Petition for Writ of Certiorari — Scenic Hudson Preservation Conference v. Federal Power Commission
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Mitac cboere
IN THE J
‘Supreme Court ‘of the United States
October Term, 1971.
No. -
SCENIC HUDSON PRESERVATION CONFERENCE, THE
WILDERNESS SOCIETY, THE IZAAK WALTON
LEAGUE OF AMERICA, NATIONAL AUDUBON
SOCIETY AND NATIONAL PARKS AND CONSER-
VATION ASSOCIATION,
| Petitioners,
e,
FEDERAL POWER COMMISSION AND CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., TOWN OF
CORNWALL AND VILLAGE OF CORNWALL,
Respond ix.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT.
SERNARD G. Seoar.
Lioyvp K. Garrisox,
Afforneys tor Pelilloners.
Scounxaper, Harrison, SEGAL
& Lewis,
1719 Packard Building,
Philadelphia, Pa. 19102
Pact, Weiss, Rirkinn,
Wuartron & Garrisox,
345 Park Avenue,
New York, New York. 10022
International, 711 Se. Seth St.. Phila.. Pa. 19143 -Tel. SA TOS8TIT Asea Crvle
Page
PEC EIN as sea cee Na a es See Cah eee Rae Ree é
PURESEMCTION F055 6 cone aos ek ocean se Sopa ee bow tas Ree age 2
QUESTIONS PRESENTED ..... ad i vai ara hte ae esr Ade ae) Wess 3
SPATE SSW io sos eae et eae amen eee eae ee 4
SUERTE CE ett Va ieee crn TORY one eee "ie ct 2s eet BSL 7
Bee GN CR SPIE RA yen Ce PE ee Ee ed a RA IGT 7
2. The Commission's Commas. 65.52. Se ed te WS Ete Me H
3. Proceedings in the Court Below .................... 14
REASONS SOR-ASRANTING- THE. WRIT =e oc wees ween 10
1. The Commission's Opinion and Order Fails to Comply
With Section 102(2)(C) of the National i[nviron-
Sebel: Pe FR ies Re hi ees eee eras 19
2. The Commission Failed to Discharge Its Planning Re- |
sponsibilities Under Section 10(a) of the Federal Power
eee SL Oeics We a his ORE SES RU EES 28
3. The Court Below Erred in Adopting a Narrowly
Limited Reviewing Function ............. Soa 32
CEA 05 ce Sake wna cae ae Ne eee en en tates we 37
APPENDIX:
1971 Ns oh neta ee eS severest hceanaute ites Al
eg Eee rep oe Nn ere ae eae. qegtod ys 62
Qrder Denying Petition tor Review ...... TAC wa dn'gtaiks A92
Cnioy: Dimi TRCPIPINN os kes dese ese cons AQF
Deed AAs COMES 6 he oo ea ge re ee ON OV eRe ew ere A%
TABLE OF CASES CITED.
Page
Calvert Clitis’ Coordinating Committee, Inc. vy. A\tumic Energy
Commission. "449 FF) 2d 1109 (CA. D.C. 19/1)
aD, AAS 20 202s oe: S38 6
Ciuzens to Preserve Overton Park \ -Volpe, 401 U.S. 402
G3 F Soraredear ee er rin An caylee ain i CGY A paEe DS 17, 35, 36
Environmenial Defense Fundy. Corps of Engineers, 331 F
ne oe CENT A OED eon roe se eo 1X, 30
Gainesville Culities Department y. Florida Power Corp., 402
Ris, PE A MOE nce eel tows Set eee ae cn 33
Greene County Pianning Board vy. Federal Power Commission
{ Dock 5 | Nous. 71 -]Y9], 71-1996, a Reef a NY SSR gO ee lee tee el 23, 3 ote
l
Pernicn Basin Area Rate Cases, 300 U.S. 747 (1968) ....32
Scenic Hudson Preservation Conference v. Federal Power Com-
mussion, 340 F.2d oUS (C. AL 8. 19033, cert. denicd, 384
CB A Is we Ba sae 16, 18, 22, 29, 31.36
Udali ve federal Power Commission, 58¢ U.S. 428 (1967) 731. 36
AUTHORITIES CITED.
; Page
Federal Power Act:
eeenna” OP ERG SS eR cn 6
NUM TIRE ox tsa el oe ashe ot, We Ee. 3, 32
section: J15(hi- (16 ESC, SR25( by) 2.8 fe igen Gr Faget
tlisturic Preservation Act of 1460 (80 Stat. Re ee ce 20
Nation i Environmentai Policy Act:
Section 101 Pee Kes Re a Maree Hie Seu ne Cee ee eee On Cree ae
OTA TAN eee ee i Site oe 4
SHC POREPI HCY orcs ook ee hte ee 3, 12, 19, 20, 21
United States Code, Section 552, Title 5 .................. 5
OU SC Say coc. ey rye en emma a |
IN THE
Supreme Court of the United States
—_——_—
Ocroper Trees, 171.
No.
SCENIC HUDSON PRESERVATION CONFERENCE,
THE WILDERNESS SOCIETY, THE iZAAK
WALTON LEAGUE OF AMERICA, NATIONAL
AUDUBON SOCIETY AND NATIONAL PARES
AND CONSERVATION ASSOCIATION, ;
Petitioners,
v.
FEDERAL POWER COMMISSION AND CONSOLI-
DATED EDISON COMPANY OF NEW YORK,
INC. TOWN OF CORNWALL AND VILLAGE OF
- CORNWALL,
Respondenis.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT.
Seenie Hudson Preservation Conference, The Wilder-
ness Society, The Izaak Walton League of Atuerica, Na-
tional Audubon Society and National Parks and Conserva-
tion Association? petition for a writ of certiorari to review
the jndgment of the United States Court of Appeals for
the Second Cirenit entered in the above case on October 22
1971.
1.-The City of New York and The Sierra Club and its At] antic
Chapter are separately represent: ‘dand are filing separate petitions
seeking review of the decision below.
. Petition for a Wril of Certiorart
OPINIONS BELOW.
The majority opinion of Jndee Hays and Chief Jadee
Friendly and the dissenting opinion of Judy Oakes, in thie
Court of Appeals (App. 1-61) are reported at 453 F. 2d 463.
The opinion and order of the Federal Power Conunissien
are filed with this petition as a separate appendix referred
‘toas tS. AL? An earlier licensing order in the same mintter
had been set aside and the proceedings Yretnanded to the
Commission in Scenic Hudsoy Lyeservation Conference o.
Federal Power Coinmission, an Bl GUS (CLA, Ja. bated),
cert. denied, B84 U.S. 941 (1966), set forth in the Appendix
6201, wragand hereinafter referred to as Scenic LLudson I.
JURISDICTION. .
The judement of the Court of Appeals (App. 92-93)
was entered on October 22,°1971. Timely applications for
rehearing en bane were denied by an evenly divided court
on November 26, 1971 (App. 94). The time within which
an application tor certiorari might be made was extended
by Mr. Justice Marshall to and including Mareh 25, 1972
This Court’s jnrisdi¢tion is invoked under 28 U.S. ¢.
» T5467) and the Federal Power Act, £313(b), 16 U.S. ¢.
“ S2dl(b). ,
Petition for a Writ of Certiorari 3
QUESTIONS PRESENTED.
1. Whether the Power Commission satisfied the ten-
date of the National Environmental Policy Act by ven-
eralized and mechanical reference, in the course of a Jong
opinion mainly concerned with power considerations, “to
the environmental categories specified for full and dotailed
response in Section, 102(2)(C) ‘of that Act. ,
2, Whether the Commission, by an opimion which
avoided consideration of the paramount environmental
values involved—the impact of a major industrial project
on the whole course of planning for the Hudson Hielidands
and the irreversible damage to the unique beauty of Storm
King Mountain—satisfied its comprehensive planning re-
sponsibilities under Section 10(a) of the Power Act, as
enhanced by the National Environmental Policy Act.
3. Whether the court below fulfilled its reviewing func- —
tion under the Federal Power Act and the.National En-
vironmental Policy Act by narrowly limiting the seope of
its review to the question of substantial evidence and then
accepting the Commission's evidentiary conclusions and its
assurance that it had given the necessary consideration to
the requirements of the National Environmental Poliey
Act—-a position in sharp conflict with the decision of the
Court of Appeals. for the Distriet of Columbia in Calvert
Cliffs’ Coordinating Committee, Ine. v. Atomic Energy
Commission, 449 F. 2d 1109 (C. A. D. C. 1971).
t Petition for a Writ of Cerilorari
STATUTIS INVOLVED.
Seetion 101 of the National Mnvirenmenial Poliew Net,
42 UL S.C. | 4831, provides in pertinent pari:
‘Cb) tn order to carry out the poltev set forth’ in
this chapter. it is the contiinine respon-ibtlity of the
Federal Govermuent to ase all practicable :
steeghtin, efsans
sistent with other essentia! considerations of peaitecss!
police, tw Hupreve and coordinate Federal pens, bitte:
Tops, procrats, and resources to the ened that the
Nation may—
C1) full the responsibilities ef eed con
eration as trustee of the environie mt for <teeend
Ins Conerations:
(2) assure for all Atmericons safe. headthf al,
produetive, and esthetieally and culturally plewsing
~urroundinias ;
“3) attain the widest rane Of bhenefiessl
lises of the environment without slewrac at
: a
levad, Vie k
to health or safety. or other undesirable and un oy
teomded consequences ;
(4) preserve important jistoric. eultural,
amd natural aspects of our petionsl heritacwe, and
Ment Whiel
supports diversity and variety of jndividua!
choice :"
maintain, Wherever possible, an envirs
Section 102 of the National Euvirer:
setitael Poiex \-
42 UU. & €.
deed. Srovides in pert nent puart:
* The Congress authorize. and direct. that, to the
fulle-t extent possible: (1) the policies, rewulation-.
and public laws of the United States shall be inter
preted and administered in aceordenee with
~ef forth in this Net, and (2) all agen:
(iovernment shall-—
tle trebles -
‘ies of the Federal
.——
Petition for a Writ of Cerlorari n"
“(C) include in every reconumendation er report
- on proposals for legislation and other major Poderal
actions significantly affecting the quality of the neunn
environment, a detailed statement: by the ren nhs
official on
(i) the environmental impact of the proposed
action, .
(ii) any adverse environmental effects which
cannot be avoided should the proposal be imple-
mented, '
(iii) 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 commit-
ments of resources which would be involved in the
proposed action should it be implemented.
“Prior to making any detailed statement, the re-
sponsible Federal official shall consult with and obtain
the comments of any Federal agency which has juris-
diction by law or special expertise with respect to any
environmental impact invelved. Copies of such state-
ment and the comments and views of the appropriate
Federal, State, and loeal agencies, which are authorized
to develop and enforee environmental standards, =hall
he made available to the President. the Connell on
Environmental Quality and to the public as provided
by section. 552 of title 5, United States Code, and shall
accompany the proposal through the existing ageney
review Processes ; |
“(D) study, develap. and describe appropriate al-
ternatives to recommended courses of action im any
proposal which invelves unresolved conflicts concerning
alternative uses of available resources; © °°"
Petition for a Writ of Certiorari
Section 10 of the Federal Power Act, 16 U.S. C. » 803,
provides in pertinent part:
**All licenses issued under sections 92, $93, 795-
SIS. and 820-823 of this title shall be upon the following
conditions :
(a) That the project adopted, including the
maps. plans, and specifications, shall be such as in the
judgment of the Commission will be best adapted to a
comprehensive pian for improving or developing a
waterway or waterways for the use or benefit of inter-
state or foreign commerce, for the improvement and.
utilization of waterpower development. and for other
beneficial publie uses, including recreational purposes; -
and if necessary in order to secure sueh plan the Com-
mission shall have authority to require the modification
of any project and of the plans and specifications of
the project works before approval.**
Petition for a Writ of Certiorari
STATEMENT.
1. The Issue.
-
On August 19%. EY70, the Federal Power Commission
eranted to Consolidated Kdison Company of New York,
Inc., for the second time, a license to build a pumped stor-
age power plant at Storm King Mountain in the Hudson
Highlands. The Commission’s first jicensing order of
March 9, 1965, had been set aside by the court below and
the case remanded with instructions. Scenic Hudson
Preservation Conference ¢. Federal Power Coumisscou l
(App. 62-91). <,
The project would
‘*he located in an aren of umiqne scenic beauty and
major historical significance. The highlands and gorge
of the Hudsen offer one of the finest pieces of river
scenery in the world. The great German traveller
Baedeker called it ‘finer than the Rhine." (Scenre
Hudson T Ayyp. 66)
Storm Kine Mountain, the most majestic of the great hills
in the Highlands, stands at the northern gateway to the
vorge and, with Breakneck Ridge to the east, forms the
portal to the ten mile stretch of the Highlands which he
below it.
The project would consist of-three principal elements:
a storage reservoir 1,000 feet above the Hudsen and almost
a mile across, to be enclosed by five large dams, the largest
of whieh would be 2.250 feet long and 275 feet high: an
underground powerhouse which, however, requires a tail:
race for drawing in and discharging water, an open cut of.
360 feet alone the base of Storm King Mountain and a ent
inte the mountain of between 195 to 260 feet, towether with
conerete bridges and abutments approximately 700) feet
long, a large entrance tunnel and approach roads for access
10 the plant:? and transmission lines running under the
2. The powerhouse chambers would be excavated wnlim 140
feet of the Catskill Aqueduct, which carries 40° of New York City’s
fresh water supply.
_& Petition for « Wri! of Certiorari?
Hudson and thenee underground for 1.6 miles but then
emereinge and extending on overhead high tension towers.
requiring a swath at least 125 feet wide, for more than 4
miles throneh rolling and undeveloped lands.
The project would not produce new power. Durine
off-peak hours, Con Edison's baseload plants in New York
City world be used to supply power to pump water up to
the reserveir, whence it could be released in peak periods
to help meet the higher demand. Since 4 kilowatts of
pulping enerey would return only 1 kilowatt of eleet ricity
from the plant. the overall effect would be to consume more
power than would ultimately be generated.
As mentioned above, the Commission’s 1965 order was
“et aside and-the case remanded for further proceedines
Which, the court helow ordered. «0 4 - must tnelude as a
basie concern the preservation of batural beauty and of
national historic shrines °°." (App. 9). The Com
mission wits also directed to take inte aecount the **teta!
ity of a project *s immediate and long-range etfeets. and net
merely the engineering and navication aspects.” and te
cive full consideration to alternative pewer sources (App.
SF). ¥e
The 1965 opinion of the eoirt below erystallized the
sroWwing concern, of the nation with the dangerous, de
credation of all aspects of oar natural resourees. Tndeed,
it can be said that the opinion set in motion the train-of
levislative, administrative and Judicial aetions by whiek
the country now strives to meet and solve the CHV ronmental
Crisis.
It wonlkd be a tragic irouve it three <zapeys COM Tat cg
Which gave rise te th opinion In Soewie Mod ene Fens
heeoine the vehicle for Dullifving the effeectiven: oof <4
S. The project else involves th: pemstructen of a 37 sere pien
and playground park as an adjunct te che powerhouse at the ris
level, using the rock gouged from the meuntain a. fill The pork
1s to he ceded to the Town of ¢ ormwall for it Nelastive usc and
control
—_——_—_—_- or
Petition for a Wr! of Certiorari “4
critieal legislation enacted ax a major ~tep forswse
preserving and protecting the enviromment. “Phat t+ the
issue presented in this case,
The opinion in Scen’e Hudson [rested on Soction Tia}
of the Federal Power Act and properly nberpretéd snd
enforced the comprehensive planning responsibilities of
the Commission in the Heht of current mecds. New,
ease is further governed by the National biny conrmontal
Policy Act, the most tinportant of tie tieiteires Sten
Congress hax enacted to meet the envirenainental crisis.
In NEPA, Congress established Whiter pelos oe pre
cedures to be followed by all agencies of he PMedersd Gan
ernment. The baste duty of both admaicotrat ive ae cehes
and courts is to make sure that the ‘*” prone ce of
levislation will become # reality ©" (0° into *
iniportant legislative purposes. heralded tn Cie os le wl
Congress, are not lost or migdirected te the aot cen
of the federal bureaucracy." Calrert C17 s° Ce ota
Committee, Ince. vr. foie nerdy Conu xeon, 44 F.2d
1100, 111 oC. AL DC. 1977).
Thus, the grave danger ty (hat the aoeney MVE en
here the Power Coinnission. wilh be immabie or ci ten
fully to adjust to the use of The new values ateh star aera
mandated by NEPA. Careful analysis of ties beneths
oponion of the Conmunission reveals that every tint
decision was reached in tertis of the Cor rT | ee rt fi
tional power considerations, with [tile or me ocr deant
weight being wiven ta basie enyvirom eptal coleertms. Clie
result reached by the Conimission Was permitted ox ti
court below to stand only by virtue of the eanrt’< resori te
a Tinited rule of review which failed entirely to recoc iis:
the enhanced duties cast upon reviewing @ourt~ by NEPA,
We will now summarize the principal poont~ ef des -ton
in the Comnaission’s opinion and the basi- upot whic: te
Commission's result was atirmied bye the puierity ef ti
panel which heard the matter on review,
10 Petition for a Writ of Certiorari
2. The Commission’s Opinion.
The hearings on remand commenced-on November 14,
1966 and were coneluded on May 23, 1967. On Aucust 6.
1968, the Hearing Examiner issued his initial decision
recommending that Con Edison be granted a 50 vear license.
On November 19, 1968. tie proceedings were rear ned to
permit the City of New York to interven. and introdnes
evidence on the danger to the Aqueduet. Evidenee was
also taken at this time on an alternative site in Palisade.
Interstate Park. On December 23. 1980. thy Hearing
Examiner issued a “Upplenental decision eomelud nes thay
the project did not endanger the Aqueduct and that ‘the
alternative site was not a propor and preferable location,
On August 19, 1970, the Commission Issued) its opinion
and order. As the Commission viewed its task. the issite
Was
_“" * * whether the prajeet oifers substantial!
more’ reliable electric service as well as chesper clee
tricity generated in a cleaner manner than nus other
feasible alternative and, if so, whether the project will
create detrimental aesthetic and environmental condi-
tions of such degree as to lead on balance to a jude.
ment that the public convenience and necessity would
be better served by denying the appliention herein.’
(Paragraph 44, S. A, 12).
