# Petition — North Carolina v. Federal Power Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2369%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 891 ## Text MICHAEL KUDAK, JR. CLERK IN THE Supreme Court of the United States October Term, 1975 No. 75-1657 STATE OF NORTH CAROLINA, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, APPALACHIAN POWER COMPANY, INC., COMMONWEALTH OF VIRGINIA, STATE OF WEST VIRGINIA, Intervenors. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR V. RIT OF CERTIORARI Rufus L. Edmisten Millard R. Rich, Jr. Norman B,. Smith* Thomas J. Schoenbaum Counsel for Petitioner *704 Southeastern Building Greensboro, N. C. 27401 ee eee INDEX Table of Citations 0.000000 0. EE TNT RS Citations to Opinions Below - Jurisdiction —0 Questions Presented |. Constitutional and Statutory Provisions Involved Statement of the Case Reasons for Granting the Writ I. In violation of the National Environmental Policy Act, 42 U.S.C, sec, 4332, the Federal Power Commission failed to give adequate consideration to the scenic river alternative in its environmental impact statement — II. This Court must enforce the statutory prohibition against the Federal Power Commission's licensing and otherwise assisting in the construction of the Modified Blue Ridge Project. —. A. The Secretary of the Interior's approval of the New River for inclusion in the National Wild and Scenic Rivers System renders the license invalid. _. B. While the New River was a state-nominated study river, the Federal Power Commission was also prohibit- ed from licensing the project. C. Because of the effective prohibition of 16 U.S.C. sec. 1278, this case has become moot, and the Court should direct the dismissal of the licensing proceeding before the Federal Power Commission. . III. The license for the Modified Blue Ridge Project should be set aside because Appalachian Power Com- pany caused the Federal Power Commission to violate federal statutes and regulations pertaining to historical and archaeological properties. . 22 27 29 30 33 er ee ee ee Page Page IV. In holding that the Federal Power Commission's Secretary of the Interior's approval of the New River as consideration of the impact of energy conservation a 155 measures such as peak load pricing and reduced demand Affidavit of Robert SRO Ee ee a: 156 factors was adequate, the Court of Appeals disregarded the teaching of this Court in Udall v. FPPC, 387 U.S. 428 Affidavit of Charlton G. Holland .........-..... 159 (1967) , as well as the duties imposed under the National Environmental Policy Act. __ 40 core, beside and wesasand by Chariton G. Holland - Ah Ee Se V. The Court of Appeals should have reviewed . . whether the FPC violated the National Environmental | Archaeological Resources Appraisal by Harvard Ayers... 200 Policy Act by failing to consider the designation of the Draft Comments by Interagency Archaeological Services. 237 New River as a “federal scenic river” as an alternative , to the project since petitioner raised the objection in its Preliminary Cultural Resources Reconnaissance by Na- application for rehearing before the FPC. 45 | ee Conclusion | Bt a Ee vo 49 : . ! TABLE OF CITATIONS Appendix | . on ” | CASES: ne ey - An ary bs Court of Appeals for the Dis - | Application of Madison Gas and Electric Co., 2-U- : ' | 7423 (Pub. Serv. Comm. of Wis. 1974) 0... 48 Opinion and Order of the Federal Power Cominission 62 Calvert Cliffs’ Coordinating Committee v. Atomic Letter from Nathaniel P. Reed, Assistant Secretary of Energy Commission, 449 F.2d 1109 (D.C, Cir. 1971)... 40 the Interior for Fish and Wildlife and Parks to John N. Central Vt. Pub. Serv. _— . (Vt. Pub. Serv. Bd. Nassikas, Chairman of the Federal Power Commission, 1974) . ri eisiaeeensiinieniicaicindiniaciacdaeniieniones pesnvenen 43 January 7, 1975 : | 145 . City of Davis v. Coleman, 521 F.2d 661 (9th Cir. Letter from Rogers C. B. Morton, Secretary of the In- EE a ee sabtainastniit terior to James E. Holshouser, Jr., Governor of North , Carolina, March 25, 1974 149 De Funis v. Odegaard, 416 US. 312 (1974) 200000... 35 Letter from James FE. Holshouser, Jr.. Governor of gra oe pon v. Corps of Engineers, 1 North Carolina, to Rogers C. B. Morton, Secretary of ; { ” Fe sepirintinceheeton the Interior, December 12, 1974 152 Environmental Defense Fund v. Froehlke, 473 F.2d Letter from Rogers C. B. Morton, Secretary of the In- siestlinsnisdhuait betel gummeeer ememememammmmmmemianidas terior, to James E. Holshouser, Jr., Governor of North Federal Power Commission v. Colorado Interstate Carolina, December 24, 1974 154 eM il ii ( \sks: Prue Hhivelscon is er Pishermen’s Vescneuaitpon a becleral Power Commission, #OS Pld set 2d Cie, pote, ho be Pea licitics ned Miehtoun Bleetrie Gao. Bederal Power (Commission, O02 Fad oe DC Cie pots Natural Reese ores ]derfertyse C corprie tl \ Nbertoon bos Peat set DC Cir tate * (Mes \ 0 MeDenald too tos pj sss Parker Dotted States, BES Boad tos both Cy re Soome Phiiedson Presser s atten Crnitereneen 4 beleral Power Commission, (56 Fat Gos ad Gar foes Th serra Clubs Frochithe, 86 Fog ote Tth Cin bas “ilvaov. barn, $82 Ftd bese det Gar bots, Ios. bes Cdlall vo Federal Power Cotuntnetsston. 87 Diy 2. Wb. BOL oS United states. Alaska Steamshiyp Go. 295 ES nb hve Voited States. Nnehor Coal €o. sto Es) spe wa Tited States v0 Phanburge ANmerikonieehe Cie. te | ee © ee CT STATUTES 16 TSC) see. Bina t i eee 6 USO wee, FF i Tose “ie, SOD a Mth, i TSO wee N25/ Ln ee ee 1M ESO wee DESE et ny ts MW CASES: Page 16 USC. a _... 6, 22-23, 24, 34 16 US.C. sec. 1272 _... 6, 22, 24 16 USC. 1273 6-8, 28, 35, 46, 48, 57, 59 16 USC. 16 USC. 16 USC. 16 USC. 28 USC. 42 USC. 1274. pintnedeabetenies : 8, 28, 52 1275 8-11 1276 11-12, 28, 30-52 1278 12-15, 27, 30-54 1254/1) 2 4531 2, 15-17, 26, 36, 39, 45 £34432443% 422 USC. 4552 17-20, 22, 25, 40, 46, 47 Endangered Species Act of 1978 23 N.C.GS. see. 113A-35.1 - 24, 28 P.L. 93-279 | 32 Rule 4). Rules of Appellate Procedure 29 MISCELLANEOUS: Executive Order No. 11595, 36 F.R. 8921 (May 13, 1971) |. 36, 39 Federal Power Commission, National Power Survey 0 ine : . 41 Guidelines of the Council on Environmental Quality, 40 C.F.R. sec. 1500.8 (1973) AR 26 H.Rept. No. 1623, 90th Cong., 2d Sess. (1968) . 23, 33 Jones, “Judicial Determination of Public Utility Rates: A Critique,” 54 B.U.L. Rev. 873 (1974) ... 48 Note, “Case Moot on Appeal: A Limit on the Judicial Power,” 103 U.Pa. L.Rev. 772 (1955) —.. - ~ 35 Note, “Lexonomics and the Electrival Utility Indus- try: In Search of the Optimal Rate Structure,” 61 Ta.L.Rev. 134 (1975) _... nce 42-43 MUSCELLAN EOL S Willrieh. "The leet rie Utility ated Part 1" Pub. Chil, Bort. de bie Diver ( risi- dan. pets S 2b 120 Cone. Row Wn 7 Lats ae oso IS CORR wee bboek, Vi dematicny © : ‘ 2 : ; : IN THE Supreme Court of the United States October Term, 1975 No. 75-1657 STATE OF NORTH CAROLINA, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, APPALACHIAN POWER COMPANY, INC., COMMONWEALTH OF VIRGINIA, STATE OF WEST VIRGINIA, Intervenors. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR WRIT OF CERTIORARI Petitioner prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the District of Columbia Circuit entered March 24, 1976. CITATIONS TC OPINIONS BELOW The March 24, 1976, opinion of the United States Court of Appeals for the District of Columbia Circuit is not yet pub- lished. It is set out in the appendix, infra, pp. 50-61. The opinion and order of the Federal Power Commission reviewed by the Court of Appeals is not published, and is set out in the appendix, infra, pp. 62-144. 2 JURISDICTION The judgment of the United States Court of Appeals for the District of Columbia Circuit was entered on March 24, 1976. Jurisdiction of this Court is invoked under 28 U.S.C. sec. 1254(1) and 16 U.S.C. sec. 8251(b). Jurisdiction of the United States Court of Appeals for the District of Columbia Circuit was founded upon 16 U.S.C. sec. 8251 (b) . Jurisdiction of the Federal Power Commission was founded upon 16 U.S.C. sec. 797 (e) . QUESTIONS PRESENTED 1. Did the Federal Power Commission fail to give adequate consideration to the scenic river alternative in its environ- mental impact statement in violation of the National Environ- mental Policy Act? 2. Should the licensing proceeding be dismissed for moot- ness as a result of either the Secretary of the Interior's approval of the New River as a scenic river, or the application of the Governor of North Carolina making the river a scenic study river? 3. Should the license for the project be set aside because Appalachian Power Company caused the Federal Power Com- mission to violate federal statutes and regulations pertaining to historical and archaeological properties? 4. Did the Court of Appeals misapply the Nationa] Erviron- mental Policy Act and Udall v. Federal Power Commission in upholding the Federal Power Commission’s consideration of the impact of energy conservation measures such as peak load pricing and reduced demand on the need for the project? 5. Was the question of the Federal Power Commission’s consideration of the scenic river alternative adequately raised to require judicial review by the application for rehearing? Coreen Oe Wee 3 CONSTITUTIONAL AND STATUTORY - PROVISIONS INVOLVED 16 U.S.C. sec. 469a-1 Same; threat of irreparable loss or destruction of significant scientific prehistorical, historical, or archaeological data by Federal construction projects; notice to Secretary of Interior; survey; recovery, preservation, and protection of data. (a) Whenever any Federal agency finds, or is notified, in writing, by an appropriate historical or archeological author- ity, that its activities in connection with any Federal con- struction project or federally licensed project, activity, or pro- gram may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archeological data, such agency shall notify the Secretary, in writing, and shall provide the Secretary with appropriate information concerning the project, program, or activity. Such agency may request the Secretary to undertake the recovery, protection, and preserva- tion of such data (including preliminary survey, or other in- vestigation as needed, and analysis and publication of the reports resulting from such investigation), or it may, with funds appropriated for such project, program, or activity, undertake such activities. Copies of reports of any investiga- tions made pursuant to this section shall be submitted to the Secretary, who shall make them available to the public for inspection and review. (b) Whenever any Federal agency provides financial] assist- ance by loan, grant, or otherwise to any private person, asso- ciation, or public entity, the Secretary, if he determines that significant scientific, prehistorical, historical, or archeological data might be irrevocably lost or destroyed, may with funds appropriated expressly for this purpose conduct, with the con- sent of all persons, associations, or public entities having a legal interest in the property involved, a survey of the affected site and undertake the recovery, protection. and preservation of such data (including analysis and publication) . The Secre- \ 4 tary shall, unless otherwise mutually agreed to in writing, com- pensate any person, association, or public entity damaged as a result of delays in construction or as a result of the temporary loss of the use of private or any nonfederally owned lands. 16 U.S.C. sec. 8251 Rehearings; court review of orders (a) Any person, State, municipality, or State commission aggrieved by an order issued by the Commission in a proceed- ing under this chapter to which such person, State, municipal- ity, or State commission is a party may apply for a rehearing within thirty days after the issuance of such order. The appli- cation for rehearing shall set forth specifically the ground or grounds upon which such application is based. Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application may be deemed to have been denied. No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Com- mission for a rehearing thereon. Until the record in a proceed- ing shall have been filed in a court of appeals, as provided in subsection (b) of this section, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any find- ing or order made or issued by it under the provisions of this chapter. (b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the Dis- trict of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for Bia ries 5 tay. rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall forthwith be transmitted by the clerk of the court to any member of the Commission and thereupon the Commission shall file with the court the record upon which the order complained of was entered, as provided in section 2112 of Title 28. Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objec- tion shall have been urged before the Commission in the appli- cation for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shal] be conclusive. If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reason- able grounds for failure to adduce such evidence in the pro- ceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts by reason of the additional evidence so taken, and it shall file with the court such modified or new findings which, if supported by substantial evidence, shall be conclusive, and its recommenda- tion, if any, for the modification or setting aside of the orig- inal order. The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certifi- cation as provided in sections 346 and 347 of Title 28. (c) The filing of an application for rehearing under sub- section (a) of this section shall not, unless specifically ordered by the Commission, operate as a stay of the Commission’s 6 order. The commencement of proceedings under subsection (b) by this section shall not, unless specifically ordered by the court, operate as a stay of the Commission’s order. Wild and Scenic Rivers Act 16 U.S.C. sec. 1271 et seq. $ 1271. Congressional Declaration of Policy It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing con- dition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be com. plemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes. §$ 1272. Congressional Declaration of Purpose The purpose of this chapter is to implement the policy set out in section 1271 of this title by instituting a national wild and scenic rivers system, by designating the initial components of that system, and by prescribing the methods by which and standards according to which additional components may be added to the system from time to time. $1273. National Wild and Scenic Rivers System; Congres- sional Authorization For Inclusion; Designation By State Legisiatures; Permanent Administration By States; Application For Inclusion By Governors; Satisfaction Of Criteria; Eligibility For Inclusion. (a) The national wild and scenic rivers system shall com- prise rivers (i) that are authorized for inclusion therein by 3 + 7 Act of Congress, or (ii) that are designated as wild, scenic or recreational rivers by or pursuant to an act of the legislature of the State or States through which they flow, that are to be permanently administered as wild, scenic or recreational rivers by an agency or political subdivision of the State or States concerned without expense to the United States, that are found by the Secretary of the Interior, upon application of the Governor of the State or the Governors of the States concern- ed, or a person or persons thereunto duly appointed by him or them to meet the criteria established in this chapter and such criteria supplementary thereto as he may prescribe, and that are approved by him for inclusion in the system, includ- ing, upon application of the Governor of the State concerned, the Allagash Wilderness Waterway, Maine, and that segment of the Wolf River, Wisconsin, which flows through Langlade County. (b) A wild, scenic or recreational river area eligible to be included in the system is a free-flowing stream and the related adjacent land area that possesses one or more of the values referred to in section 1271 of this title. Every wild, scenic or recreational river in its free-flowing condition, or upon restora- tion to this condition, shall be considered eligible for inclusion in the national wild and scenic rivers system and, if included, shall be classified, designated, and administered as one of the following: (1) Wild river areas—Those rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America. (2) Scenic river areas—Those rivers or sections of rivers that are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads. (3) Recreational river areas—Those rivers or sections 8 of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past. $ 1274. Component Rivers and Adjacent Lands; Establish- ment of Boundaries; Classification; Development Plans. (a) The following rivers and the land adjacent thereto are hereby designated as components of the national wild and scenic rivers system: {Remainder of subsection (a) omitted.) (b) The agency charged with the administration of each component of the national wild and scenic rivers system designated by subsection (a) of this section shall, within one year from October 2, 1968, establish detailed boundaries there- for (which boundaries shall include an average of not more than three hundred and twenty acres per mile on both sides of the river); determine which of the classes outlined in sec- tion 1273(b) of this title best fit the river or its various segments; and prepare a plan for necessary developments in connection with its administration in accordance with such classification. Said boundaries, classification, and development plans shall be published in the Federal Register and shall not become effective until ninety days after they have been for- warded to the President of the Senate and the Speaker of the House of Representatives. $ 1275. Additions to National Wild and Scenic Rivers System —Reports by Secretaries of Interior and Agriculture; Recommendations to Congress; Contents of Reports. (a) The Secretary of the Interior or, where national forest lands are involved, the Secretary of Agriculture or, in appro- priate cases, the two Secretaries jointly shal] study and sub- mit to the President reports on the suitabiliy or nonsuitability for addition to the national wild and scenic rivers system of rivers which are designated herein or hereafter by the Congress as potential additions to such system. The President shall re- port to the Congress his recommendations and proposals with respect to the designation of each such river or section thereof under this chapter. Such studies shall be completed and such reports shall be made to the Congress with respect to all rivers named in section 1276(a) (1) through (27) of this title no later than October 2, 1978. In conducting these studies the Secretary of the Interior and the Secretary of Agriculture shall give priority to those rivers with respect to which there is the greatest likelihood of developments which, if undertaken, would render the rivers unsuitable for inclusion in the national wild and scenic rivers system. Every such study and plan shall be coordinated with any water resources planning involving the same river which is being conducted pursuant to the Water Resources Planning Act. Each report, including maps and illustrations, shall show among other things the area included within the report; the characteristics which do or do not make the area a worthy addition to the system; the current status of land ownership and use in the area; the reasonably foreseeable potential uses of the land and water which would be enhanced, foreclosed, or curtailed if the area were included in the national wild and scenic rivers system; the Federal agency (which in the case of a river which is wholly or substantially within a national forest, shall be the Department of Agriculture) by which it is proposed the area, should it be added to the system, be ad- ministered; the extent to which it is proposed that such ad- ministration, including the costs thereof, be shared by State and local agencies; and the estimated cost to the United States of acquiring necessary lands and interests in land and of ad- ministering the area, should it be added to the system. Each such report shall be printed as a Senate or House document. Study of Report By Affected Federal and State Officials; Recommendations and Comments; Transmittal to Presi- dent and Congress. 10 (b) Before submitting any such report to the President and the Congress, copies of the proposed report shall, unless it was prepared jointly by the Secretary of the Interior and the Secretary of Agriculture, be submitted by the Secretary of the Interior to the Secretary of Agriculture or by the Secretary of Agriculture to the Secretary of the Interior, as the case may be, and to the Secretary of the Army, the Chairman of the Federal Power Commission, the head of any other affected Federal department or agency and, unless the lands proposed to be included in the area are already owned by the United States or have already been authorized for acquisition by Act of Congress, the Governor of the State or States in which they are located or an officer designated by the Governor to receive the same. Any recommendations or comments on the proposal which the said officials furnish the Secretary or Secretaries who prepared the report within ninety days of the date on which the report is submitted to them, together with the Secretary's or Secretaries’ comments thereon, shall be included with the transmittal to the President and the Congress. No river or portion of any river shall be added to the national wild and scenic rivers system subsequent to October 2, 1968, until the close of the next full session of the State legislature, or legis- latures in case more than one State is involved, which begins following the submission of any recommendation to the Presi- dent with respect to such addition as herein provided. Publication in Federal Register (c) Before approving or disapproving for inclusion in the national wild and scenic rivers system any river designated as a wild, scenic or recreational river by or pursuant to an act of a State legislature, the Secretary of the Interior shall sub- mit the proposals to the Secretary of Agriculture, the Secretary of the Anny, the Chairman of the Federal Power Commission, and the head of any other affected Federal department or agency and shall evaluate and give due weight to any recom- mendations or comments which the said officials furnish him within ninety days of the date on which it is submitted to a 11 them. If he approves the proposed inclusion, he shall publish notice thereof in the Federal Register. £1276. Rivers Constituting Potential Additions to National Wild and Scenic Rivers System—Enumeration of Designated Rivers. (a) The following rivers are hereby designated for potential addition to the national wild and scenic rivers system: [Remainder of subsection (a) omitted.] Studies and Reports (b) (1) The studies of rivers named in subparagraphs (28) through (55) of subsection (a) of this section shall be com- pleted and reports thereon submitted by not later than October 2, 1979: Provided, That with respect to the rivers named in subparagraphs (33), (50), and (51), the Secretaries shall not commence any studies until (i) the State legislature has acted with respect to such rivers or (ii) one year from January 3, 1975, whichever is earlier. (2) The study of the river named in subparagraph (56) of subsection (a) of this section shall be completed and the re- port thereon submitted by not later than January 3, 1976. (3) There are authorized to be appronriated for the purpose of conducting the studies of the rivers named ir. subparagraphs (28) through (56) such sums as may be :siecessary, but not more than $2,175,000. State Participation (c) The study of any of said rivers shall be pursued in as close cooperation with appropriate agencies of the affected State and its political subdivisions as possible, shall be carried on jointly with such agencies if request for such joint study is made by the State, and shall include a determination of the degree to which the State or its political subdivision might participate in the preservation and administration of the river 12 should it be proposed for inclusion in the national wild and scenic rivers system, Continuing Consideration By Federal Agencies to Potential National Wild, Scenic and Recreational River Areas. (d) In all planning for the use and development of water and related land resources, consideration shall be given by all Federal agencies involved to potential national wild, scenic and recreational river areas, and all river basin and project plan reports submitted to the Congress shall consider and discuss any such potentials. The Secretary of the Interior and the Secretary of Agriculture shall make specific studies and investigations to determine which additional wild, scenic and recreational river areas within the United States shall be evaluated in planning reports by all Federal agencies as po- tential alternative uses of the water and related land resources involved, [Section 1277 omitted.] $1278. Restrictions On Water Resources Projects — Con- struction Projects Licensed By Federal Power Com- mission, (a) The Federal Power Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is designated in section 1274 of this title as a component of the national wild and scenic rivers system or which is hereafter designated for inclusion in that system, and no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secre- tary charged with its administration. Nothing contained in the foregoing sentence, however, shall preclude licensing of, or 13 assistance to, developments below or above a wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on October 2, 1968. No department or agency of the United States shall recommend authorization of any water resources project that would have a direct and adverse effect on the values for which such river was established, as deter- mined by the Secretary charged with its administration, or re- quest appropriations to begin construction of any such project, whether heretofore or hereafter authorized, without advising the Secretary of the Interior or the Secretary of Agriculture, as the case may be, in writing of its intention so to do at least sixty days in advance, and without specifically reporting to the Congress in writing at the time it makes its recommenda- tion or request in what respect construction of such project would be in conflict with the purposes of this chapter and would affect the component and the values to be protected by it under this chapter. Construction Projects On Rivers Designated For Potential Addition to System. (b) The Federal Power Commission shall not license the construction of any dam, water conduit, reservoir, power- house, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is listed in section 1276(a) of this title, and no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river might be designated, as determined by the Secretary responsible for its study or approval— (i) during the ten-year period following October 2, 1968 or for a three complete fiscal year period following any Act of Congress designating any river for potential addi- 14 tion to the national wild and scenic rivers system, which- ever is later, unless, prior to the expiration of the relevant period, the Secretary of the Interior and, where national forest lands are involved, the Secretary of Agriculture, on the basis of