ML20031A521
| ML20031A521 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 06/23/1981 |
| From: | Duffy K U.S. DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK |
| To: | |
| Shared Package | |
| ML20031A509 | List: |
| References | |
| 79-CIV-3430, NUDOCS 8109230618 | |
| Download: ML20031A521 (46) | |
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~~-n LEVEL 1 - 1 0F 3 CASES GEORGIA YOUNG, Plaintiff, against UNITED STATES OF AMERICA, Defendant.
No. 79 Civ. 3430 (KTD) g UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Slip Opinion June 23, 1981 i
i COUNSEL:
PAUL D. RHEIRGOLD, ESG., 200 Park Avenue, New York, New York 10166, for plaintiff.
HON. JOHN 5. MARTIN, JR., United States Attorney for the Southern District of New York 1 St. Andrew's Plaza, New York, New York 10007 k
Of Counsel: Susan H. Campbell Assistant United States Attorney, for defendant.
Slip Opinion OPINIONBY: DUFFY OPINION:
MEMORANDUM t, ORLER KEVIN THOMAS DUFFY, D.J.:
In June of 1979, plaintiff commenced an action for damages against the United States ni for personal injuries alleged tt, have resulted from a swine flu vaccination she received in November of 1976.
Plaintiff now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment on the issue of the adequacy of the consent form used by the United States in its innoculation program.
n1 This is an action under the Federal Tort Claims Act, 28 U.S.C.
SS 2671, et seq., in conjunction with the National Swine Flu ImmuniIation Act of 1976, 42 U.S.C.
SS 2476(j)(1).
Under the Swine Flu Act of 1976, the federal government sought to prevent a threatened epidemic by using both private and public health care systems to vaccinate millions of adults against swine ful before the onset of the 1976 flu season.
i 8109230618 810914 DR ADOCK 05000389 PDR Slip Opinion Pursuant to that legislation, any cause of action for personal injuries or g4 wrongful death against the vaccine manufacturer was abolished in favor of an exclusive remedy against the United States.
See 42 U.S.C.
S 2476(K)(2)-(3)
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mi Plaintiff argues that Petty v. United States, C78-4083 (N.D. Iowa, Dec. 31, 1980) should collaterally estop the United States f rom relitigating the issue of whether the goYernment fulfilled its statutory obligation to Warn vaccinees of risks associated with the swine flue vaccine.
n2 In Petty, the court held that the plaintiff was not adequately warned of the dangers in receiving the swine flu vaccine, n2 The Act states in pertinent part:
The development... and implementation of a written informed consent form and g ~ '
procedures for assuring that the risks and benefits from the Swine flu vaccine are fully explained... includ [ing) the information necessary to advice [ sic 3 individuals with respect to their rights and remedies...
42 U.S.C. 2476(j) (1) (f)
The doctrine of collateral estoppel precludes relitigation of issues decided conclusively in a prior action.
Although a party may now use collateral Slip Opinion estoppel even if not a party to the suit wherein the issue was decided, it is k
Within the trial court's discretion to allow such use.
parklane Hosiery Co.,
Inc. v. Shore, 439 U.S. 327 (1979).
For reasons that follow, I find that the use of collateral estoppel is inappropriate in this case and, therefore, deny plaintiff's motion for partial summary judgment.
I.
The Swine Flu Immun1Intion Act [the "Act"), 42 U.S.C.
5 2476(j)(1) et seq.,
provides in section 2476(k)(2)i~ 3 that "[t3m United States shall be liable...
for personal injur'/ or death a : sing out of the administration of swine flu vaccine... to the same extent as the United States would be liable in any other action... except that-... the liability... may be based on any theory of liability that would govern... under the law of the place where the act or cmission occurred...."
The defendant argues that the Act requires that liability for inadequate consent must be decided in accordance with New York law.
See Elsworth v. United States, No. 78-2553 (D.N.J. Mar. 4,1981).
Thus, the defendant contends, the holding in Petty does not bind this court because the court did not apply the law of this forum.
k Slip Opinion Plaintiff notes, however, that the court in Petty held that the swine flu consent form violated both a " national standard," which the court found to exist I
in the Act, as well as Iowa's consent law.
Plaintiff argues first that the
" national standard" applies to this case and thus, under Petty, the United States is estopped from relitigating the adequacy of the forms under the Act.
Alternatively, plaintiff asserts that Iowa's consent law is " fundamentally the 5
same" as New York's law.
Therefore, since the consent form was held inadequate under Iowa's law, plaintiff contends that the United States must be estopped from litigating its liability under New York's law.
I disagree.
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II.
As noted earlier, the plaintiff in this case is seeking to use the doctrine of collateral estoppel offensively, i.e. to prevent the defendant from
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litigating an issue that has been previously litigated unsuccessfully in an action with another party.
In Parklane Hosiery Co. v. Shore, 439 U.S. 327 (1979), the Supreme Court advised against the offensive use of collateral estoppel if it did not promote judicial economy or if it could prove to be unfair to the defendant.
W Slip Opinion i
First, offensive use of collateral estoppel does not promote judicial economy
- Since a plaintiff will be able to i
in the same manner as defensive does.
rely on a previous judgment against a defendant but will not be bound by that hi 4
i judgment if the defendant wins, the plaintiff has every incentive to adopt a 5
" wait and see" attitude.
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- A second argument against offensive use of collateral estoppel is that it may be unfair to a defendant.
Id. at 329-330.
The Court specifically noted that "(a3110 wing offensive collateral estoppel may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant." Id. at 330.
g In the context of the swine flu cases, the application of collateral estoppel is inappropriate for two reasons.
The use of collateral estoppel in cases like this would encourage other plaintiffs to adopt a " Wait and see"
- attitude, in hopes of a favorable judgment.
See Id. at 330.
In addition, the effect would be particularly unfair where, as here, the judgment relied upon as the i
basis for the estoppel is itself inconsistent with previous judgments in favor of the defendant.
See, e.g., Gundy v. United States, 79-F-587 (D.C. Colo. Sept.
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9, 1980); Bean v. United States, No. 79-F-571 (D.C. Colo. Aug. 19, 1980); Cikins
- v. United States, No. 78-328-A (Ed. Va. June 16, 1980); Elsworth v. United States, No. 78-2553 (D.N.J. Mar. 4, 1981).
Fairness requires that the government be given an opportunity to defend the adequacy of the warnings N
Slip Opinion given to the plaintiff under New York law or the national standard if one is found to exist.
Accord, Grill v. United States, No. 79 Civ. 990 (E.D.N.Y. May 19, 1981).
Accordingly, plaintiff's motion for partial Summary judgment on the theory of collateral estoppel is denied.
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SO ORDERED.
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i ATTACHMENT E 1
BRIEF FOR THE FEDERAL POWER COMMISSION, a
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FPC V. FLORIDA POWER in LIGHT DO;, 404 U.S. 453 (1972) i i-
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1NDEX Pese Opinions Below............ _ _ _. _ _ _...........
1 Ju risdiction.......................... _ _.......
1 Question Presented..... _ _...................
2 Statute Involved.............................
2 Sta temen t _ - _ _ _......................... _ _ _ _.
3 A. The Electric Utility Systems involved....
4 B. The Interdependence of FPL and the Other ISG Uti'ities as a Basis for Jurisdiction-the
" Electromagnetic Unity" Theor, e_ _ _ _ _ _ _ _..... _ _ _.....
7 C. The Tracing of Electric Energy as a Basis for Jurisdiction-the
" Commingled Method" versus the ' Systems Study M ethod".. _ _ _... _ _ _ _...............
11 D. The Hearing Examiner and Commiaaion Decisions _..... -....................
14 I
E. The Court of Appeals Decision........._
16 Summary of Argument....... _ _.... _ _........
16 Argument _ _ _ _ _... _ _ _.. _ _.. _ _... _ _... _ _....
19 I. Int roduction..... _ _ _..................
19 II. Substantial Evidence Supports the Com.
mission's Determination that Transmia.