Thus, the Commission puta final resolution of
power question first, Accordingly, the Comunission di.
cussed reliability, peaking power, alternatives sneh as on.
turbines, nuclear-as turbine combinations and all-nuchesr
facilities, alternative pumped storage sites and the wee of
purchased power, and coneluded that the Stora Wine
project was preferable to all other alternatives (Para
graphs 46-141, S. A. 13-39), Only after this power decision
had been made did the Commission turn to a consideration
of the environmental factors, designated “* Nesthetic and
Recreational Resources of the Region.“ In the words of
2
Petition for a Writ of Certiorart 1]
the Commission, a veritable “ Who's Who’? of conservation
appeared to oppose the project on the eround that it would
create an irrevocable degradation of the natural beauty of
the region, a subject described by the Commission as an
we * esoteric and subjective matter.”’ (Paragraph 144,
S. A. 41). The Comimission’s response to all of this testi-
mony was the statement that the mountain, as it has swal-
lowed the sears of the past ‘© 7 will swallow the strue-
tures which will serve the needs of the people for electric
power” (Paragraph 148, S. A. 45). The Comunission went
on to observe that’ °° most of the structures will literally
be buried, and those that cannot be buried, while to be
regreticd, nevertheless will be made as unobtrusive as
ingenuity can make them” (Paragraph 148, 5. A. 45). The
Commission then found that the project" ~ constitutes |
no real iMpairment of the environmental and scenic aspects
of the Highlands and the natural beauty of the area will
not be significantly degraded”? (Paragraph 103, 5. A. 45
Having thus determined that the Storm King project
was the best from Con Edison's point of view and having
rejected or discounted testimony as to the daunaging impact
of the project on the Hudson Highlands region, the Qom-
mission turned, for the first time, to a consideration of its
duties under that portion of Seetion 10¢a) which requires
that the project should be best adapted to “* ~~ other
beneficial public use, including recreational purposes” ” Oy
This language was defined by the court below, in its 1965
opinion, as encompassing **" * * the conservation of natural
resources, the maintenance of natural beauty and the
preservation of historie sites”! (App. 69). In its opinion,
the Commission took a narrower approach to the meaning
of “reerentional purposes’’, quoting with approval the
finding of the Hearing Examiner that the 9¢ acre piemic
and playground area would actually improve the region *
and holding that, by reason of recreational facilities avail-
-able in Palisades Interstate Park and -Hudson Highland
4. The 57 acre park would be ceded to the Town of Cornwall.
Z Petition for a Weil ot Certiorari
State Park, the region was followine - the pattern at
a srecreational, as distinguished troz aenatural or wile
ness area, © “-""" (Paragraphs IS}, 182. 184, S. \. 50. 5] ),
The Commission bricthy referred to. the procedural
requirements of Scetion 1242100) of NEPA. Wilelp esti
ishes the environmental jn: pact statcnient reanirercent!
The Commission <1: ated generally, after referrine to J.
prior findings. that ° ~ full and careful consideration
~Was given to all the eoneerus whieh the Aet eines.
(Paragraph ro at aa OO), Phe Cotrinission comtebietes|
(Paragraph 217.8, A. 61):
Ay short-term: adverse ae on the
* natural environment ts more than offset by the en.
haneenient of long term productivity: which will result
trom the project. The résourees. whieh will be eOmt-
titted to this project are the acreage it will nece ~sarily
eneomipas= and the fuel re ~ouregs which wilh be com-
mitted to pumping enerey, Bai the eleetrie energy
resources Which will be cene rated by the comiuituient
of such resourees will many times over “foster and
promote the ceneral welfare’ and -fulfill the social,
economic and other requirements of prese nt and future
generations.” Section 1O01(a).’
The Comunission discussed the Upper reservoir which
would cover an area of fe tag an ky 240 aeres, formed
by o datas varying in he ihe 10 Lae Peet hove e cround (Para
ae he Commission again emp: na taet the wateriront pr.
WeIgiic a overw le Ny IN Tavera aesthetic and environ-
mental impro wem at wireh the project bring~ to beor on te adlad
Fesmmrce © FF nis Tt At Gs a periet PSAP on - a
imended | IN thie r. terent Section Hie) ta °* © * benetieis i purilic
use, Ineludime rocressthon! pirpoce: eParagraph JES, S.No
The Coninitsston sso -tated. it dis A mnt, tint “** * * gacm- opt 03
mo-t likely proposed sltermeives. ieetudine on -muclear unit. or
the mixed nuclear and go< turbine combination, coud je ted within
_100 miles of New York City with om piysteal impact on the
environment aspect. of the stfected aren then the Cornes: Uo pratecr ”
(Paragraph 215, S. A. 50)
Petition fora Writ of Certiorari 1s
graphs 207-209, S. AL S1).°) The dams are designed to. per-
“mit a maximum water elevation of 1,210 fect in the event
the project capability is increased from 2,000 megawatts
to 3,000 megawatt-. The Commission noted that reservoir
construction would require the aequisition of 240 acres of
Black Rock Forest and that the forest presently consisted
of second growth timber. not rare plants or trees (Para-
graph 303, S.A. 82). The Commission discussed various
contentions, such as inundation of the <cenie valley, the size
of the reservoir, the appearance of the dames as the level of
the reservoir rises and falls, but concluded that tie reser-
voir Was not *** "> ineougruous with the present charaeter
of the area™’ and not ‘*’ |.” out of character with the serub
srowlh, reck outcroppings. bare spots, and trees which are
all part of the Highlands. “(Paragraphs 307, 309,
S. A. 83, 84.)
The Commission next disenssed the possibility of the
construct) a of the site at a point about one mile south of
Storm King, on the north spur of Crows Nest Mountain,
vithin the Palisades Park. Use of this site would require
stripping off vegetation and trees for a distance of approxi-
mately 900 feet along the river and to a height of ap-
proximately 200 feet, above the tailrace. It would also
involve the construction of a tunnel entrance 40 fect above
the present railroad hed With an opening of some 30 feet
(Paragraphs 519, 525, S.A. 86.87). The Palisades Park
(‘ommission vigorously ommend this alternafive site on both
legal and ecological grounds (Paragraphs 325, 227-32,
S. AL S87, 88). The Hearing Examiner had also rejected
this site. However, the Commission approved this alterna-
tive site in the event that Con Edison was precluded on
court review from proceeding with the construction at
Storm King (Paragraph 355, S.A. 89-90). The Commi--
sion found that the surface area involved was very steep
and not *** * * presently developed as a park * * °** (Para-
- The Commission did not discuss this important environ-
as factor betore reaching its conclusion that degradation of the
environment would be minimal.
1+ Petition for a Writ of Certiorari
graphs 521, 932, S. A. 86), and-‘*would not appreciably
affect the view from the east side of the Hudson River or
the-scenic beauty of the area.” (Paragraph 336, S. A. 90),
The Commission concluded that the location of the project
underneath park lands would be a “henedieial dual use of 9
naturalasset. 9 °° (Paragraph 341, 8S. A. 90).?
The Commission tinaly made a series of short findings,
summarizing its opinion, and including findings that the
project was to be constructed with provision for future
expansion to 3,000 megawatts as tt) 7 best adapted to a
comprehensive plan for improving and developing the
Cornwall reach of the Hudson River *’ (Paragraphs
13, 28, S. AL 108-104).
3. Proceedings in the Court Below.
On petitions for review, the court betow first held that
its authority and responsibility were narrowly limited,
referring to Section 313¢b) of the ederal Power Act, 16
ULS.C) 0825 70b), which provides that the findings of the
Commis~ion ** * "as to the facets, if supported by substan.
tial evidence, shall be eonclusive.’* The court took the
familiar principle, that reviewing courts should defer. to
the “informed judgment of the Commis-ion’? with respect
to industries regulated by the Commission and carried this
principle over to the review of the Commissions evaluation
of environmental impact (App. 5-6).
Applying this standard. the court held that the remand
order in its carlier decision and the requirements of, See-
tion 10ta) of the Federal Power Net had heen complied
with since the Commission had considered all relevant tac.
tors and it~ finding. were supported by substantial evi-
denee (Npp. 12). The bulk of the opinion eonsisted of a
summary of the Commission's conehisions on various
aspects Of the case,
¢. The Corr; ton diseu ed the Opposition to the project
based On iH INP tl the fish Ine ol the river, the danger th the
Catskul Aqueduct, and the effect or the overhead transmission lines
on the land across the river. In cach case, the opposition was re-
jected in favor of power considerations (S. A. 69-80, 93-99),
Petition for a Writ of Cerkiorar: 15
Only after this did the court below turn to a considera-
tion of NEPA. The court below Held that the Coramission
had complied with all aspects of that Act as to consultation
With other agencies and state and local groups, and that
the Commission's opinion satistied the requirement of the
submission of an environmental impact. ctatement under
Section 102(2).(C) of the Act.
Cireuit dudge Oakes dissented. He disagreed strongly
with the highly restricted approdch to review taken by the
majority, warning that the eflicacy of NEPA would depend,
in large part, on the decision in this ease (App. 40). He
pointed out that judicial meets to alininistrative ex-
pertise was not required in every ifstance. Specifically,
Judge Oakes stated that . dissented for-the following
reasons (App, 42): .
soot * D think the FPPC acted arbitrarily, abusing
its discretion while purporting to act under the mandate
of this court in Scenic Hudson, supra; Weeause its find-
ings in respect to the Catskill Aqueduct are inconsistent
and iusuficient: because its findings as to the effect of
the project upon New York City air pollution are in-
comm@lete and fail to take into account relevant factors;
and because the Commission's findings and conclusions
show that it has not really followed the mandates of the
National. Environmental Policy Act of 1969, Pub. L.
41-190 (Jan. 1, 1970), 42 U.S.C. 95 4821-40."
On petitions for rehearing and suggestion for rehear-
ing en bane, the eourt below was evenly divided. Judge
Hays, who ‘delivered -the opinion in Seentce ffudson T and
tlie majority: opinion in this proceeding, voted for rehear-
ing en bane, as did Judge Oakes. Judge Timbers, who
voted for rehearing, filed a dissent from the denial of re-
hearing, on the ground that the standard of review used hy
the panel presented * "a substantial question of unusual
importance’? (App. 95). oe.
16 Petition for a Writ of Certiorari
REASONS FOR GRANTING THE WRIT.
This controversy, from the first survestion that a
pumped storage facility be constructed at Storm King
Mountain, has caused grave concern, nationwide in scope,
Mone tiose concerned with the environmental crisis which
the country faves. The Hudson Highlands form one of the
most beautiful scenic areas in the United States and the
West tiazudicent of the Highlands is Storm King Mountain.
The proposed pumped storave installation, said to be the
larsest in the world, would sear Storm King, destroying its
unique bhesuty, and would be the first major industrizt in-
trusion into the Hudson Highlands.
> In 1O65, the court below, recornizing the special queli-
Ves and importance of Storm Kins Mountain and the
Hixhlands, set aside the Commission's initial licexsing
order because of its failure. among other things, to have
fairly considered the environmental values involved. In
taking this action, the court emphasized the Commission's
obligation to look to environmental factors as xs part of it.
comprehensive planning responsibilities under Section
Ifa) of the Federal Power Act. and the remand of the
case Was aecompanied by specifie directions that the Com.
mission must take into acgount the preservation of natural
beauty as a hasie concern and must carefully weigch the
“totality "of the project's long-ranged effects. Four vears
later, as Sndge Oakes indicated in his dissent. these diree-
tious of the court were raised to the level of national policy,
made binding ow all Federal agencies, by the National
Environmental Poliey Act.
At the hearing on remand, the Commission received
extensive testimen’ from an array of experts who were
unanimous in their conclusion thai construction of the
project would irreparably damage Storm King Mountain.
Yet despite the heightened emphasis that had been given to
environmental protection in Secuie Hudson I and by NEPA,
this testimony was, in the main, belittled or ignored, and in
an elaborate but result-oriented opinion, the Commission
+”
Petition for a Writ of Certiorar: M
avain coneluded that power considerations required the
lieensing of the project. The opinion never <quarely dealt
with the central environmental valves invelved.-the need
to preserve the unique beauty of Storm Kine and the need
ty recownize the established course of future development of
the Hudson Highlands area as park and wilderness. In-
stead, the Commission soucht to downplay the <ienifieance
of intruding a massive industrial plant into the Highlands
by suxvesting that Storm Kine would absorb the -cars of
the project us Tt had absorbed sears in the past and that
the construction of a 57 xere picnie and playground arca
on the river, as an adjunct to the plant, would somehow be
compatible with the vatara! erandeur of the area. The
Commission did not eyen adveit to the fact that Con Edison,
during the pendeney of this case, has supplied itself, follow-
ing the lead of other major utilities, with the 2.000 meca-
watts of peak demand power, here said to be needed from
Storm King, by the installation of cas turbines elsewhere.
in these and in ether respects to be discussed below,
the Commission failed to discharge it= comprehensiy« plan-
ning responsibility nnder Secton 10(a). A fortiori, the
Commission failed to discharge the duties imposed upen it
by the National Euvironmental Poliey Act, concededly ap-
plicable to the Commission’s order sand opinion in this
case, Which, as noted above, cu-t~ upon fecleral-avencies.
in enhaneed form, the “basic concern’? for the **pre-crva-
tion of natural beauty’? which was enjeine) upen the
Commission by the 1965 deci~ton of the court below.
NEPA Was cited by this Court, alone with other recent
federal statutes, as ‘*desiened to curb the accelerating de-
struction of our country’s natural beauty." Citisns to
Dieserce Ore thon Parl: . Volpe. 401 U. Ss. $2, 44 ' 171 ).
The Court of Appeal~ for the Di-triet of Columbia, in
Calvert Clits’ Coordinatina Camimittee. lac. cr. Atowie
I uae sae Commission, 440 r al 16 4 list A. ID. te iy re
ferred to these statutes as attesting to “the commitment of
the Giovernmmnent to control, at long last. the destructive
engine of material *progress* * * *'*, describing NEPA as
Is Petition fora Writ of Certiorari
“the bretdest ated perbaps-the inest impertant of the recent
siatutes © 9 2° 449 Fl fd at Moe. The Distriet of
Columbia Court warned that “it remains te be seen Whether
the premise of this legislation will become a rewlity.
Therein dies the judicial rele’ fd. See also Enriron-
wiental Uh jense Fand ¢. Corps of Eagimeers, B31 FE. Sury.
9 (B.C. DL. IVT1) where the court referred toe tie
“elear prority Congress bas recently given io preserm he
and protecting the Nation’- matural resource Meludkn
bat wot limited te the National Enviroumnental Perlis
dl ak eat 3 ; ;
The court below hus failed te periern: the **udieial
role” referred to in Calrest Cliffs’. Wt abandoned tie
searchina iquiry used in its IMS opinion to determine
Whether the Comission btd diseharzed lis comprehensive
planning responsibilities und-r Seetion Mia). bnstesd. vie
court here held itself bound te a narrew Iv cireumseribed
review of the familiar type asedl@ned developed in ordin ry
Power Commission eases. Om this ba-is. the court below.
after reciting the (ormmi<<ien*- eeomelisionary findings,
affirmed the second lieensimtye of the Storm King project,
More importantly, the court below brushed aside the re
quirements of NEPA in two inaccurate parncraphs. The
opition observes, incorrectly, thet the Comunission had dis.
eharged its consultation duties under that section aud beld
further’ the Commission’. opinion itself coustituted a
suficient envirenwental impaet statement.
The decision below with respect te the eect of NEPA
is in sharp comtlict with the decision of the Court of A ppests
for the Distriet of Columbia in Calrert Cliffs’, a decision
which eorrectiy re owhize = the twaliey ‘aud procedural ve-
quiresnents of the statute. In the instant case, the Cominia-
sion meted te its conclusion on the basis of familiar poser
considerations and failed entirely te discharge its resj.on-
sibilities with respect te environmental values, No sufi-
cient environmental impact statement was made or filed by
the Commission. The court below accepted the Commis-
Petition for a Writ of Certiorari 10
sion’s position that, in a general way, it had di<charged its
responsibilities. If this eomes to be the law, NEPA be-
comes a nullity. As the dissenting juglee below observed,
the effieacy of NEPA *** * * is in large part dependent npon
the decision in the imstant case.” (App. 40). Review bv
_this Court is of critical importance to the future of the
Nation’s program of environmental pre-ervation and pre-
tection.”
1. The Commission's Opinion and Order Fails to Comply
With Section 102(2)(C) of the National Environmental
Policy Act..
In Calvert Cliffs’. the Court of Appeals for the District
of Columbia analvzed the structure of NEPA, pointine out
that the general substantive poliey of the statute is thexible,
leaving room for responsible exercise of discretion. But, to
make certain of that responsible exereise of discretion, the
Act contains procedural provisions which are not flexible
bat which, rather, require ‘‘rigorgus precedures** to be
followed, procedures described by the principal sponser of
the legislation as **..ction-foreing.”* 449 F.2d at 111221113
** set forth in Seetion 102(2)
i), require each ageney, when considering a project **six-
nificantly affecting the human environment,”* to file a ‘tde
tailed statement** on five enumerated items. and to consult
with other agencies eoneerned with the environment.
Calrert Cliffs’ observed that ‘tall of these Section 102 dutie-
are qualified by the phrase ‘to the fullest extent possible’
** ""*: that this requirement establivhes ‘ta striet standard
of compliance** (449 F. 2d at 1114): and that this standard
These ‘trigerous procedures,
s The sharp confiec t between Calvert CLs and the decision
below in this case es te the correet imterpretation of NIEPA arrers
the conflict and confusion developing throughout the courts in this
I pag expanding and critically Ompertant area of the law. Th
are collected ino the Appendts.. pp. 9-98. When availaly
. Federal I eporter svstem ecttatiom ts given. The balance of the
eases are ctted te the Fnnvironmenta! Reporter
20) Petition for a Writ of Certivrari
“must be rigorously enforeed by the reviewing courts.”
449 F.2d at 1112. |
On the basis of this understanding, the court of up)
peals, in Calhert Cliffs’. examined and set aside rules
promuutcated by the Atomie Energy Commission purporting
to be in compliance with Section 102. The aetion of the
court below in this ease is in sharp contrast. Here, the
court came to the requirements of Seetion 10262346) almost
asanafterthought. It held that submission of the Commis.
sion’s opinion to the Couneil on Environmental Qhiality was
a sullicient complianes with NEPA, containing explicit
conformance with the enumerated portions of the required
Satercent." (App. 30). The eourt below also held) tliat
the Comiis-ion had consulted with other ageneies, melud.-
ing *** °° the Chieftof-Engineers, the Advisory Couneil ou
Historic Preservation, the Department of Interior, the
Atomic Energy Commission and a number of state and
“decal groups that stand to be affected.” (App. 26).
