result in a wide range of

contexts where federal and state regulatory authorities

happily coexist.**

Nor is there any reason to suppose that hydropower

projects require special treatment. Certainly, there is no

general exemption from state law for hydropower proj-

ects. Federal reclamation projects frequently serve sig-

nificant hydropower purposes and, following this Court’s

decision in California v. United States, such projects

must comply with state water law unless inconsistent

— clear congressional directives. See 438 U.S. at 672-

So, too, it is clear that a FERC licensee is not immune

from another agency’s regulation, even where the sec-

ond agency is considering many of the same factors pre-

viously considered by FERC in deciding whether to issue

than that. It does not convert a private activity into the consti-

tutional equivalent for Supremacy Clause purposes of a federal

project. Cf. Organized Village of Kake v. Egan, 369 U.S. 60, 63

(1962) (federal license “simply acknowledgment that the activity

does not violate federal law, and not an exemption from state

licensing or police power requirements.“)

See, e. g., Hillsborough County v. Automated Medical Labora-

tories, Inc., 471 U.S. 707 (1985) (rejecting preemption challenge

to state requirements applicable to federally licensed blood plasma

vendors) ; Rice v. Rehner, 463 U.S. 713 (1983) (upholding state

licensing requirements applicable to federally licensed Indian traders

on Indian reservations); Pacific Gas & Elec. Co. v. State Energy

Resources Conservation & Development Comm’n, 461 U.S. 190

(1983) (upholding state economic regulation of federally licensed

nuclear power facilities) ; Askew v. American Waterways Operators,

Inc., 411 U.S. 325, 337 (1973) (rejecting preemption challenge to

state licensing requirements applicable to federally licensed marine

terminal facilities) ; Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) (upholding state regulatory requirements ap-

plicable to federally approved agricultural commodities).

24

a license. For instance, under Section 404 of the Clean

Water Act, 33 U.S.C. § 1344, the Army Corps of Engi-

neers may decide, based on its own weighing of many

of the same environmental factors already considered by

FERC pursuant to the Federal Power Act, that a FERC-

approved hydropower project should be barred. See

Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C.

Cir.) (upholding, over FERC’s objection, Corps author-

ity to deny Section 404 permit to FERC licensee), cert.

denied, 484 U.S. 816 (1987); see also Escondido Mutua!

Water Co. v. La Jolla Band of Mission Indians, 466 U.S.

765 (1984) (upholding, over FERC’s objection, authority

of the Secretary of the Interior to impose conditions on

FERC licenses issued to projects located within a federal

Indian reservation ) .**

Similarly, States already possess pursuant to the Clean

Water Act the very type of overlapping regulatory au-

thority with respect to water quality standards that

FERC here claims Congress must be deemed to have pre-

empted in the Federal Power Act with respect to water

quantity standards. Not only do state water quality

standards supplement federal water quality requirements

24 Significantly, in a submission to this Court, the Solicitor Gen-

eral, on behalf of both FERC and the Army Corps of Engineers,

recently maintained that the resulting overlapping regulatory

scheme—which enables the Corps to “veto” FERC-approved proj-

ects—did not “present an important issue that warrants this

Court’s review.” Fed. Resp. Br. in Opp. in Monongahela Power

Co. v. Marsh, 809 F.2d 41 (D.C.); cert. denied, 484 U.S. 816

(1987), at 9. According to the Solicitor General, “[a]s a prac-

tical matter, agencies, such as [FERC] and the Corps of Engineers

in this case, work out their overlapping programmatic interests

through memoranda of understanding that allow each agency a

substantial role in the decisionmaking process.” Ibid. Notwith-

standing the federal government’s current protests that any over-

lap in federal and state authority is “unworkable,” we believe that

actual experience similarly suggests that “as a practical matter,”

the amount of serious conflict between sovereigns would be mini-

mal. As the State points out, FERC licensees in California have

historically sought state water permits and adhered to state regu-

latory requirements without incident. See Pet. 6-7 n.1.