I sion of Electric Energy Between FPL I
and Interconnected Systems in Other l
States Is Established by Their Electm-magnetic Unity of Response.... ____.
24 III. Substantial Evidence also Supports the Comminaion's Determination, as an Al-ternate Basis for Jurisdiction, that the Staff Tracing Studies Established that Electric Energy Had on Occasion Flowed from Georgia to FPL and from FPL to Georgia....... __ _.... _ _ _ _ _ _ _ _ _ _ _ _ _ _
32 Con clusion _ _.............. _ _ _ _ _ _ _ _ _.... _ _.....
38
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425-462 1
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u CITATIONS Cases:
Arkansas Pouw & Light Co., 34 FPC 747, affirmed sub nom. Arkansas Power & Light.
Co. v. Federal Power Commission, 368 F.
2d 376.......__________
......... 18,28,30 Cincinnati Gas & Electric Co. v. Federal Power Commission, 376 F. 2d 506, certiorari de-nied, 389 U.S. 842. _...................
28 City'of Colton v. Southern California Edison Coe,26 FPC 223, revemed sub nom. Southern California Edison Co. v. Federal Power Com.
mission, 310 F. 2d 784, mversed, 376 U.S.
205....._........._............_ 22,25,31,35 Connecticut Light & Power Co. v. Federal Power Commission,324 U.S. 515....17,20,21,36 Federal Power Commission v. Florida Power l
Corp., No. 469, 1970 Term, argued Feb.
ruary 24, 1971......... _ _...... ;...... _ _
23 Gray v. Powell, 314 U.S. 402.......;........
37 Griggs v. Duke Power Co., No. 124,1970 Term, decided March 8, 1971. _ _ _.......... _ _ _ _
37 Indiana & Michigan Electric Co. v.. Federal Power Commission, 365 F. 2d 180, certiorari denied, 385 U.S. 972.__ _ _ _ _ _ _ _ _.... _ _ 27, 28, 30 Jersey Central Power & Light Co. v. Federal Power Commission, 319 U.S. 61, affirming 129 F. 2d 183, affirming 2 FPC 541 21,26,27,32 Pantomimic Corp. v. Malone,238 Fed.135.... 25,33 Pennsylvania Water & Power Co., 8 FPC 1, affirmed sub nom. Pennsylvania Water &
i Power Co. v. Federal Power Commission,193 F. 2d 230, affirmed, 343 U.S. 414...____
33,35 Public Sernce Company of Indiana v. Federal Power Commiselon, 375 F. 2d 100, affirming 34 FPC 1513, certiorari denied, 387 U.S.
931................._....___.....__ 29,30,32 i
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In Casee__ Continued Public Utilities Commission v. Attleboro Steam r.,,
& Electric Co., 273 U.S. 83.___...
16,17,19,31 Sunshine Anthracite Coal Co. v. Adbi.'s, 310 U.S. 381 _ _ _ _........... _ _ _ _ _... _ _ _ _
37 Wisconsin-Michigan Poun Co.,10 FPC 170, affirmed tub no n. Wisconsin _ Michigan Power Co. v. Federal Power Commission,197 F. 2d 472, certiorari denied, 345 U.S. 934....
33,35 Statutes:
Federal Power Act, Act of June 10,1920,41 Stat.1063, as amended,16 U.S.C. 791a-825r:
Part II (Sections 201-209,16 U.S.C. 824-824 h). _ _ _ _ _... _ _ _.. _ _ _ _ _ _ _ _ _ _ _. _ _.. 19 Section 201..._____.__________ 17,21,24 Section 201(a) _ _.... _ _ _ _ _ _ _ _.. _ _ _
20 Section 201(b).... 2-3,7,15,20,21,24,28 Section 201 (c) _ _ _ _ _ _ _... _ _ _ _ _ _ 3, 7, 20, 26 Section 201 (e) _ _ _ _ _ _ _ _ _ _ _... _ _. _ 3,20 Sec tion 202.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
23 Section 203. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _..
24 Section 204. _ _ _ _. _ _ _ _ _ _...._ _ _ _.
24 Section 205_ _ _ _...... _ _ _ _.... _ _ _
24 Part III (Sections 301-319)...........
24 Section 313(b),16 U.S.C. 825l(b)_.
25 Miscellaucous:
Federal Power Commission Report on S.1365, 90th Cong., printed in Hearings on S.1365 before the Senate Committee or. Com.
merce, 90th Cong.,1st Sess. ___ _ _ _ _ _ _ _ _ _ _. 22-23 Hearings on H.R. 5348 before Subcomm:ttee on Communications and Power of the House CommitteeonInterstate and For2ign Com-merce, 90th Cong.,1st Sess... _ _ _ _ _ _ _ _ _ _..
23 S. Rep. No. 621, 74th Cong.,1st Sess.......
19
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@n the Supreme dicurt tr the Wnited $tates r
OCTOBER TERM,1970 No. 958 FEDERAL POWER COMMIB810 7, PETITIONER v.
FLORIDA PowzR & Llour COMPANI OX WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL 8 FOR THE FIFTH CIRCChr BRIEF FOR THE FEDERAL POWER COMMISSION l
OPINIONS BELOW The opinion of the court of appeals (App. 354-374) is reported at 430 F. 2d 1377. The opinion and orders of the Federal Power Commission (App. 251-254,283-306, 327-329, 329-330) are reported at 37 F.P.C. 544 and 37 F.P.C. 833. The opinion of the hearing examin-er (App. 254-282) is reported at 37 F.P.C. 560.
JURIEDICTION The judginent of the court of appeals was entered l
on July 13,1970 (App. 375). By order dated Octo-ber 5,1970, Mr. Justice Black extended the time with-l in which to file a petition for a writ of certiorari to l
November 10,1970, and the petition was filed on diat lie l
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2 date. The petition was granted on February 22,1971 (App. 376). The jurisdiction of this Court is invoked under 28 U.S.C.1254(1) and Section 313(b) of the Federal Power Act (16 U.S.C. 8251(b)).
QUESTION PaESENTr.D Whether the Federal Power Commission properly determined that the interconnection of an electric power utility with an interstate transmission grid in-volved " transmission of electric energy in interstate commerce" and thus made the utility subject to the Commission's regulatcry jurisdiction.
STATUTE INVOLVED Section 201 of the Federal Power Act, as added,49 Stat. 847 (16 U.S.C. 824), provides in pertinent part:
(b) The provisions of this Part shall apply to the transmission of electric energy in inter-state commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or deprive a State or State commission of its lawful authority now exercised over the expor-tation of hydroelectric energy which is trans-mitted across a State line. The Commission shall have jurisdiction over all facilities for such tranaminion or sale of electric energy, but shall not have juricdiction, except as specifical-ly providd in this Part and the Part next fol-lowing, over facilities used for the genera-tion of electric energy or over facilities used in local distribution or only for the transmis-sion of electric energy in intrastate commerce,
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or over facilities for the transmission of elec-tric energy consumed wholly by the transmitter.
. (c) For the purpose of this Part, electric energy shall be held to be transmitted in inter-state commerce if transmitted from a State and consumed at any point outside thereof; but only insofar as such transmission takes place within the United States.
(e) The term "public utility" when used in this Part or in the Part next following means any person who owns or operates facilities sub-ject to the jurie. diction of the Conunission imder this Part.
STATEMENT This case involves the Federal Power Commission's determination that the Florida Power & Light Com-pany ("FPL") owns and operates facilities for the transmission of electric energy in interstate commerce and thua is subject to the Commission's jurisdiction under Section 201 of the Federal Power Act,16 U.S.C. 824. Although the only immediate 'inipact of the determination would be to require FPL to follow the Commission's Uniform System of Accounts, the establishment of jurisdiction would empower the'Com-mission. under appropriate cinumstances, to ~ direct FPL to interconnect with and sell power to other utilities or distributors, thereby improving the aliability of service to consumers, and would enable the Commission to regulate FPL's future sales of in-terstate power at wholesale. The court of appeals reversed the order of the Commission, rejecting the methods adopted by the Commission in determining that FPL transmits electricity in interstate commene.