The statement of the court below with respect to the
Commissions compliance with the consultation requirement
of the statute Is incorrect. Section 102(2)(C) requires
consultation as to environmental impact. The Chief of
Engineers merely approved the project from the point of
view of navigation (R. 245s, 256086). The comments of
the Advisory Counéil on Historie Preservation were mands
tory under the Historie Preservation Act of 1066 (SO Stat.
15). The Bureau of Outdoor Recreation of the Depairt-
ment of Interior, in a lengthy 1966 report on the Hudsin
River Valley, recommended that the Storia Sine pedanns!
“not he built’. The Commission ignored the report ard
there is nothing in the record to indicate consultation with:
the Department of Interior with respeet to the report. The.
record also fails to diselose any consultation with the
Atonie Energy Commission. The most important of the
state agenciés, The Hudson River Valley Commi--ion. was
ignored by the Commission and no mention was made in
the Commissions opinion of the fact that, in its report to
Petition for a Writ of Certiorari 21
the Governor and Legislature of New York, that body had
urged that the project not be built.”
There was, accordingly, no complianee by the Comon'=-
_sion with the consultation requirement of Seetion D262)
(C). Nor does the Commission’s opinion contain “texplicit
conformance with the enumerated portions’* ef Section
102(2)(C). That section is not-satistied by ‘ta purely
mechanical comphanee*™ but only by a ‘tfull good faith
consideration of the environment” so that the section is
not read so narrowly ‘tas to erase the general import” of
the policy and purpose of the statute. Calrert Cliis’, 449
F. 2d at 11138, ftn. 5. )
Judged by these tests, the Commission’s **conform-
ance’’ disappears, not only in the NEPA section of its
opinion (Par. 211-218, S. A. 59-61), but im the opinion
as a whole. Analysis of the Commis<ion’s response. te
the items which, under the Act, the detailed statement must
cover, makes this clear and, indeed, shows affirmatively
that the Commission misunderstood its responsibilities
under the Act. The whole purpose of the detailed state
9. Less than a month after the Commission had given Con
Edison its first license tor the Storm King project, Governor Rocke-
feller appointed the Hudson River Valley Commission te develop a
program for the protection oi the Valley. That Commission's r: port,
in the following vear, opposed the Storm King project, declaring
that-scente values at Storm King were “paramount.” The Commis-
ston also recommended the creation ot a compact between New York,
New Jersey and the Federal Government of a permanent commis-
sion to guide the growth of the Valley, with high priority to be
assigned to the Hudson Highlands. In response, the New York
Legislature passed the Hudson River Valley Commission .\ct and
some months later, Congress passed the Hudson River Basin Act
in aid of the proposed program, declaring the future of the Hudson
to be a matter of high concern to the entire country (80 Stat. 847).
Earlier, the New York Joint Legislature Committee on Natura!
Resources, after public hearings on Con Edison's project, had urged
the use of alternatives which would avoid the “desecration” of the
Gorge and eliminate the “great swathe of destruction” through the
suburban counties. The report also noted the precedent for subse-
quent projects which the licensing of the Storm King project might
establish.
oe Petition for @ Writ of Certiorari
ment is to provide a framework whieh will ensnye iti
Vidualized consideration to all important environmental
factors, The Comission never proceeded within vs
framework und. as a consequence, Mever caine to erp.
with the values NEPA is intended to preteet. Tn short, as
is shown below, by its failure to confor: rifarousty with
the mandates of NEPA, the Commission fell into exgethy
those errors that NEPA js designed to avoid,
dive fry ealls for a deta. edd statement onthe enviren-
tuental iuaipact of tbe prapoase | BASS pies © Sori
mission’s response to this item. when ineasured weainst
the reeord, was srossly deficient. During the hearings,
nuiverous experts whe had ape ni their Hves in the study
of natural beauty and of man's surroundings described the
grandeur of Storm King. The Vospoke of the tuneuitieence
of the surrounding bills and the bread? h and depth of t)
Hudson cutting its course through the barrier of the on
lachians. They laid special e: phas’son the vmaigve beants
ef the area (as the court helow had don im its Hersi els
Sj lon), anid cle ‘lared | it to he the Cl ml ot eur ? cian IT A™.
They objee ted to the se enic dat age to he done Dy each ot
the several elements of: the Protect: and. in addition. 1
Was their uncontroverted opinion thai the injection of x
power velop nt mto the area war tick destroy ifs
-acter—its essential oat of raced “wikdnmess and its
ceapacity to Eft man eut of stuumdane concerns (RL a4
9, 4888-9), This focal point of all the testimony was cev ,
‘mentioned by the Commission. either in the NEPA ceotion
or vlse Where in its opinion."
7 The Only CAP Tts called ta WUStHiy the SOCTUC Aspects on thee
project were two men each or» hem had a special interest wo <r
One wa: an apis real om Pbsoms engincers on the peo
in ch er of Tondecaping their work: the ae & pretesstonal lind
scaper who cued b en commission d ii Con Edion to prepire plont-
Ing pl: hor | ee pertions of the project oud who testified the
el age was the “No. 1" facter tn the case (CR. TNF). Al-
thengh the opinion in Scenic ffudson To hed dix mnted “self ceryine
4 ~s
* Petition for 6 Wret of Certiorari 2
As to the specifie damage, the Commission did not seek
to mensure if but sought to justify it by pointing to certain
existing waterfront blight) (easily remevable bey other
means) and to the sear of ew highway -oun areument char
acterized by the dissenting opinion as ‘Soutrageans.
(mm the basis of the commission's thesis, Wherever var faye
one billboard vou can put two. wherever vou have one aver.
head transmission line vou can put anether. veu ean cade
bhghtto bight to bheht. Thata responsible federal agency
should advance that proposiven ino the form: of a fimdime
amd in the teeth ot the NEPA seems to me shocking’
(App. 90).
Item (ir) calls fora detailed statement ont auy adverse
environmental effects wineh eannot be avoided should the
proposal be implemented. The Commission provided
no such statement in the NEPA section amd. while the hardy
of the Commission's opinion referred to some of the adverse
effects in the process of belittling then it passed aver it
silence substantial and uneontroverted expert testo cen
regarding other such effeets."
general statements by officals of Comsel dated Ediser
of these eontlicts of imerest was taken by the Conimisstan
the court below
1V. This testimony included the toliowing ear The fevecpe ci
mie the mountain s!
the mountain which could change the whole character «
nowould “cut the legs out trom under the north dank ooo the moun
tain by destroying the continuity of ws base aset riots ot of th
water” a continuity “essential to the sweepng lit which gives the
ape world.be a permanent wound in tie sid:
profile of Storm King its remarkable energy.” (RO 4889. 1274-76
Similar testimony by two other experts appears at Jk. 48§4-5o0 and
RK. 14784. (hy The §7-aere park. to be planted in the river om top
of reckfil would Le an incongrueus intrusion upon the natura!
heauty of the area (R. 4870, 4890, 14784) 0 Without -at anv poin:
discussing this testimony, the Commission ino the NEPA section
hatled the establishment of the park, and in its order gratuites’
ordered Con Edison to equip itowith a public bea launching ramp
(S. ALVIS). Coy The seenic overlook to be built on Crows Nest
Mountsin near Storm King, with visitors’ tuctlities and an approcc!
road cutting across the face ef the mountain, would result in objec
tionable scars (R. 12513-14)
24 Petition for a Writ of Certiorari
Clearly, in requiring a detailed statement on adverse
environmental effects, the Aet intends thereby te make the
ageney face up to all of the environmental consequences,
and to ‘tensure that those Jenvirommental] values are oy
fact fully respected.”? Calvert Cliffs’, 449 FL 2d at 1111.
The Act does not, as Calvert Cliffs’ noted. compel any
particular decision, but it does require the ‘tindividnalized
consideration’ of environmental factors to be ‘tcondueted
fully and in good faith’’, in the absenee of which ‘tit is
the responsibility of the courts to reverse.’ Calrert Chi.’
449 F. 2d at 1115.
[tem (707) calls for a detailed statement on *falterna-
tives to the proposed action ©. 2° Much of the body of
the Commission’s opinion contains a critique of power
aspects of the alternatives but the enviromental advan:
tages that these offered by avoiding the de-ceration of
Storm King Mountain were never mentioned. As for the
NEPA section of the opinion, the alternatives were dis.
posed of in the following single sentenee whieh: starkly
revealed the Commission’s lack of u: derstanding of the
environmental values at issue:
“We conclude that none of the mo-t likely pro-
posed alternatives, including an all-unelenr unit or
the mixed nuclear and gas turbine eombination, could
he sited within 100 miles of New York City with any
less phy=ical impact on the environmental aspects of
the affected area than the Cornwall project." «Pars
graph 215, S. A. 60).
The Commission’s assimilation of other areas where
alternatives might be located (such as existing industrial
sites in New York City for gas turbines) with the sur-
12, Since 1969, Con Edison, as imstedled. more than 2.004
megawatts of gas turbines at industrial sites in New York City.
See tootnote 18.) Similarly, nuclear plants are being added at other
industrial sites (R. 12790, 12955-6). As to pumped storage facili-
see
Petition for «a Writ of Certiorari 25
passing grandeur of the Hudson Highlands and Storm
King Mountain is inexplicable. Indeed, it misse~ the entire
point whieh‘is that, because of their unique natural beauty.
the Hudson Highlands are set apart from other area~ and
deserving of special protection for-this reason.
Item liv) calls for a detailed statement on ‘tthe rela-
tionship between local short-term uses of man‘s environ-
went and-the maintenance and enhancement of long-term
productivity . To this the Commission responded in
one sentence on which Judge Oakes commented as follows
(the majority opinion being silent on this item. as on each
of the others):
‘Here the commiussion’s Finding 217 says. ineou-
prehensibly, ‘{a]ny short term adverse inmipaet on tie
natural environment is more than offset by the enhance-
ment of long term productivity which will result from
the project’. This is supposed toe -be a conimitssion
finding under NEPA, but [ think the finding indicates
that the commission did not read the Act very care.
fully. Seetion 102(2)(C)(iv), 42 UL S. CL AL 4522.
requires a statement of ‘fhe relationship between local
short-term wses of man’s environment and the miin
tenanee and enhancement of long-term: productivity’
(emphasis supplied). Not the short-term: forpeeh on
the natural environment, but the short-term wses of it
m relation to long-term productivity. ix the <tatenent
required., Here we are considering permanent strue
tures, a long-term and substantial use of an area of
creat natural beauty, ‘unique beauty.” in the words of
Scenic Hudson. supra, 304 F. 2d at 613, involving an
‘irreversible ‘and irretrievable commitment of — re-
ties, the Commission's staff studic. five other sites, but the staff, as
well as the Commission rejected these solely on the basis of co.
(R. 5344-5; Paragraph 122, S. A. 35). There was no discussion of
environmental impact. :
wn Petition for a Wret of Certiorari
sourees” in the proposed projeet if Teenseds to use. the
language of Section lO20C)iy) of NEPAL (App. ae:
tem (ry requires a detailed statement on any ‘irr
versible and irretrievable commitment of resourees.* ‘To
this the Commission responded (Par. 217, S.A. 6F)-
‘The resources which will be committed ta. the
provect are the aereage it Will necessurily: encompass
and the fuel resources whieh will be cownnitted te
pumping energy. But the electric ene rey: Yesourees
winch will be venerated by the conmmiitinent of oi
resources Will iiany times over ‘foster and promote
the general welfare’ and cfalfll the social econo
and other requirements of present and future cenera
tions.” Seetion 10} (ay.
The Coninussion s reeds renee to Ure Hlacdsen bfichdineds
as merely “‘acreace ” was anothes Oath of its-lack of
basis concern for environmental values, Atid yo state ce
as to the “rreversible aud irretrieVable COMMPED emt ~ al
resources Was iade above or mothe bevy of the Cloutinis
sien s opinion, ner did its opinion face upto the fet that,
to make way for a project whieh technological advanees in
the-world of power might before long render obsolete. an
area of unique beauty and of national iaportanece weld
be peruanenthy and irretrievably distigured,
Subsection (Di of the Aet went unnoticed iy the CO
below. Tt requires federal azeneses to study, developasd
describe appropriate alternatives fo reeomtiended COUPSES
of action im ans proposal whieh involves unresolved «
Hiets concerning alternative iises of avatlable resonrens.
The (omiuission disinissed the sub-eetion hy saving that
“there ts essentially no confliet concerning alternative uses
of available resonree.~ beeause with the exception of this
srnall part of the Black Rock Forest toe be Hooded hy thy:
Petition for a Writ of Certiorari ef
jeservoir practically none of the ether parts of the project
preclude alternative uses of available resourees * (Par. 215,
S.A.59). As Judge Oakes said in his dissent (App. 58-59),
this finding ‘‘eompletely omits the contheting alternative
uses of preserving the area free from auy utility installs
tions, tail-raees, abutments and access road="".
. The logic of such an alternative use (quite apart trom
its avoidance of any impairment of the unique beauty of
the -area) lies in the fact that fhe Storm King site has
become an enclave in park lands bounded to the south and
in part to the west by the Palisades Tuterstate Park snd
eeross the river by the mew dluason Pighionds State Park.
By every principle of planning, the Storm: Wing site should
be reserved for ultimate aequisition as a state park, free
from power installations whieh have mo busmes= on such
it park.!* The Cotmuission’s statement under subsection
(1)) that there is ttessentially no conflict coneeriuing abter-
“native uses of available resources" simply eaunet stand up.
And the silence of the court below in accepting such a
atement is one iore illustration of its disregard of
NEP A'S imperatives.
- .
in short, there was mo full, good faith compliance by
the Commission with NEPA requirerents and the court
below failed to discharge the duty of review east upon it
by that statute. fu Calcert Clojs’. tn sunning up the
procedural requirements of Seetion TOL, the Court said
(440 FL 2d at 1112):
13. Such an aequisitien is authorized by Article NIV, Section: 4,
of ‘the New York Constitution, which became crtective January 1,
1970. [tt provided that “the policy or the state shall be to conserve
and protect its natural resuurees and scenic beaut =. 5 oe
the fepisiature “shall” provide tor the acquisition of lands, and their
dedication as part of the state nature preserve. “which because of
their natural beauty, wilderness character, or geological, ecological
or historical significance, shall De preserved and administered for
the use and enjoyment of the poople Neither the Commission nor
the court took note ot this significant amendment to the New York
Constitution. ®
2s Petition for a Writ of Certiorari
“tM course, all of these Seetion 12 duties are
qualified by the phrase tte the fullest extent possible.
We must ~tress 2 forcefully a passsble that thi.
language does net provide an escunpe hateh for foot
lrazving agencies; it dees not make NEPA‘ pre
eedural requirements somehow ‘discretionary.” Con
vress did not intend the Act te be cach a pager tiger.
Indeed, the requirement of envirenmental considera
ton ‘to the fullest extemt posible’ sets a hich ~tomedard
for the aveneies, a standard which maint he rigeron-is
enforced by the reviewing courts.”
NEPA establishes hich national poliey. denamdios fod
ated wand faith iteafelenr Pay tat ion by ateteies omnd rigor
eiferwenent by feviewing esourts Tf pert ittecd te ate ned,
the approach of the Conni<<iom.in thi< ea te it< NEPA
duties, ated the limited conept of ik review noble hy the
court below, would tarn NEDA jute a peper tier Th.
shook tot bee qeormitted te haapyeen."’
2 The Commission Pailed to Discharge Its Planning Re.
ee ne a ne ere
Uieier Section Mia) of the Pealeral Power Act. the
Cottittin<<09 cant test a leew Unless the Project -
mahees — eae
14 As sleeedh ended, the car ®t ehd eaemie om iep +;
er ieee ee ok ee re : “as ye His. a coenat
devviged eeten te Seemed Crna tf Lomere 17, 12,
tetova &. ae" {*.:@@.n inw? * f-odes | he * @ vee .
(Udwhet Nei 71-2701, 71-1 Ges, 8 gee low the avaert Seber, ole
whet wm ete? oof tea tle peed winks temo * a sh age
pte we ofthe .' x \ corto: pilex + ra] nh the (ere pat
te canes with the Wa, Vie Gower (ewere gerted ett ceed reli
um Catvrt Clte. indling tice NEPA “wean tar 'evcond th repair,
te tet thet te og mee geretets co@ewbee ereterqere tal tt. ceed ae fod
tiwee teeter. te the tewwee) cahyert? te fevtew in the cvaers
a a | ' ~~ ads 2544 ood ANLEA a- frial Moe ote 2
rem ab gie deere om every ages te tide 4 death dd environ noo!
Ngee? ates \. of Whee was mg. » rth ay tle = PSens
Cemminam tor rearing ca hone awetting the comtict with the
deceon in the coe, ts pending beiore the court below
Petition for o Writ of Certtorar Po)
oe" * best adapted te a comprehensive plan ~~ for the
improvement and utilization of waterpower devel jneont,
and for other beneficial publie uses, including recreational
purposes. °° 7" In its first Scenic Hudson deci-ion, the
court below, emphasizing the conservation-sponsered origin
of the Pederal Power Act and sensitive to the growing need
for environmental protection, held that the phrase * recrea-
tional purpeses”* encompassed **the conservation of vatural
resourees, the maintenance of nataral beauty and the
preservation of historie sites."° (App. 6%). In the court’.
ew, Section 1) required the Commission te con- cer the
“totality of the projet ’> ittutneslintc sted bene tone ef.
fects, aml not merely the encineering amd tay cation
aspects.” i App. S31). The Cotumi<sieon was orl ool te
con-ider the preservation of hewaty as a “haste eo cern.”
(App. 9).
i) remeted, the Commicsion, in a brief dixen- ion of
Section Tia), covered the “engineering amd navication™
aqpevts of the project. amd its recreational feature. im the
carrmew <enee of pienl arenas. but dealt net at all «oth the
“totality” of it< **hong-range”* effeet (Parnutaph “0,
S.A. 0-52). Ne consideration was given te the efic | whet
the pret would have on the established direction of telat
nitw on the Hiden Hicvhland- and on the futare «hergecter
of the aren.
Sitee its e<tallishment in 10 by the New Yook and
New dJereew Legislatures, the Palisade~ Inter-tate Pork, by
a steeession of cift. and levi<lative enactment«. ha — eadily
crown both westward and nerthaard wntil mew it as vir-
tually eneelfedl the ite chosen by Con Eslison for). power
plant and tailrace.””