25

under the Clean Water Act (see 33 U.S.C. §§ 1311(b)

(1)(C), 1370), but Congress specifically required state

certification of compliance with applicable requirements

(see 33 U.S.C. § 1341) and also authorized the federal

agencies responsible for implementation of the Act (EPA

and Army Corps of Engineers) to allow administration

of the permitting program by state agencies (see 33

U.S.C. §§ 1342 (b), 1844(g)). Hence, the Solicitor Gen-

eral’s assertion here that the purposes of the Federal

Power Act will be hopelessly undermined absent preemp-

tion of state water law rings hollow. At the very least,

it cannot be said that Congress shares the Solicitor Gen-

eral’s apparent antipathy to overlapping state and fed-

eral regulatory authority.”

C. This Court’s Discussion Of Section 27 In First Joa

Should Now Be Disavowed.

When all is said and done, respondents’ principal sup-

port for their proffered construction of Section 27 is this

Court’s discussion of that provision 44 years ago in

First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S.

152 (1946). For, apart from that decision, there is little

in the language of Section 27 itself or the provision’s

25 The Solicitor General’s reliance on the provisions of the Elec-

tric Consumers Protection Act of 1986 (ECPA), Pub. L. 99-495,

100 Stat. 1243, is misdirected. See FERC Br. in Opp. 20-22. That

statute was enacted after the issuance of the FERC license that

is the subject of this litigation, but, in any event, the issue here

is what Congress intended in enacting Section 27 of the Federal

Power Act in 1920. That question does not turn on what a dif-

ferent Congress subsequently intended 66 years later when it

amended and added other provisions to federal water power legis-

lation. Moreover, as the State of California explains (Pet. Br. 15

n.8), there is no inconsistency between our view of Section 27 and

the provisions of ECPA calling for heightened FERC consideration

of the views of other federal and state agencies regarding the

impact of a proposed project on instream values. A congressional

effort to provide a procedural mechanism to minimize disagree-

ments between federal and state agencies does not evince a “clear

and manifest purpose of Congress” to supersede those other au-

thorities when a disagreement persists. Rice v. Santa Fe Elevator

Corp., 331 U.S. at 230.

26

legislative history to buttress respondents’ narrow read-

ing of the Act’s nonpreemptive purpose. Certainly the

little evidence that might be garnered falls far short of

the “clear and manifest purpose of Congress” that this

Court has long made clear is required for preemption

of a State’s exercise of its traditional police power au-

thority. See Rice v. Santa Fe Elevator Corp., 331 U.S.

at 236.

We agree with petitioner that the Court’s discussion of

Section 27 in First Iowa was technically dictum.” We

also agree with petitioner that that case is distinguish-

able because the state law challenged there, unlike the

state law at issue here, sought to accomplish more than

mere regulation of the use of water. But, like petitioner,

we do not suggest that the significance of First lowa

can (or needs to) be discounted on either of those

grounds alone. Although the Court’s discussion of Sec-

tion 27 in First Iowa was not, strictly speaking, neces-

sary to the result, it was a substantial part of the Court’s

reasoning in determining the legal issue then before the

Court: whether Section 9 of the Federal Power Act re-

quired an applicant for a FERC license to present satis-

factory evidence of its compliance with state law as a

prerequisite to its obtaining a federal license.“ On re-

26 The Court’s discussion of Section 27 was dictum because it

was not necessary to the Court’s consideration of Section 9 of

the Federal Power Act, the meaning of which was the sole issue

squarely before the Court in First Iowa. Respondent Rock Creek’s

claim (Br. in Opp. 8-9) that the discussion must be considered

the Court’s holding because otherwise the case would be unim-

portant misapprehends the meaning of a judicial holding. There

is no rule that a court’s holding must be “important” and thus

no corollary principle exists that anything important that a court

says in its opinion must be considered part of its holding. Per-

haps the most apt characterization of the First Jowa Court’s dis-

cussion of Section 27 was its description by the court of appeals

as “extensive commentary” (Pet. App. Al0).