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4 A. THE ELECTRIC UTILITY SYSTEMS INVOLVED FPL. The facts developed before the Commission in the administrative proceeding initiated in 1965 (App.
251) show that FPL owns and operates extensive gen-eration, transmission and distribution facilities pro-viding retail and wholesale electric energy in southern and eastern Florida; it is t% largest electric utility in the state and ninth in the nation in terms of reve-nues
- FPL operates ten steam-electric generating facil-ities with a net dependable generating capacity of 2.8 million kilowatts, has a 2,600 mile tiansmission grid and serves about 931,400 customers (App. 9-11).
While all the company's facilities are physically lo-l cated within Florida and none extend to the state line, FPL is interconnected with the Florida Power Cor-poration (" Corp"), which has several transmission connections at the Georgia state line (App.14,191).
The Florida Operating Ctmmittee. In addition to its interconnections with Corp, FPL is joined with l
three other Florida electric utilities-Tampa Elec-I tric Company (" Tampa"), Orlando Utilities Com-mission ("Orlando") and the City of Jacksonville
(" Jacksonville") (App. 11, 12, 286). FPL, Corp and Tampa form the Florida Operating Committee with Orlando and Jacksonville as associate members (App.
189, 286). The members of the Conunittee ccordinate the installation and maintenance of their generating facilities (App. 23-24), and the Committee meets sev-eral times a year to discuss mutual problems relating to their interconnected operations.
- Unlam otherwise indicated, the figures thmighout the brief are for 1964.
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Although during normal periods of operation FPL's generating capacity is sufficient to meet itsk loads and the output of its generators is controlled by computer to match the ever changing combined total of such loads (App. 71, 72, 257), FPL depends upon the other members of the Committee for emer-gency power (App. 23-24,32). In a report to the Commission for the year 1964, FPL acknowledged this reliance on other Committee members for re-serves; to meet a required reserve generating ca-pacity (as defined by the reporting form, FPC Form
- 12) of 404,000 kilowatts, FPL listed 172,000 Irilo-watts from its own generating facilities and 232,000 kilowatts from the facilities of other Committee mem-bers (App. 32,286).
As a result of interconnected operations, substan-tial quantities of electric energy are interchanged mnong Conunittee members (App.185). These inter-changes are either scheduled or inadvertent. Sched-uled interthanges take place after consultations among the respective system dispatchers to meet the power needs of particular members.' Inadvertent inter-changes of energy include both intentional interchanges resulting from the operation of frequency bias (see L
pp. 9-10, infra) and unscheduled interchanges re-sulting from human or equipment error (App. 203-210, 259). Both scheduled and inadvertent inter-changes-usually taking place concurrently (App.
- The Florida utilities do not engage, as do some electric pools, in scheduled interchanges for economy purposes to take advantage of difennees among utilities in inemmental costs of producing power.
42*r-442-TI-2
6 203-210)-are measured, netted and paid for as nec-essary at regular intervals (App. 109-110, 258-259).
Corp's relationship with the Southern Company System. Corp (which is interconnected with FPL) is interconnected across the Georgia-Florida state line with the Georgia Power Company (" Georgia") (App.
191), a subsidiary of the Southeni Company whose other subsidiaries are the Gulf Power Company
(" Gulf") operating in northwestern Florida, the Alabama Power Company (" Alabama") and the Missisnippi Power Company (App.14,286-287). Corp also has interconnections with Gulf, which in turn has interconnections with Alabama and Georgia (App.
38,189,287). Georgia is interconnected with the Duke Power Company, the Tennessee Valley Authority and the Southeastern Power Adminitration, which systems operate in states beyond Georgia (App. 287-288).
Pursuant to an weement, Corp makes available to the Southern Company subsidiaries 100,000 kilowatts of its generating capacity during the summer in re-turn for Southern's contribution of 100,000 kilowatts of capacity to Corp in the winter (App. 287). During 1964, Corp delivered to Southern 157 million kilowatt-hours (kwh) of electric energy, of which 82 million were delivered to Georgia; Southern, in turn, sent 167 million kwh to Corp, of which.97 million came from Georgia (ibid.). On many occasions during the year, including peak load periods, there was a flow in both directions during a 24-hour period over the Corp-Georgia interconnections (App. 260). The Southern Company utilities also wheeled (transmitted across their territories) 3.9 million kwh from the' South-
7 western Power Administration across the Georgia-Florida state line to Corp (ibid.).
The Interconnected Systems Group. All of the power companies mentioned thus far, including FPL, are among the 140 interconnected utilities making up the voluntary Interconnected Systems Group ("ISG")
spanning the southeastern and central portions of the United States (App. 12-13, 187, 188, 288). By virtue of their interconnection, the 140 ISO members oper-ate in synchronism and render each other emergency assistance when needed (App. 13, 41, 288). For ex-ample, the record shows one instance in 1965 when FPL contributed, through its interconnection with Corp, 8 megawatts of generating capacity to meet a 580 megawatt loss of generation on a midwestern system (App. 21-22, 288, 347).
B. THE INTERDEPENDENCE OF FPL AND THE OTJIER 180 UTILITIES AS A BASIS FOR JURISDICTION-THE "ELEC-TROMAGNETIC UNITY" THEORY It is undisputed that Commission jurisdiction over FPL is established if FPL's facilities transmit elec-tric energy "in interstate conunerce" within the mean-ing of Section 201(b) of the Federal Power Act; Section.201(c) states that electric energy chall be deemed to be transmitted in interstate conuncree "if transmitt'ed from a State and consumed at any point outside thereof * * *." In an effort to meet the bur-den of establishing that transmission had indeed taken place between FPL and Georgia, the Commission's staff presented er:dence in the administrative pro-ceeding showing that all elements of an interconnected
8 electric network are physically interdependent in that the occurrence of an event on one part of the network affects every element of the entire system. In sub-stance, the staff's evidence was as follows:
Electric power on the FPL, Corp, Georgia and other ISG systems is supplied as alternating current at an average frequency of 60 cycles per second. Because the systems necessarily operate in synchronism or
" parallel," the frequencies on the systems correspond exactly; all generating units connected to the com-mon network experience the same changes in fre-quency and all electric clocks connected to such a network keep precisely the same time ( App. 35,38-39).
All the electrie energy produced by all of the genera-tons of the members of ISO (or any interconnected network) is delivered to the common, integrated transmission grid of the network, from which all of the network's customers are served (App. 35). As there is no way of storing electric energy, the total generation of a network is constantly adjusting to match the network's total load (App. 39).* In order 8 When a load is addtsl suddenly to a network (or when there is a sudden outage of a generating unit) each generating unit on the network almost instantly experiences a loss of speed as a podion of the mechanical anergy of rotation of each generator is converted into additional electric energy (App.
40-41, 137). The aggmgate of such conversions supplies the added eledric energy nesled to supply the load or make up for the generating outage. (App. 41). Following this initial reaction, the governors on some generators will react in ac-cordance with frequency bias (see pp. 9-10, infra) to cause additional steam to be applied to the turbines thereby speed-ing up those generators, producing mon energy and return-ing the network fnquency to normal (App. 137-138). When loads are mnored from the network, the same procedure oper-
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to assure that loads of a given member of the ISG are met ultimately by generation on that member's system or a neighboring system with which the mem-ber has special arrangements, and in order to assum that frequency is maintained as close to 60 cycles per second as possible, each system employs what is known as tie line' control with frequency bias.