study, determine that such river should not be included in the national wild and scenic rivers system and notify the Committees on Interior and Insular Affairs of the United States Congress, in writing, including a copy of the study upon which the determination was made, at least one hundred and eighty days while Congress is in session prior to publishing notice to that effect in the Federal Register: Provided, That if any Act designating any river or rivers for potential addition to the national wild and scenic rivers system provides a period for the study or studies which exceeds such three complete fiscal year period the period provided for in such Act shall be substituted for the three complete fiscal year period in the provisions of this clause (i); and (ii) during such additional period thereafter as, in the case of any river the report for which is submitted to the President and the Congress, is necessary for congressional consideration thereof or, in the case of any river recom- mended to the Secretary of the Interior for inclusion in the national wild and scenic rivers system under section 1273 (a) (ii) of this title, is necessary for the Secretary’s consideration thereof, which additional period, however, shall not exceed three years in the first case and one year in the second. Nothing contained in the foregoing sentence, however, shall preclude licensing of, or assistance to, developments below or above a potential wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or diminish the scenic recreational, and fish and wildlife values present in the potential wild, scenic or recreational river area on the date of approval of this chapter. No department or DLN 0 i Rede Sale | a 15 agency of the United States shall, during the periods hereim- before specified, recommend authorization of any water re- sources project on any such river or request appropriations to begin construction of any such project, whether heretofore or hereafter authorized, without advising the Secretary of the Interior and, where national forest lands are involved, the Secretary of Agriculture in writing of its intention so to do at least sixty days in advance of doing so and without specific- ally reporting to the Congress in writing at the time it makes its recommendation or request in what respect construction of such project would be in conflict with the purposes of this chapter and would affect the component and the values to be protected by it under this chapter. Activities in Progress Affecting River of System: Notice to Secretary. (c) The Federal Power Commission and all other Federal agencies shall, promptly upon enactment of this chapter, in- form the Secretary of the Interior and, where national forest lands are involved, the Secretary of Agriculture, of any pro- ceedings, studies, or other activities within their jurisdiction which are now in progress and which affect or may affect any of the rivers specified in section 1276(a) of this title. They shall likewise inform him of any such proceedings, studies, or other activities which are hereafter commenced or resumed before they are commenced or resumed. Grants Under Land and Water Conservation Fund Act of 1965. (d) Nothing in this section with respect to the making of a loan or grant shall apply to grants made under the Land and Water Conservation Fund Act of 1965. [Sections 1279-1287 omitted.| 42 US.C. sec, 4331 Congressional Declaration of National Environ- mental Policy. 16 (a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, re- source exploitation, and new and expanding technological ad- vances and recognizing further the critical importance of re- storing and maintaining environmental quality to the overall welfare and development of man, declares that it is the con- tinuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and meas- ures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to thesend that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; i 17 (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a respon- sibility to contribute to the preservation and enhancement of the environment. 42 U S.C. sec. 4332 Cooperation of Agencies; Reports; Avatiability of Information, Recommendations; Inte national aid National Coordination of Efforts. The Congress authorizes and directs that, to the fullest ex- tent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal] Government shall— (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision- making which may have an impact on man’s environment; (B) identify and develop methods and procedures, in con- sultation with the Council or Environmental Quality estab- lished by subchapter IT of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— 18 (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (ii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Fed- eral official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special exper- tise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appro- priate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Qual- ity and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency re- view processes; (D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action fund- ed under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if: (i) the State agency or official has statewide jurisdic- tion and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (ii) the responsible Federal official independently Gt whlidinei! 19 evaluates such statement prior to its approval and adop- tion, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement. The procedures in this subparagraph shal! not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other respon- sibility under this chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction. (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which in- volves unresolved conflicts concerning alternative uses of avail- able resources; (F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initi- atives, resolutions, and programs designed to maximize inter- national cooperation in anticipating and preventing a decline in the quality of mankind’s world environment; (G) make available to States, counties, municipalities, insti- tutions, and individuals, advice and information useful in re- storing, maintaining, and enhancing the quality of the environ- ment; (H) initiate and utilize ecological information in the plan- ning and development of resource-oriented projects; and 20 (I) assist the Council on Environmental Quality established by subchapter IT of this chapter. STATEMENT OF THE CASE The Federal Power Commission's Opinions and Orders Nos. 698 and 698-A granted a license to Appalachian Power Com- pany to construct a pumped storage hydroelectric project on the New River in Northwestern North Carolina and South- western Virginia. Appalachian Power Company was granted a two year pre- liminary permit in March, 1963, by the Commission. In February, 1965, Appalachian applied for a license for the “Blue Ridge Project”, much smaller than the project ultimately approved. At hearings conducted in 1967, considerable oppo- sition developed to the project. In response to the objections the Commission staff proposed and Appalachian accepted, the present “Modified Blue Ridge Project’, consisting of a lower reservoir of 12,390 acres and an upper reservoir of 26,000 acres. Hearings on the modified project were held in 1969. On Octobr 1, 1969, Examiner (now Administrative Law Judge) Levy issued his initial decision. Oral arguments were held, further briefs were filed, and a supplemental initial decision was issued by Judge Levy on June 21, 1971. Further excep- tions were filed, and additional ora] arguments were held. Following publication of a draft environmental impact state- ment and receipt of comments thereon, the Commission's staff filed its final environmental impact statement on June 18, 1973. The parties were granted an opportunity to cross examine staff witnesses with respect to the final environmental impact statement. Judge Levy issued a third decision on January 23, 1974. This decision was approved by the Commission for the most part and adopted in the Opinion and Order No. 698. The order required further modification of the project, consisting of a slight reduction in size of the lower reservoir and limiting 21 the drawdown on the upper reservoir to no more than ten feet. North Carolina and other parties filed objections to Opinion and Order No. 698. On July 15, 1974, North Carolina filed a petition for rehearing. The petition was denied by Opinion No. 698-A, dated August 12, 1974. North Carolina filed a timely notice of appeal to the United States Court of Appeals for the District of Columbia Circuit. Opinion No. 698 made the license effective January 2, 1975. On December 13, 1974, North Carolina petitioned the Com- mission for a stay of the effective date of the license pending the appeal. The petition was denied by the Commission on December 31, 1974. On January 27, 1975, North Carolina petitioned the Commission for a rehearing of this order, which was denied. North Carolina appealed from this order, as well, but the appeal was dismissed as moot by the Court of Appeals. Appalachian Power Company, the Commonwealth of Vir- ginia, and the State of West Virginia were allowed to inter- vene by the Court of Appeals. On December 23, 1974, North Carolina petitioned the Court of Appeals for a stay of the Commission’s licensing order pending review. This petition was granted on January 31, 1975. By application for leave to adduce additional evidence dated September 11, 1975, North Carolina brought to the attention of the Court of Appeals material evidence relating to significant archaeological items in the proposed area of the impoundment, which was allegedly suppressed by Appalachian Power Company. The Court of Appeals’ Opinion and Judgment affirming the grant of the license was entered on March 24, 1976. Petitioner North Carolina and certain of its citizens (who 22 are not parties to this proceeding) commenced a civil action in the United States District Court for the Middle District of North Carolina on December 18, 1974, seeking injunctive and declaratory relief against the Federal Power Commission and Appalachian Power Company, to enforce the Wild and Scenic Rivers Act, 16 U.S.C. sec. 1271 et seq. The district court dismissed this action on May 7, 1975, on the theory that the court was without jurisdiction, and that exclusive juris- diction was possessed by the court of appeals reviewing the Federal Power Commission license. This judgment was appeal- ed to the United States Court of Appeals for the Fourth Cir- cuit, but proceedings in that appeal have been stayed, pend- ing final judgment in the instant case. REASONS FOR GRANTING THE WRIT; I. IN VIOLATION OF THE NATIONAL ENVIRON- MENTAL POLICY ACT, 42 U.S.C. sec. 4332, THE FED- ERAL POWER COMMISSION FAILED TO GIVE ADE- QUATE CONSIDERATION TO THE SCENIC RIVER ALTERNATIVE IN ITS ENVIRONMENTAL IMPACT STATEMENT. Some 70 miles of the 220 mile New River would be in- undated by the Modified Blue Ridge Project. (Opinion and Order Granting a License, June 14, 1974, p. 48.) The entire river, particularly that part which would be flooded, possesses characteristics making it ideally suited for ciassification as a scenic river under the Wild and Scenic Rivers Act, 16 U.S.C. sec. 1271, et seq. Scenic rivers are those “that are free of impoundments with shorelines and watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads,” which, “with their immediate environ- ments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, .. .” 16 U.S.C. sec. 1271, 1273 (b) (2). The New River is the oldest river in the Western Hemis- phere, and is exceeded in age only by the Nile River among —_——_—_— LS Tg eee ge ee ee 23 all the world’s rivers. The proposed impoundment would flood the New, below the point where the North Fork and South Fork meet, nestled between the Blue Ridge and the first ridge of the Appalachians. (R. 11,104.) The river, as it meanders through lush bottomlands and among graceful mountains, is a setting of extraordinary natural beauty. The New River is essentially free from pollution, and as the Commission found, is one of the largest free-flowing, least polluted rivers in the region. (R. 11,118, 11,121.) The Wild and Scenic Rivers Act was passed with a view toward giving “special attention . . . to the dwindling number of American streams that are still in a relatively natural state.’ H. Rept. No. 1623, 90th Cong., 2d Sess. (1968) , U. S. Cong. and Admin. News 3801, 3802. The United States Fish and Wildlife Service has identified 23 species of plants and animals in the New River, which are found nowhere else in the world. Eight of these species, in- cluding a crayfish, a snail, a plant, and five species of fish, would be adversely affected by the impoundment, and would likely become threatened or endangered. The Secretary of the Interior sought unsuccessfully to delay authorization of con- struction of the project in order to allow additional study of these species, as required by the Endangered Species Act of 1973, and to permit consideration of scenic river designation, which would have the effect of protecting these species. (Letter from Nathaniel P. Reed, Assistant Secretary for Fish and Wildlife and Parks to Federal Power Commission Chairman John N. Nassikas, dated January 7, 1975, Appendix, infra, pp. 145-148) . Smallmouth bass, and brown, rainbow, and brook trout inhabit this river system. (R. 11,121, 11,452.) Development of the project would result in extensive losses of wildlife pop- ulation, including deer, fox, turkey, and grouse. (R. 11,122, 11,412.) Construction of the reservoir would entail the permanent 24 loss of innumerable prehistoric artifacts and sites, as well as several important historic buildings and sites. These losses are discussed in Part ITI, infra. Development of the project would have a profound effect on local cultural values, substituting an intense tourist-oriented recreational development for a stable, traditional society, descended from original settlers, who live in harmony with the land and make their livelihood from the pastures, croplands and woodlands which border the river. (R. 11,232-6, 11,497- 527.) The New River in its natural state provides excellent oppor- tunities for stream fishing and white water-wilderness canoe- ing, that would be lost if the project were constructed. (R. 11,561-2.) The Wild and Scenic Rivers Act was passed on October 2, 1968. Pursuant to 16 U.S.C. sec. 1273 (a) (ii) the North Caro- lina General Assembly on March 21, 1974, enacted N.C.GS. sec. 113A-35.1, designating the New River as a scenic river, and on March 5, 1974, North Carolina Governor James Hols- houser made a preliminary application to the Secretary of the Interior for classification of the New River as a scenic river. On March 25, 1974, in a letter to Governor Holshouser, Secre- tary of the Interior Rogers B. Morton stated that he is “reason- ably sure that physically and aesthetically [the New River] qualifies for inclusion in the National [Scenic River] System. (Appendix, infra, pp. 149-151). The Federal Power Commis- sion’s Opinion and Order Granting a License for the project was issued on June 14, 1974, some three months later. Also prior to the Commission’s licensing order, the United States Senate on May 28, 1974, passed $.2439, designating a portion of the New River where the project would be located as a subject for study for inclusion in the National Wild and Scenic Rivers System. (120 Cong. Rec. 9077.) In the section of the environmental impact statement deal- ing with alternatives, the alternative of “no action” is’ briefly 2 5 discussed, and there it is said that no action would “preserve the river for possible selection in the future as a wild or scenic river.” (R.11,168-9.) This is the only reference to scenic river classification set forth in the body of the impact state- ment. The Environmental Protection Agency in its comments on the environmental impact statement for the project, sug- gested that the statement should address those features of the New River that would make it desirable for inclusion in the Wild and Scenic Rivers System. (R.11,425-6.) The response of the Federal Power Commission to this comment was that a description of the New River and its relevant characteristics is given in Section IT of the document; no changes were made in that part of the statement dealing with alternatives. (R. 11,188-9.) The potential environmental and economic benefits that are unique to this alternative require that it be distinguished from the simple “no action” alternative and that it be separately presented. As stated in the Council on Environmental Quality’s letter of comment to the Federal Power Commission: Although EPA in its comments on the draft to EIS, specifically requested the Commission to discuss features of the New River that would make it desirable as a Wild and Scenic River, Section VI of the Final EIS |.mits discussion of this important alternative to two sentences. The potential environmental and economic benefits of this alternative should have been presented in sufficient detail to allow comparison with, and subtraction from, the numerous benefits claimed for the proposed action. The National Environmental Policy Act, 42 U.S.C. sec. 4332 (2) (E) requires that agencies “study, develop, and de- scribe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts con- cerning alternative uses of available resources; . . .” It is di- rected in sec, 4332 (2) (C) (iii) that the environmental impact statement contain a “detailed statement on .. . alternatives to the proposed action.” 26 The authoritative Guidelines of the Council on Environ- mental Quality pertaining to the explication of alternatives require a “rigorous exploration and objective evaluation of alternative actions that might avoid, some or all of the ad- verse environmental effects. . . .” This analysis of each alter- native must accompany the proposed action through the re- view process to prevent premature foreclosure of options that might be less detrimental to the environment. 40 C.F.R. sec. 1500.8 (a) (4) (1973). The Federal Power Commission's own regulations require that environmental impact statements “fully deal with alternative courses of action to the proposal and, to the maximum extent practicable, the environmental effects of each alternative.” 18 C.F.R. sec. 2.80 (b) .' The environmental] impact statement in this case is mani- festly deficient with respect to the scenic river alternative. There is no detailed statement of the possible classificaion and management of the New as a scenic river. It is clear that this alternative has not been studied, developed, and described. The offhand reference in the environmental impact statement to the scenic river alternative certainly does not amount to the rigorous exploration and objective evaluation required by the Council on Environmental Quality Guidelines.’ Likewise, the required analysis of the costs and impact on the environ- ment of this alternative, are altogether missing. Further, the Commission fell far short of the demands of its own regulations 1 Further, the Commission's regulations require with respect to alternatives: “(T)he systematic procedure [used to arrive at the proposed action by considering all the alternatives) should include the decision criteria used, the information weighed, and an explanation of the conclusion at each decision point. The decision criteria must show how environmental bene- fits/costs, even if not quantifiable, are weighed against economic bene- fits/costs and technology and procedural! constraints. All realistic alterna- tives must be discussed even though they may not be within the juris- diction of the Commission or the responsibilities and capabilities of the applicants. .. . Describe the timeliness and environmental consequences of each alternative discussed.” 18 C.F.R. sec. 2.80, App. A, par. 8. 2 Even without regard to the National Environmental Policy Act, the Com- mission has a judicially enforceable duty to give full consideration to alternatives under 16 U.S.C. sec. 803(a). Scenic Hudson Preservation Con- ference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965). wens So eee a ae a er OS 27 dealing with the presentation of alternatives in environmental impact statements. The Court of Appeals failed to discuss this issue in its opinion, although the issue was thoroughly briefed in that court, and treatment of the scenic river alternative in thiis case appears to be altogether inconsistent with the great weight of authority in the other circuits, e.g., City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975); Silva v. Lynn, 482 F.2d 1282 (Ist Cir. 1973); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972); and with its own decision in Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972) . As stated in Environmental Defense Fund v. Froehlke, 473 F.2d at 350, “[T]he impact statement should not just list the alternatives to the proposed project but should also include results of the [agency’s] own investigation and evaluation of alternatives so that the reasons for the choice of a course of action are clear.” This court ought to grant certiorari and reverse, requiring that the Federal Power Com- mission adhere to the staiutory and regulatory requirements for presentation of the scenic river alternative in the environ- mental impact statement. II. THIS COURT MUST ENFORCE THE STATUTORY PROHIBITION AGAINST THE FEDERAL POWER COM- MISSION’S LICENSING AND OTHERWISE ASSISTING IN THE CONSTRUCTION OF THE MODIFIED BLUE RIDGE PROJECT. The Wild and Scenic Rivers Act, 16 U.S.C. sec. 1278 (a), forbids the Federal Power Commission to license the construc- tion of any dam or other project works, and to assist by license or otherwise in the construction of any water resources project that would adversely affect a designated scenic river. By sub- section 1278(b) this prohibition is extended to rivers which have been designated for potential addition to the wild and scenic rivers system. 28 There are two ways by which rivers can become a part of the wild and scenic rivers system: 1. By Act of Congress enlarging the list contained in 16 US.C. sec. 1274. 2. By designation by a state legislature, application by the governor of the state, and finding by the Secretary of the Interior, that the river meets the criteria established by the Act. 16 U.S.C. sec. 1273 (a) (ii) . It is permissible, but not required, that additions to the system be selected from the rivers designated by Congress for potential addition to the system in Section 1276. 1 sec. 1273 (a) (i). a On March 21, 1974, the North Carolina General Assembly enacted N.C.GS. 113A-35.1, designating the New River as a scenic river. On December 12, 1974, North Carolina Governor James Holshouser made formal application to the Secretary of the Interior pursuant to 16 U.S.C. sec. 1273 (a) (ii) for in- clusion of a 26.5 mile part of the river into the wild and scenic rivers system. (Appendix, infra, pp. 152-153). On December 24, 1974, the Secretary of the Interior declared that the applica- tion was valid and would be considered by the Department ‘Appendix, infra, p. 154) . ; On April 13, 1976, Secretary of the Interior Thomas S. Kleppe designated the 26.5 mile section of the river as a scenic river and a component of the National Wild and Scenic Rivers System, pursuant to 16 U.S.C. sec. 1273 (a) (ii). (Ap- pendix, infra, pp. 163-164). A large part of the proposed im- poundment of the Modified Blue Ridge Project would be on that part of the river designated a scenic river. The Federal Power Commission in the opinion which is here for review extended the effective date of the license for the Modified Blue Ridge Project to January 2, 1975, pending pos- sible action by the Congress for potential addition of the New River to the Wild and Scenic Rivers System. (Opinion and aoe ee ee 29 Order Granting a License, June 14, 1974, Appendix, infra, p. 126). Denying petitioner’s motion for a stay of this order on December 31, 1974, the Commission stated the license would become effective on January 2, 1975, “unless otherwise delayed by judicial review.” On December 23, 1974, before the license became effective, petitioner State of North Carolina, filed a motion in the Court of Appeals for a stay of the effective date of the license, and a stay order was entered by that court on January 31, 1975. The decision of the Court of Appeals affirming the license was announced on March 24, 1976. The Court of Appeals stated that the license was not then effective, but granted authority to the Federal Power Commission to decide whether or not to make the license presently effective. (Appendix, infra, p. 61). A motion for stay of that court’s mandate was timely filed. The mandate has been withheld pending determination of the motion, and this petition for writ of certiorari is filed before the mandate of the Court of Appeals has issued. In accordance with Rule 41 of the Rules of Appellate Procedure, the mandate of the Court of Appeals remains stayed until this Court acts on the certiorari petition.” A. The Secretary of the Interior's Approval of the New River for Inclusion in the National Wild and Scenic Rivers System Renders the License Invalid. Following proper designation by the North Carolina General Assembly and application by the Governor of North Carolina, the Secretary of the Interior on April 13, 1976, designated the New River as a scenic river component of the National Wild and Scenic Rivers System, as provided in 16 US.C. sec. 1273 (a) (ii). This action by the Secretary of the Interior has the 3 On March 26, 1976, two days after the Court of Appeals opinion was issued, the Federal Power Commission purported in an order to make the license effective immediately. However, because the mandate of the court of appeals had not issued, the Commission was without jurisdiction. Obey v. McDonald, 109 US. 150 (1883). Petitioner has filed a timely application for rehearing, pursuant to 16 U.S.C. 825!, and a motion that the Commission rescind its March 26 order for want of jurisdiction. 30 effect of prohibiting the Federal Power Commission to license the construction of the dam and reservoir. “The Federal Power Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river . . . which is hereafter desig- nated for inclusion in [the wild and scenic rivers] system, . . .” 