27 See 328 U.S. at 163-64 (“The question at issue is the need,

if any, for the presentation of satisfactory evidence of the peti-

tioner’s compliance with the terms of Chapter 363 of the Code of

Iowa.“).

— 2

27

examination, however, the First Iowa Court’s reading of

Section 27 is no longer tenable (if it ever was) and

therefore should be disavowed.

The Court’s description of Section 27 rested on three

basic propositions: (1) the comprehensive nature of the

federal licensing scheme (328 U.S. at 164-74); (2) the

conflicts between state and federai policy that might re-

sult from allowing the application of state water law (id.

at 167-74); and (3) the Court’s understanding of the

meaning of Section 8 of the Reclamation Act, which

served as the model for Section 27 (328 U.S. at 176-77

& n.20). None withstands scrutiny.

1. The first—the allegedly “comprehensive” nature of

the federal permitting scheme—is simply not a legiti-

mate basis for inferring congressional intent to preempt

in the face of Section 27’s plain terms. As described

above (see pages 16-17, supra), this Court’s decisions have

since made clear that reliance on such inferential evi-

dence of intent to preempt is improper where, as in the

case of the Federal Power Act, Congress has included a

statutory provision (Section 27) that explicitly limits

the preemptive scope of the federal Act.

In addition, the Court in First Jowa did not have the

benefit of full briefing concerning the legislative history

of Section 27’s enactment and, as a result, misappre-

hended the congressional purpose in enacting comprehen-

sive” legislation.“ As the State shows in this case (see

Pet. Br. 31-32), careful examination of the relevant leg-

islative history indicates that Congress sought, at most,

to achieve “comprehensive” legislation in the sense of

avoiding the fragmented authority at the federal level

28 Contrary to the court of appeals’ and FERC’s assertion (Pet.

App. Al2-A13; FERC Br. in Opp. 14-15 n.7), the parties in First

Iowa did not fully brief the Court concerning the legislative history

of Section 27’s adoption. In particular, the State of Iowa's sub-

missions in that case contain virtually no references to any of the

relevant legislative history, which is ably presented in the State of

California’s brief in this case.

28

that had previously hampered hydropower development.”

The legislative history contradicts the then far more con-

troversial proposition that overlapping state water law

authority should also be superseded to promote further

hydropower development.

2. The First Iowa Court’s conflict analysis is sim-

ilarly deficient. The Court started from the premise that

Congress must be presumed to have intended to preempt

an overlapping state permit requirement “in the absence

of an express provision for it.““ The Court thus re-

versed the now-settled presumption against preemption of

state law. Indeed, notably absent from the Court’s opin-

ion in First Iowa is any reference to the need for a

“clear and manifest purpose of Congress“ to overcome

that presumption and thus to preempt state police power

authority.

20 It is far from clear, however, that the Federal Power Act pro-

vides FERC with “comprehensive” authority among federal agen-

cies. See, e. g., Escondido Mutual Water Co. v. La Jolla Band of

Mission Indians, 466 U.S. 765 (1984) (Secretary of the Interior

may impose conditions on licenses issued to projects located within

federal Indian reservation) ; Monongahela Power Co. v. Marsh, 809

F.2d 41 (D.C. Cir.) (Army Corps of Engineers may deny Clean

Water Act Section 404 permit to FERC licensee), cert. denied, 484

U.S. 816 (1987) ; Uncompahgre Valley Water Users Ass'n v. FERC,

785 F.2d 269 (10th Cir.) (Secretary of the Interior (not FERC)

possesses exclusive authority to regulate hydropower facilities at

a reclamation project), cert. denied, 479 U.S. 829 (1986); see also

C. Meyers & A. Dan Tarlock, Water Resource Management 489-91

(1971) (“Historian Samuel Hays argues that in fact the 1920 Act

was a rejection of comprehensive development.”), citing S. Hays,

Conservation and the Gospel of Efficiency: The Progressive Con-

servation Movement 1890-1920, 208-09, 239-40 (1959).