— ee » <->
18 In PHO, the New Verh Legit state ext wd * ott abe -
thems ad the Palieabes fester tate Vourk te Newlargh. gett et a |
King, ond te the Kanegee Meamtams te the wet ON Yo sees!
VON), Che Rey Im PORT, the Palteubes bmtetstate Pek © oomeeten
was @tatdidhed bw a coangest apgeoweed be Coaugress, als oeobd
that the lund. -wasld wearer ‘ee peeeteed exclaene t gurk
parpows “0 Star S14 Ch 7im
.
nh Petition for «a Wai wf Certiwrart -
fy TW, the Miadson River Commi-sion, as we have,
rertoad, oper Mrsen! thee Peres jeet Dit hectare that ~cepe Values”
Were °° pairsetmeennt "ine the Tichlamds, amd creed that if tie
praject were nat built ‘the Sterm Kins site be acquired by
thee ~trte ces par® fared aod that ether s tes now under eurll-
sideration for primed <torace- ianis aethe Hiehinnds srea
be similarly aeuired. "(R. 226%). Sines then, the Hudson
Hischisici- State Park has been estabiished. further en.
phasizing the euarse which fature develonment of the ares
should take.” ’
Thier C"eonsaragi~sieons teoeeks geen Beet ive cof thy planned course
Of fture development for the jineleot. Hintlaud area, In-
“teamed, of hedel tint. sree there cere recreational freihiiies in
twos Peaii -ced--teteretate Mack snei Uuaclaeon ichiand State
Paris. the poreient was eertegnt ith with developments in the
ieee MY Peceer: wef thee reer at icone farilities which Con
et ee petinitiest tee beaihed for the Town ot ¢ wiwali. Th
Se hE ttewtietn «of Che tail wecuiser tie chive. The pres
eter of Peet ow? etal feetlitie~ tty fetare geeebedie poarks «hoes got
tuake « lnrce ineiustrial inxtaslation # evtupatible feature
" traps leeutise of ite lucdes a pes reateern! aren, Puather,
fewFemtiouml facittye. tn <tate parks are eosely regulated
Sheree. of private ists. there are tee sue Uinitations nod
the future tx loft tee Tahe eure of itaedf
*
He Com Sete non Keke yen Setm hang. Cen
ligl Seas GH Glevttw Capea» Ny re | ee ee ’ awn
perce | ae eo | ; Je inl co <a stor this purp
sh wel. Pe, 8 i ote, . es. « “ire iliem (iss & Ei -
Cotpetats a ote led tot + ae? te peege rt. Ksotal
four An bs pote wetted a) op et ath pastpe+ + oad Bevis tad *
State Of tee wpe take at wich @ tad tet: emg This out
haptics with «" “al at eag, wed V6 ster, lecam. Lind
% i hag: ated Mate * ask. the permits ee . Wiis ’
Seria A: 45-8. eh! fet j= tees
ty Ther terre ov ‘the ates teat gD f. 9 ahead ¢
@ Ceancal : grast? th ‘Taf ot ty’ @ ‘ =" nld
tesnegee f, geviiey ark the prwech «¢ sr at steered ana
Ts tater Tee ee Gate? s:< £ A thas |
Sp sive. am adherite ot the protest. ested the becan
pteojerrt s tax ret. aes, Paw te. « asd le « s? twee Daas, ,
and thete.ute the praget wear’ esta’ art “a climate ot invitation to
ether indastsy to come inte the ores” 6K ZO,
Petition for a Writ of Certorar: vl
The precedential effects of licensing the projeet would
sleo be serious, but were never considered. At least four
other possible pumped storage sites In the Hicitands exist
555-6). UP adilities should apply for Heenses to build
on tnem. they woula natG@raily arcue that, if it was per-
mssible te build a project at Stern: King. by common con-
sel the most magnificent portion of the Highlands, there
could he no basis for rejecting others at less splendid site-.
When it eume to the prajeet itself, the Commission did
net hesitate te plan fer the future. tt Was at the Copumnis-
sien s iustawee that the project was desicned so ax to be
capable of expansion oreserveir, powerhouse, aud trans
tiissien Lies te LO mevawatt<.* Bat. as te the future of
the region, the Commission took refare in the almost evnical
peecef the ttre cneational faeiities * analogy. And it made
ne tention Whatseever of the Sterm King licensinu as a
presalent for the liadsen Highlands area. This disregard
of the imstroetion tea consider the *totaiity of the project's
initediate aed long-range effect<"" was passed over by the
cour below which sitaply stated that the Commission, hav-
iw considered the recreational purposes of the pooject and
the envinerring amd navigation features, had “‘thus per-
lortied the ‘specific planning respousibility’ entrasied to
by Comers. in Section Phebe? cApp. 34). Here,
again, there appears te be a conflict with the Greene Coanta
decision. In that case, the Commission took the position
that Section Tia) did) net wequire analysi-< of future
poajects pet presented in license applications. The court
there aditfenead, citing passages in the first Seow Mieises
i ots io anid lo deli » is feral ; Mere (Conn ‘sSicaal, ose 1 - oe
qos (195, ). The court there <tated that. although these
Stee Soom DardBon, the Coammnitts-- a's tagiare te mfott
* Cam Edive’s fatere piteraanetion pinms was hold ase
roma with as phan respomabtiny under th Fede |
Wt” «(4354 Fo Ad ap ent2. Te fod), his Court devlared 13
my decisiun “can be nak omy ater an cxpluratheg: + 1 tse
rolevaant to the “public imterest. mcinding future power docu ond
supply, alternate “<ources of power and] the palo mmtere-t in pe
serving reaches oi wildness and wiiderness areas,” S87 US at 4f4
él Petition for a Writ of Certiorari
decisions “*may not have established long-range planuing
requirements, they evidence a clear intent that the Com.
nussion at least should consider all available and relevant
informat.on in performing its functions.”’
The comprehensive planning responsibilities wf Uv
Commission under Scetion 10(a) have never been authori.
tutively defined by this Court. The days of simple river
planning are over“ An authoritative decision by this
Court .+ urvenUy needed, partieulariy in view of the mount.
ing volume of environmental Litigation tne the enbhianeed
responsibility of the Conauission under NEVA and sisuilar
enactments.
3. The Court Below Erred in Adopting a Narrowly Limited
Reviewing Function.
The court below held that only a narrowly Tinited
scope of review, a- detined vy Section 312 bh. is UU. mm ©.
S201 72)0b), was available to it. That Section prow yl
that the finding< of the @unanuission «*- tts tee thee Paet
if supported by substantial evidence, shall be conelusive.”’
Citing, as auti ority, Permian Basin Aves dete Cuses, tat
CLS. 947. T7606 C1908), the enurt below ‘tated (App. 6):
** The licensing of projects sueh as the Storm: King
plant and the evaluation of their eny Pemtnental impact
has been entrusted to ‘the infortiecad juslervent of ii
Comunission and not to the preferenees of reviewing
courts,” **
Permina Resin, the soures of the quotation within the
stbwover spivetiationns. bisnel nothing to cee with the **heewsing of
1% The Senote Report ccnp ing NEPA stared
Important decisions com erming the use and the skp 4
then TMU CTV irene gt eemtitinne tole mde Wo ostaieli leat
te uly merements which perpetuate rather than avoid the ree ">
nivead mistakes of Previn deus “ Ss Kep. No. 81-2, ole
.
i mig? let “er ss 5 i 1,9,
Petition for a Writ of Certiorar: 33
projects such as the Storm King plant and the evaluation
of their environmental impact." Perncan Base was a
gas rate case and what this. Court netually -nid in the
quoted passage was that ' > 5° Congress has entrusted the
regulation of the natura eas industry to the Informed
judgment of the Commis-ion * © 7°." ="
The expert knowledge and the *tinformed judgment”
of the Federal Power Commission is and always ha< been
in the power field and it is only in this ease that the Com-
mission has been confronted with the question of the weiaht
to be necorded to the preservation intact of an areca of
~urpas-ing beauty. In this new and rapidly growing field
of the law, an axeney’s evaluation must be governed by
~ome form of standard which a reviewing court can apply.’
(nly by the use of sueh standard of review ean at -«ourt
wake certain that the agency has fulfilled *** ~ its ex-
panded responsibility.” Greene County Pliniiva Board,
Supra,
Congress, in the body of recent environmental leci--
lation culminating in NEPA, has supplied the standard.
In a conflict between environmental protection and power
needs, a strong presumption is ereated in faver of the
former and the burden of rebutting this presumption fall-
upon the proponent of construction. See Calvert Cliffs’.
ra, Ph. 1}.
In the instant case, the Commission reversed the order
of the presumption and the burden. The Coroni-<ien
stated (Paragraph 44, S. \..12):
“Suuply put, the issue is whether the projec
offers substantially more reliable eleetrie serviee a-
well a- cheaper electricity generated ina cleaner nian
2 The court below also relted on Gainesville Utilities Depart-
ment 2. blonde Power Corp. 402 U.S 318 (1971). in which Hk
Permian, the questions were in a “highly technical field,” the judg-
meat ot which, this Court sad, hod been explicitly committed to the
Commission, 402 US) S15 (citing Permian Basin)
34 Petition fora Writ of Céertiorari
Whether the project will create detrimental aesthetic
and environmental conditions of such degree as to
lead on balanee to a judgment that the publie con-
Veruence and necessity would be better served by deny
ing the application herein.’’
In keeping with this order of ‘consideration, the Cor.
nussion’s opinion analyzed the alleged advantages of Con
Paji-on’s project, in power and cost terms, over alternates,
and after that, when the project had been declared superior
lo all others, the enviromental damage Wiis considered
and disttissedl as ritminial,
if the presumption tid been in faver of the preserva
tien of natural beauty. from commercial intrusion and the
pretection of natural resourees against the hazard. of
power installations, the Commission would hiave asked.
With regard te exch alternative. whether the deepen af
inferiority (at wuv) to the project iM power and cost terms
would be oa price whieh sectety onght to pave for the sake
of keeping intaet the unique area of the Hudson Highlands
wand guarding against the risks to its resourees.
lustead, the alternatives were listitssend se riatin in
the lengthy power discussion and the chosen Prejeeh wes
cll that was left) when the environmental qpestion wes
taken ups! In other words, it was the project or Nothing;
of. The Commies’, discussion of alternatiy Wet
resuit-urremted. The use of ea. turbines as an alternative to tla
Storm hing project was first proposed bw Neeate Hudson in 1404,
tot Time Woen turoime. were relatively mew. In it. 1905 pT,
the Commut--ten brushed the use of gas turbines aside Subsequentiy,
the ase ad ges trrlines, specifica ty designed for peaking and cayer-
gem) needs, wittespresd. Ges turbines fiave been inst d
tor Uns purpose by major utilities nm New lersev, Chicago, Plo!
delphia, Beltimore, Long Iand) Detroit, Southern California, and
many other metropolitan cares AS Senti-cdmmual Electric Poser
Swrmey, October, 1970) (Edison Eleetric Institute Publication Ns
40-53) The best proot that was turbines are well adapted to serve
peaking and emergency needs was supplied by Gon Edison. By now,
Con Edison has installed more than,2,000 mepawatts of gas turbine
peaking capeaity, a capacity which, in and of itself. represent. an
Petition for a Writ af Certiorant a0
and, given the Commiission’s view that the project had to
wo forward, the environmental detriments were inevitably
belittled and deemed insufficient to justify denying a license.
The strongest statement of the standard we contend
for appears in Citizens to Preserve Overton Park v. Volpe,
$01 UL S. 402 (1971), with which of course this Court is
thoronghiv familar. The ease invelved the Federal Aid
Highway Aet of I96S8, which recited the ‘national pohey
that special effort should be made to preserve the natural
beauty of the countryside and publie park and recreation
lands, Wildlife and water fowl refuges, and listoric sites.”
The opinion stated that ‘the very existence of the statute
iidicates that protection of park land was to be viven
paramount iaportance, The few green havens that are
public parks were not to be Jost unless there were truly
unusual factors present im oa particular case or the cost
or conmmunity disruption resulting from alternative routes
reached extraordinary magnitudes, If the statutes are to
have any meaning, the Secretary ecannet approve the cde
struction of park land unless he finds that alternative
routes present unique problems.** 401 U.S. at 412-413.
‘alternative to the Sterm Kang plant. FPPC Monthly Reports, New
York Power Pool 170; EET dsth Seini-clnnval Hiectric Powe
Sime, October, 1970. pp. 33-40. AT of this was knewn to the
Commusston berere mt tssucd its opimon in tits case. Con Edison's
gas turbine installation was described in the Commission's Neots co of
Consolidated d:dison Company 1909 Power Supply Pro Meiis ond
l-Year Expansion Pians :
Agam, the Commission has warned repeatedly against the
danger ot developing large blocks at livdrox lectric capacity at loca-
tens removed trom load centers with lamited transmt-ston, and hes
urged that spring reserve should be distributed over numerous
small units so that “response to sudden generation demands can be
spread over as many units as possible” 1908 FPC Report. po §5
Yet. here, the Conmimitsston tound exactly the opposite tepe ot mstal-
lation te be the best sunted to meet a projected 7300 of Com Edt-on’-
emergency reserve. Other criticisms of the Commission's discussion
of alternatives are contained in the record. The illustrations her
given are enough, itis submitted, to show the result-ortented nature
of the Commission's discussion of alternatives in this case
6 Petitton for ao Wret af Ceorfiorart
The analogies to the instant case are evident. The
statutory requirements as construed by this Court eer.
spond te the requirements of NEPA] as construed by
Calvert Clifs” and Environmental Defense Fund +. Corps
of Engineers. The petitioners in Orerton Port contended
it wats the exelusive province of the Secretary of Trans.
portation to balance thé detriment to perks lands avuin-
factors of cost, safety, ete. In alternative routes essenti lally
the position taken by the Federal Power Cotoanis<ion, with
the approval of the court below. regarding its own balan
ing function. This Court, however, rejected any suelo un-
controlled discretion and articulated the standard which
the Secretary was to follow.
The court below rejected this reasonime on the cround
that this Court had said that the altinute standard :
review Was a ‘narrow one’ and that the court was ‘net
empowered to substitute its judgment for that: of th
geney. 401 U.S. at 416.0 The court below eited <imilas
ements "in its first, See ate Madson decision. “ep. ® and
in Call, OST ['. S. at $0. ft hires ret fellow fre t)
however, that a reviewing court would be valhduedl of its
responsibility to scrutinize the reeord amd te nscerta
whether or not the ageney On arriving at its judement hed
in facet observed the controlling <tandards.
The court below recognized it- responsibility with re-.
<pweet to on lv one gonmsideration- -nitne ‘Iv, that the reeord
was full and con: ple Te. Having fertiniel thi~ to be the ciu-,
the court shut its eves to the manner in whieh the Com.
mission had gone about its evaluation. Thou«): pr
to do -o by the petitioners, it paid no heed to the «base
eoncern”” sianederd laid down in it- earlier environments!
in-tructions, and failed to consider the arbitrary ways in
which the Commi--ion had secorded prierity te power eon
<iderution< at the expense of the « nvironment.
We submit that if the decision of the court below |-
allowed to stand as an authoritative expression of the
responsibilities of reviewing courts in environmental easc-.
>
Petition for a Writ of Cerfierari . a
if will reduce the judiciary to rubber-stamping ach ini-
trative action whenever the agency hes assembled what
appears to be a ‘full’? enough record and: has suffientiy
professed its desire to proteet the pomemmacet. [f <0, the
National. Enviromnental Policy Act will become, in- the
swords of Calvert Clitfs’, a “paper tiger.”’
CONCLUSION.
For the foregoing reason-, petitioners pray that tle
petition for a writ of certiorari be granted.
Respectfully submitted,
Berxarp G. Sproar.
Luoyp K. Garrices,
: Attorneys for Petitioners.
Scusaper, Harrison, Srcar
& Lewis,
.1719 Packard Building,
Philadelphia, Pa. 19102
Poser, Weres, Rirxinp,
Warton & GarpIson,
345 Park Avenue,
New York, New York. 10022
Appendix.
1971 OPINION
“UNITED STATES COURT OF APPEALS
For THE Seconp Cinevir
Before: FRiesxpviy, Chief Judgqe.
Hays and Oakes, Circuit Judges.
Petitions for review filed pursuant to Section Si5(b)
of the Federal Power Act. 16 UL S.C. S25(b) (1964) seek-
ing to set aside an order of the Federal Power Comiission
dated Angust 1 1970 granting a leense to Consolidated
Kdison Company of New York, tne. to construct a pumped
storage power plant on the Tudson River.
Petitions denied.
Hays, Crrewt Judae:
By Opinion No. os4, dated August 19 1970, the Federal
Power Commission granted a license to Consolidated Edi-
son Company of New York, Inc. te construct, operate, and
Indintain a pumped storage project along the western shore
of the Hudson River at Cornwall, New York. Eight par-
ties ' have filed petitions pursuant to Section 313¢b) of
Vilar the pentioners except Paltsados Imterstate Park Com
mission object te the leensing order ot the Federal Power Connm-
fonimtete. The Paiteade. Interstate Park Cominis-ion opposes only
the site 2 alternative winch exis fer the lecation of the powerliont+
within Palteades Interstate Park’ The objection of petnoner Cit
ef New York a based) on the aqueduct and-catr pollution question
chen The Ivaak Walton League or America rest. its objection
pomeriy oon the fi-hertes question and ether onvirowmental taectors
\! other petitioners ratse virtually all the issues discussed im tht
opinion. Intervenor Consalidated ~-Edison Company of New York
Ine., supports the Commission's order. as dees imtervenor Town o:
Cornwall +
(.A1)
AS. 1977 Opemion
the Federal Power Act, 160) S.C. | 825 70h) (1964) oot
ing te set aside thie onder on various grounds, The ius
raiewd by theee petitions are both complex and important,
involving, a» they do, the conflict between the nowd- of a
highly technological society and the increased awarcnes>
of environmental con-iderations.
The opinion and order of the Federal Power Commi«
sion presented here for review follow by five years the
earlier remand by thix court in Scenic Madson Preserve
tion Conference v. Federal Power Commission, 34 F. 21
GOS (2d Cir, 1965); cert. denied eub nom.. Consolidated
Edison Co. of New York +. Scenic Hudson Preservation
Conference, 354 U.S. 941 (1966), in which the petitions
challenged three 1965 orders of the Commir<ion licensing
the project and refusing to reopen proceedings and take
additional evidence on various iesues. In the intervening
period extensive bearings have been held, two decision
have been rendered by a Hearing Examiner and the Com.
mietion has issued it« own opinion.
