Petition for Rehearing — Federal Power Commission v. Southern California Edison Co.

-“* LIBRARY — [@ FILED

GUPREME COURT. U, Sy

- Feperat Power Commission, Petitioner, |

Soyr CaLirornia Epison Compaxy and No 71

c UTILITyEs COMMISSION oF THE StTaTE e

or CALIFORNIA, — rae Respondents.

Crry OF Courox, CALIFORNIA, - Petitioner,

: Sourmery Caurroriia Episox Company and | No. 73

Pusiic Uriurrres Commission oF THE STATE

or CaLirorNia,. oe Respondents.’ .

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” PETITION FOR REHEARING: ie

Pe ai SG ,

Sen. : Harry W. Srurces, Ih 2

Joun R. Bury, —

601 West Fifth Street,

Los Angeles 17, California, f

Boris H. Laxusta,, -

310 Sansome Street, . : '

San Francisco 4, California,

; Attorneys for Southern

/ Pemenee ‘ California Edison Company. .

“Gnamast James & Roun, See ; Beal y

” Atexanper D. CaLzovr, Jk., :

‘E. Myron Butt, Jz.,

$10 Sansome Street, J

Of Couns el, : tiene = )

for re

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PERAAU-WALSH PRINTING CO., BAN Fes sC'eRD

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I. ‘Southern California Edison Company stepecttally peti-

tions that the court reconsider its conelusion in the

Attleboro issue ............;eccsevee teense ei Ae es

my

Il. Southern California Edison Kacpiens respectfully peti

tions that the court reconsid@r its conclusion onthe ;

. Boulder Canyon asa legislation: 0.00 020A. 6 Soeise 5

Comaleian Fillteis onic icctenciiececctse Sioned aeds meets. a

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"Table of Authorities Cited

Illinois Natural Gas Co. v. Central Illinois Public Serviee

Co., 314. U.S. 498 (1942) SibGh chon vkcatéetween seen eed a

Panhandle Eastern Pipeline Co. v. Publie Service Cominis ,

Oe SE eo ot bce ns SES ECA eS 0th 50 8 tess 2.

United States v. Public Utilities Commission of California, -

B45 US. 295 (1988)... 20eyeeeeeeeeees PRI

Statutes

Bouldet Canyon Project Act: .* pfs )

Section 6 ........ MEDS PERS PAER.S Bare Ce type py eee te Pp 56

Federal Power Act: 7. | 2 cing

Part II ........5.+seeeees eavans Ey Rd ame: 3,5,6. “

~ Section 20 ......ccepececeseecseccceens ihe wateuine 5:

‘Legislative ‘nas

pet 83rd. Cong., 2d Sess’, 1954 ........0 4.

4 .

VA ‘ o

a

Ju the Supreme Court

Kaited States

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fo gua e eam Ce Vit

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Oy .

Nos, 71 and.73 Se

At : |

yg,

_ Feverat Power Commussiox, =. sd)

np + - Petitioner,

SouTHERN CALIFORNIA Epison Company and No. 71

- Pusiic Utiuities ComMission * THE State eet

OF CALIFORNIA,’

. | es a :

Crry. or cases, CALIFORNIA, .

Petitioner,

eee vs. : - a No. 73.

‘ Sournern Cauirornia Epison: ComMPANY. and

Pusuic UTititT1es CoMMISSION OF THE State’

OF CALIFORNIA, .

As Respondents.

2

~~: , ° “s 7a oe:

Southern California Edison Company respectfully. peti-.

* tions for rehearing following the opinion of the Court

rendered on March 2, 1964. The company has been ad- .

a the Californig’ Public U tilities Commission will os

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a —" mF F enenne gino. | ; .

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1 SOUTHERN GALIFORNIA EDISON COMPANY RESPECT.

FULLY PETITIONS THAT THE COURT RECONSIDER ITS :

CORES ON THE ATTLEBORO ISSUE. -

The opinion.states that the Federal Rower Act anvaiis ,

an intent by’ Congress to abandon the constitutional test

of national versus state interest and to adopt ‘‘a more

‘mechanical test which would bring. under federal regula-

"tion all sales of eléctric energy in interstate commerce at

wholesale except those. specifically exempted . ” In

reaching that conclusion the Court states that swe. do not

write on a clean slate’’. In so stating the Court seems to

rely upon dicta in earlier cases, particularly Iinois Natw-

ral Gas Co. v. Central IUinois Public Service Co., 314 U.S

498 (1942). ° Even though . this: Court now PEO,

that case as ‘‘holding’’ that Congtess undertook to regu-

7 late all wholesale sales without the-necessity of determin-

Be ing the ‘boundary line of State: constitutional power,, the =e

case involy the interests of more than one state becapse

of the two different out-of-state: gas supplies; for that |

reason ‘the _matter was beyond state regulatory control,

and: comments respecting a cleavagé based on a mechani-

cal test of wholesale versus retail wert dicta.