30 See 328 U.S. at 167 (emphasis added) (“Similarly, compliance

with the engineering requirements of the State Executive Council,

if additional to or different from the federal requirements, may

well result in duplications of expenditures that would handicap the

financial success of the project. Compliance with requirements for

a permit that is not to be issued is a procedure so futile that it

cannot be imputed to Congress in the absence of an express provi-

sion for it.”).

—

— —

29

The First Iowa Court also never took into account

the significance of Section 27 in its conflict analysis. As

a result, the Court improperly substituted its vision of

sensible policy—the absence of overlapping federal and

state permitting authority—for the quite different com-

promise struck by Congress in including Section 27 in the

Federal Power Act. See pages 18-20, supra.

3. Finally, the Court’s description of Section 27 in

First Iowa was based on an understanding of the mean

ing of Section 8 of the Reclamation Act—which all agree

served as the model for Section 27—that this Court has

since disavowed. The Court reasoned (and the Solicitor

General argued) in First Iowa that “[t]he use, in § 27

of the Federal Power Act, of language having a limited

meaning in relation to proprietary rights under [Section

8 of the] reclamation law and in public land bills, carries

that established meaning of the language into the Fed-

— igs ＋ in the absence of anything in the Act

calling for a different interpretation of the 1 5

328 U.S. at 177 n. 20. ia bial dil

As discussed above (see pages 13-15, supra), however,

this Court in California v. United States, has since

squarely addresed the meaning of Section 8 and concluded

—contrary to its assumption in First lowc—that its

meaning is not limited “to proprietary rights,” but in-

stead broadly extends to the preservation of state regula-

tory authority over water rights. See 438 U.S. at 674-

75.° This Court should now revisit the meaning of Sec-

31 The First Iowa Court also cited to a lower court decision that

had in turn relied on the application of the principle ejusdem generis

in support of a limited construction of Section 27. See 328 U.S. at

176, citing Alabama Power Co. v. Gulf Power Co., 283 F. 606, 619

(1922). As discussed above, however, that principle of statutory

construction does not apply to the language of Section 27 and, in

any event, this Court in FPC v. Niagara Mohawk Power Corp.,

347 U.S. at 256, has since rejected that aspect of its narrow reading

of Section 27 in First lowa. See pages 11-13 & note 7, supra.

*The Court in California v. United States agreed with the State

that state water regulations that were inconsistent with clear con-

30

tion 27 in light of California v. United States and, based

on its reasoning, formally acknowledge that Congress

likewise intended just what it said in the Federal Power

Act: to preserve state regulatory authority “relating to

the control, appropriation, use, or distribution of water

used in irrigation or for municipal or other uses * * *.”

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted,

RICHARD J. LAZARUS BENNA RUTH SOLOMON

WASHINGTON UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGAL CENTER

One Brookings Drive 444 North Capitol St., N.W.

St. Louis, MO 63130 Suite 349

(314) 889-6495 Washington, D.C. 20001

Of Counsel (202) 638-1445

Counsel of Record for the

January 17, 1990 Amici Curiae

gressional directives would, of course, be preempted. See 438 U.S.

at 672-79. Respondents’ preemption challenge here, however, is

based on the allegedly “comprehensive” nature of FERC’s licensing

authority and not on the equivalent of “specific congressional direc-

tives.” Notably, in California v. United States, the Court rejected

a preemption claim that was similarly based on the “comprehen-

sive” nature of the Secretary of the Interior’s authority under the

Reclamation Act. See 438 U.S. at 677-78.

in i ae ee