The new proceedings have produced a project that is
different in some ways from the project that was before
thie court in 1965.
The functional elements of the project remain the
same. It is «till to be the largest pumped storage plant in
the world and its principal function, to provide energy for
peak load periods, ix unchanged. The proposed location i«
the same as that previously proposed, the Hudson River at
approximately ‘river mile 56.5, about 40 miles north of
New York City «' Storm King Mountain near Cornwall,
New York, *‘an area of unique beauty and major historical
significance." Scewic Hudson, supra at 613. The project
would consist, as did the earlier version, of an upper
reservoir, a tunnel between the reservoir and the power-
house, and the powerhouse itself, a pumping-generation
station located at the riverside containing cight reversible
—
v7? Operon AS
pamp-turbine and motor generation units ax well 9. «witeh-
ine gear and primary tran«mission lines. Howe ser, anlike
the project presented in 1965, which provided for . power
house that was SO per cent qnderground, the powerhouse
now licensed hy the Commission ix to be entirely under.
ground.
The upper reservoir would be situated appro unateh
1) feet south and west of the powerhouse in « natural
mountain busin behind Storm King Mountain. When filled
to ite maximum elevation it would have a surface area of
240 acres. It would be formed and enclosed by five earth
and rock dikes. The lower reservoir would be the Hudson
River iteelf.
The caparity of the eight pumping-generating anits in
the powerhouse would be 2,000 megawatts, or 2,000,000
kilowatts.” However, the project would be constracted in
a manner which woukl permit enlargement to « maximum
of 3,000 mw. Eight discharge tunnel from the reversible
pump-turbine snd motor generation unite would convey
water between cach turbine and an open tailrace leading
to the river. The tailrace with abutments at both ends
would run 685 feet along the river. A fish protective device
i» to be located in front of the tailrace intake.
The third majer facet of the project relates to trans
mission facilities. Submarine cable installations and spare
pipes would transmit the energy generated in the power.
hoase under the Hudson River and would continue under-
ground on the east side of the river for approximately 1.4
miles to # point out of sight of the river. At this point
overhead transmission would commence and would con-
tinue for approximately 9.2 miles through Putnam County
to Con Edison's existing Pleasant Valley-Millwood-Sprain
2 One megawan (mc) cquals | million watts, ome kilowar:
(kw) exptals one thencad watt. We will ase the megawatt termine!
ogy thronghowt this opimon
Au 1971 Opraten
Brook transmission richt of way. Changes have been
tae tn the propesed route and the town< of Cortlandt.
Putnam Valley and Yorktown, whieh challenged the route
before thix court in 1965. ne longer do <0.
The project would function in the manner described
in our earlier opinion. Ni cwic Hadsom, supra at G12. The
units in the powerhouse would use off peak energy gener.
ated net at the project but at other facilities in the Con
Fal <ystem te pumy water from the Hudson River to the
upper teserver When needed for peak power produc
tien, that ix. during heur- of highest kilowatt demand.
the units would rever<« direction of rotation and provide
power derived from the fall of the water released into tie
river from the upper reserveir, Thi< power would then
be transmitted throuch the tran<ni<<1em «¥etem described
abewe. “The water in the apper reserveir tay be regarded
as the equivalent of stored electrienl energy: in effect,
Consolidated Ealison wishe~ to create a buge storage bat-
tery at Cornwall.” Seewic Hudson. supra at 612.
A visiter’+ information center and pienic and parking
facilities, propexed in the original project for the power
house site, have been eliminated. In their place, a 57
acre, mile-lone park is to he con-tructed along the river-
front. Ackditional recreational facilities are to be provided
at a Oi aere scenic overlook inland from the project with
aceess from the existing State Highway 9 W._
As an alternative the Commis<<ion has licensed the
pererhon-+ aspect of the project at a location within
Palisades Inier-tvre Park, approximately one and one
half milex dewn-tream from the Storm King Mountain
site. Construction at the Pali-ades site is to be considered
approved by the Commix-ien only if construction at the
Storm King Mountain <ite **~hall be precluded on a petition
te review this order.”
1971 Opinton Ad
The petitions in this case are occasioned by the “grave
concern” aroused amoung conservationi=t group. by the
Storm King project. Nernic Hadson, supra at G12. The
petitions allege lack of compliance with the term- of our
earlier remand, absence of substantial evidence to sup-
port the Commission’. findings, and failure to comply with
statutory mandates. We find, however; that the Commis.
sion has fully complied with our earlier mandate and with
the applicable statutes and that it< finding- are supported
by substantial evidence, Ja ciew of the ertensive powers
delegated to the Commission and the limited sx: upe ol r-
rew entrusted to this coart, it is oar duty ta deny the
petitions.
Congress has given the Federal Power Commission
broad responsibility for the development of national policies
in the area of electric power. In Section 4(¢) of the Fed-
eral Power Act, 16 UL S.C. ( 797¢e) (1964), the Commission
is authorized
“To issue licenses . . . for the purpose of construct-
ihe, Operating, and maintaining dams, water conduits.
reservoirs, power houses, transmission lines or other
project works necessary or convenient for the develop-
ment and improvement of navigation and fer the de-
velopment, transmission, and utilization of power
across, along, from, or in any of the streams or
other bodies of water over which Congress hax juris-
diction... .*"
There are statutory limitations on the issuance of such
licenses. Section 10(a) of the Act, 16 U.S. ©. ¢ 808(a)
(1964), requires
A6 1971 Opinion
That the project adopted . |. shall be such as in the
judgment of the Conmission will be best adapted to
4 coluprehensive plan for improving or developing «
Waterway or waterways for the use or benefit of in
terstite or foreign commerce, for the “iMprovement
and utilization of waterpower development, and for
other beneficial publie uses, including recreational
purposes.
The Cominission is now obliged also to consider the
environmental factors covered by the National Environ.
mental Poliey Act, 42 U.S.C. ° 4921 of seq. (Supp. 1971).
In the Federal Power Act Congress granted the Com.
mission “sweeping authority and a specitie planning re-
sponsibility."" The Act ‘was the outgrowth of a widely
supported effort on the part of conservationists to secure
the enactment of a complete scheme of national regulation
whieh would promote the comprehensive development of the
nation’s water resources.”"| Scenic Hudson. Supra at O13
and authorities cited there.
The seope of review of the Commission's exercise of its
authority and responsibility is. narrowly limited. The Act,
+ 813(b), provides that **|t |he finding of the Commission as
to the facts, if supported by substantial evidence, shall be
conclusive."” 16 UL S.C. 825 77 b). In assessing the fac-
tual contentions raised in the petitions, this court's author-
ity ‘tis essentially narrow and cireumseribed.”" Permian
Basin Aren Rote Cases, 300 1. S. 717, 766 (1968). The
licensing of projects such a- the Storm King plant and the
eValuation of their em ironinental impact has been entrusted
to ‘the informed judgment of the (ommi--ion, and net to
the preferences of reviewing courts." Id. at 767.
The statutory standard of <ab-tantial evidence is
“something less than the weight ef the evidence and the
1971 Opinion Aj
possibility of drawing two inconsistent conclusions from
the evidence docs not prevent an administrative ugency's
finding from being supported by substantial evidence.”’
Consolo v. Federal Maritime Commission, 383 U. S. 607, 620
(1966). Ina reeent ease involving these principles of court
review, the Supreme Court said -
‘Insofar as the Court of Appeals’ opinion implies that
there was not substantial evidence to support a find.
ing of some benefits, it is clearly wrong. And insofar
as the court's opinion implies that the responsibilities
assumed by Gainesville in combination with the bene-
fits found to accrue to Florida Power were insufficient
to constitute ‘compensation . . . reasonably due,’ the
Court of Appeals overstepped the role of the judiciary.
Congress ordained that that determination should be
made, in the first instance, by the Commission, and on
the record made in this case, the Court of Appeals
erred in not deferring to the Commission's expert
judgment."" Gainesville Utilities Department v. Florida
Power Corp., 402 U.S. 515, 527 (1971).
Petitioners would have us reject these familiar prin-
ciples because, they argue, different standards ought to pre-
vail with respect to issues arising in an environmental con-
text? There is an effort to tind «a basis for this position in
our earlier remand in Scentce Hudson and in eases which
have taken a similar approach. See, e.g.. Citizens te
Preserve Overton Park, Inc. ¢. Volpe, 401 U.S. 402 (1971);
Udall r. Federal Power Commission, 387 U.S. 428 (1967):
Zabel rv. Tabb, 430 F. 2d 199, 213 (Sth Cir. 1970), cert.
denied, 401 U.S. 910 (1971).
3.‘ Sive: Same Thoughts of en Environmental Lewver im the
Wilderness of Administrative Lase, 70 Colum. L. Rev 612 (1970).
secks to provide support ter such a posite
4 Id at 631 et seq and 650-81
AS 1971 Opinion
To read these eases as sanctioning a new standard of
Judicial review fer findings on tatters of environmental
policy ix to miscon-true both the holdings in the cases and
the nature of our remand in Scenic Hadson. An element
common to all these exses was the failure of an aeency
or other governmental authority to give adequate consid.
eration fo the environments! factors in the situations with
Which they were presented. In Citizens to Preserve Over- |
tun Park. lace. Volpe. sapra at AG, for example, the Court
remanded the exe to the district court to determine whether
the Secretary ef Tran-portation’s decision **was based on
a consideration of the relevant factors. ”" The Court pointed
out that “fa jlthough thi~ inquiry into the facts ix to le
searching and careful, the ultimate standard of review is
anarrow one. The court is not empowered to substitute
its judgment for that of the ageney.”” Td. In Udall +. Fed-
eral Power Commission, supra at WOOD, the remand to the
Commission instructed it to explore the *negleeted phases
of the cases” and to make ‘tan Informed judgment on these
phases of the cases” The Court explicitiy stated-that it
expressed **no opinion on the merits’ It wedded, ** It is not
our task te determine whether any dam at all should be
built or whether if one is authorized it should be private or
public.”” Td. at 450,
In our opinion in Seen Madseuw, supra, remanding the
1%65 orders of the Commnui-<ion, we were careful to make’ it
Clear that we were raining ne question of change in the basic
standard of ed cuistrative review and that the purpose of
our remand wa- ouiy te resjuine the preaper performance oft
its funetion-~ ly tiie Conmmni-~ten, We said:
While the courts have ne autherity to concern them-
* .
selves with the policies of the Comunission, it is their
duty to see to it that the Comumission’s decisions re-
a
17] Opinion . AY
ceive that careful consideration which the statute con-
templates.’* Ld at 612.,
“This court cannot and should not attempt to substi-
tute its judgment for that of the Commission. But we
must decide whether the Commission has correctly dis-
charged its duties . 2. . The Commission must sce
to it that the record is complete.’” Id. at 620.
Where the Commission has considered all relevant fac-
tors, and where the challenged findings, based on such full
consideration, are supported by substantial evidence, we
will not allow our personal views as to the desirability of
the result reached hy the Commission to influence us in our
decision, We now turn therefore to an examination of
Whether our remand has been complied with, whether there
is substantial evidence to support the Commission's deei-
sions on the issues remanded and other challenged issues,
and whether the Commission has complied with all uappli-
cable statutory requirements.
II.
In our opinion remanding this proceeding to the Com.
mission we directed the Commission to weigh a number of
factors which we believed had not been given adequate
consideration. Holding that *trecreational purposes”? in
Wa) of the Act 6 UL S.C. SUS(a) (1964)) **encom-
}Missex the conservation of natural resources, the mainte-
nanee of natural beauty, and the preservation of historic ”
sites."* we required the Commission “properly [to] weigh
each [such] factor.’ Seeuwie Hudson. supra at 614. We
held **that the Commission is under a statutory duty to give
full consideration to alternative plans’ (Id. at G17). We
criticized the Commission's refusal to ‘receive proffered
Alu Livi Cspthion
information on tisk protective devices and underground
hi. at 620, and directed jt
io “take the whole fisheries question inte consideration
**
transtiiss<ien facilities
before deciding whether the Storm King project is to he
bieensed.* Chi. at 624). We ordered the Commission te
Welch ‘the aesthetic advantazes of underground trans.
Inission lines auuaitst the economie disadvantages’? (ld. at
O25). In sar the Cominission was admonished to ‘re
eXamine ail questieon- on which we have found the record
Insativient and all related muatter=.°° (ld. at G24).
On January 25. 106. atting on our remand. the Corp-
mission ordered that further proceedings be commenced
before at Hearing Examiner. ky that order the Commission
suid:
“Wee do et understand the Court’s order as re-
strieting any further preesedines te the speeitie mat.
Whieh it found the Present record insufficient to
“Uppert our previeus determinations and we do not
believe it would be in the public interest to de so. The
reverd in the first two hearings in the proceeding will.
of course, be part of the present hearing. Dut all par-
ties will be free to offer timely presentations of +vi-
dence on all muatters relevant to the question whether a
license should- be granted.” ;
The hearings were commenced on November 14, 1964
and: with ses eral brief recesses, Were eoucluded on Mav rx
Iie. A imetion of the State of Connectient’s Beard of
Fisheries and Goo to intervene was subsequently granted,
and further hearings were held on the issue of the protee-
tion of ti<h. These hearings were closed on Owoher 1h,
ey. fn Nucust 6. 1s, the Hearing Examiner issued his
Initial Decision recommending that Con Ed be vranted a
oO vear dieense for the project. On November 19, 1968, the
1971 Openion Ail
proceedings Were reopened in response to @ petition by the
City of New York to intervene ane introduee evidence on
possible hazards te its Catskilj Aqueduct. At this proceed.
ins. further evidener was talzes: on the witernative site in
Palisades Interstate Park. The Meurine Examiner issued
e Supplemental Initial Decision on December 23, 1969,
which concluded that the project did not endanger the
Aqueduct and that the alternative site was “not & proper
ard Qreferable alternative location for appiueunt’s pro-
jected project.” In all other respects, eXeept for minor
items.” the Initial Decision remained unchanwed. — «
The prowesiings on remand involved 10 hearing days,
he Testiinony of some sixty expert witnesses. and the in-
tremdietion of GTA exhiliies. The record Comprises more
than DIMM) poaees, Both thre Hearing Examiner and the
Commissioners arranged with the Parties te Visit the pro-
posed site sued the surrounding area before renderimg their
decisions. |
fen Ausust 14, 1900, the Commission issued its decision.
in its wpinio: the Commission reviewed the power negds
of the area served by Cou Ed and considered possible gil-
ternatives to the Stora Kine project in terms of re.
lability. cost. air and reise pollution, and overall environ-
ental tapact. Coneludine that there was no satisfactory
alternative. the Comunission evaluated the environmental
viteets af the Preject its-if. fr held that the scenic impact
Word be minimal, that no historic site Would be adversely
atected, that the tix<h would be adequately protected and
that the prepeasecd park and soenle overlook would enhanee
recreational facilities. The Comtii~sien found that further -
—_ —
*. The Inited Devisien wus amend d Sumly tw provide ior th
thet « Melee stucco at Canned on Appicant’s main trans-
Soh th =" tems caestemd cK att ced Re tho 2.4 Bei the Cerne.
"East switt Ling tottens camel li THe tratscormer «Mery, in cm-
. Becton with the teen ation «2 circuit breakers, Las and rn ud ejz'p-
emp be Oe
AP 1971 Opinion
undergrounding of transmission lines would result: in un-
reliability in the d@ivery of powertand would be too costly,
The Comainission determined that construction of the proj-
eet Would entail no appreciable hazard to the. Aqueduct?
We tind that the proceedings of the Commission and its
report meet the objections upon the basis of which we re-
manded the earlier determination. Examination of | the.
Commission’. conclusions and the evidence on which the
conclusions are based establishes that the Commission has
coluplied with olr instructions and that the evidence sup-
porting the Conimission’s conclusions amply meets the
statutory requirement of sabstantiality.
A. “Alternative plans.’’
The Commission gave detailed and comprehensive con-
sideration ty alternatives. Its initial statement of the basic
issues of the cause before it and the manner of its subse-
quent dealing with those issues demonstrates that there
ix no tound basis for petitioners* contention that the Com-
Inission’s approach was too narrow. The Commission said:
The weighing of social values required by the concept
of the public convenience and necessity in this ease
involves on the one hand the alleged greater and much
needed reliability, economic savings, and anti-air pol-
lution benetits which this project offers compared with
any feasible alternative, and on the other hand’ the
wleged aesthetic and environmental detriment the proj-
eet weld compose on an area of great scenic, natural
and historic value.
—=
(The Conamtssion, dixagrecing with its Fearing Exainer,
mthorved use ot the alternative site within Palisades Interstate Park
em the cond:tiens ta which we have reterred above In view of our
denia! «t the prtitiemas 199 3113 toe, Mw be unnecessary for us to
review this last determination
1971 Opirtion ; AI3
Simply put, the issue is whether the project offers
substantially more reliable electric service as well as
cheaper electricity generated in a cleaner manner than
any other feasible alternative and. if so, whether the
project will create detrimental aesthetic and environ-
mental conditions of such degree as to lead on balance
toa judgment that the public convenience and necessity
would be better served by denying the application
herein,”
In deciding this issue the Commission proceeded to
evaluate the needs of Con Ed and the: probability that the
proposed project would supply these needs in a more de-
sirable way than would the possible alternatives..
The Con Ed system serves the densely populated area
of New York City’s five boroughs and part of Westchester
County. The electric load requirements that Con Ed must
meet are constantly growing. * The Commission found that
in N70 Con Ed’s capacity would be approximately 10,126
mw, plus 520 mw contracted from other utilities. However,
much of the system is outdated and about 2.000 mw of its
present capacity are due to be eliminated by 1978. And
yet by 1979, Con Edison’s annual peak load? will be ap-
proximately 10,850 mw. j
Two factors were cited by the Commission as necessary
to insure availability of the required amount of energy ard
to prevent major power failures, such as that which oe-
curred in the northeast United States in 1965, as well as
the lesser **heewnouts’* and ‘‘blackouts** which have be-
come all too frequent in the New York area. The tirst of
these two factors is the existence of adequate power facili-
ties to meet the growing demand for electrical energy in
—_—_—_ -_—— ——_-—-— -_--— +
. 7 The Commission noted thet the annual peak loads have shifted
Irom the winter season to the summer
Al4 1971 Opinton
the wren served. The sceond is an adequate ‘reserve.’ a
partet widel must be what is eglied a *tspiming reserve.*
This **spiiming reserve’ os previded by mits operating at
fess than fell capacity but synehronized to the system ‘so
that the omergy venerated by them will all be immediately
avaiable to nieet an lperedse In loads. It is this latter need
that the Sterin Nine project ix designed to meet.