FPL's tie line control (like that of the other sys-tems) involves the programming of FPL's dispatching computer to direct FPL's generators to produce enough electric energy to supply FPL's loads and transmission losses plus FPL's scheduled net inter-change of energy to the other members of the Florida Operating Committee ( App. 32-34,36-37).* Frequency bias acts to shift net interchange schedules automati-cally with changes in frequency; a reduction in fre-quency leads to an increase in each system's net interchange obligation (i.e., each system must increase its generation to restore the 60 cycle frequency) and an increase in frequency conversely leads to a reduc-tion of each system's net interchange obligation (App.
31-38, 139-141).
ates in reverse: generators initially sjel up as no longer needed electric energy is converted to mechanical energy, gov-ernom mact to reduce steam and the generators slow down, returning fraluency to 60 cycles per second.
- A tie line is a transmission line connecting diferent electric systems.
' Scheduled interchanges an always " net" as the actual mo-ment-to-moment flows of power within a given system or be-tween systems cannet be controlled. As a result, net intemhanges are not acheduled for a particular tie line; only the net of inflows end out!!ows over all of a system's tie lines is concelled (App. 32-38).
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10 The mechanics of tie line control with frequency bias can best be illustrated by a simple, hypothetical example. Assume that the ISO network is in balance with frequency at 60 cycles per second, with total generation matching total load plus losses and with all scheduled net interchanges being met. If a load is now added to the FPL system with no other changes on the entire network, the following sequence of events will occur: First, an ahnost instantaneous drop of frequency and generator speed will occur throughout the network as a portion of the mechanical energy of rotation of every generatoris converted into elec-tric energy to meet the load. This drop in frequency will automatically increase each constituent. system's net interchange obligation.' Each system including FPL will then begin to increase its generation to comply with its proportionate new net interchange obligation so as to restore the 60 cycle frequency. FPL must-in addition eventually increase its generation by the amount of the load added to its system, so that the frequency may be retained at 60 cycles with all interchange values returned to their scheduled levels.'
'ISG recommends that its members set their frequency bias so that for each drop in frequency of one-tenth of a cycle per second on the interconnected neework, the net ir_terchange obli-gation of the member will increase by an amountequal to one percent of the member's annual peak load (App. 36-37,141, 334). Thus, each member contributes to emergencies and helps regulate frequency in proportion to the size of its system.
'If for some reason FPL was unable to meet its new load or to replace lost generation, an FPL dispatcher would arrange for the loed or generstion. loss to-be met by a neighboring system and' scheduled net interchange values would be reset L
11 A staff witness explained the benefits which accrue to a member of an interconnected network (App. 41-42). Because of the magnitude of the system, devia-tions in frequency from 60 cycles per second are kept to a minimum. As a result, transfers of non-scheduled energy between systems and unnecessary speed-ups and slow-downs of generating equipment are also minimized, clocks keep more nearly perfect time and many precision industrial operations are improved (ibid.). Of equal importance, FPL re-ceives automatic assistance during emergencies, in-cluding assistance from the non-Florida ISO utilities up to the 100 megawatt capacity of the Corp-Georgia tic line (App. 41,288).
In short, FPL operates in " electromagnetic unity" (App. 38-39) with the other members of the ISO sys-tem and receives significant bene 6ts from such opera-tion.
C. TIIE TRACING OF ELECTRIC ENERGY AS A BASIS FOR JURISDICTION-THE " COMMINGLED METHOD" VERSUS THE "8YSTEMS STUDY METHOD" As an alternate basis for showing interstate trans-missions onr FPL's facilities, the staff utili::ed a method of tracing power flows known as the "com-mingled method." Two studies were offered by the staff. The first analyzed data.from FPL's and Corp's commercial meters to show that, during designated accordingly. During the time it might take the dispatcher to complete the transaction, the load or loss of generation would be met by all ISG members operating under fmquency bisa (App.140-141).
(
12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> on each of 22 days in a four-month period in 1964, electric energy flowed from Georgia to FPL over Corp's facilities, becoming commingled en route with energy from other sources at one or more Corp buses * (App. 15-21, 191-202). A second study simi-larly showed that, during designated hours on three summer days in the same year, electric energy flowed from FPL through Corp-where it was also com-mingled with energy from other sources-to Georgia (App. 53-56, 211-226).
In rebuttal of the staff's case, an FPL witness con-tended that the " systems study method" of tracing power flows was preferable to the commingled method (App. 83-86). Using systems study prhiciples, the witness examined the staff studies and concluded that electrie energy had not flowed from Georgia to FPL or from FPL to Georgia during the desig-nated periods (App. 86-S2).
A staff witness, Dr. Joseph Jessel, explained the basic concepts and assumptions underlying the dif-ferent tracing methods (App. 45-51). He acknowledged that both methods employed rough approximations and simplifications of an actual electric power sys-tem (App. 49) in order to make use of the data avail-able from the commercial meters used by utilities (App.
44-54,150). Because commercial meters measure only average values, they fail to reflect the fact that power flows in positive and negative pulses in each phase of
- A bus is a set of three conductive bars used to join to-gather two or more transmission lines.
13 the three phase alternating current system employed by all modern utilities (App. 42-45).'
The basic difference between the two tracing sys-tems lies in their treatment of the bus. Under the commingled method, each bus is treated as a single point or reservoir so that power entering the bus on one transmission line is considered to be commingled with power entering on all other transmission lines and thus is deemed present ratably on each outgoing circuit " (App. 48--49, 165). The systems study method, on the other hand, represents a bus as a single conductor with physical dimensions and seeks to trace net power flows within the bus (App.165).
Dr. Jessel gave his opinion that the commingled method of tracing more nearly represents an actual three phase electric power system because, by treat-ing a bus as a point, it in effect takes into account the fact that power pulses back and forth on each phase af an actual bus (App. 49, 146-147). Dr. Jessel also
- Each phase of three phase power is transmitted separately from generator to distribution point. Transmission lir:es thus come in threes, which accounts for the three bars of each bus-one bar for each phase. At several points during the pmoeedings, Dr. Jessel elaborated on the natum of thme phase power and the problems of suitably representing it for tracing purposes (See App. 43-44,131-155,163-175, 240).
"To illustrate, Dr. Jessel hypothesized (App. 49):
- * * [I]f circuit A contributes 60 percent of the incom-ing power to the junction point and circuit B contributes 40 percent of the incomir.g power to the junction point, then the distribution of power in each outgoing circuit is comprised of 60 percent A power and 40 percent B power, uniformly commingled.
325.-462 - 8
l 14 noted that the commingled method had been used in other power flow studies presented at formal Com-mission proceedings (App. 47).
D. THE HEARING ETAMiNER AND COMMISSION DECISIONS The hearing examiner issued an initial decision in July 1966 (App. 254-282). Analyzing in considerable detail the evidence on the interdependence and syn-chronization of power utilities forming an intercon-nected system ( App. 262-270), he found FPL's gener-ators were interlocked electromagnetically with Geor-gia's, responding automatically and almost instanta-neously to increases of load on Georgia's system ind thereby reducing frequency variations and increasing the Georgia system's efficiency (App. 270). He noted that, if sensitive enough instruments were available, the response of FPL's generators to the turning on of a light on the Georgia system could be measured (App. 269). The hearing examiner concluded that (App. 270):
The cause and effect relationship in electric energy occurring throughout every generator and point on the Georgia, Corp and [FPL]
systema constitutes interstate transmission of electric energy by, to, and from [FPL]. It is the electromagnetic unity of response of [FPL],
Corp, Georgia and other interconnecting sys-tems that constitutes the interstate transmis-sion of electric energy by [FPL].
