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AGO 1953 No. 188 - December 30, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

GOVERNOR ‑- POWERS ‑- AUTHORIZATION OF PRESENTATION TO FEDERAL POWER COMMISSION OF RESULTS OF STATE RESEARCH AND ENGINEERING STUDY ON UTILIZATION OF WATER RESOURCES

The Governor may lawfully authorize a state engineer to present the results of state research and engineering study before the Federal Power Commission where important interests of the state are involved.

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                                                               December 30, 1953

Honorable A. L. Rasmussen
State Representative
4031 Pacific Avenue
Tacoma 8, Washington                                                                                                              Cite as:  AGO 53-55 No. 188

Dear Sir:

            By letter as previously acknowledged you have requested the opinion of this office upon three questions, as follows:

            "1. Does the Governor have the authority to oppose public power as a state policy when the legislature has approved public power?

            "2. Can the Governor send a personal representative to present his own personal opposition to public power to the Federal Power Commission hearings and pay this man with state funds?

            "3. Does the Governor have the right to by pass the State Power Commission in determining the power policy of the state?"

            Because each of these questions is based upon one or more erroneous assumptions of fact and inasmuch as the Governor has done none of the things stated  [[Orig. Op. Page 2]] it is exceedingly difficult to give a thorough legal analysis to your inquiry.  Our answer to your inquiry must necessarily be based upon the true facts as we know them to be.

            In our opinion, the action of the Governor in this matter has been entirely proper and lawful and in the best interests of the state.

                                                                     ANALYSIS

            1. Your first question assumes that the Governor has opposed public power as a state policy and that the legislature has approved such a policy as against privately owned public utilities.

            Insofar as we know the Governor has never opposed public power in a situation where the best interests of the state would be served by that means, although any citizen would be entitled to do so.  Nor has the Governor opposed public power before the Federal Power Commission.  The opening statement made by counsel for the State of Washington in the recent hearing, available to any interested person and distributed as widely as possible ‑ a copy of which is attached hereto ‑ makes this abundantly clear:

            "The State of Washington intervention is not based upon taking a position between public power and private power nor as to federal construction or private capital construction."  (Italics added)

            The state merely undertook to present its views upon the comparative economic feasibility of the two proposed facilities, based upon several years of expert investigation and research.  No opinion whatsoever was expressed as to the relative merits of public and private construction.  This was scrupulously avoided.

            The legislature is nowhere on record in favor of public power to the exclusion of private power.  In any given instance it must be a question of fact as to whether or not the public can best be served by "public" or "private" power.  For example, § 8 of the State Power Commission Act (chapter 281, Laws of 1953) provides in part as follows:

            "If any public utility in the state or any operating agency, as hereinafter provided for, desires to construct  [[Orig. Op. Page 3]] or acquire such facility or desires to construct a hydro-electric [[hydroelectric]]plant or reservoir in substantially the same location, such utility or operating agency shall notify the commission thereof within ten days after the last date of publication of such notice.  If the commission determines that it is in the best public interest that the commission proceed with such construction or acquisition rather than to permit the public utility or operating agency to do so, it shall so notify the director of conservation and development, who shall set a date for hearing thereon.  If after considering the evidence introduced the director of conservation and development finds that the public utility or agency making the request intends to immediately proceed with such construction or acquisition and is financially capable of carrying out such construction or acquisition, and further finds that the plan of such utility or operating agency is equally well adapted to conserve and utilize in the public interest the water resources of this state, he shall specify a reasonable time, in no event less than one year, which time shall be extended for good cause shown, within which such public utility or operating agency shall complete such acquisition or commence such construction."

            By definition in § 1, "public utility" includes private persons, firms, and corporations as well as public authorities.  Any such utility, public or private, having equally good plans and financial responsibility, is given preference in construction or acquisition over the state by the foregoing provision.  § 3 requires that all classes of public utilities are to be represented by membership on the Power Commission, including by definition privately-owned utilities. § 20 (1) provides that the Commission is to develop and integrate resources only where public utilities (including those privately owned) ‑ exclusive of federal utilities ‑ are not in a position to do the job.  Other examples might be cited.  We find no intent to discriminate against private power development in this most recent enactment of the legislature, as implied by your letter.