The Commission found that in erder to prevert a
Inajer power filure the ‘spinning reserve’? must be fully
avaliable witiio twee minutes.” The Commission expressed .
the opinion, based on the reeord before it. that ‘tif, Corn-
Wall or a pomped sterage equivalent with its very fast
pick-up characterist os had been available the blackout of
165 mucht have been avoided.”
Tie Cotmmmission examined in detail the possibility that
there were alternatives more desirable than the Storm
Ring project which would be capable of meeting these
needs. Our earlier opinion required the Commission to
consider the use of gas turbines. - The Commission de-
termined that usine gas turbines alone would not be a
feasible alternative to a pumped sterace unit since the
turbines avould be jess reliable and mere expensive. Gas
turbines, the Commission found, take between three min-
ites and ton seconds and feur minutes to be brought to
a)
fuil operation from x cold start. Moreover, the Commis-
sion stated. unlike pumped sterege units. gas turbines
have a relatively low capacity for storage of rotational
enerey, and thus do net previde as substantial a cushien-
Ing effect ls. tlio event of a disturbance. .
S. See Prevention of Power Favlures, A Report to the Presid om
by the Federal Pewer Commit-stean faly 1907, Volume Toa: 13-44
*
SR ear e ne A Ee ae to ag = CRETE ie en”, eB Aer Oey en Sere
, I it? tl Fesyy tise ¢ ye Tis ith Le) O90 ev aie’cyiy 13} ei eee i
event tite f3%. of the semning ro scrve showd be svnelironized ond
: . ° - i? % a - a caren el
In becomes te ome minute. with all of the reserve avuil-
:
able vorthin twe mimute..”
1971 Opinion — Ald
Gas turbines were found to be considerably more ex-
pensive to operate than pumped storage units. The Com-
mission adopted the conelusion of a staff study that the
operating costs of a pumped storage project would he
at least $119,000,000 less over a twenty-year period than
the operatmg costs of gas turbines.’" It would cost about
$38,000,000 less, the study estimated, to construct the
pumped storage project than to provide the gas turbines.
The Commission also considered the possibilities of a
project composed entirely of nuclear units but tound that
such an alternative would be inadequate for reasons which
are fully developed in the report. ‘Phe Cominission was
of the opinion that a nuelear-gas turbine combination ©
“suffers from the shortcomings imberent im its coi.
ponents, that is, unless the gas turbines are spinning
they cannot be brought into operation soon enough to
meet emergeneies and the nuclear component has rel-
atively slow response characteristics which when com.
hined with the foreed outage reduees the reliability
quotient of such a combination.”
“[ T]he rehability quotient of a nuclear-gas turbine
combination,’* the Commission said, ‘tis far less than
Cornwall's.”"
The Commission estimated that construction of the mn-
clear-gas turbine alternative would cost S15S,.794.000 more
than Cornwall. ©m the basis of these tindings the Com-
mission said:
“10. A Con Ed study had estimated a twenty vear operating
savings of $137,023,000.
1. Several combinations ot gas turbines and a muclear umit wor
proposed. Con Ed beheved that eight gas turbines would be required. *
Scenic Hudson, five. The staff study conciuded that six somewhat
larger units would be adequate. The Commission based its conel-
sions on the combination found by the Examiner to be most appro-
priate: seven-turbine units coupled with a 1000 mw nuclear unit.
,
A16 ‘ 1971 Opinion |
“We do not aecept the proposition put forth by Scenic
Hudson that this extra cost is de minimis when spread
among all of Con Ed’s customers. There are often
xood reasons why it is in the publie interest to utilize
a more expensive alternative. In appropriate cases
the extra cost may even be substantial But whether
substantial or dot, the extra cost must be justified Iv
; a showing that the alternative is in the public interest,
There has been no showine that a combination nuelenr-
gas turbine alternative offers any advantages or in.
deed is even reasonably equivalent to Cornwalk*’
The Commission also considered the feasibility of using
power purchased from outside sources to supply Con
Eul’s needs as an alternative to building the Storm King
plant. It found that the maximum amount that could be
assured would be sliglitly in excess of 1000 mw. Thus.
this alternative, the Commission held. would not provide .
sufficient power.
Petitioners do not suggest that interconnections alone
conld provide a feasible solution. Scenie Hudson pro-
posed a combination of S10 mow of purchased power with
gas turbines, However since the gas turbines in. this
combination would not be used to eenerate spinning re-
serves but to take on the load, the Commission found that
this alternative wonld not serve the principal funetion for
which the Storm King project is designed:
“In view of the assumption inherent in this succes.
fon by Seonte Hudson that the gas turbines world
12. The New York Power Pool consists of the Upstate New
York System and the Southeastern New York Companies (SFNY).
The Commission estimates that the seasonal exchange between these
two world amount to SOQ nav in 1975 taking INtO accouNe te r-
quirements for maintenance of generating capacity. Another 463 mw:
could be secured from the New England Power Pool and the Penn-
svivania-New Jersey-Marvland Power Poo!
‘
1971 Opinion Al7
not operate as a spinning reserve, the spinning re-
serve would have to come from the purchase sources
if this alternative is to be comparable too Corntall.
According|y this possibility cannot be deemed reliable,
since such purchases would not be available in’ the
event of a separation, the very time they would be
most needed.”
The Commission also examined the possibility of al-
ternative sites for a pumped storage project. Ax the
Commission points out, none of the petitioners offered
any evidence on possible alternative hydro-cleetric sites.
However, both Con Ed and the Commission staff conducted
extensive surveys to determine if such alternatives existed
within a hundred mile radius of New York City. Detailed
studies for five such sites showed that they would be more
costly and less reliable than the Cornwall project. All
of them would require the construction of long trans-
mission lines. Fer example, the Bashbish site. in| New
England, would require a transmission system of between
32 and 56 miles, with attendant effects on the surroand-
ing land, as compared to the 9.2 miles of overhead cor-
ridor planned for the Cornwall project.
In its examination of alternatives the Commission con-
sidered their effect on air pollution, notse pollution and
the overall environmental situation. Nuclear energy was
found by the Commission to be the method of generation
of electric. power involving the least polution. However
since nuclear energy by itself ix inadequate for peaking
purposes, the effect on air pollution’ must be measured
with relation to gas turbines. operating either as part of
a nuclear-gas turbine system or operated partly loaded
as spinning reserve. The Commission pointed out that the
peaking energy generated at the Cornwall project is itself
pollution free. Whatever pollution results from the oper-
AI& 1971 Opimnian
ation of the project will be camsed by the plants whiel,
supply the power for pumping the water into the reservar,
As the Commission said. ‘tif the energy necessary to puip
Cornwall comes trom polhiting power plants in New York:
City that would otherwise be idle. little or nothing weld
be gained in reducing the air pollution problem.’ ‘Phe
Commission coneluded, however, that “water for Cornwall
Will normally he pumped by use of electric enerey Prom
non-polluting sources 20-2 0 The Commission believed
that construction of the Cornw: all project ay perknit st
nore rapid replacement of old red: tively ineflichent stem:
electrie plants with large nnelear plants. te during: the
early vears of the projects operation. because punpine
would take place during off-peak hours. he. at might.
“cleanburning” natural eas would probably be available in
amounts sufheient to meet a laree part oof the Cornwell
requirements.
The Commission pointed otit that proposed olternatice
methods of meeting Con Ed’s need for power, aa they
foo require construction of new facilities. worded have an
overall impact on the physical envirofiument similar to that
to which the opponents of the Cornwall project are object
ing.
“Still another approach to weighing ‘alternatives to
the proposed action’ from an environmental «1: cunid-
point is to compare. the operational consequence te.
the envirnoment of the Cornwall projeet with similar
consequences which would result from any reasonable
alternative project. We conclude that none of the mot
hkely proposed alternatives, ineludinge an all-nuclear
unit or the mixed nuclear and eas turbine eombina-
tron, could be sited within 100 thtifes of New York City
with any less physieal i Mmpaet on the environmental as.
pects of the affected area than the Coruwal] project.”
(ae ng
[ue 1 Opinion AVG
I}. The CORSE ration cf vealiupeal POSOUTOCOS, thie t cine
vance of natural beauty. and the preservation of histori
sites.
The Conniuission gave extended consideration to the en
vironmental aspect of our remand order. Testhnony was
taken from ‘ta veritable ‘Who's Who’ offconservation. eneh -
witness discussing a different facet of ths esoterie and
subjective matter.’ "Phe Commission said: §*fO}ur con
clusion that the license inst issue does not rest upon any
discounting of the case made by the, intervenors relating
to the natural beants. historieal siguitiesnee. and ~rirituad
quabties of the Stort Wing Mountain in its setting.’ Hts
essential finding in this regard was that the Coriwall
project, as modified by the Commission to make any struc
tures not buried ‘tas unobstrusive as ingenuity ean make
them,” constitutes ‘tno real impairment of the enviren
mental and seemie aspeets of the Hiehlands.”’ :
The original plan for the project provided for a power.
house that would be SO-per cent underground. The project
licensed by the Connuission, now calls for the powerhouse
to be completely underground. While in an aca visuall:
part of Storm King Mountain. the powerhouse wonld mot
be under the mountain itself but in the Village of Corn
wall ton a small river-bottom foothill’? Seenie Hrdson’s
witness Vineent J. Seully. professor of art and architee
tire at Yale University, although he wes opposed to other
features of the project. stated that the underground power
house itself did not ‘tenter into the problem of visual rela
tionship.”" The external features of the powerhouse sits
would all be located below the cut of Storm King High-
way on the mountam.’ The only features on the tpower-
house site whieh would be aboveground would be the en
13. The highway crossed the mounten at an elevation arvine
irom 260 feet to 280 feet. The height of Storm Kine \ountain
L3d3 feet.
A220 1971 Opinion
trance to the underground plant, an access road, and the
teilrace. ‘The Commission said “that ‘the land) surface
above the power station will be planted and as mueh of the
existing growth as possible preserved."
The tatlrace and abutments would be located at. the
river’ edge, in an area partially occupied at present by a
decided] y unscenice railroad bridge. The tailrace would be
OS feet Jong, with a vertical rock cut rising from 10 to 22
feet above the river. At the east end of the tailrace the
Visible height of the cut would be at most 20 feet above the
existing railroad bridge. At the west end, the cut would be
completely obscured by the existing bridge. The Commis:
sion pointed out that the ‘*planting of vines on the rock.
face behind the tailrace would further serve to ameliorate
the view from the river.””) With respect to the effect of the
construction of the tailrace on the view of the mountain,
the Commission said:
“The tailrace would be located where the river-widens
above the gorge and. curves west by north, above the
powerhouse. From the bank directly across the river
the distance is 4000 feet. Because of the curved shore-
line at- that distance, at the river Jevel there would be
no direct view of the tailrace.”*
The tailrace and the vertical ent would not, therefore,
destroy a seenie, unspoiled view of the mountain. They
would in large part be hidden from view by existing man.
made structures or natural phenomena. The seenic impact
of that part of the tailrace and cut that would be visible
‘are to be evaluated not in terms of the number of square
feet potentially visible but in terms of the entire visible
panorama. The total area that would be occupied would
be minuscule in proportion to the total area encompassed
within a viewer’s peripheral vision. The Commission could
1971 Opinion ; A2lyw
: ; * = a
reasonably find that with the rivér in the foreground and’
the mountain majestically rising 1343 feet behind, the tail-
race and the vertical cut would not seriously impair the
mountain’s séenie aspects.
oh one Commission found, in sunnnary, that:
“seein the external features at the powerhouse site
.to the portal entrance, tailrace, and access road, total-
ling approximately 3 or 4 acres——out of Stor King’s
total of over 400 acires—-should reduce to a minimum
the visual impact on the scenic vistas of Storm King.
Mountai hoor the Highland Gorge of the Ilud-on Rivér’
and there ‘by preclude any imaterial scenic inpairment
or detriment.”’
The reservoir would not be on Storm King Mountain -
‘itself but behind the mountain from the river about two
tiles south and west of the powerhouse site, on lands owned
In part by the Village of ¢ ‘oruwall and iw part by Harvard
University. ft would not be visible from the river; its
visibility from other points *tvaries in relation to the elev:
tion and distance of the view.’’ From many of the ce
from which the reservoir can be seen various industrial
developments can be seen as well,
The Commission found that. although the 240 aere
reservoir will be larger than any of the other nearby bodies
of water, “tin the seale of the aren it does not reasonably
appear to dwarf the scene. Nor should it be materially
different iu appearance from ponds in the area and thus
should not be deemed incongruous with the present char-
acter of the areal’?
I4. The part owned by Harvard is a portion ot Blick Rock
‘Forest, a 3,700 acre experimental tract of timber About 240 acres
at the cast-end of the forest would be acquired for the project. The
remaining land will be unafiected.
15. The Commission noted that all large ponds in the area are
artificial. .
&
AZ2 1971 Opinion
a
1 respect to the contention that the iM~iede
Walls of Hud, or rock fill, would be e\posed as the reserve y
rises dnd falls, the Cuniniechn Mound that the Wwoek aid
earth comprising ihe dikes would not be out oof character
with the book amd bare ~pots Conon in the Highdamds tore: |
that **(tjhe plantings and ature growth which woubk! ad
here to the exterior and possibly interior surfaees of the
dikes would alsa serve to aMehorate any mtrusion of the
eservoir and dikes on the natural scene.’
The Comission’. erifiersins led to jhe substantial
modification Of thre risen et iernal specks of t
Kal’s original prososal included AM ivformation center and
yewreation aren to hie hoe ied in the Vite nity Ot the Peta Weg
beatin Siie, A liese Peattures were elt Tear “4 iny the Co 1
IESSiOn, Tlic Conn scion approved: the co Pstruetion of
werivertront park sane a ceenie averlook, The park is to Le
buitdi On ihe rock? eceavated froin tive Site oof, ihe power
plant. Jt would be located j Pthat partof the river to
tlee
’ . ,? ry : A
nertil and west of hig project rot to the Shope pes
This 57 acre rath Jones recreational | eity. fo be linked
two bridges io the Town of 4 al le whieh it. will he
fran ferred pen cotupletion, is ia consist of play siren
premie sites, shelters. ane aniary facilities. The sco
overlook is to ceeupy a B6 ere (rae ahutting State Eig!
Way DOW. and would also crehide pieuie sites!) Mie Com
WiESSion Potred hist may Overlook Wott onable ViIsilars to
CNJOY the coonie vietas of the itso River’ ? amet wid]
Ite OF th we hundred and- forty acre to dhe ecqtured bv Con
ore over POA acres us fy he (reasterred to the Palicaibes lnierstate
Park Commission coy TeChCaAlLION Use °
IY. This secords with the findings of the New Paylond- ae
York Inter-Agency Conimiittee, Report or the Ney England
York Reston, Su! region “E™ (Hudson River Basing, O99¢d, ae
printed as Sen. Doe. No, 14, S5thi ¢ Con: Ist Sess, (1957 y) which
recommended tor the Eludson River. Gorge “2. . establishment of a
systém of highway waysides 2 2. to make avatlabie, im a safe
manner, ihe scenic vistas of the countryside.”
en 1971 Opinion ALS
not -crtousty or substantially imipinge on the’scenic historic
or oHVivontoenial qualities of the area.’
The Comintssion heard extensive’ testimony on the
elect of the project on historic sites in the area. There is
no record that any event of historical significunee -took
place at Cornwalbor on Storm Ning Mountain. Constitu-
tion dsland and We-t Point, and Forts Clinton and Mont:
watery, Which are at Bear Mountain considerably below
the project site, ape dhe Closest reus of -historieatl iapor
tance. The project S1fe is del vistble froin either (Consti-
tion island or West Pott. iowever, Coustitucion Istand,
Wirehe has the best preserved res oat onary rortitication im
the biietidanmas, wil] be Visible Prone Tlie proposed scene
overlook. None of the parties has offered any speeifie
rebuttal to tie Cotmission’s conelusion that °*the project
will not cause the destruction of any historical sitet!
Phe Uirust of petitioner’. arguments is that the prin-
cople of preservation Of scene Westy perriits of ne itru-
sion at all into this area and that. therefore. ne power
Plant, No inatter how innocuous, may be built. This is
Clearly ao policy detémuination whieh. whatever nav be
our personal views, we do not have the power to impose
oon the Coumission, The Commission has complied with
IS. The propriety of the use by the Commission of the findings
of the Advisesy Council on Historie Preservation, set up by the
Historie Preservation \et of 190,16 ELS. C. § 470 1 (Supp. 1971),
Is the subject of some dispute. The Advisory Couneil found that
plans for the project would have a “minimal sdverse effect” on the
scene values of theeares, Petitioner Scenic Hudson contends that
the Couneil’s finding is not only contrary to evidence but also that
Hoought not to be considered by the Commission beeause Scenic’
Hudson did not participate in the deliberations of the Council while
the Commission's staff did. The Commission ruled that it had a
Statutory obligation to consider the report. We need not) resolve
this minor issue since the Commission stated that its “tinding is made -
on the basis of record evidence, independent of consideration of the
findings of the Advisory Council, Which simply affirms our conclu-
sion.” ‘
A2+ | 1971 Opinion
the terms ‘of our remand by giving eareful and thorous)
consideration to the impact of the project on. the enviren-
ment, The conclisions it has reached are supported by .
substantial evidence.
¢". The Asheries itt strow.*
In our remand order, in mld tional te requiring further
cons.deration of the overall cnvironmental impact of the
project, we specifically directed the Conmission to ‘take
the whole fisheries question into consideration before theeil-
ing whether the Storm King Project is te be Pieensed.”
Scenic Hudson, supra at 624. We had in mind the allega-
lions of fishermen ’s croups that the project threatened to
destroy the exes of the striped bass whose major spawn.
ing grounds. they niatintained, are in the imtnediate vieiwity
of the project. and ‘that ‘ne sereening device prescntly
feasible would adecuaiely protect these enrly staves of lich
life’ and that their loss would Uhimately destroy the ero.
nomicaliy valiahle fisheries.’ dd,
* The Coniinission look official notice of ile report of the
Hudson River Poliey Counnittes ontitbed “Endson River
Fisheries Investigations 1965 1808." whieh was based Hpeon
a study sponsored by the New York Sate Conservation
Departivent and the United States fish amd Wildlife Serv.
lee and conducted under the teld dlreetion of a borhgriel
wiviser of the Pnited States Burean of Sport Fisheries.