The hearing examiner went on to consider the staff's tracing studies as an alternative basis for jurisdiction (App. 271-274), noting at the outset that the nature
15 of electric cnergy is not fully undarstood (App. 271) and that all tracing methods " transpose the complex dynamism of modern alternating current electric sys-tems into simplified models on the basis of numerous assumptiens" (App. 272). The examiner focused on the distinctive treatments of a bus by the commingied and systems study tracing methods (App. 272) and concluded that the commingled method's treatment of a bus as a point was enore in consonance with the physics of transmission of alternating carrent than the systems study method's treatment of a bus as a
.< ingle bar with physical dimensions (App. 272-274)."
Having accepted the commingled method, the exami-ner found that the staK had proved the transmission of electric energy between FPL and Georgia over Corp's facilitics (App. 274). The ey iminer accord-ingly found FPL to be subject to the Commission's jurisdiction and thus required to comply with the Ccmmission's regulations under the Act (App. 282)."
In an opinion issued in March 1967 (App. 263-300),
the Conunission affirmed the examiner's decision in substantially all respects. Two of the five Conunis-sioners dissented (App. 301-306).
"The examiner observed that the systems study tracing method might be iiseful for some types of engineering studies, where all that is desired is a mathematical answer, regardless of the physical dynamics of the situation (App. 273-274).
"In respon>e to other contentions made by FPL, the examiner found that the facilities involved did not fall within the local distribution" exemption of Section 201(b) (16 U.S.C.
824(b)), and that compliance with the Commission's accounting requirements would not be unduly costly or burdensome (App.
274-279).
e
~
16 E. THE COURT oF APPEALS DECISION On review, the coud of appeals reversed the Com-mission's order (App. 354-374), holding that the electromagnetic unity theory was insuRicient, standing alone, to prove that power flowing from Corp to Georgia, whether scheduled or unscheduled, contained power generated by FPL or that power flowing from Corp to FPL contained power generated outside of F'orida (App. 364). As to the commingled tracing method, the court emphasized that the flow of electric energy was "not yet fuPy explainable" (App. 365) and held that the " engineering and scientific fact test for interstate flow of energy is not met by postu-lating a simplified characterization of how, for various purposes of convenience, energy may be treated as flewing" (App. 367-368). It distinguished the prior l
court of appeals cases unholding Commission juris-diction over sales at wholesale (see pp. 27-31, infra) l on the ground that in each of those cases the utility i
had concededly received interstate power, the only issue being whether such power reached specific customers; it found this case different because it involves the more fundamental question of whether FPL is subject to the provisions of the Federal Power Act at all (App.
3G8-373).
SUMMARY
OF ARGUMENT l
The legislative history of the Federal Power Act amendments of 1935, adopted in the wake of Public Utilities Commission v. Attleboro Steam & Electric Co.,273 U.S. 83, shows that Congress was seeking to secure the planned coordination of interconnected i
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17 electric facilities and to regulate sales at wholesale of interstate electric energy placed beyond state regula-tory authority by the Attleboro decision, all without unnecessary impairment of the authority of state reg-ulatory commissions. Section 201 of the Federal Power Act reflects the various concerns of Congress.
Commission jurisdiction over facilities for the trans-mission of electric energy in interstate commerce is established with precision-to be determined by an
" engineering and scientific" fact test. Connecticut Light & Power Co. v. Federal Power Commission, 324 U.S. 515, 529. At the same time, general exemp-tions were provided to protect state autho,ity. The issue presented by this case is whether the Commis-sion's determination that FPL's facilities are used for l
the transmission of electric energy in interstate com-l merce, as a matter of scientific fact, was supported by substantial evidence. We submit that the Commis-sion's determination, based on two alternative ap-proaches, was supported by substantial evidence and that the court of appeals improperly substituted its own views for the Commission's expert decision.
A l
There was substantial evidence in the record to sup-port the Commission's conclusions that the electro-me.gnetic unity of response of FPL and the other members of the multi-state Interconnected Systems Group constituted the interstate transmission of elec-tric energy. The staff introduced expert evidence to l
the effect that all of the elements of an intenonnected interstate electrical network are locked together in l
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18 electromagnetic unity and that the addition of a load to one part of the network would almost instantane-ously efect every generator on the network. Other evidence conecntrated on the degree of coordination of operations among FPL and its neighbors. In short, the evidence supported the conclusion that FPL was
.an integral part of a vast interstate network and re-eeived substantial benefits fimn its association.
Recent court of appeals decisions have approved has-ing Commission jurisdiction on the realities of inter-connected electrie utility operation in multi-state areas, without resort to the tracing of power flows.
The Commission has noted that the nature of highly complex modern electric systems makes tracing im-practicable in many instances and " irrelevant to present day power system technology". A rkansas Potrer e Light Co.,34 F.P.C. 747,751. The attempt of the court below to distinguish those decisions of other courts of appeals on the grounds that they all involved juris-diction over sales at wholesale falls short of the mark; Congress employed the same factual standard for establishing jurisdiction over particular sales of elec-tric energy at wholesale as it did for establishing plenary jurisdiction over individual utilities.
B The Commission's acceptance of the staE's tracing studies, which were based on the commingled tracing method and showed that power had on occasion flowed from Georgia to FPL and from FPL to Georgia, was an adequate, independent basis for the assertion of
19 jurisdiction over FPL in this case. Although tracing is not always practicable at the present stage of elec-tric technology, the staff was able to complete a study here. The use of the commingled tracing method was justified by expert testimony which established that the method's treatment of a bus as a point took into account the realities--as nearly as they are known-of three phase power transmission. The commingled method has in the past been employed with court approval in jurisdictional cases.
ARoUMENT I. INTRODUCTION Part II of the Federal Power Act (Sections 201-209,16 U.S.C. 824-824h) was added in 1935,49 Stat.
847, to bring interstate transmissions and sales of electric energy under federal regulation following this Court's decision in Public Utilities Commission v.
Attleboro Steam & Electric Co.,273 U.S. 83, that in-terstate sales at wholesale were beyond the reach of state regulatory authorities." As is shown by the legis-lative history, the amended Act sought to accommo-date two competing aims. On the one hand, Confress recognized the rapid growth of the electric power in-dustry into vast interstate systems and the necessity for federal leadersHp in coordinating facilities. S.
Rep. No. 621, 74th Cong.,1st Sess., pp.17-18. The report of the Senate Committee on Interstate Com-merce noted (id. at p. 48):
"The interstate transniission involved in.1//lehoru was a direct transnaission l>etween two utilities located in different states.
20 It is obvious that no steps can be taken to secure the planned coordination of [the electric] indus-try on a regional scale unless all of the facilities, other than those used solely for 1rtail distribu-tion, are made subject to the jurisdiction of the
[ Federal Power] Cormnission.
On the other hand, Congress also made clear its in-tention not to interfere unduly with the powers of state regulatory commissions and to extend federal authority only to those matters which could not effec-tively be controlled by the states. Ibid.; see Section 201(a) of the Act.
Section 201 of the Act, as finally enacted, reflects those competing concerns of Congress. Thus, general Commission jurisdiction over utilities is defined broadly and with precision: The Commission is given jurisdiction over "all facilities" used for the trans-mission or sale of electric energy "in interstate com-merce" (Section 201(b)); energy, transmitted in in-terstate commerce is defined as energy " transmitted from a State and consumed at any point outside thereof" (Section 201(c)); and any person who owns or operates any such facilities is a "public utility" subject to various other provisions of the Act (Sec-tion 201(e)). While precise, the above definitions did not adequately recognize the expressed concern of Congress that state regulatory authority not be un-duly impaired. Accordingly, terms of somewhat less precision, see Connecticut Light & Power Co. v. Fed-eral Power Commission, 324 U.S. 515, 529-531, were used to limit the Commission's jurisdiction; exemp-
21 tions were created for facilities used in " local distri-bution" and facilities used only for the transmission of energy in intrastate commerce or for the transmis-sion of energy consumed wholly by the transmitter (Section 201(b)). Finally, and most important, the Conunission's rate jurisdiction over interstate sales was limited to sales at wholesale (ibid.); no authority over retail sales was granted.