             [[Orig. Op. Page 4]]

            2. Your second question is also based upon erroneous assumptions of fact.  In the first place, the Governor did not send a personal representative to present personal opposition to public power before the Federal Power Commission.  The person you allege to be the Governor's personal representative is and has been for several years employed by the state as a consulting engineer in the department of conservation and development, and possesses wide experience with water resources and power facilities.  He was selected by the Governor from the staff of the department to appear as a witness before the Commission because of his background and detailed knowledge of the problem.  He has advised the Governor in connection with investigations conducted under the Federal Flood Control Act of 1944 (Chapter 665, 78th Congress, 2nd session), providing for development of water resources on a regional watershed basis, including the Columbia River and its tributaries.

            Secondly, the cited federal statute provides specifically that relations of the Chief of Engineers and the Secretary of the Interior shall be with the governors of the states concerned or such official or agency as the governor may designate.  Presentation of the state's attitude toward plans for development of potentials on the Columbia River and tributaries affecting it to the federal authorities has thus been one of the Governor's official duties for a number of years.  The supreme executive power of this state is vested in the Governor by Article III, § 2, of our Constitution.  RCW 43.06.010 (4) provides that:

            "He is the sole official organ of communication between the government of this state and the government of any other state or territory, or of the United States."

            In a case such as this, where the mutual interest of the state and federal governments demand that all relevant information be made available, it becomes the plain duty of the chief executive officer of the state to take the initiative in explaining the interests of the state and in assisting the national authorities.  A man of less vigor and integrity might easily have avoided responsibility by mere inaction.  But men are not elected to positions of such high trust and leadership in the hope that they will remain passive or dormant on crucial public issues.  The people demand and have a right to expect aggressive and constructive action from elected officials.  Governor Langlie is in an exceptional position to render such service.  He has been elected governor three times by mandate of the people of the state, and is the senior governor in the  [[Orig. Op. Page 5]] United States.  He has been a leading figure in the movement to develop the resources of the Northwest and has at all times fully cooperated with both public and private power factions.  In this light it is impossible to believe that he would act in such a manner as to jeopardize the best interest of the state on so vital a question.  We have no doubt that the foregoing provisions empower the Governor to authorize the appearance of an expert witness to submit the findings and recommendations of our state government to the Commission.

            As we have already pointed out, the engineering views stated before the Commission respecting power development in the Northwest were not the personal opinions of the Governor, although he was entirely in accord with most of those views.  They were the result of much thought and research by the various appropriate state agencies and officials; and as such represented the position of the state in their best judgment, based upon known facts.

            3. Your final question implies that the Governor intended to avoid or by-pass the State Power Commission.  It is true that § 20 of chapter 281, which was effective last June 11th, provides that the commission is to represent the state in certain matters.  But the "power policy of the state," which must in every case depend upon the particular facts involved as we have explained, is not entrusted exclusively to the commission.  Its decision is subject to that of the director of conservation and development in some cases; § 8, chapter 281, supra.  Appeal to the courts has been provided; § 19, chapter 281.  More important in the present situation, § 10 provides that the act shall be cumulative, and shall not impair nor supersede the powers or rights of any person.  The Commission has been in existence only for a few months, and a considerable period is required in which to mold such an agency into an organized and functioning unit.  Thus the Commission has had very little time in which to undertake a study of the extensive problem which is being considered by the Federal Commission.  Many experts of the state have for many years been engaged in research as to the best manner of utilizing our natural resources.  The State Power Commission has always had and will have the support of the Governor in working out an orderly plan of development of our resources.  There is not the slightest hint that such a course was pursued in order to avoid or by-pass the State Power Commission.

            Where a project affecting so great an area and so many interests is proposed, an informed judgment must be based upon all available facts.  It is equally  [[Orig. Op. Page 6]] essential to preservation of the democratic process that every interested party be heard, whether state, corporation, or individual, so that all viewpoints may be considered.  Every party appearing before the Commission acted in accordance with these principles, as did the Governor in making possible submission of the best information and expert knowledge available to this state.  We suggest that such action should be commended, rather than maligned.

            From what has been said, we think it clear that the action of the Governor in this matter has been well-advised, entirely lawful, and calculated to promote the best interest of the State of Washington.

Very truly yours,

DON EASTVOLD
Attorney General

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