The ** Litlson Rover ish ries luivestizations** erti-
cluded that
oo. the eviddenes imblentes that there weotghd not he
AMY -leMiheant adverse ctteets to the striped bas and
American shad fisherics of the Hisisou River from a
piinped storage generating plant at Cornwall, New
York. mp:
1971 Opinion Al)
The Policy Committee’. study lends strony support to
the views presented by a number of witnesses at the hear-
ings do the effeet that the spawning erounds of <i riped bass
extend from locations at river mile 35 to river mile 122.
and that these spawning «rounds are, in the Conunission's
words, **not consistently more faverable in one location
than another.’ The Contission found ‘that bass spawn
substantially im the Hudson River over an SO ib. reveh,
including the Cornwall area, and that no part thercof js
distinguished as a major spawning area.” :
The ck Viees originally proposed to protect the fish have
been redesigned to afford zreater protection, Referring to
the testimony of a fishery biologist from the Comin <<ion
staff, the Commission said:
“. . . that while the mortality rates of fi-h, ‘ish ewes,
and larvae inhabiting the water whieh will be Urawn
through the screen and the plant cannot be measured
short of actual mewsurement during project operation,
in his own opinion the losses to the fishery eaused bey
the operation of the project would not innificantly
affect the Hudson River fishery re-ourees.""
In order to cotpensate for the lo~s of fish resulting
from the operation of the proposed plant. Con Ed proposed,
and the Conmmis-ion approved, construction of a fish
hatchery,
The Commis<ign coneluded :
* Witnes-~ Hine "s fear as to what might or eould
happen are counterbalsnerd by testimony based on
-_— a — a —
{Se sir . Sen tnt oer
IW Scenic Hudson's witnes<, Raney, testified :
“Anything that man does is ~ublstantially opposed to nature Sy
Ho you build any sorted a structure vou will have situations which
are not tound naturally in the environment so here ven: have an
additional situation where vou Sanens Galen genes dam fester «ci
A2b IFT Opinion
sampling studies whieh relating eee producing CUpacity
of the -triped bass te volumes of water in plant opera
tion indicates that the impact on Edson fishery would
Het he substantial "Phas even if mene of the fish and
recs at Cornwall survived, the total apaed World he
smmallh The evidence, however, ts te the effect that ue
sueh disaster would befall the Coruwall seciuient,
aes, larvae and fish entering the pean? would hinve «
-ervivnal rate on the aren of So peroeent. Furtier,
hatchery operations elsewhere imdieate the Pensiledity
ef an operation in the [ndseon whieh would be cupniile
of replacing any losse~ ottributable to the project
i). Ths ~ “ne thet aa le utactes eet wrele rye frees.
ase atTT | | we - adeoust the Oe eseberinte disedonuntages |
ve lerhe “ routiad proble wis,
° Tn complisnee with our mandate, the Comission
Vestisaited the por--ibidity of com=tructinesthe tran<inas- on
lines of the project entirely underzround. The Coruintiss on
Weighed the obviou- ae-the-tie mivantace of undersround
(rau~mi--ion aA~ aainst it. econemie amd functional .is-
adiVantace-, :
The evidener shows that puttine the transmission fines
undersroumd wend cont -ubstantially more than having
thet overhend. Bhe Commixsion = staff estimated tuni cons
sidering beth cou-truction andl mnintesanee costs, under:
* ground lite~ weled be approximately 15 ties as expensive
a= oFerient fue. The Conminission explained that:
artificial impoundment, egg. drawn up, larvae drawn up, po sly
thirty specie. upem which they ieed. So it is a very cOmipic sted
itt-the-~ te try to evaluate the overall effect this will hove Put
iavteally the effect will be harmiul to the fiche.
! think anything that affects any substontial number oi eyes.
larvae, voung or adult, could ultimately have a substantial e‘ect
ona fishery. But the degree of the effect | don’t know ”
1971 Opinion ‘ue
‘The relative costs of undergroundine cou de pipe
cated Trem the fact? that the problems intecent in
‘
crmbsiuaittimge power underorreuid iui hid: va] re Del is
not simply aimatter of putiine an overlond transiuis
on tine, whieh is coereiy atm Tasnlated pleco of
i etal conductear, Mtoe sw Pred in. Phas pels Dees a Ts fers!
Miheige and condenser cor capa tances} efjcet reer
PP. Ee i? dere round Cnte - hy ctdh Ceti 1 ly ditterewt ~ prec .
al equipment, ie
The Commission cited a number of technolovieal factors
that result in higher labor and material costs for under-
grounding. Underground cable requires a tvpe of insula-
tion which can he applicd only by highly <killed labor,
Transmission of power by underground lines presents prob.
lems which can be solved only by the installation of large
magnet-type coils.every 2 to 3 miles. Various other expen-
sive techniques, such as intricate splicing, are needed to
meet other problems presented by the electrical snd thermal
properties of underground lines.
The Commission found that there were functional ais-
advantages in underground cables. Although overhead
lites have more outages, there en venerally be inimediate
wutommtic reclosure with no disruption of service. Outages
in underground cables, on the other hand, result in consid.
erably greater disruption of serviee ince the failure must
be located, the damaged area exenvated, and complicated
repairs made.
The Commission, balancing the several factors which
are invelved, concluded :
“Thais thus apparent that only tor the most cogent rea
sons, as where no fensible alternative js possible or
Where the aesthetic detriment is so violent as to pre-
A28 1971 Opinion
clude any consideration of overhead transmission fxcil-
ities, that undergrounding should be required.
Nor do we believe it is in the publie interest to burden
consumers with the cost of undergrounding cables wn.
less it-were necessary to prevent such destruction or
serious damage.”’
The transmission route which is now approved is differ.
ent from the route challenged before this court in 1965,
The new route is not the route preferred by Con Ed, but
is a modified route developed by the Commission staff,
Although it ix 5 to 6 miles longer than the route proposed hy
Con Ed, it would require 4 miles less of transmission eor-
ridor because it uses a greater length of the existing Pleas-
ant Valley-Millwood corridor. The alternative route was
selected because ‘tit will impinge less on the area throuch
which it} passes than would any other route.’ The area
traversed is ‘trough, wooded and hilly. More inportantiy,
its valleys lie ina north-easterly direetion and are oriented
so as to provide the possibility of locating lines below
erests.”" The wooded nature of the’area will provide natural
screening. The Commission found that ‘tthe area will re-
main what it is now-—-scenie and pleasant, with open farm-
land and orchards and partly wooded with some brooks.
To say that this will be seriously damaged or destraved
by an overhead transmission line is not consistent with
“0
reality.”
— rr ee | ee
20. Con das required by the leense order to follow recognized
guidelines tor the construction of overhead transmission limes. \r-
ticle 35455 of the Commisston’s license order includes the guide! ies
contined in the Hudsom Valiey Power Commission's “Power [ines
and Sceme Values in the Hudson River Valiey.” In addition, Con
Ed is bound by the Commission’s Order No. 414 which pre-criles
general regulations forthe “protection and enhancement of aesthetic
wnd related values in the design, location, construction, and operation
of project works” (35 Fed. Reg. 18585 (1970) ).
1971 Opinton A29
Since the Commission's conclusions on this issue are
based upon consideration of all relevant factors and are
supported by substantial evidence, they eannot be rejected.
Bi. The Catskill Aqueduct.
The issue of possible danger to New York City’s Cats-
kill Aqueduct Was not involved in the earlier proceeding. It
is presented in the new application because of the change in
the Cornwall project to provide for construction of the
powerhouse completely underground. As a consequence of
that change the powerhouse is to be located at its closest
point a distance of about 140 fect from the Moodna Pres-.
sure Tunnel, # link in the Catskill Aqueduct system. The
Catskill system is one of three systems that supply New
York City with substantially all of its water. Twenty -odd
communities in upstate counties also have the right to, and
do tap the Catskill Aqueduct.
The city contends.that the Cornwell project interferes
with its control of the Catskill Aqueduct and is therefore
precluded by Section 27 of the Federal Power Act. 16
U.S. C, § 821 (1964), which provides that:
‘Nothing contained in this chapter shall be construed
as affecting or intending to affect or in any way to
interfere with the laws of the respective States re-
lating to the control, appropriation use, or distribution
of water used in irrigation or for municipal or other
uses, or any vested right acquired therein.”
The argument based on Section 27 is without merit.
The license that the Commission has issued does not author-
ize Con Ed to divert any of the city’s wate: or to interfere
with the tunnel. Moreover the ‘‘only purpose of Seetion 27
is to preserve to holders of state-conferred water rights a
right to compensation if those rights are taken or destroyed
ASO. - 1971 Opinton
asian imeident to the exereise by another, of a license granted
by the. Commission.” Portland General electric Co,
Federal Power Commission, B28 F. 2d 165, 176, & no. 23
(Mth Cir, L9G), citing City of Fresno rv. Califontia. Srp
US. C27, 628-30 (1983) and Lrunhoe lrrigqation District
MeCracken B47 US. 275. 2b (1908), both of which invelved
the very similar language of Seetion S of. the Reclamation
Act of 1902, 43 UL SL CL as ¢ (1964) Scetion 27 was not
Intended te vive the city the power to veto Commission
action, a
The Conunissien coneluded that excavation of the
powerhouse site would pot cause damage to the Moodna
Pressire Tunnel, that controlled blasting during construe
thon Would not endanger the Aquediet snd, wenerally, thisat
“the probability of damage to the Aqueduet is remote.”
We think that there is substantial evidence-in the record
lo support the Commission's determination.
The Comunission found that the rock underlying the
project ‘tis a very large mass of dense nniferm ervstalline
rock underlain by sedimental rock capable. of sustaining
ereat loads.”* The city contends that.on the contrary, in
stability of the reck at the Aqueduet site can be deduced
from a failure of the original Moodna Tunnel in 112 and
by the phenomenon of ‘popping reek’? encountered in
construction of the tunnel. Towever. the evidence <ioy
that the failure of the original Moodna Tunnel was dee te
excessive water pressure and insufficient reck cover. TI
tunnel Was corrected by construction of an alternate <je?)
and has opersted for a period of over SO years without
2t. That statute provides:
*%\
thing in sections . 2. of this tithe shall he construed a
ing or mind d ote aidect or te MY Way interfere with th
moaauiy State or Territory relating to the control, appropri st
use, or distribution af water uscd in irrigation, or any vested
rights acquired thereunder. . 2 2” 43 U.S. ¢. S883 61904)
1971 Opinion AS
untoward incident. The Commission found that ‘{t]he
phenomenon of ‘popping roek? occurs in rock of this area ’
only at depths below 1,000 fect,’? far below the depth pro-
posed for the Cornwall project.
Although witnesses for the City testified that stress
changes caused by the powerhouse excavation and by
blasting might present hazards to the Aqueduct#* other
Witnesses seriously disputed these contentions. Smith, a
consulting geologist for Con Ed, testified, as the Com-
mission said, ‘that he could conceive of no possible con-
dition in this area which would make the proposed plan
Sree from a geological point of view.’ Dr. Bartlett
. Paniding, Ir. Associate Professor and Acting Head of
= Basic Engineering Department of the Colorado School
of Mines, who was retained by Con Ed at the suggestion
of the City, testified that the effeet of excavation on the
aqueduct would be insignificant. Dr. Paulding, whom the
22. ‘Vorrts Eide, cons sultant engineer te the Chier Engineer of
1
> New York City Board ot Water Supply testified that the remova
a igh rte cubie vards 0} ak myglit disturb the equ! apis Wa thie
terees Within the rock formation, and thus present a vies to the Aque
diet However, fe had conducted na Reologic or ic tests ot the
ated. Thomas bluhr, engineering geologist snd comsultiaat tao the
New York City Board ot Water Si Upplr estiGed t hat the rock in the
area appeared te bo ounder stress. He stated" Wtyh re ak ature o
the squeduct cannet be regarded as imminent bur tt pr Cats
dk finity hagard.” Tle conceded that the risk was small, but stated
hat “there certainty is some risk.” He ton had made nea survers
hevond general mathematic al studies. Malelom TL Wane. Associate
Professor ot Mining and Engineering at Columbia University, testified
for the city that he found that a. vertical stress relief af 14¢¢ ond a
horizontal stress relief of 1G would result frome excavation. He
did not know what effect such changes would have since the present
tate of equnthbrium ot the Aqueduct was tear n. Don W. Deere,
Prides’ my the Department of Civil Engineering and Gseelogy at the
University of Hlinois, testified that there were too many unknowns
to permit evaluation of stress chanees. He believed that “there w:
asnmll but real risk involved te the present aqueduct because -of the
changes in stress and other activities associated with the construc-
tion of the project at this site”
~
A382 1971 Opinion
Commission described as ‘ta geologist. and gedphysicist
speclulizing im rock mechanics,’ concluded, in the Com-
mission ’s words
“that the absence of adverse geological conditions,
coupled with he results of a photoelastic analysis of
the stress conditions around rectangular openings .
indicate that the existing Catskill. Aqueduet will not
he endangered”... during . . . excavation for the
power plant.”"
Similar testimony was affered by Charles P. Benziger
who based his conclusion on low stress éonditions at the
site as shown by seismic tests in drilled holes at the point
Where the power station is to be located.
The Commission’s conclusion that blasting would pose
at most a remote possibility of damage has ample support
in the record. The city’s own witness, Don V. Deere, testi-
fied that it was ‘possible, but unlikely that. blasting, if
restricted and properly controlled, will’ cause damage to
the pressure tunnel."" Another of the city’s witnesses,
Maleolm T. Wane, testified that the effects of blasting are
somewhat conjectural. Con d‘s witness P: tulding testified
that the Aqueduct would not be endangered if. blasting
charges were limited to 55 pounds per charge. The Com-
mission's conclusion that properly controlled blastins
presented at most a ‘tremote’* danger is not seriously
challenged by the eity. :
Itiselear that the resolution of highty complex techno-
logical issues such as these was entrusted by Congress
to the Commission and not te the courts. Where the
Commission's conclusions are supported by substantial
evidence, the courts must accept them. It seems to us
that it would be very diffieult indeed to argue that. the
evidence supporting the Commission's determination with
1971 Opinion A383
respect to the Aqueduct in insubstantial. In facet the argu-
ment presented to us on this issue appears to be either
that some higher burden of proof should be imposed with
respect. to the matter or that the city <hould be able to
exercise what, in effect, amounts to a veto power. However,
there is no authority whatever to support the imposition
of any greater burden of proof than that provided in the
statutory standard and ‘*[sJuch a veto power easily could
destroy the effectiveness of the Federal Act. It would
subordinate to the control of the [city] the ‘comprehensive’
planning which the Act provides shall depend upon the
-judgment of the Federal Power Commission or other
representatives of the Federal Government.’” First Lowa
Hydro-Electric Cooperative v. Federal Power Commission.
328 U.S, 152, 164 (1946) (footnote omitted).
III.
The only remaining concern is the allegation that the
Commission failed to comply with certain statutory di-
rectives.
The first of these statutes is Section 10(a) of the Fed-
eral Power Act, 16 U.S.C. ¢ 803(a) (1964 & Supp. 1971)
which provides: :
“9 803. Conditions of license generally.
All licenses issued under sections 792, 793, 795-818,
and 820-825 of this title shall be on the following con-
ditions: ;
(a) That the project adopted . . . shall be such as in
the judgment of the Commission -will be best adapted
to a comprehensive plan for improving or developing
a waterway or waterways for the use or benefit of
Add - . 1971 Opinion
Interstate or foreign commerce, for the improvement
and utilization of water-power development, and. for
‘other beneficial public uses, including recreational
purposes; and if necessary iv order to secure such
plan the Commission shall have authority to: require
the modification of any project and of the plans and
specifications of the project works before, approval.”’
This is the statute upon which, to a large extent, our
earlier remand was based. In our opinion we said that the
phrase “recreational purposes’ undoubted} encompasses
the conservation of natural resources, the maintenance of
natural beauty, and the preservation of historic sites.’
Scente Hudson, supra at 614. We directed the. Commission
to consider all of these factors in reaching its decision.
It is obvions that in finding compliance with our. re.
mand order, we also find compliance with the statute on
Which that order was based. As we have pointed out, the
Commission has given careful and thorough consideration
to **reereational purposes,’* and, indeed, has used its ‘tau-
thority to require the modification of [the] project’? ina
number of aspects related to this end.
There is no real dispute as to other findings required
by the statute. The Conmission found that there avould
be no impediment to navigation, that use of the Hudson
River for eleetric generation by this project is ‘well
adapted to development of the waterway for the use or
benefit of interstate or foreign commerce,’ and that. the
project will net interfere with any future program for the
river since it will discharge no chemical, thermal or solid
pollutants into the waterway. In short, the Commission
has given full consideration to all of the statutory factors
and has thus performed the ‘specific planning responsi-
bility’? entrusted to it by Congress in Section 10(a).
1971 Opinion + ABS
-The petitioners also claim that the Commission has
violated the National Environmental Policy Act, 42 U.S. C.
4821 et seq. (Supp. 1971). This Aet was paren “bafter ~
close of the hear ing. but before the Commission's decision?
-Its appheability to this proceeding is clear, and is con-
ceded. See Zabel v. Tabb, 430 F.2d 199, 218 (oth Cir. 1970),
cert, dented, 401 U2 S.910 (1971). Section 101 recognizing
the eritical importance of réstoving aud maintaining
environmental quality to the overall welfare and develop-
ment of man’? requires the federal government. to
“(b) 2. . use all practicable means, consistent: with
other essential consideratiois of national policy, to im-
prove and coordinate Federal plans, functions, pro-
grams, and resources to the end that the Nation may:
(4) preserve important historic, cultural, and natural
aspects of our national heritage, and maintain, wher-
ever pa@ssible, an environment which supports diversity
and variety. of individual choice;
(Oo) achieve a balance between population and resource
use Which will permit high standards of living and a
wide share of life’s amenities 2... 27° 42 UL 8
© 4581 (Supp. 1971).
. Section 102 of the Act, $2 UL S.C.) 4532 (Supp. 1971),
requires agencies of the federal government to take certain
preseribed measures. .
