# Petition for Writ of Certiorari — Scenic Hudson Preservation Conference v. Federal Power Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0810%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 407 U.S. 926 ## Text “- 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 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 ittutneslintc sted bene tone ef. fects, aml not merely the encineering amd tay cation aspects.” i App. S31). The Cotumi 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 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 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 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 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 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 Commission, of the fee of the City-owned land hereinafter de- scribed . . ’ Ad4 1971 Opinion in 1963 to Pauild a powerhouse some 175 fect from the Aque. duct the City objected and in the original’Consolidated Bi li son project turned down in Scenic Hudson. supra, the Pro- posed powerhouse was moved some 400 feet to meet the City’s objection” At the hearings below the City presented two eXperienced ene ieers, Professor Matheolin , Wane, With experience (nimine design and rock mechanies and with mine failures die ie stress conditions, and Dr. Don g Deore, a professor of engineering and seology faniuliar with the raajer pulp storage projects at Yard's Creek, North. field Mountain and Churehill Falls. Dr. Deere comeladed, on the basis that the Consolidated Edison exeavation would eatise an estimated S12 per cent inerease ino tangential stresses at the top and bottom of tie tunnel and a deeresse of 00 per centon the sides, that there is ta small, but real” risk to the Aqueduet from the project. Dro Deere pointed out that the degree of risk is unknown: Moreover. considering for the moment that the precise tiagnitude of the stress chakees around the tunnel were accurately known, the effect of these Stresses on stability of the tunnel lining and adjacent rock, te. the factor of safety, could still not be deter: Wiined beeuuse neither the strength of the lining in its Subject to the following conditions, covenants and restric- tlons . 1. The City of New York retains a permanent. sut-suriace casement to operate, maintain, and repair hte Catskill Aqueduct which, at thts location, is approximately “400 feet below the suriace. >. Driliing of any kind is not permitted to depths greater than 200 teet below the present. suriace. ¢. When Consolidated Edison came up’ with its presently pro- posed project the City rather slowly moved to intervene and. the FPC reopened the proceedings to ‘take evidence on this project. Presumably we should not penalize the City for its delay on this, an 1ysue Of mountainous importance. ; 1971 Opinion ‘ A45 present condition nor of the adjacent jointed and frae- tured rock mass.is even approximately known. Deere, W224, 18,007-78.° He was Jomned in this conclusion by Dr. Wane: One of the outstanding features of the whole problem lack of ~pecitic knowledge of what exists at this site... [since] we do not know unvthing about the state of nature in the immediate neighborhood of the aqueduct. Wane, 124/18,550-51. Consolidated) Edison's chief witness, Dr. Bartlett Paulding, a geologist who had done no work on tunnels or underground excavations, testified that on the basis of a ‘‘photo-elastie’* technique his estimate of radial stress changes around the Aqueduet resulting from the power- house excavation would come to only 11 per cent, and that this meant that the exeavation would not significantly affect the existing Aqueduct. Paulding. 112 17,2083.) Professor Wane, signifieantly indicated that the photo-elastie method, while sound as far as it goes, only accounts for the unload- ing or Vertical effect of exeavation. not for the horizontal effects. 1 do not take it that there is any particular FPC ex- pertise in geology, and particularly the effect of unloading, that is, relief of rock stress by excavation, on pressure aque- duet tunnels. In answer to a question on oral argument along this line, the FPC assured the court that its staff had some knowledge and expertise. [f this be se. one may wonder why the commission did not follow the ree ommenda- tions of ifs staff that ‘tan appropriate precautionary meas * References are to volume page number of the transcript of the hearings A446 . 1971 Opinion ure should be undertaken by the Appleant to exclusive of UNV aecess road This locmtoon, its tiie COMMS S1On concedes, is on 4 smal! niverbottons foothill which is visually a part of Sterm Kine Mountain . st The mountain mav ‘swallow’ The projeet, but the comercte tailrace and abutiienhts, as lone us vol ~i7en] toothed sticdiunmy over an eivhith of au 28. binding 11 2) Finding 18° 30) Finding 150 ob 1971 Opinion mile ane three stories high, will surely be stuck in its craw. ; The second potnt witet tips the seales for reversal, l bedieve, is the COnlMLESston s breatioeni of envis: nitteental imipatet, a treatment required under the National Environ. mental Poliew Act of be co NEPA YS) Phis Net requires ‘sal aueneies to “timeliade in every PeCOMMmieMGalion or report om... giher anager bederal