16 U.S.C. sec. 1278 (a). The Court of Appeals conceded that once the Secretary of the Interior accepted the river for in- clusion in the system, it is illegal to create the dam and reser- voir. (Appendix, infra, p. 61, n. 2). B. While the New River was a State-Nominated Study River, the Federal Power Commission was also Prohibited from Licensing the Project. The act of the Governor of North Carolina in making formal application on December 12, 1974, to the Secretary of the Interior to have the New River designated as a scenic river, was the last act necessary to classify the river as a state- designated study river pursuant to 16 U.S.C. sec. 1273 (a) (ii). State-designated study rivers are subject to the same pro- tections against impoundments and other development by 16 US.C. sec. 1278(b), to which components of the wild and scenic rivers system are subject by subsection (a) of the same statute. The Court of Appeals incorrectly held that Section 1278(b) was inapplicable to the New River while it was a state-designated study river, and that the protection of this subsection is limited to those rivers designated in 16 U S.C. sec. 1276 (a) by Congress for study as potential wild or scenic rivers. If this interpretation were correct, then there would be ab- solutely no reason for inclusion in subsection (b) of the reference to the state-designation method of including a river in the system by the terms of 16 U.S.C. sec. 1273 (a) (ii). Yet subsection 1278(b) specifically accords protection to rivers ~e 31 recommended to the Secretary of the Interior under Section 1273 (a) (ii). The proper interpretation of subsection 1278 (b) is that it protects state-designated rivers during the study pe- riod, although the maximum term for protection is one year instead of three years after the initial ten-year period follow- ing October 2, 1968. The interpretation contended for by petitioner is clear from a close reading of the statute. The first clause of subsection 1278 (b) is clearly limited to study rivers designated by Con- gress in Section 1276 (a): The Federal Power Commission al] not license the construction of any dam .. . or other project works under the Federal] Power Act . . . directly affecting any river which is listed in Section 1276 (a). However, petitioner relies upon the second clause of sub- section 1278 (b): [Njo department or agency of the United States shall assist by loan, grant, license, or otherwise in the con- struction of any water resources project that would have a direct and adverse effect on the values for which such river might be designated .. . or, in the case of any river, recommended to the Secretary of the Interior for inclusion in the system under section 1273 (a) (ii) of this title,... [Emphasis supplied]. Clearly the New River has been designated a 1273 (a) (ii) study river, and if the FPC allows the license to become effective, it will be wrongfully assisting in the construction of a water resources project during the study period. This pro- vision, not only prohibits the Federal Power Commission from licensing the project, but also bars it from assisting in the development in any way, including allowing the license to be- come effective, approving plans, authorizing studies. The use of the term “such river” in the second clause does not refer to the phrase “any river which is listed in Section 32 1276 (a). The term “such river” can properly refer either to the overall heading of Subsection 1278(b), which is “Con- struction Projects on Rivers Designated for Potential Addition to System”, or alternatively, this term can refer to the phrase in subsection 1278 (b) (2) “any river recommended to the Secre- tary of the Interior for inclusion in the national wild and scenic rivers system under Section 1273 (a) (ii) of this title”. More- over the use of the term “any river’, without limiting language in paragraph 1278 (b) (ii) means that no limitation to Section 1276 Congressional Study Rivers was intended. This is a case of first impression under the Wild and Scenic Rivers Act. Since subsection 1278(b) is not free from am- biguity, a consideration of legislative intent is appropriate. The legislative history of the act favors the interpretation recommended by petitioner: (Subsection 1278(a)] forbids the Federal Power Com- mission to license any project on or directly affecting any river designated for inclusion in the scenic rivers system. While this prohibition is immediately applicable only to the six scenic rivers named in section 3 of the bill [Section 1274), it will become applicable to other rivers as they are hereafter added to the system by act of Congress or under the provisions of section 2(a) (ii) of the bill [section 1273 (a) (ii) |. Subsection (a) also prohibits other Federal departments or agencies from making loans or grants for, and from licensing, water resources projects on such a river if the project would have an adverse effect on its scenic river values. . . . Subsection (b) imposes similar prohibitions and requirements with respect to rivers in thy study category for the five years [Amended to ten years by P.L. 93-279, sec. 1(b) (3).] after the date of the act and for an additional period 3 years in the case of study rivers which the Secretary of the Interior or the Secretary of Agriculture recommends be added to the authorized category or for an additional period of 1 year in the case of a State-named river which is recommended to the 33 Secretary of the Interior for inclusion in the system. — House Report No. 1623, 3 US. Code and Admin. News 3811-2812, 90th Cong. 2d Sess. (1968) .* For these reasons, the Court of Appeals incorrectly inter- preted subsection 1278(b). The logical reading of this pro- vision, and an interpretation of it in light of its statutory his- tory, compels the holding that the New River was protected against licensing and other activities by the Federal Power Commission for the period specified in the statute, once the governor's application was filed with the Secretary of the In- terior on December 12, 1974. C. Because of the Effective Prohibition of 16 USC. sec. 1278, this Case has become Moot, and the Court should Direct the Dismissal of the Licensing Proceeding Before the Federal Power Commission. At no time has the license for the Modified Blue Ridge Project become effective. In its June 14, 1974, licensing order, the Federal Power Commission suspended the effective date of the license until January 2, 1975. The Court of Appeals entere: its order on January 31, 1975, staying the effective date of the license. The stay order was dissolved and the Fed- eral Power Commission was authorized to “make the license 4 Subsection 1278(b) as applied to the New River as a state-designated study river, is to be read: “no department or agency of the United States [the Federal Power Commission) shall (shall not) assist by loan, grant, license, or other- wise [permit the license to become effective or assist Appalachian Power Company in any other way) in the construction of any water resources project {in the construction of the Blue Ridge Project) that would have a direct and adverse effect on the values for which such river might be designated [that would create an impoundment), as determined by the Secretary responsible for its study or approval— “(i) during the ten-year period following October 2, 1968 .. . and “<(ii) during such additional period thereafter as,... in the case of any river recommended to the Secretary of the Interior for inclu- sion in the wild and scenic rivers system under section 1273 ‘a) (ii) of this title [in the case of the New River recommended to the Secretary of the Interior for inclusion in the wild and scenic rivers system under section 1273(a)(ii) of this title}, is necessary for the Secretary's consideration thereof, which additional period, how- ever, shall not exceed... one year... .” 34 effective immediately” in the Court of Appeals March 14, 1976, opinion. However, the mandate of the Court of Appeals has been stayed, the Federal Power Commission remains without jurisdiction, and the license is not in effect. Under these circumstances the Secretary of the Interior’s April 13, 1976, designation of the New River as a scenic river is fully operative. Alternatively, the Governor of North Caro- lina’s application for scenic river status submitted on December 12, 1974, even before the Commission ordered the license effec- tive, antedates the license. Not only is the Federal Power Com- mission prohibited by 16 U.S.C. Sec. 1278(a) from licensing the project, but it is also prohibited with respect to both in- cluded rivers and study rivers by subsections 1278 (a) and (b) from assisting by “loan, grant, license, or otherwise in the con- struction of any water resources project that would have a direct and adverse effect on the values” for which a scenic river has been established or might be designated. This pro- hibition covers all on-going activities of the Commission in assisting and regulating a licensee with its activities. Even if the initial grant of the license had been effective prior to the time that the river came under the protections of section 1278, the license would be a nullity because continuing activities of the Commission pursuant to the license will be illegal. The Wild and Scenic Rivers Act, designed to protect the nation’s unspoiled and undeveloped waterways, is the counter- part of the Wilderness Act, 16 U.S.C. sec. 1131 et seq., the purpose of which is to protect the nation’s primitive land areas. Enforcement of the Wild and Scenic Rivers Act, like the Wilderness Act, requires that the agencies of the government responsible for carrying out the law be given a meaningful opportunity to designate new areas for protection from spoila- tion. It is so held in Parker v. United States, 448 F.2d 793 (10th Cir. 1971) , enforcing the Wilderness Act. Pending study and consideration for protected classification, agencies engaged in development of the area should be compelled to stay their 35 hands. New dams can be buiit anytime, but ancient rivers can be destroyed only once. Because the Federal Power Commission has become effective- ly precluded from granting and making effective a license for the Modified Blue Ridge Project, this proceeding and the pro- ceeding before the Federal Power Commission have become moot. Where either supervening administrative action, United States v. Anchor Coal Co., 279 U.S. 812 (1929) , or legislation, United States v. Alaska Steamship Co., 253 U.S. 114 (1920), renders an administrative license or regulation ineffective, there is no case or controversy, and the proceedings must be dismissed on the ground of mootness. The proper procedure is to remand to the agency and direct the dismissal of the pro- ceeding. United States v. Hamburg-Amerikanische Co., 239 US. 446 (1916); United States v. Alaska Steamship Co., supra. See Note, “Cases Moot on Appeal: A Limit on the Judicial Power,” 103 U.Pa. L.Rev. 772 (1955); DeFunis v. Odegaard, 416 U.S. 312 (1974) . Accordingly, the Court should direct the Commission to dismiss the application for license. III. THE LICENSE FOR THE MODIFIED BLUE RIDGE PROJECT SHOULD BE SET ASIDE BECAUSE APPALACHIAN POWER COMPANY CAUSED THE FED- ERAL POWER COMMISSION TO VIOLATE FEDERAL STATUTES AND REGULATIONS PERTAINING TO HIS- TORICAL AND ARCHAEOLOGICAL PROPERTIES. On September 11, 1975, North Carolina filed with the Court of Appeals an application for leave to adduce additional evidence, pursuant to 16 U.S.C. sec. 8251 (b). This application was made on the basis of a discovery by North Carolina on August 31, 1975, that three archaeological surveys were carried out in the New River valley in the 1960’s under contract with Appalachian Power Company, that these surveys disclosed that the area to be flooded is an extremely rich and important archaeological repository, and that Appalachian Power Com- pany suppressed the results of these studies and failed to bring 36 them to the attention of the Federal Power Commission. This motion was considered by the Court of Appeals at oral argu- ment. The Court of Appeals required only that the Federal Power Commission order Appalachian to provide the necessary time and funding for archaeological research, excavation and salvage as a condition of the licensing. (Appendix, infra, p. 61) . Petitioner submits that the response of the Court of Appeals does not cure the clear cut violations of federal statutes and regulations by the Commission as a result of the conduct of Appalachian. The National Environmental Policy Act requires that the Commission use all practicable means to preserve our historic and cultural heritage. 42 U.S.C. sec. 4331 (b). By Executive Order No. 11593, 36 F.R. 8921 (May 13, 1971), the Commission is required to institute procedures to insure that its programs “contribute to the preservation and enhancement of non-federally owned sites, structures and ob- jects of historical, architectural or archeaological significance.” By its own regulations, 18 C.F.R. sec. 4.40(k) , the Commis- sion requires that the license application contain “a description of any historical or archaeological properties . . . eligible for listing in the National Register which are or may be affected by the project... .” The Commission also has a duty under 16 U.S.C. sec. 469a-1, if it finds or is notified that its federally licensed project “may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archaeological data,” to “notify the Secretary [of the Interior], in writing, and shall provide the Secretary with appropriate information concern- ing the project, program, or activity.” The Commission is given the alternative by the statute either to request the Secretary of the Interior to, or to proceed on its own to, under- take the protection, preservation, and recovery of these items. An examination of the Commission’s Opinion and Order granting a license for the Modified Blue Ridge Project, the 37 license application, the final environmental impact statement, and the applicant’s environmental impact statement discloses that the only attention given to items of archaeological and architectural significance are the mention of the proximity of the Ripshin National Historic Landmark in the impact state- ment (R. 11,156) and the condition in the license requiring that the licensee consult with the Smithsonian Institution to determine the extent of archaeological surveys and salvage operations that may be necessary, with an amount not to exceed $7500.00 being specified for this purpose (Appendix, infra, p. 133-134) . North Carolina’s newly discovered evidence was that there were three archaeological surveys carried out in the New River valley in the 1960’s by archaeologists Harvard Ayers and Charlton Holland. (Appendix, infra, pp. 156-218) . These sur- veys were only preliminary field work to determine whether sites relating to activities of prehistoric cultures were present