The policy statement in Section 101 envisions the very
type of full consideration and balancing of various fac-
tors which we, by our remand order, required the Com-
mission to undertake. Like our remand, the Act does not
require that a particular decision be reached but only
23. Vhe Act became effective January 1, 1970. .
A36 1971 Opimren
that all factor. is fully explored. The eventual decision
still remains the duty of the responsible ageney.
The Commission has complied with the specifie diree.
tives contained in Seetion 12 of the Act. The hearings
reflected the **systematic, interdisciplinary approach’’ re-
quired by that section. The Commission consulted with
other agencies, as required by Section 102, including the
Chief of Engineers, the Advisory Council on Historie
Preservation, the Department of the Interior, the Atomic
Energy Commissien and a number of state and focal
groups that stand to be affected. The environmental state-
ment required by Section 102(2)(C) of the Act, 42 U.S.C.
© 4332(2)(C) (1964), was submitted in the form of the
Commission‘s opinion. In view of the exhaustive environ.
mental findings which occupy a substantial portion of the
Commission's opinion, and the Commission's explicit eon.
formance with the enumerated portions of the required
statement, we conclude that full compliance with the Na-
tional Environmental Policy has been demonstrated.
IV.
We-do not consider that the five years of additional in-
vestigation which followed our remand were spent in vain.
The petitioners performed a valuable service in that earlier
case, and later before the Commissjon. By reason of their
efforts the Commission has reevaluated the entire Cornwall
project. The modifications in the project reflect a height-
ened awaresss= of the conflict: between utilitarian and
aesthetic needs. Whether the project as it now stands
represents a perfect balance of these needs is not for this
court to decide. Since the Commission has fully performed
the duties and responsibilities imposed upon it, it is our
obligation to deny the petitions in all respects.
1971 Opinion A37
Oakes, Coretit Judge (dissenting) :
If this case came to us without environmental overtones
and with no threat to the water supply of the largest city
in the United States, 1 would be constrained to take the
viewpoint of the majority. For, whether or not I agreed
with the weight given by the Federal Power Commission
to alternative sources of power, such as the purchase of
Canadian energy,’ the court would be conclusively bound,
1. The FPC finding. on the feasibility of purchasing, rather
than creating, power are net entirely consistent. Finding &2 savs in
pertinemt part:
If the energy necessary te pemp Cornwall comes irom pol-
luting power plants m New York City uaa would otherwise be
idle, inte or nothing would be gained in reducing the air pollu-
tion problem. Based dn the assumption that Cornwall would go
mto operation in 1972 a Safi study mtroduced in evidence
showed that by 1980) approximately 89 porcent of it. pumping
requirement could be met by virtually non-polluting sources of
generation. Cormwzi]. to the extent that its water is not pumped
by power from Con Ed tea coor aneclear plants will be powered
primary from semrces in areas adjacent to the Con Ed service
area, and perhaps by imported Canadian hydroelectric power
Finding 134 sav. im pertinent part
Another considered alternative to the Cornwall development
1s the pessilality ot purchased power from Conada, namely from
Churchill (Heanetitens Fallk project. now under construction
tobe © proper source of power supply, the energy from Canada
weld have to be taken substantially 24 hours per day: other-
wise this weld mot be an cconomtic source * The transmission
distance invelwed and the relatively high coast of transmission
actives makes Churchill Falis power comparable to lose load
nuclear power or bese lead mine-meuth pewer or other sources
of base lead power ontside ot New York City. rather than an
alternsiiwe to the Cornwall development. There ts no indica-
ten when. ever, Churciali Falls Power might be available to
electric systems outside of Canada. In addition, there i. no as-
urance that nm wonld be available upon system separation
t had heen reported thar on July 30, 1971, “dedication cere
momes” were held tor « 345 KV transmission line linking the Cana-
dian New Brunswick Power Commission with twelve investor-owned
and two cooperative New England Utilities, with a power transfer
capalality of GOO megawatts. The imtertie nuns 230 miles southeast
irom Frederickton, New Brunswick. to Wiscasset. Maine In its
ARS 17] Option
both under Section 2 2(b) of the Federal Power Act. 16
ULS.. | S251¢b). and the euse law, ¢.g.. Gainesville Utilj.
ties J) v Yr. Florida Power Corp. 91S. Ct. 15902 (197 1), by
finding~ supported by ** substantial evidence.’ partic ularly
When the Commis<ion ix acting within its own field of
“expertise and judament"* Gainesrille, Sapra, 91S. Ct. at
10S. Wt is alse true, of course, that the eourts cannet
quarrel with the Congressional poliey impliedly expressed
in Secti Ties A ame ooh! of thre EF. the ral I’ ower Act, that puts”
Steat emphanis on adequate servier” 16 U.S. Clo S24.
the **eost of veneration ©. .°* smd “the development of
havigation, industry. commerce, and the national defense.”
1G6ULS.LO. § 83555
ir-t 2D ebay = ot pet tiems i iramaantted SAsen00) KRAVE oi igo veal
md pe heme cinetey. hier Coumadin imten CHL Tiegs~ total al
SP NEW. topcase 28) MW tee Neve York med Michi.
Pabitc Poser Weeks New ret. FP. i + Putas. G, W973. ce 5
i ts rh ae | Py Sige ls) Beste Tau em o. Bi oan ee. teat
aed Metooverm isnreelac sf S| 2°25 ball ¢ ea
pets t wri em. the umderiving ome et whack wa j pry
first sdhicancedd bev tie tter of mpedern con ry tiem, Cavermr Cethad
Pinciet ot Ment-sivani dn the con®~ or Road med Kepre an
tive Terman’ remark- on tle eanpenion Phare Pill (HL ROUT)
te satd
Cdnls woth a eaten 7 gsid fet? at We ae attre Cl Amer
athe jrante awd rel: let tppiy “al “ectrn prover. An j-k] ui
CMA Of herw the mate ari rrtel « azad ww ‘anpit | thi ., ‘wth
thee SOUR eater siewtage wie track New York Cty can West),
tho-in Fleettic Power Ceamersctine im Nertie Dok ae. tome yi
the Eureat at Keclinition and Sti-sani Pe We Svetine wired
Com oitebited Edli-om im New York to sev that they wind rhb Oe
elie the power New York maxded Tig ey retained aia,
hemever. Sere thet. wi. ne way te tran the Power icum
s
sewths Phuket 2 te New Vert: fbb sc aneticonal etm exissedd. cits
jerser woatid fove ree te odbhs avaible te de en: rey-srarved
pen, Us Come Ric MEGS eahaiiy od beds 20. 247]
2 “ectee I en the Fedke-ra! Power Act le S.€. gR24,
dees teat speak ot eom-ecrving wc od ch etrics emerge. a proltes which
Com Tdhtcdt Fei~ an the applicant bere. i at kev prerticdiy prin esau
with its 197E “save A-Watt™ sadeerts ine Bin Deer Nor abu
Sectem 312, Mets C E8755 1d lime wks tiv itn tigater, .;
inforamtion-gathering function of the FPC) in anv Way rer to
171 Opinion A3Y
On the other hand, Congress has now placed a measure
of respon-ibiity with the PPC. and the other federal
agencies, to take environmental factors into account. The
= ™ - - oe ~ —_ — a eo - ee — oe -
conservation oot the environment. We are lett with Congressional
pateytideriving the Federal Power et that is rend to assume that
ainre electrical needs wail mecrease and that the only way to meet
Hic iy ta comstruct mere and more pomerating capacity. This ts an
stmnpttun that certainly bears re-examination [sce Po Ebrlicli & ;
Holdren, “The Energy, Crisis.” saturday Review. Angusi 7, 171,
4 30), and one which cmomaticaliv—in the prescm state of the
WTR ATE INV a Consnpiton of depletable iatural 1
“LITE comin, mature! tea uramume. an adverse Wipat Of one
seTtoor onether onm-the environment. or mat Tit 170 National
Peser Serves (RPC) Pt TE estimates anal “peak demand * jor
Ue metropolitan New York Cine fewer Uppy aren at 7350808)
Kilowatis m1 1900. 13,3000000 mm TOSO and 21.160,000 in 190) cdo
H-1-S. amdoom thas bast. ome could argue for perp. three or four
Storm King projects. Tite same report makes refercnce, Inter aio, to
the proviems on gtr pollution trom coal-fired plants, Ad. at [1-1-19:
depletion of on ; and ; sas Teserves, id. at P-1-19, 27; thermal pollution
by nuclear poumts, dat did 48 c tuermal discharges & meraliv, id... at
1-1-4: ash di: post. sind micear iuel disposal id. at [- 138. See
Inu Sarvacka, "The National Power Crisis and lis | Raect on Kurs!
America,” Kurs! 1! ectrification, June 1071, ap 135 M. Katz, “Deci-
sion-withing in the Production y: Power,” Sefentific American, Sept.
87d, at 11.
» See Counei on Environmental Quality, Environmenta! (uality
‘The second Amiusd Report 25-26 ¢ Aug. 1971). ae 12 of the
eee Environmental Policy Act Of 1969 ("NEPA"), 42 U.S
§ 4321-47, directs “all agencies of the Federal Govern” to
(Ab mtilize 2 sy-temuatic, interd:-ciplinary approach which will
insure the Inte RTE ted use of the naturs! nd sockal sciences and
the emvironmental design arts in p! anmming and im decision making
which may have an impact oa nxai’s environment -
(1) identify and develop methods and procedurc-, in const:
tion with the Council on Environmental Oualitv esta ished be
ttle Poor this Act, which will insure that presently unqualifi a
environmental amenities and velues may be given appropriat c
consideration in decision-making along with ecomomiic and tech-
nica! consider: ition:
(C) melude in every recommiendtion or report on proposals for
legislation and other major Federal actions significantly atfecting
the quality of the iuman environment, a detailed stetement by
the responsible official on
A40 . 1971 Opinion ;
~_ —--=- —-
(1) tie enviromental impact or the proposed action,
(My amy adverse envirommental ctfects which cannot be
avoided should the propesd be mplemented,
(Mt) alternatives te the proposed action,
(twa the relations inp between focal short-term uses of anai’s ”
enviroment and the nkuntenance and enhancement of long-
term productivity, and
(vio any irreversiile and irretrievabie commitments of re-
sources which would be imvelved in the proposed) action
should at be implemented.
Prior t making any detatiod statement, the responsible Feder!
officiad shai consult with amd obtain the comments of any Fed ral
ageney wiuch lias jurisdiction iy law or special exp: ‘Tlise with
respect to ony environmental nnpuct involved. Copics oc such
Statement ond the comarnts and views oi the appropriate Icd-
eral, State. and jecal agencies, which are authorized to dev op
ea enierce environmengal standards, shall be made availible to
the President, the Connecti on buvironmental Quality and te the
pul Hie as provided by Section 252 of title 3, United States Code,
wad Saal aecompany tht proposal through the existing ageney
review Prucesses ;
(1D). study,* develop. and describe ppropriate alternut've. to
recommend: dl cant Ml THA IN any propeasal which mveves
unresolved Mitel. comcerming aitermative uses of savariabd
resources | | SC BAZ 5
The efficacy ot tits Net ors in barge port ec spethe on the deciston m
the tstant cise; as Schrocd-reputs 2 in Pollution in Perspective A
Sur eet or the Feecberal keftort said tie (A pare bot tat gee
é, Natura! Resources lawyer, 38] Lf) 4 “Apri 1714 Sie hey qt S-
tion ahead ts whether, ater i aneing ali pertinent considerations,, an
administrative decistem t. made vist provides for les. than tall en-
ettoeeele nit a Lae Ries whether thet deet-tonm will he upheld ce ies
lenged 1 the ecourts° Ttis mteresting te note, alhtough P plece litte
sigmificanee om ot here. thot ata ae on the calaciainannts eon
Envirommnents! Cmoity Coutrel ot the ABA Committers on Enviren-
mental Chiality. the As-ttant te th ¢ Teerman ot the FC strémionsly
criticized NEPA opoting a former AEC uitermey Wie termed NEP \
“AM cst Teaciestts. pies ie lenge? treaty ccs Wigs beteee ee sige
“anonvitation te fetedion ” and expre sine the hep “review yi
courts will take a practical spproach” amd the tour thet ih constone
the statute cs a ragd preseription ot the qu lity or pantity ot evidence
required would quickly ortpple the “slniinistrative process Atnex
A, Minutes of Meetmp 14, 19 | April 2h 7971. Tay what extent
this genninely reflects this agencs’s atutude towsrd NEPA, howe eer,
is doutattul ene naught hope that Conere- tom concern with the US.
environment might be given more respect by the Commission as a
whole.
1971 Opinion , Ad]
FPPC also has its own duties, <pecitied in Section 10(a) of
the Federal Power Act, 16 UL S.C. > S0S(Ga), to issue a
license to use Water power only When the project will be
best adapted for ‘beneficial publie uses, including recrea-
tional purposes.” And indeed as Judge Learned Hand
onee put it, although in reference to agency interpretation
at stututes :
; In spite of the plenitude of discussion in recent years
as to how far courts must defer to the rulings of an
administrative tribunal, it is doubtful whether in the
end one ean say more than that there comes a point at
Which the courts must form their own conclusions. Be-
fore doing so they will, of course—like the adminis-
trative tribunals them-elves—look for light from every
quarter, and afier all crannies have been searched, will
vield to the administrative interpretation in all doubt-
ful eases: but they cam never abdicate. Niagara Falls
Power Co. r. FPO, 137. F. 2d 787, 792 (2d Cir. 1943).
[take it also that we eaninet whliente When the Conim:ission
falls **to make fimdinegs or evaluate considerations relevant
lo dis adeterpapisetion. ” Graliee sed’ ltiliiies Lh pel te. Florida
Porer Corp. sepia SP S.C at Lats a. 7s aad see Schatier
Transportation Col vr. baited States, 355 UL S. 83 iLieng):
Neer Maid: ial L’r See retin (Cloalereuce ¥. i i é it aE 2 i
Hos (2d Cir, }ittip), corte dead, 3M4 t.S. G4 rs ee St
larly of the aeeney tindines are internally inconsistent, the
court is net hound te aeeept them. Of. Gallick oe. Bollimare
€ Hea RoCa.. 372-t. S&S: 1Gs, Pi «len: Teleu Curry. ii
Balch O82 PL 2d 201, 205 osth Cir, 1967): Freiabimaas, Lu
Matford, VT F.2d SOL SSS (Sth Cir. 1955): Wiliaws ec.
United States, 126 FL 21 129, 182-88 Tth Cir) cert. denied,
MW UL S55 C142). Finally, while judicial deference te
AdZ 1971 Oprnion
adwinistrative expertise is required, not every agenes
expert at every aspect of science, technology, aesthetics o
luinan behavior, Of. Cuirersal Camera Corp. o. NLRB
0 UL S474 46 (1991): see Le. datte. Judicial Control «
Adumnistrative Netion S76 ef seg. (1965). As Professo:
datte has said. **. 2. expertness is not a macie wand Whiled,
ean be indiscriminately waved over. the corpus of ay
ageney’s findings to preserve them from review.’ Jd. ys
O15: see also 4 KK. Davis, Ndiiinistrative Law Treatis
— HULOG C1958).
With these considerations in mind, f dissent. | dlissen
because T think the PPC acted arbitrarily, abusing its dis
cretion while purporting to act under the mandate of. this
———— In Neewiec Hudson, Supra: heeause its findings tn re.
speey to the Cat-kill Aqueduct are inconsistent and. in.
sony, a beeiuise tts findings as te the effect of the Project
upon New York City air pollution are incomplete and. tal
to take cite account! relevant factors: and because the Con |
miss ons find ne- and: conclusion. show that at) has not
really followed the mandates of the National Environments
- Poliey Act of 1969, Pub. Leo1-1s0 (Jan. 11970), 42 US.
C* g251-57.
| The City of New York has pointed out. in Opposition to
the Peense eranied by the FPPC, that the Storm King (-ome-
Tinces eadled *“Cormwall’’) project powerhouse js Proposed
too toe Doar dt only HO tect from the Moodnea Tunnel section of
the Catskill Maueduet. This aqueduet is one of three sve
tetas supplying water to New York City. It is a gravity
flow aqueduct «ver 50 years old, CONVEYING approx innately
40 per cont of the city’s average daily Water supply from
the Ashokan Reservoir, 100 miles north of the city to the
Kenusico Reservoir, 12 miles north of the city line, Those
Who ieay remember the effects of severe drouchts in the
1940°s and the 1960°s on the New York City water supply
1971 Opinion ALS
must renhize the importance of such avast quantiin of water
to the city, and imagine the corse quences of tts disruption!
The Moodna Presstire Tunnel besins at a downtake
shaft some five tiles westerly of the Plud-on River. set in
the rock of Storin Wine Mountain. Lined with eonerete, it
tunnels through the mountatn cto am elevetion of iaimus 220
fect until it is M00 feet from: the rivers there it descends to
an elevation of minus 616 feet to the river. Fro: thi- print
water continues to flow under pressure at PLO feet below
the Hudson River through the tluidsom Pressure Tunnel
and then comnmects toca uptake shaft om tho censt side ef
the River, surfacing at Breakneek Ridge. ‘Phis wile
plex of tunnels by whieh the Aqueduct crosses the Ebudson
is known as the Moodna Hudson Breakneck Pressure Pun
nel. Tt has had a continuous water How sinee it broke aawn
and Was repaired im TTS .° consequently it has not been
Inspected sinee then. dna ttpressure™* tunnel. lwdrostatie
pressure is constantly qiaimtaived. Phe Citwy aware oi the
risk to its water supply froo: drilling. im ite deed of Stormin
Kine land to the Pahi-ades Interstate Park Conmimyis Tom, ine
cluded a protective covenant to ban drilling within 20 fect
of the Agueduet.” When Conselidated Mdison first proposed
4. In addition to New York City, some twenty-four smeadier com
mumintes tap inte the Caiskill Aqueduct. Any of those towns witch
rely on it exclusively. tor water would be perlisps more s Thetisiy ch-
dangered than the City by any damage to it.
>. Atter the completion of the Aqueduct in 1913 there was con
derable leakage in the No. 7 downshait leading to the Prdson
Tunnel, apparently attributable to the ¢ombination a: hydrostatic pres
sure and “relief of stress” in the rock surrounding the tunn 7.) fl:
tunnel had to be “dewatered” and a new shaft (No. 7A whieh he-
passed the trailed section was drifled to correct the situation.
& Waereas, the Board of Estimate of the Citv of New York
authorized a grant and conveyance to the Palisades Intorstite
Park C
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