The question presented in this case is whether FPL's facilities are used for the transmission of elec-tric energy "in interstate commerce" so as to make FPL a "public utility" within the meaning of the Act. It is thus necessary to determine the meaning of the phrase "in interstate commerce."
In the first case to reach this Court under Section 201, Jersey Central Power & Light Co. v. Federal Power Commission,319 U.S. 61,7G-71, a utility seek-ing to escape the jurisdiction of the Conunission argued that the phrase "in interstate commerce" es-tablished a very restrictive test of jurisdiction; com-parison was made to phrases such as "affecimg com-merce" or the " current of commerce" used in other regulatory statutes. The Court rejected such com-parisons as tools for determining the scope of "in interstate conunerce," noting that the phrase was pre-cisely defined by the Act itself. 319 U.S. at 70-71.
This view of the jurisdictional standard embodied in
^
Section 201 was confinned by this Court in Connecti-cut Light & Power Co. v. Federal Power Commission, supra, 324 U.S. at 529-531, where it was noted that
22 the " terms of the grant of federal power," as opposed to the terms of limitation employed by Congress to limit jurisdiction, were (324 U.S. at 529) :
- *
- couched largely in the technical language of the electric art. Federal jurisdiction was to follow the flow of electric energy, an engineer-mg and scientific, rather than a legalistic or governmental, test. * *
- See also Federal Power Commission v. Southern Cali-fornia Edison Co., 376 U.S. 205, 209 n. 5, 215. Thus, the existence or absence of Commission jurisdiction over FPL turns on an analysis of the " engineering and scientific" data contained in the record before the Commission, an analysis the Commission is espe-cially qualified to undertake.
Before turning to the bases for jurisdiction found by the Commission, we reemphasize the significance of this jurisdictional case. As noted, Congress was fully aware of the need for regional planning and coordi-nation of electric systems when it passed the Federal Power Act amendments in 1935. But at that time only a fraction of the nation's systems were intercon-nected in interstate networks; since that time, inter-connection has progressed markedly and the nation's bulk power systems are now being linked from coast to coast. Accordingly, in the words e# Commission, "the interstate natute of the electrit
'ss, and the i
need fcr Federal regulation, have steadily risen." Fed-eral Power Corranission Report on S.1365,90th Cong.,
23 printed in Hearings on S.1365 before the Senate Committee on Commerce, 90th Cong.,1st Sess., p. 5.
See also Hearings on H.R. 5348 before Subcommittee on Communications and Power of the House Commit-tee on Interstate and Foreign Commerce,90th Cong.,
1st Sess., p.118.
The only immediate effect of the Commission's order in this case will be to require FPL to follow the Com-mission's Uniform System of Accounts, thereby sub-jecting FPL's operations to regulatory and public scrutiny on the same basis as the operations of other utilities. The establishment of jurisdiction over FPL would, however, empower the Commission to order FPL to interconnect with other utilities under certain circumstances, thus improving reliability of service and making possible economies for both parties to the interconnection. See Section 202 of the Act and our brief in Federal Power Commission v. Florida Power Corp., No. 469,1970 Term, argued February 24, 1971. Commission jurisdiction would also subject FPL's wholesale rates for any future interstate power 2'S.1365 was introduced by Senatom Holland and Smathers of Florida following the Commission's decision in this case and would have exempted from Commission jurisdiction any utility whose facilities were located entirely within one state and which did not transmit or mceive electric energy by direct interconnection from or to any other state or by indirect con-nection except for temporary or emergency purposes. The bill was never nported out of committee.
28 H.R. 5348, although difering slightly in language, was the companion bill to S.1365. See n.14, supra. It too was never nported out of committee.
24 sales to regulation and FPL would be prohibited from granting undue preference to its wholesale customers as a class or discriminating among them individually (Sections 201(b) and 205). Finally, FPL would also be subject to the provisions of Sections 203 and 204 of the Act, requiring Commission approval of mergers, acquisitions and the issuance of securities,' as well as the reporting and other requirements of Part III of the Act, Sections 301-319,16 U.S.C. 825-825r.
In short, the establishment of jurisdiction in this case will subject one of the nation's largest electric utilities to the specific requirements of the Federal Power Act adopted by Congress to promote the co-ordinated and efficient deployment of the vast system of interconnected electric facilities which are neces-sary to meet the nation's power demands. And it will give the Commission the same authority over other similarly situated utilities.
II. SUBSTANTIAL EVIDENCE ST!PPORTS THE COMMISSION'S DETERMINATION THAT TRANSMISSION OF ELECTRIC ENEROY BETWEEN FPL AND INTERCONNECTED SYSTEMS IN OTHER STATES IS ESTABLISHED BY THEIR ELECTRO-MAGNETIC UNITY OF BESPONSE i
The question whether FPL owns and operates fa-cilities for the transmission of electric energy "in interstate commerce" as that phrase is used and de-fined in Section 201 of the Federal Power Act is, as we have seen (pp. 21-22, supra), a question of "engi-neering and scientific" fact. The only inquiry on ju-dicial review is whether the Commission's finding of the existence of that fact was supported by substan-
25 tial evidence. See Section 313(b) of the Act; Federal Porcer Commission v. Southern California Edison Co.,
376 U.S. 205,209 n. 5. An analysis of the record shows that there was an abundance of engineering ar.d scien-
- tific data to support the Commission's expert conclusion.
As we have set forth in some detail in the State-ment (see pp. 7-11, supra), the expert evidence intro-duced before the Commission by the stas established that all of the elements of the interconnected inter-state network of which FPL, Corp and Georgia are a part are locked together in electromagnetic unity. Thus, FPL, Corp and Georgia operate in synchronism-i.e.,
precisely at the same frequency-and the addition of a load or the outage of a generator on one system evokes an abnost instantaneous response on the other systems as all generators automatically slow down to provide the additional power necessary to meet the load. The hearing examiner's conclusion that this cause and efect relationship constitutes interstate transmission of electric energy (App. 270) reflects the physical reality of the situation. Clearly, for a l
generator in one state to alter its mode of operation by reason of the addition of a load in another state, j
an appropriate signal must be transmitted from the load to the generator. The signal-an electric im-pulse-is none other than a quantum of electric l
energy originating in one state and consumed in another.2*
Compare Pantomimic Corp. v. Xalone,238 Fed.135 (C.C.A.
2), whem a corporation sought to get around e statute bar.
ring the importation of prize fight films by setting up a camere 9ep'-
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- 26 The staff evidence, however, was not limited to the bare cause and effect relationship among intercon-nected facilities, but also concentrated on the~ degree of coordination of operations among FPL, the other members of the Florida Operating Committee and the other utilities forming the Interconnected Systems Group (see pp. 4-11, supra). The substantial inter-changes of electric energy among FPL and other Committee members and between Corp and Georgia, the reliance by FPL on other systems for emergency power, and the common use by all ISG members of tie line control with frequency bias to regulate network fre-quency and to provide almost instantaneous emer-gency service, all support the conclusion that FPL is an integral part of a vast, coordinated intenstate net-work. This evidence, together with the evidence on the electromagnetic unity of response, fully supports l
the Commission's conclusion that FPL does, in fact, own facilities for the transmission of electric energy in interstate commerce, i.e., in the words of Section 201(c) of the Act, energy " transmitted from a State and consumat at any point outside thereof."
This Court's dictum in Jersey Central Power &
Light Co. v. Federal Power Commission,319 U.S. 61, l
72, that "[m]ere connection determines nothing" does not compel a rejection of the Commission's determina-tion here. In the first place, the Comminaion's finding eight inches on the American side of the Canadian border and exposing a' banned film eight inches on the Canadian side of the bonier. The court found the action violative of the customs statute, notwithstanding the fact that only rays of light actually crossed the border.
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27 here rested upon much more th'an the mem fact of FPL's interconnection with an interstate network.