within the project area. From a preliminary analysis of the artifacts, projectile points, and pottery sherds found at these sites, these experts concluded that the New River valley is one of the most important archaeological areas in the Eastern United States. Of particular significance are artifacts found in the project area that make it possible to reconstruct aspects of the “Hopewell Interaction System”, a long-distance trade network that operated during the period 300 B.C._—700 A.D., linking societies of the southeastern and midwestern part of the continent by means of the New River, the only waterway which crosses the Appalachian mountain chain from east to west. These cursory examinations of the area disclosed some 65 prehistoric sites, including camps, villages, rockshelters, soapstone quarries, burial grounds, and in addition some 11 fish weirs. Although both the Ayers and Holland surveys were com- missioned by Appalachian Power Company, they were never transmitted to the Federal Power Commission. They are not a part of the FPC record. Paul Johnson, a project engineer for 38 Appalachian, stated that the surveys were kept secret and were never transmilted to the Commission. (Appendix, infra, p. 158). Because of this deception by Appalachian, the Com- mission did not comply with 16 U.S.C. sec. 469a-1(a), and did not give written notification to the Secretary of the In- terior about the archaeological treasures which were threaten- ed. The Secretary, like the petitioner, received his information after the Commission made its licensing decision. Nevertheless, the Secretary acted in a timely manner and undertook to evaluate archaeological findings, and to make a cultural re- search survey on properties of historical and architectural significance in the project area. Copies of this preliminary work of the Department of the Interior are set forth in the Appen- dix, infra, pp. 218-261. This work indicates that if Appalachian and the Commission had complied with applicable laws and regulations, an abun- dance of cultural resources would have been discovered and disclosed in the environmental impact statement. A preliminary reconnaissance survey resulted in the assessment that the en- tire area to be flooded “appears to qualify for listing in the National Register as a district because of its historic, cultural, and architectural cohesiveness and because of its integrity and lack of intrusions. The area embodies the distinctive character- istics of the late 18th and 19th centuries rural life as exempli- fied in the architecture, industry and rural isolation. In addi- tion, a number (32) of the buildings appear to qualify in- dividually for listing in the National Register. . . . The Field’s Manufacturing Company may be of national significance.” (Appendix, infra, p. 249). Field’s Manufacturing Company is possibly a unique industrial complex in which some of the old 19th century water-powered machinery remains. Cochran Grist Mill on Dog Creek is a 19th century water-driven mill and has one of about a half a dozen extant Fitz wheels. The site of a spa and hotel at Healing Springs, source of historic- ally important curative mineral waters, would also be in- 39 undated. Some 18th and early 19th century log houses were also found. (Appendix, infra, pp. 249-252) . North Carolina, following discovery of the surveys sup- pressed by Appalachian, has initiated the process of nominat- ing at least 18 prehistoric sites within the impoundment area to the National Register of Historic Places. On the basis of more adequate data, it is likely that a number of additional historic sites would be discovered that would qualify for the National Register. In clear violation of 18 C.F.R. sec. 4.40(k), Appalachian failed to furnish the Commission a description of historical and archaeological properties eligible for listing in the National Register. Appalachian knew of some of the archaeological properties that would qualify for the Register, but deliberately kept them secret. Appalachian apparently did not undertake even the most cursory examination of historical and architec- tural properties, required by the same regulation, that neces- sarily would have disclosed a number of other items that should have been listed in the National Register. It would be manifestly inequitable for Appalachian to profit by its de- ception with regard to the archaeological findings. Although the Federal Power Commission perhaps cannot be held equally at fault with regard to this suppressed archaeological data, the Commission certainly did not fulfill its responsibilities under Executive Order No. 11593, requiring programs for the preservation of obqects of historical and architectural signifi- cance, by failing to require Appalachian to undertake even a preliminary survey of this material. Because Appalachian and the Commission failed either to undertake or disclose the studies of archaeological, historical, and architectural data, as required by the statutes and regula- tions referred to in this part of the petition, the environ- mental impact statement did not present information or dis- cussion on this important subject. This is contrary to the National Environmental Policy Act requirement that all prac- 40 ticable means be used to preserve our historic and cultural heritage. Had all of the relevant information been developed and presented in the impact statement, it is entirely conceivable that the Commission would have been compelled not to grant the license, but to embrace the “no action” aiternative as the only rational way of preserving the cultural treasures of the New River valley. The impact statement could not serve its statutory function in this instance, which is to insure that “agency decision maker has before him and takes into proper account all possible approaches to a particular project (includ- ing total abandonment of the project) which would alter the environmental impact and the cost-benefit balance.” Without all relevant information before the decision maker, it is not “likely that the most intelligent, optimally beneficial decision will ultimately be made.” These procedures of NEPA, 42 U.S.C. sec. 4332, are not discretionary, but must be rigorously enforced by reviewing courts. Calvert Cliffs’ Coordinating Committee v. The Atomic Energy Commission, 449 F.2d 1109, 1114-1115 (D.C. Cir. 1971). Accord, Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Environmental De- fense Fund v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974) ; Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir. 1973). The Court of Appeals’ requirement to give greater atten- tion to the removal! of artifacts was not a sufficient remedy. The procedural deficiencies in this instance can be cured only by setting aside the license and ordering new hearings. As correctly determined in Hudson River Fishermen's Association v. Federal Power Commission, 498 F.2d 827 (2d Cir. 1974), newly discovered material evidence (even after a license is issued) requires additional hearings and a reconsideration of the license, consistent with this Court’s decision in Udall v. Federal Power Commission, 387 U.S. 428 (1967). IV. IN HOLDING THAT THE FEDERAL POWER COMMISSION'S CONSIDERATION OF THE IMPACT 41 OF ENERGY CONSERVATION MEASURES SUCH AS PEAK LOAD PRICING AND REDUCED DEMAND FACTORS ON THE NEED FOR THE PROJECT WAS ADEQUATE, THE COURT OF APPEALS DISREGARD- ED THE TEACHING OF THIS COURT IN UDALL V. FPC, 387 US. 428 (1967), AS WELL AS THE DUTIES IMPOSED UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT. The Court of Appeals relied on the “rule of reason” doctrine of Natural Resources Defense Council v. Morton, 148 US. App. D.C. 5, 458 F.2d 827 (1972), to uphold the Federal Power Commission's consideration of energy conservation measures in relation to the need for this project, quoting the FPC’s statement that: Even if all U. 5S. consumers were to adopt stringent conservation practices with respect to electricity, the de- mand for electric power would continue to increase to such an extent that all of the production of Blue Ridge would be essential and, in fact, would meet only a small part of the foreseen future need. The Court of Appeals also cites the discussion of the FPC in Opinion 698-A, denying petitioner's application for a rehearing, in which the only study the FPC cites is its own 1970 National Power Survey. This holding is in irreconcilable conflict with this Court’s decision in Udall v. Federal Power Commission, 387 US. 428 (1967) in which it is stated that the Federal Power Com- mission’s obligation under section 10 (a) of the Federal Power Act, 16 U.S.C. sec, 803(a), is to closely scrutinize changing demand projections for the useful life of a proposed project. This Court specifically rejected the “we can use all we can produce even with conservation” argument advanced by the FPC, stating that “we cannot assume that the Act commands the immediate construction of as many projects as possible.” 387 US. at 449. The Court of Appeals’ implicit approval of 42 the FPC’s refusal to go beyond its 1970 demand study is also in conflict with the Second Circuit's decision in Hudeon River Fishermen's Association v. Federal Power Commission, 498 F.2d 827, 833 (2d Cir. 1974), wherein the court held the FPC abused its discretion by “donning . . . complete blinders . . . to a new situation” (new hearings compelled because of new evidence of danger to fish through the operation of a licensed project) . The “new situation” on which petitioner seeks FPC’s recon- sideration is the impact of the “energy crisis” and conservation alternatives on the need for the project. The current “energy crisis” not only produced, beginning in 1974, a pause in the acceleration of demand for electricity, which had been in- creasing at a steady rate of seven percent per year (Willrich, The Electric Utility and the Energy Crisis Part II, Pub. Util. Fort., January 6, 1975, at 26) , but also caused regulatory com- missions and economists to examine ways of reducing demand during that period of time when the rate of customer demand is highest—at peak demand, or peak load. Unrestrained peak-demand has been recognized as a major problem: Peak demand results in an inefficient allocation of re- sources, increased pollution, and economic waste. In the short run, peak demand requires the use of inefficient peak load equipment, and expensive, greater polluting fuels. In the longer run, it requires the plant to expand to meet the peak load. Such expansion uses a great deal of land, to create a facility which sits relatively idle at off-peak times. Furthermore, the increased on-peak customer de- mand means higher costs to the utility which if not ade- quately compensated will engender requests for rate in- creases before the state regulatory commission. — Note, “Lexonomics and the Electrical Utility Jndustry: In Search of the Optimal Rate Structure”, 61 Ja.L.Rev. 134, 136 (1975). 43 Time-differentiated rate design or “peak-load pricing” has been recognized as a potential major energy conservation tool because it creates the possibility of specifically ameliorating peak-load demand: The higher cost burden imposed by customer demands for electricity at time of peak load would seem to be amenable to price constraint. That is, the costs to the utility of on-peak demand could be reduced by imposing e rate which is high enough to restrain demand at the system peak. At the very least, the rate imposed for peak electricity consumption should be high enough to com- pensate the utility for incurring the increased costs of peak production. Although the cost-compensation function of rate design has in the past been given primary focus, both economists and an emerging cadre of regulatory com- missions are recognizing that the demand-control function is just as significant. Thus, rate design is beginning to be considered as not simply a method of allocating costs among the customers, and extracting revenues to cover these costs, but also as a device for leveling off peak de- mand by channelling scarce resources into their most productive uses and by discouraging the wasteful use of electricity. Id. at 136-137. Several state regulatory commissions have already taken steps to implement or study time differentiated rate design as a conservation measure. A pplication of Madison Gas and Elec- tric Co., Findings of Fact and Order, 2-U-7423 (Pub. Serv. Comm. of Wis., August 8, 1974) ; Central Vt. Pub. Serv. Corp., Doc. No. 3744, at 27-28 (Vt. Pub. Serv. Bd. Sept. 27, 1974). See Jones, Judicial Determination of Public Utility Rates: A Critique, 54 B.U.L. Rev. 873 (1974). These factors should have been relevant to the consideration of the need for the Blue Ridge Project, which has very little base load capacity and is almost totally intended to fulfill system peak demand. This explains why Blue Ridge was li- 44 censed although it is a net user of electricity, as is shown by the following table taken from the Environmental Impact Statement, p. 17: Energy Output Pumping Require- MWII ments—M WIT 1975 4,100,000 5,500,000 1980 3,900,000 5,175,000 1985 3,250,000 4,255,000 1990 2,525,000 3,250,000 1995 1.800.000 2.175.000 The facility is thus predicated on the existence of a large differential between peak demand and base demand; during peak demand times, it will be generating electricity, whereas during non-peak demand periods it will be using electricity for pumping requirements. This in itself will lessen the differ- ential between peak and non-peak demand, but only through the device of allowing the utility to become a major con- sumer—perhaps the major consumer—of its own output. The Court of Appeals, in using the “rule of reason” doc- trine to gloss over these issues and in holding that “Opinion 698-A contains a thorough discussion