er In stating that the Illinois Natural —— “has been

; consistently reaffirmed in subsequent cases?’, the Court

‘refers to language which again is dictum. It refers to .

the first Panhandle decision, Panhandle Eastern Pipeline

Co.,v. Public Service Commission, 332 U.S. 507 (1947)

_- and to United States v. Public Utilities Commission of

California, 345 U:S, 295 (1953). When. the Court ‘said in”

the first Panhandle case that -

Re ‘the line of the statute was thus clear and complete.

It. cuts sharply and cleanly between sales for resale |

snd direct sales for consumptive users’”’ a

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the Court was. expressing dictum because a retail sale

was ‘involved and all retail sales are expressly excluded

from the Federal Power Act, whereas no such language

appears with respect to wholesale sales. Again when the

Court said in United States v. Public Utilities Commis-

sion of California that :

-. 4 |) Congress interpreted that case ‘[Attleboro) ' as pro- —

' “- hibiting state control of wholesale rates in interstate _

v 44 ona 4 6's

commerce for resale, and so‘ armed the Federal Power :

s Commission with precisely that power’’,

’ the Court was expressing dictum because the conflicting

interests of two states were clearly involved.

Py We respectfully suggest ‘that the Court, by relying upon

A the sweeping dicta of the decisions referred to, was di-+

verted from giving full effect to the Statutory history

which indicates 80 strongly that: Congress was insistent

'. upon preserving to the. states whatever , ,constitutional ;

‘3 power. they could exercise before. passage of the Federal

Power Act, Part Il. It is undeniable that. thé effect of

the present decision i is to take away from the states, power

which they could constitutionally exercise in the absence.

of the Federal Power. Act. It is undeniable that promises

were made to the states that none of their power Which 4

eo could constitutionally be exercised priot to the Act would

be taken away. We respectfully. suggest/that the Congress

was concerned not "with ‘drawing A_bright line easily

ascertained/t between state and federal jurisdiction”, as _

the Court now states, but rather with filling the consti-

tutional gap of Attleboro. The concept of a. bright line,

>

‘ and a mechanical test, Has th he lure of supposed simplicity, ,

bat we find nothing in. the history to Suggest that Con-

gress was striving for simplicity. On the contrary it”

sotight-anly to. close the Attleboro gap.’ -

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ee ee CLT SL

iT ees

ed

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sasnciy isles ipsa alinalaameetetiasiaie sod

to the fact that that Act was amended in 1954 by the _

Hinshaw Amendment in order to remove from FPC juris-

diction those sales where ‘only one state has an interest.

The Court also refers to’ recent efforts before Congress

to amend the Federal Power Act in similar fashion and

to the fact that such "efforts have failed. We respectfully |

‘suggest that if anything, this history emphasizes that the

Federal Power Act was not intended to give the Federal

Power Commission jurisdiction over wholesale sales where

- the interests of only one state are involved. ‘This.is espe-

+ cially true ‘in-the light of the Senate Committee Report on

‘the Hinshaw Amendment which stated that (S.Rep.No.

817, 88d Cong., 2d Sess., 1954) : ;

‘stp making thie clerificatiod the legislation redjirms

and is thoroughly consistent-with the original intent —

of Congress in enacting the Natural Gas Act; namely

nt Es Dt ae teem it amt eupglent otate

regulation.” (Emphasis added.) bsg

Administration by, the Federal Power Commission under -

_ the Natural Gas Aet has proceeded under this amend- ;

_ ant without embarrassing the Federal Power Commis-

"/sion or interfering with its proper functions. ‘The same

would be true’ for electric utility regulation under the |

interpretation of’ the Federal Power: Act which Southern |

Califorgie Edison — acivocates. mee ,

oe

? Ei Sais /

47: mae CALIFORNIA EDISON COMPANY RESPECT-

FULLY PETITIONS THAT THE COURT RECONSIDER ITs ©

: OOMGLISION ORE BOULDER CANYOs PROTBOT LBGIS-

LATION.