But more fundamentally, the Court in Jersey Central did not have before it the evaluation of extensive evi-dence of the interdependence of interconnected sys-tems that was the basis for the Commission's decision in this case. Although some evidence on the synchro-nization of interconnected utilities was before the Com-mission in that case, see 129 F. 2d 183,187, n.1, the Conunission's order finding Jersey Central to be a "public utility," was based upon an express &iding that electric energy flows could be traced from Jer-sey Central over the lines of an intervening utility to the State of New York. 2 F.P.C. 541, 542-543. In view of the limited number of interconnections involved in that case and the relative ease with which the cnergy flows could be traced, there was no occasion for the. Commission or this Court, in af aang the Commission, to consider other bases for jurisdiction.
Since Jersey Central, however, several jurisdictional cases have arisen involving situations where the trac-I i
ing of power flows is not practicable. The decisions of the Commission and courts of appeals in those cases support the Commission's decision here.
In Indiana & Michigan El:dric Co. v. Federal P>w-er Commission, 365 F. 2d 180 (C.A. 7), certiorari denied, 385 U.S. 972, the Seventh Circuit was faced I
with the question whether particular sales at whole-sale of I & M, an admitted "public utility," involved electric energy in interstate commerce and thus were i
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gulation." In finding all of I & M's sales at wholesale subject to its jurisdiction, the Commission noted that it was impracticable to trace energy flows from specific generating plants to speci-fic loads, but concluded that interstate energy never-theless pervaded the company's entire system. 365 F.
2d at 182. In upholding the Commission's conclusion, the court of appeals relied on the fact that I & M was part of a coordinated power pool operating as an inte-grated system in several states. The court noted that the " electric load of every customer of every operat-ing company in the System is supplied with electric energy from the entire * *
- pool" and also dis-cussed at length the dynamics of interconnected power systems and the tie line and frequency control equip-ment employed by the systems. 365 F. 2d at 182-183.
Similar results, based upon analyses of the mode of operation of interconnected utilities forming a power pool where tracing was impractical, were reached by the Sixth and Eighth Circuits in Cincinnati Gas &
Electric Co. v. Federal Power Commission,376 P. 2d 506 (C.A. 6), certiorari denied, 389 U.S. 842, and Arkansas Power & Light Co. v. Federal Power Com-mission,368 F. 2d 376 (C.A. 8)."
Section 201(b) of the Act grants the Commission jurisdic-tion over "the sale of electric energy si, wholesals in interstate conunerce." Thus to reach any particular wholesale sale, the l
Commission must establish s a fact that the sale involves energy "in interstate commerce."
The Commission, in Arkansas Poteer d Light, had noted in a passage of considerable relevance here (34 F.P.C. 747, 751, quoted by the court of appeals,368 F. 2d at 382) :
An interstate elxtric network is dynamic and ever chang.
ing both with respect to load and to generation source. It is y
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29 Another wholesale rate case, Public Service Com-pany of Indiana v. Federal Potver Commission, 375 F. 2d 100 (C.A. 7), certiorari denied, 3d7 U.S. 931, provides an even closer analogy to this case. In con-trast to the pooling arrangements of which I & M, Arkansas and Cincinnati were a part, PSCI's rela-tions with its neighbors were far more limited. 34 F.P.C.1513,1516-1517. The company was, however, interconnected with six other utilities and, like FPL here, was part of a multi-state, integrated electric power system." In upholding the Commission's as-an oversimplification. therefore, to talk in terms of a flow of electricity from point to point in an integated power network of the type involved here. Instead, generation from each source in the system contributes directly or indirec.ly, and to an ever varying extent, to the energy present, in all parts of the system which are not isolated from out.of-state energy sources. The fact that, as a matter of engineering determination, identification of either the source or destination of particular units of energy within an interstate power system such as respondent's may be difficult and at times impossible does not detract from the interstate nature of the over-all operation. On the contrary, the more complex and comprehensive the natum of the interstate network, the more unlikely it will be tbt any energy sources will be measurably identifiable. T1e use of tracing to disprove that a particular sale of a company which is part of an electrically integrated interstate system is in in-terstate commerce is a wholly unrealistic methodology which is irrelevant to present day power sylem technology.
" Referring to the " mere connection' language of this Court in Jeracy Central, the Commission had noted that "[t]o charac-terize PSCI's nlationships with its neighbors, including those in or receiving powcr from other states, as men interconnec-tion is simply to ignore the record." 34 F.P.C.1513,1517-1518.
Much the same observation can be made with respect to FPL in this case.
i 1
30 sertion of jurisdiction over PSCI's sales at wholesale, the Seventh Circuit followed the rationale of the
~'
I & X and Arkansas cases and held that the Commis-sion was not required to make specific tracings of power flows. 375 F. 2d 103-104.
The court below sought to distinguish the above cases on two grounds: (1) that the utilities there in-volved were all members of interstate power pools and (2) that establishing wholesale rate jurisdiction over an electric company already subject to Commissicn ju-risdiction is a different matter from establishing ju-risdiction over a company in the first instance (App.
369-371). Neither distinction, in our view, is significant.
While undoubtedly FPL's participation in the Florida Operating Committee and the ISG lacks the scope of the pooling arrangements of which I & M, Arkansas, Cincinnati and, to a lesser extent, PSCI were a part, the difference is only one of degr'ee and is not material to the issue whether interstate ' energy is present in a system or a partiedar portion of a sys-tem. As we have shown (see pli.11,26, supra), FPL receives substantial benefits from its participation in the multistate network to which it is electromag-i netically locked.
The second attempted distinction is based on the t
lower court's view that wholesale cases "have little application to the problems of federalism and reserva-tions of power to the states imposed by the instant
31 1
case, where the issue is one of whether FPL is a public utility at all * * *" (App. 371). As our ' eview of the r
legislativs history of the 1935 amendments to the Fed-eral Power Act indicates, however_ (see pp.19-21, supra), problems of federalism were very much behind the limitation of Commission rate jurisdiction to sales at wholesale of e.:ectric energy in interstate commerce, since the assertion of federal jurisdiction necessarily preempts the jurisdiction of any state authority over such sales. See Federal Power Commission v. Southern California Edison Co., 376 U.S. 205, 210-216. In Southern California, this Court referred to the debates in Congress in 1935 concerning the scope of federal wholesale jurisdiction under the proposed amendments and the ultimate decision, based largely on an inter-pretation of Public TJtilities Commission v. Attleboro Steam & Electric Co.,273 U.S. 83, to-
- *
- draw a bright line easily ascertained, between state and federal jurisdiction * *
- making FPC jur:sdiction plenary' and extend-ing it to all wholesale sales in interstate com-
. merce except those which Congress has made explicitly subject to regulation by the States
[376 U.S. at 215-216].
Congress employed the same "in interstate commerce" standard.t.o govern Commission jurisdiction over elec-tric utilities as it employed to govern jurisdiction over sales at: wholesale; there is no indication in the legis-lative history that this bright line" was not to be the same in both situations.
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32 III. SUBSTANTIAL EVIDENCE AIJO SUPPORTS THE OOMMIS-SION'8 DETERMINATION, A8 AN ALTERNATE BASIS FOR JURISDICTION, THAT THE STAFF TRACING STUDIES ESTAB-LISHED THAT ELECTRIC ENERGY HAD ON OOCASION FLOWED FROC GEORGIA TO FPL AND FROM FPL 'IO GEORGIA.