of the impact of energy conservation on the nation’s energy needs in general and on the need for the Blue Ridge Project. in particular’, mis- applied this legal standard. The court committed the fallacy of assuming that a pumped-storage project such as Blue Ridge is equally efficient in meeting both peak-load demand and in- crease in overall demand. The court fails to see the absurdity of its claim that future increases in overall electrical energy demand can be met by a project that consumes more power than it produces. It is no answer at all to cite the FPC’s claim (based on 1970 projections) that even with conservation measures, all t!e power produced by Blue Ridge would be essential since this fails to distinguish between the verv real possibility of an increase in overall demand but a decrease in peak-load demand caused by time-differentiated pricing. This 45 may totally remove any justification for the Blue Ridge Project. The Court of Appeals’ decision on this issue holds the FPC, in effect, to no standard at all in justifying the need for future projects, and this cannot be reconciled with the statu- tory duties imposed by NEPA or this Court’s holding in Udall. The Court of Appeals also justified its holding on this issue on the ground that petitioner did not go into detail about specific conservation measures in its petition for rehearing (although the Court held that the energy conservation meas- ures argument was raised with the degree of specificity nec- essary to satisfy 16 U.S.C. sec. 825/(b)) and in such circum- stances a summary discussion by the FPC was sufficient. This is wholly untenable since it in effect puts petitioner and those like it who are attempting to require agencies to consider pub- lic interest factors, in the position of having to carry an ad- versary burden. This is contrary to the idea expressed in Scenic Hudson Preservation Conference v. Federal Power Com- mission, 354 F.2d 608, 614 (2d Cir. 1965), cert. denied sub nom Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conf., 384 U.S. 941 (1966), that the FPC in its licensing process must act as a representative of the public interest; it should not merely assume the role of umpire bland- ly calling balls and strikes for adversaries appearing before it. Accord: Udall v. Federal Power Commission, supra. V. THE COURT OF APPEALS SHOULD HAVE RE- VIEWED WHETHER THE FPC VIOLATED THE NA- TIONAL ENVIRONMENTAL POLICY ACT BY FAILING TO CONSIDER THE DESIGNATION OF THE NEW RIVER AS A “FEDERAL SCENIC RIVER” AS AN AL- TERNATIVE TO THE PROJECT SINCE PETITIONER RAISED THIS OBJECTION IN ITS APPLICATION FOR REHEARING BEFORE THE FPC. The Court of Appeals refused to review the adequacy of the FPC’s consideration of the New River as a “federal scenic 46 river” as an alternative under the National Environmental Policy Act (NEPA), 42 US.C. sec. 4332 (2) (E), on the ground that petitioner had not raised this issue in an applica- tion for rehearing directed to the FPC as required by section 313(b) of the Federal Power Act, 16 U.S.C. sec. 8251 (b). Thus the petitioner was completely deprived of a court deter- mination of whether the FPC violated NEPA by attempting to arbitrarily cut off study of the New as a federal scenic river. Petitioner's Petition for Rehearing of July 12, 1974, specific- ally objected to the two findings of the FPC in its order grant- ing the license that its procedures were in compliance with NEPA and that the Final Environmental Impact Statement complied with the requirements of NEPA. Under the circum- stances, this should be, as a matter of law, sufficient objection to satisfy section 313(b). First, the consideration of alterna- tives is, of course, an important and specific legal duty imposed upon federal agencies by NEPA. Second, as the FPC’s order issuing the license makes perfectly clear, from the time of the issuance of the license, there could be only one other possible use-option for the resources of the New River—federal scenic river status. The FPC in its order of June 14, 1974, took official n ice of possible further study of the New as a scenic river pursuant to legislation which at that time was pending in Con- gress to designate the New River a subject of study as a potential component of the National Wild and Scenic Rivers System. The only concession the FPC made to this was to delay the effective date of the license granted until January 2, 1975, unless otherwise delayed by judicial review. The Fed- eral Power Commission thus not only gave Congress a dead- line, but also completely ignored the possibility of a study of the New triggered by a state application pursuant to 16 US.C. sec. 1273 (a) (ii), preparation for which was already underway before the FPC’s issuance of the license. Petitioner also raised the scenic river study alternative in its second petition for rehearing filed on January 27, 1975. This 47 petition was filed in response to the FPC’s Order of December 31, 1974, denying the petitioner’s motion filed with the FPC on December 16, 1974, seeking a delay in the effective date of the license until the Secretary of the Interior could complete his then begun study of the New as a federal scenic river. In the petition for rehearing of January 27, 1975, petitioner spe- cifically pointed out to the FPC, as it had in its original mo- tion, the duty to suspend the effective date of the license to allow consideration of the scenic river alternative. This second petition for rehearing was brought to the attention of the Court of Appeals. Petitioner first filed a separate petition for review in the Court of Appeals (State of North Carolina v. Federal Power Commission, No. 75-411), and then filed a motion for consolidation with the present case. The Court of Appeals not only ignored the second petition for rehearing and the motion for consolidation, but also, dismissed the appeal on the second Federal Power Commission order as moot. The case relied on by the Court of Appeals, Federal Power Commission v. Colorado Interstate Gas Co., 348 US. 492 (1955), is inapposite. The teaching of that case is that the Court of Appeals cannot sua sponte consider an objection. In the present case, however, petitioner raised the objection in two petitions for rehearing of two separate orders of the Fed- eral Power Commission. Moreover, the policy behind section 313(b) dictates that the violation of NEPA issue should have been considered by the Court of Appeals. This Court has stated that policy to be that a party must exhaust his administrative remedies before seeking judicial review and give the FPC an apportunity to correct its errors. Federal Power Commission v. Colorado Intcr- state Gas Co., supra, at 498-499. This policy was fulfilled since FPC’s order issuing the license was clear in stating that it would brook no further consideration of the scenic river alternative (“we are persuaded that the Blue Ridge Project is necessary now, and . . . we therefore hope it will not be de- layed or foreclosed by Congressional action .. .” (Appendix, 48 infra, p. 136) .] In its second order of December 31, 1974, the FPC also made it abundantlv clear that its refusal to consider or wait for study of the New as a scenic river was final. Ignoring the petitioner's concededly valid application for a study of scenic river status for the New filed pursuant to 16 U.S.C. sec. 1273 (a) (ii), the FPC stated: The 93rd Congress has adjourned without enacting legis- lation that would foreclose or delay the Blue Ridge Project. Accordingly, the license we granted on June 14, 1974 will become effective on January 2, 1975, unless otherwise de- layed by judicial review. In accord: Indiana and Michigan Electric Co. v. Federal Power Commission, 502 F.2d 336, 339-340 (D.C. Cir. 1974), wherein it was held sufficient to overcome the sec. 313(b) bar that the FPC declined to correct its alleged error and expressly defended the validity of its position, although the petition for rehearing did not explicitly raise the point involved. Moreover, because of the impact on the public interest, it is accepted law that the courts should not seek to narrowly con- strue the scope of judicial review of FPC licenses. In Udall v. Federal Power Commission, 387 U.S. 428, 450 (1967), this Court stated: A license under the Act empowers the licensee to con- struct, for its own use and benefit, hydroelectric projects utilizing the flow of navigable waters and thus, in effect, to appropriate water resources from the public domain. The grant of authority to the Commission to alienate fed- eral water resources does not, of course, turn simply on whether the project will be beneficial to the licensee. Nor is the test solely whether the region will be able to use the additional power. The test is whether the project will be in the public interest. And that determination can be made only after an exploration of all issues relevant to the “public interest,” including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, 49 the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife. This Court mandated FPC consideration of the public in- terest in preserving “wild rivers and wilderness areas”, although petitioner apparently only made a general objection of the failure of the FPC to consider the issue of federal development of the waterway in question. 387 US. at 450-451. Thus, in summary, although the section 313(b) bar may be rigidly adhered to in the case of a private applicant for a license who is attempting to flyspeck an FPC decision denying a license, this section was never intended to deprive the courts from reviewing the FPC’s consideration of public in- terest factors upon application of a non-economic § petitioner as in the present case. CONCLUSION For the reasons stated in part III of the petition, this pro- ceeding should be remanded to the Federal Power Commis- sion with the directions that it be dismissed as moot. Other- wise, for the reasons stated in Parts I, IT, IV, and V, of the petition, the petition for certiorari should be granted, the Court of Appeals’ decision reversed, and this proceeding remanded with directions that the license for the Modified Blue Ridge Project be set aside. Respectfully submitted, Norman B. Smith Rufus L. Edmisten Smith, Patterson, Follin, Attorney General of N. C. Curtis & James Justice Building 704 Southeastern Building Raleigh, N. C. 27602 Greensboro, N. C. 27401 Telephone: 919-829-3377 Telephone: 919-274-2992 Millard R. Rich, Jr. Thomas J. Schoenbaum Assistant Attorney General Smith, Patterson, Follin, of North Carolina Curtis & James Justice Building 704 Southeastern Building Raleigh, N. C. 27602 Greensboro, N. C. 27401 Telephone: 919-829-3377 Telephone: 919-274-2992 Counsel for Petitioner 30 APPENDIX Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U. S. App. D. C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press. United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 74-1941 STATE OF NORTH CAROLINA, Petitioner Vv. FEDERAL POWER COMMISSION, Respondent APPALACHIAN POWER COMPANY COMMONWEALTH OF VIRGINIA STATE OF WEST VIRGINIA, Intervenors Petition for Review of an Order of the Federal Power Commission Argued October 23, 1975 Decided March 24, 1976 Millard R. Rich, Jr., Assistant Attorney General of the State of North Carolina, Norman B. Smith and Thomas J. Schoenbaum, with whom Rufus L. Edmisten, Attorney General of the State of North Carolina, was on the brief for petitioner. Steven A. Taube, Attorney, Federal Power Commission, with whom Drezel D. Journey, General Counsel and John R. Staffier, Attorney, Federal Power Commission, were on the brief for respondent. George W. McHenry, Jr., Solicitor, Fed- eral Power Commission at the time the record was filed also entered an appearance for respondent. Alan Abbot Tuttle, 51 Solicitor, Federal Power Commission, entered an appearance for respondent. William J. Madden, Jr. with whom Donald K. Danker, was on the brief for intervenor Appalachian Power Company. James E. Ryan, Jr., Assistant Attorney General of the Commonwealth of Virginia, for the intervenor, Commonwealth of Virginia. Anthony F. Troy, also entered an appearance for intervenor Commonwealth of Virginia. Frank M. Ellison, Deputy Attorney General for the State of West Virginia was on the brief for intervenor State of West Virginia. Nicholas W. Johnson, also entered an appearance for intervenor State of West Virginia. Edmund I. Adama, filed a brief on behalf of the Committee for New River et al. as amici curiae urging reversal. Dan R. Murray, filed a brief on behalf of the Committee for the Improvement of Alleghany et al. as amici curiae urging affirmance. Frederick E. Miller, Jr., filed a motion on behalf of West Virginia Division of the Izaak Walton League, et al. for leave to file a brief as amici curiae and the brief was filed. Before: Bazelon, Chief Judge, Robinson and Robb, Circuit Judges Opinion for the Court filed by Circuit Judge Robb. Robb, Circuit Judge: This is a petition by the State of North Carolina to review an order of the Federal Power Com- mission, granting the Appalachian Power Company a license to build a hydroelectric project on the New River. The New or New-Kanawha River rises in the Appalachian Mountains of North Carolina and Tennessee and flows north through southwestern Virginia and into West Virginia where it becomes part of the main channel of the Kanawha River. In 1962 Appalachian Power Company (Appalachian) sought 52 and received permission from the Federal Power Commission to study the river as a potential site for a hydroelectric dam. On the basis of this study, Appalachian in 1965 applied to the FPC for a license to build a dam, to be known as the Blue Ridge Project, on that part of the New River located in North Carolina and Virginia. Hearings on the application commenced in May 1967 and