: + She: opinion states that the legislative history of Part

Il of the Power emonstrates that Congress believed :

‘that Attleboro and the related cases compelled it to fore zo -

its assumption as to state regulation and. to disp: él

with comprehensive federal regulation. While one ae ;

accept the proposition ‘that comprehensive federal regu-

lation was intended to displace the prior isiterstitial ac-

tion, it is -still.necessary to determine whom. Congress

‘intended to exercise such comprehensive regulatory power.

We respectfully subg that the Court’s opinion failed ae

to give appropriate consideration to this qnestion.

~The. opinion. states that a parallel exists between Sec-

tion 6 of the Boulder Canyon: Project Act and Section 20

of the Power Act and that both regulatory schemes were

saperseded by Part II. It does nct follow from this, how-

- ever, that the authority of the”Secretary of the Interior

was thereby: terminated; Section 6 of the Boulder Canyon —

‘Project Act’ specifically provides that the Secretary of

the Interior ‘shall cont rol the rates for the resale of

‘Hoover energy and ji go doing shall éonform with the

4

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- the provisigns of law thereafter devised for the protection __ :

/ of the investor aid® the: consumer. By this means, such

comprehensive regulatory. authority as was thereafter es-

tablished by Part II of the Power Act was, and is, vested

in the Secretary of ‘the Interior rather than the Federal _

Power Commission. To hold ‘otherwise is «to disregard

the plain words of the statute and to frustrate Congress’s

plan for the i and effective management /andco control:

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‘of this project by the Secretary of the Interior. The leg-

_ islative history establishes beyond dispute the intent of | ee

Congress to remove the Hoover project’fro:n the ‘sphere -

of influence of the Federal Power Commission. é :

We* submit that the superseding scheme lend by the

Court to have resulted from Part H ‘of the Federal Power

_ Act could properly be carried out by ‘the. authorjb

Secretary of the Interior as specifical)y-cOntemplated by. ’

the. Boulder Canyon Project Act at ‘therefore the express

- words of the statute in Section 6 shoal not. t/be deemed

—— by coon

if

7 / fale ers CONCLUSION eras)

For the foregoing reasons - ‘Southern California Edison

pwnd ee. —_— for pared. BD of this

cause. wie

? z enies E. Woopsvry, :

eg a Sronces, Jr.,

yee Joux R. Bory, sete

Boris H. Lakusta,- = 0 =

Attorneys for Southern © 3 =;

; California Edison Company.

GranaM James & Ropu, cree Bo?

_ ALEXANDER Dy CatHovs, Jk; ~

E. Myroyx Butt, Jn.,-- = ie a :

Of Counsel. Ff Peer 8 os

' . by | ~

March 23, i964. ee

. , .; , = / = k

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Me —"

CERTIFIOaTE setae

by certify that on March 23, 1964 I served edpies

%

_ of the Petition for Rehearing in the above-captioned mat- .-

tere~“upon the: following parties by first-class mail (air

mail to those outside San ‘ranclaso, California), postage

3 erat:

Oa

a“

Archibald: Cox, Solicitor General of. the

United States ;*

Ralph S. Sprituer’ and .

‘Frank Goodman, Assistants to the

Solicitor General ;

Department. of -J astice,

Washington’ 25, D.C.

Richard W. Solomon, General Combiel:

- Howard E. Wahrenbrock, Solicitor; ”

Phomas-M. Debevoise, Assistant .

- General Counsel, and

-Peter H. Schiff, Attorney; © *=

‘Federal Power Commis

Washington 2, D, C.--:

Mary Moran, Pajalich, Coinsel for ss

Public Utilities Commission of the

State of California

507 2 State Building

San Francisco 2, California

John W. Cragun, vo for the City.

of Colton .

- 1616 H Street, N Ww

' Washington 6, D-C.. :

Reuben Goldberg, — for the City ,

* of Colton

' 1739 K Street, N.W.

- Washington 6, D.C.

Northeutt Ely, Counsel for the

American Public Power Association,

“amicus curiae.

| _ Ely, Diinean and Bennett. |

1200 Tower Building —

". Washington 5, D.C.

S

Sf ree : . oi

° ° . : "

Canvas oF Coumea

og - Bori : H. Lakusta, being: one of counsel for. Retbeen

<< Calif Edison Company, certifies that the f foregoing =" ©

eee petiti for rehearing is setae in sees faith and not | |

\ for oT: : “id

‘ene H: Laxusta. —