Since the passage of the 1935 Federal Power Act amendments, the Commission has in several cases sought to establish its jurisdiction--either over an electric utility as a "public utility" or over a particu-lar sale at wholesale-by tracing power flows through the readings of commercial meters to show the pres-ence of interstate electric energy on a given system or on part of a given system. In some cases, such as Jersey Central Pv er & Light Co. v. Federal Power Commission,319 U.S. 61 (discussed at pp. 21, 26-27, supra), the task of tracing has been simple due to the limited number of interconnections involved. In other cases, such as those discussed at pp. 27-30, supra, the systems have been of such complexity that no trac-ing-or very limited tracing at best-has been prac-ticable. Finally, there has been a middle category of cases where tincing is possible, but is so involved that the methods used have required refinement to take into account the fact that energy generated outside of a
- In PuMic Sen..ce Company of Ind>*ana, Inc., supra, p. 29, when a very limited tracing study had been introduced by l
the stas, a staff witness testified before the Commission that j
tracing was neither feasible or practicable for studying the i
PSCI system. Any such study, he estimated, would take from one to two years assuming no changes in the stmeture of the system. If changes occurred, however, restudy would he neces-sary making it almost impossible to complete the study. 375 F.
2d at 104, n. 7.
33 state ' frequently becomes commingled on a system's transmission lines with energy generated within the state. The Commission's treatment of such commingled energy as interstate energy has been approved by this Court. See Pennsylvania TVates & Porcer Co.v. Federal Po trer Com mission,343 U.S. 414,419-420 ; see also TFis-consin-Michigan Potver Co. v. Federal Potter Com-mission,197 F. 2d 472 (C.A. 7).
The present case falls within the middle category:
Refined tracing techniques can be and were used te show that electric energy flowed from Georgia over the transmission lines of Corp to FPL and from FPL over the same transmission lines to Georgia. While we submit that in this modern age of vastly complex electrical networks, the tracing of power flows is an unnecessary and inefficient procedure for determining Commission jurisdiction, the fact remains that trac-ing was used in this proceeding and provides a firm, alternate basis for the Commission's assertion of juris-
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diction over FPL.
The court of appeals rejected the staff's utilization of the commingled method of tracing power flows, ruling that the " engineering and scientific fact test 82 As long as tracing plays a significant role in jurisdictional proceedings before the Commission, electric utilities seeking to avoid jurisdiction will be encouraged to arrange their inter-connections with other utilities, not to muimize the coonlina-tion and ediciency of the interconnected systems, but to make the tracing of interstate power flows as difficult v.s possible.
Such a result would, of course, be undesirable am.1 would result in a triumph of form over substance. Cf. Pantomimic Corp. v. Malone, supra, n.16.
34 for interstate flow of energy is not met by postulating a simplified characterization of how, for various pur-poses of convenience, energy may be treated as flow-ing" (App. 367-368). What the court overlooked, however, is that any tracing method is necessarily based on a simplified model of an electric ostem as all tracing methods employ readings from commercial meters. As we have noted (see pp.12-13, supra), most commercial meters record only net electrical data and do not reflect the actual physics of a three phase alter-nating current system. Thus, the developing of a method for tracing power flows necessarily depends upon expert judgment to assure that the approximate and simplified model of an electric system employed by the method reflects as closely as possible the physi-cal dynamics of modern power transmission.
The court of appeals correctly noted that th_ flow of electric energy is a " complex and not yet fully ex-plainable" phenomenon (App. 365). The staff, pre-l sented, however, extensive evidence on what is known about three-phase power systems and compared dif-ferent tracing methods to determine which method best took into account the known attributes of such l
I power (see pp.12-14, supra). In short, the staff con-cluded that the commingled tracing method's treat-ment of a bus as A point or reservoir adequately re-flected the fact that three-phase power consists of both positive and negative power pulses moving in both l
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35 directions-a phenomenon not recorded by commercial meters."
The hearing examiner heard all of the conflicting testimon:c on tracing methods and the dynamics of three phase power, frequently interrupting the law-yers and the witnesses to interject his own questions.
Accordingly, he was in the best position to weigh the evidence and his determination that the commingled method and its assumptions adequately ref'ect the physical reality of three-phase alternating current is entitled to great weight. On the basis of the evidenti-ary record and the hearing examiner's analysis, the Commission was fully justified in accepfing the results of the staff's tracing studies as a basis for jurisdiction over FPL.
The court of appeals' reversal of the Commission in this case rested upon its judgment that the Com-
"Dr. Jessel testified (App. 47) that the commingled tracing method had been used in two earlier formal proceedings before the Commission: Penmylvania Water & Pmeer Co.,8 F.P.C.1, affirmed sub nom. Psnnsylvania Water & Potter Co. v. Federal Pmner Commission,193 F. 2d 230 (C.A. D.C.), aErmed, 343 U.S. 414, and Wisconsin-Nichigan Pmeer Co.,10 F.P.C.170, atfirmed sub nom. Wiscouin-Michigan Pmeer Co. v. Federal Forcer Commission,197 F. 2d 472 (C.A. 7). While neither of the l
Commission's decisions in those cases discusses the commingled method's treatment of a bus, a later Commission decision 1efers to the treatment of a bus as a point in the Pennsyltaia Water
& Pmeer Co. tracing studies. See City of Colton v. ' Southern California Edison Co., 26 F.P.C. 223, 231, reversed sub nom.
Southern California Edison Co. v. Federal Poscer Commission, 310 F. 2d 784 (C.A. 9), reversed,376 U.S. 205.
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36 mission had not demonstrated with sufficient scientific certainty that there are " actual" transmissions of in-terstate energy on FPL's facilities. The court did not find that the Commission had committed any error of law; nor did it find that the evidence required acceptance of the " systems study" tracing method advocated by FPL. Rather, the court held simply that the Commission cannot exercise jurisdiction over a major utility such as FPL unless and until it can convince a court of scientific laymen that, in conunon-sense terms, some identifiable thing moves across state lines. This is, we submit, an unsatisfactory approach to the " engineering and scientific" test of jurisdiction, see Connecticut Light & Porcer Co. v. Federal Potter Commission, supra, p. 20. The statutory scheme evidently contemplates that the Commission either has or does not have jurisdiction over FPL, and it is not enough to say that the Commission must abstain until such time-if ever-as it can be proven as a
" fact"in common law teluis that there is an " actual" transmission. As in other regulatory aaas, decision cannot be avoided on the ground that no decision can have absolute certainty; it is the very impossibility of j
such certainty that led Congress to commit the matter to the expert judgment of an administrative agency.
We' recognize that the Commission had the burden of establishing the jurisdictional premise, but we sub-mit that it did so when it determined, on the basis of careful consideration of the best expert opinion, that, in scientific terms, there are interstate transmis-sions on FPL's facilities. If, as is well established, i
the test of jurisdiction is to be truly a scientific test,
37 the expert administrative body must be allowed to use a scientifie definition of what a " transmission" is. This is not like the traditional judicial situation where, for example, psychiatric experts are called to assist a lay finder of fact in determining whether a defendant is, in layman's terms, sufficiently sane to be responsible for his actions. The court below has, we think, improperly tried to fit the issue in this case into that traditional mold, and in so doing has lost sight of the unique nature of the administrative proc-ess, which places such determinations in the hands of an expert body, with only limited judicial review to consider whether substantial evidence supports that body's determination. Cf. Sunshine Anthracite Coal Co. v. Adkins,310 U.S. 381, 399-401; Gray v. Powell, 314 U.S. 402,411-414; Griggs w Duk'e Forer Co., No.
124, 1970 Term, decided March 8,1971, slip. op. pp.
8-9. Here, as we have shown, thr. Commission's ex-pert conclusion is amply supported by substantial eri-dence; in holding otherwise, the court of appeals has improperly acted on the basis of its own inexpert views.
As we have suggested, the economic realities of FPL's relationship with the network of its interconnected utilities militate strongly in favor of federal regula-tion. A major purpose of the 1935 amendments that produced Section 201 was to provide federal coordina-tion of the nation's electrical aystems, and that purpose will evidently be facilitated by jurisdiction over FPL, the nation's ninth largest system in terms of sales. We are not, of course, suggesting that an economic test be substituted for the established scientific test of federal
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