continued for two years. In October 1969 the Administrative Law Judge (ALJ) rendered a decision recommending the issuance of a license for the Blue Ridge Project. The Project was to include a 650,000 acre-foot water storage capacity, the stored water to be used for downstream water quality control. The states of North Carolina and Virginia generally supported the project, but objected to the ALJ’s recommendation that drawdowns up to twelve feet in the level of the reservoir be permitted at certain times of the vear. North Carolina also objected to the use of stored water for downstream pollution dilution. The Commission ordered further hearings before the ALJ on the issues raised by the objections of North Carolina and Virginia. After the hearings the ALJ issued a “Supplemental Initial Decision” recommending the limitation of drawdowns to ten feet and reducing the size of the releases permitted for downstream pollution dilution. North Carolina and Virginia re- peated their objections to the size of the permissible drawdowns and North Carolina once again objected to the inclusion of any storage capacity for downstream pollution control. The two states sought and were granted perm/’ssion to argue be- fore the Commission on their objections to the Supplemental Initial Decision. While the case was pending before the Commission the decision came down in Greene County Planning Board v. FPC, 455 Fd 412 (2d Cir.), cert denied, 409 US. 849 (1972). Under that decision the FPC is required by the National En- vironmenta! Policy Act of 1970, 42 U.S.C. § 4321 et seq., to prepare an environmental impact statement in advance of a re eS ele ee --oeoo, ~ 2 53 hearings on a proposed project so that the statement may be scrutinized in the course of the hearing. The FPC accordingly remanded the Blue Ridge proposal to the ALJ for further hearings, to afford an opportunity for cross-examination on the impact statement. Prior to these hearings the State of North Carolina withdrew its support of the Blue Ridge Project, cit- ing potential adverse impact upon the land and way of life of the people in the area near the proposed dam. North Carolina participated in the hearings on the impact statement and filed briefs which concerned themselves primar- ily with the adequacy of the statement’s discussion of the social and economic effects of the project. In January 1974 the ALJ issued a decision finding the impact statement ade- quate and recommending the issuance of the license. On June 14, 1974 the FPC, in its Opinion No. 698, approved the Final Decision of the ALJ and issued a license for the Blue Ridge Project. The FPC postponed the effective date of the license in view of pending legislation which would have designated the New River as a wild and scenic river under the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. The proposed legis- lation was not enacted by Congress. On July 15, 1974 North Carolina and others petitioned the FPC for a rehearing on its opinion granting the license, citing several alleged errors in the opinion and in the FPC’s con- sideration of the Project. The FPC on August 12, 1974 denied the petition for rehearing. North Carolina then filed this peti- tion for review. Section 313(b) of the Federal Power Act, 16 U.S.C. $ 825/(b), provides that any party aggrieved by an order of the FPC may seek review in this court. The statute fur- ther provides, however, that no objection to an order of the FPC may be considered on review unless the same objection was first raised in an application for rehearing directed to the FPC. As the Supreme Court has stated, it is the purpose of this provision to give the FPC notice of its alleged errors so 54 that it may have the opportunity to correct them. FPC v. Colorado Interstate Gas Co., 348 US. 492, 500 (1955). In its petition for review in this court North Carolina raised the following issues: (1) whether the FPC failed to consider the alternative of energy conservation; (2) whether the FPC had authorized inclusion in the project of water storage capacity for pollution dilu- tion; (3) whether the FPC failed to analyze adequately cer- tain costs of the Project; (4) whether the FPC failed to consider as an alternative to the Project the possibility that the river should be made a component of the National Wild and Scenic Rivers System. North Carolina suggests that each of these arguments was’ raised with the necessary specificity in the petitions for rehear- ing directed to the FPC. We disagree. The specific issue of water storage for pollution dilution is not foreshadowed by the evidentiary objection to Finding of Fact 18 which states that the Project will provide benefits such as flood control, low flow augmentation, recreational development, fishing opportunities and water supply. Neither are the references to the petitions of Alleghany and Ashe Counties sufficient. Those petitions only question whether the original smaller Project should have been reconsidered. No reference is made in them to the allegedly illegal inclusion of water storage for pollution dilution. Similarly, Paragraph 4 of North Carolina’s petition for rehearing simply attacks, in general terms, five of the Com- mission’s findings of fact. These findings state that the Project will provide desirable public benefits, will enhance the aesthetic values of the area and that the Commission complied with ee ee aw ee em we ee 55 the provisions of the National Environmental Policy Act in the licensing proceedings. The National Wild and Séenic Rivers Act is not mentioned. Neither is the Act mentioned in the petition of Ashe and Aileghany Counties. The portions of the petition cited to us by North Carolina, while containing a reference to the pendency in Congress of legislation pursuant to the Act, do not state that the Commission failed to consider designation of the New River as an alternative to the Project. North Carolina contends that three of the specific issues raised in its argument concerning consideration of costs and benefits of the Project were also raised in the petitions for re- hearing. These issues are (1) the purported consideration of the gross benefits rather than the net benefits of the Project; (2) the loss of natural stream flow due to the Project; and (3) the cost of electricity to pump water from the lower reservoir to the upper reservoir. None of these issues was spe- cifically discussed in the petitions for rehearing. North Carolina purports to have raised the “gross benefits” issue in portions of its petition that deal with whether the Project will be beneficial on balance. The cited part of the Ashe and Alleghany Counties petition contains only a general discussion of the need for the Project. The “loss of natural stream flow” issue is said to have been raised in the same parts of the petitions in which the Wild and Scenic River alternative was raised. A reading of those passages referred to shows that no such specific matter is raised. The same is true of North Carolina’s argument concerning the cost of water pumping. This issue is said to be subsumed in the discussion of energy conservation as an alternative to the Project, but it is not mentioned there. We think that section 313(b) of the Federal Power Act requires something more concrete and spe- cific than the vague references cited to us by North Carolina. We think two issues were raised in the petitions for rehear- ing with the degree of specificity necessary to call the FPC’s attention to them or “stimulate [its] consideration of” them. 56 Indiana & Michigan Electric Co. v. FPC, 163 U.S. App. D.C. 334, 337, 502 F.2d 336, 339 (1974), cert. denied, 420 US. 946 (1975). The two issues are (1) the FPC’s alleged failure to consider energy conservation measures as an alternative to the Project and (2) the FPC’s alleged failure to give adequate consideration to one of the social costs of the Project, specific- ally the relocation of persons displaced by the Project. We think however that North Carolina’s contention that these issues were not adequately considered by the Commission is without merit. Section 102(2) (D) ef the National Environmental Policy Act of 1970, 42 U.S.C. $ 4332 (2) (D) requires all agencies of the federal government to “study, develop and describe appro- priate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alter- native uses of available resources.” North Carolina argues that the FPC failed to comply with this requirement of the Act in that it failed to consider whether the adoption of energy con- servation measures such as reduced consumption and “peak pricing” would make unnecessary the power to be supplied by the Blue Ridge Project. The argument does not persuade us. The Commission staff’s final environmental impact statement makes it clear that the FPC did consider this alternative. The statement notes: Even if all U. S. consumers were to adopt stringent con- servation practices with respect to electricity, the demand for electric power would continue to increase to such an extent that all of the production of Blue Ridge would be essential and, in fact, would meet only a small part of the foreseen future need. The Commission again discusses the matter of energy con- servation in its Opinion No. 698-A, denying North Carolina's application for rehearing. Opinion No. 698-A contains a thor- ough discussion of the impact of energy conservation on the nation’s energy needs in general and on the need for the Blue 57 Ridge Project in particular. The discussion makes it clear that the consideration of the energy conservation alternative is sufficient under the standard established by this court. in Natural Resources Defense Council v. Morton 148 US. A D.C. 5, 458 F.2d 827 (1972) : si. - We reiterate that the discussion of environmental effects of alternatives need not be exhaustive. What is required is information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned. eo 4 © . . the requirement in NEPA of discussion as to reasonable alternatives does not require “crystal ball” inquiry. ... The Statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research—and time—available to meet the Nation’s needs are not infinite. [Emphasis sup- plied]. Id. at 14-15, 458 F.2d at 836-37. A relatively brief discussion of an issue might not always be sufficient to satisfy the “rule of reason” test laid down in Natural Resources Defense Council v. Morton, supra. In the present case, however, the parties raised only the most general- ized concern about “conservation of energy” in their petitions for rehearing and never specifically brought such matters as “peak load pricing” to the Commission's attention. In these circumstances the discussion of these issues by the Commis- sion is sufficient. North Carolina's second argument is that the FPC’s analysis of the costs and benefits of the Blue Ridge Project is inade- quate to show that the benefits exceed the costs. The specific issue that North Carolina is permitted by section 313(b) of the Federal Power Act, 16 US.C. § 8251 (b) , to raise in ihis regard relates to the relocation of persons who will be dis- possessed by the creation of the reservoirs adjacent to the Blue 58 Ridge Dam. North Caroli: 1 argues that the proviso attached to Appalachian’s license by the Commission does not guarantee that replacement housing will be provided. The question here is not whether the FPC may require guarantees of replacement housing; rather the question is whether the FPC adequately considered the projected social cost of the project. We think it clear that the Commission did consider it thoroughly. The Final Environmental Impact State- ment contains precise data concerning the numbers of persons to be dispossessed; and recognizing the problem the FPC spe- cifically provided in the license that Appalachian would carry the burden of assisting in relocation under the continuing scrutiny of the FPC and pursuant to the recommendations of the Department of Housing and Urban Development. Thus the license provides: Article 55. The License shall establish a relocation ad- visory service and give reasonable financial assistance to assist in the relocation of persons now located in the project area and to minimize any hardship to such per- sons arsing from such relocation and, within six months of the effective date of the license and annually thereafter during the construction of the project, shall report to the Commission on the success of its efforts. The provision of the Uniform Relocation Assistance and Reel Property Acquisition Policies Act of 1970 shall be used as a guide to implement this article. The Wild and Scenic Rivers Act provides two methods by which a river may be included in the national wild and scenic rivers system: (1) by Act of Congress, section 2(a) (i), 16 U.S.C. § 1273 (a) (i) and (2) by designation by the legislature of the state through which the river flows followed by a de- termination by the Secretary of the Interior, upon application of the governor of the state, that the river meets the criteria established by the Act, Section 2(a) (ii), 16 U.S.C. § 1273 (a) (ii). Rivers designated by the state are to be administered eee 59 by the state without expense to the United States. In section 3, 16 U.S.C. § 1274, Congress itself designates ten rivers as components of the system; and in section 5(a), 16 US.C. $ 1276 (a), Congress designates certain additional rivers “for potential addition” to the system. Section 4, 16 U.S.C. § 1275, directs the Secretary to study and the President to submit to the Congress no later than October 2, 1978 reports on the suit- ability for addition to the system of the rivers designated in section 1276 (a) as potential additions. Pursuant to 16 U.S.C. § 1273 (a) (ii), f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2369%3A1. Public record. Not legal advice.