aetions siumifiesntly afOetine the quality of the tune enviroment, a deisiled statement" on: (ip tite cemwiretititial cape’ of the perepesed wetion, iit) ienis miver-« enviromental effect. whieh all- Lieel bie evertadea strestahel hie provepmrscal lee itispeletsiesn eed, ‘aint cebtecrnaetivess ter thee ED | uetion, EN) thier vecdaal peony tip lee Peony bevecel ~heorl-terii: ses cf biete = eV aPeottcett ced the oaittemanes cad en hianectient!t of dome torn prreekuetyy wy, cetiel (Vv) amy arreversithe and irretrievabie connuit- rents of reseuree- which wenld be involved in the peopene! action -lenld ci be iiplemented. Section l(c), ASUS MO B20 a") (a )- ep. In a overs reg) setae lhi- Neto i- a lecislative Persp rotine te ned etrlesdinient of the far -iehited nd siecntiiestt New wr Hudson deci-ion of this court “ where the commission wis directedl in suai Thay ~* words to ctimetinde asa basie eon. St; Peete. 1. 08-09, AS Sat, 452, 42 1S «OA oe 204 a oe 2 Seen Pieadoom. da pisemig: a pesttrce tespemabdlite on PEM tee Cetnsteder efavireaetitilly ebiteaeiag cltermotiwes, Lid fetaniedations Steer thee cbeligectiogy ter chews ope olterigative. tmperaed in NEPA Coamen om Bavtrentiental Quel lis aud \s Report ltAd \ug On ~ ~—- 1971 Opinion ADT s cern the preservation of natural beauty 54 BL td ar old, and to give proper consideration to ‘the totality of a projects long-range effects “td. at 620, The cottuisston property aneluded a series of eight Hdings. ! sll Is) purportedts denn: with NEPA, even thongh the reeord had etosed bereore the Net beewre otfec- tae. dm oimen-aring these dimdimes cand other findings against the Act te detertuime whether they eonstitnie the detatheed Sce ctsa Finding is Lamiting the external fatures at the powerhouse site to toe portal entrance tailracc. and aceess road. totalling appronr., mietely Sor 4overess out Storm King’s total of over 40 aercs hom reduce tee menimum the visual impact on the sconie Vistas of Storm king Mountain or the Highiand Gerge of tli Hud-on River and therels prociade any material se onic MaApaaT ment or detriment, See also Commission Briet p. So. Hotent of a scone Wikherness area -albeit with -ome pom intrusions and some present fairly easily rehabilatable J faccment-—to a massive, if partially hidden, power tro ture, is te beg the question of entironmental preservatics The extent to which the commision has in thi« Proceed ing too readily rubber stamped Consolidated Edison "s plan is imbieated by its authorization of an alternative projec within Palisndes Interstate Park. The commission over ruled its own examiner in thix regard and*the choice of » alternative, site flies in the teeth of the Park Compact the the lands included within the Park **shall be ased only for public park purposes."’ 50 Stat. 719, Section 2. It would seem that the specific authority of Congress needed for the development, transmission or utilization ¢ power within the limits of a national park. See 16 U.S.C {P90 (a)." Citioens to Preserve Overton Park, Ine. + Volpe, 401 U.S. 402, 413 (1971), speaks of *‘the few gree havens that are public parks,”’ albeit in another connection | would protect those **few gteen havens."" See Scray Hudson, supra, quoting former Federal Power Commis sioner Ross: . [1\t appears obvious that had thix area of the ** Hades Highlands" been declared a State or National park. that is, had the people in the area already spoken, we probably would have listened and might well have re fused to license it. 345 F. 2d at 614-15. ® . . . (N}o permit, license, lease, or authorization for dom». conduit... Te» » Power houses, tramaninston limes, oe other ' works ter surage of carriage of water. ot for the devcloper st. transtetston ot utilizaten of power withen the limit. “a am national pork of monument shall be granted or made withee “poets autherity of Congres. Comgreetemal approval od the Pliades Iitertate Park Coenpoct \s fewdutes om Angus 19, 187 (50 Stat 71%) would sean “args « the Compertt to the status of federal legidaane. Metty 2. Tommeswe lee sown Bridge Comm'n, 359 U.S. 278, 278 (1959): Delaware Row Jomt Toll Bridge Comm'n v Colburn, 310 P. S. 419, 427 (190) 1971 Opinion Al This being the vwr-agll erris: «% « ut = | wh, ad Pw er Jaume 1 @ Jj Petree ayer tht the Siow ly opm Pw Weawsthas ws steel tow lect dows Sqed ate! creisebted in te Cecventix va 2 > ; tim te wea, wee ar meeel “Ne ase mer f ig nok Ge te 3 vee fhe Canttee 3. OS ogee. oremng te bh the Cranemb ” Trt o Awcemdbg: te platis presented te the Beders ; han th tee parngesaygy getereter umt. ward Ip ci Oe operctem ono nd-I8 and the remaming*five m 1s = Phestewer, the goth: maght lee even whler at comers. tramper tale) peetls, S@Ocs= Peants, er potmt~ of an anal echoract- fs \~ bus alee dy Leon netted we are net new concerned with t ordi ad Oltaber 4, "19603 in which the Commission esteblished 1 O\act route ce? the transmission lines and the width of the right d-wa | . uit 105 Opion AGS be recarded a the equivalent of ~tored electric energy: in effect, Consolidated Edison wi-he- ta erente a hace -terage battery ot Commwall See Federal Power Comimi--ien, Nu- tional Power Sarcew W021 (1964). The Storm King project has areused grave concern anon conservationist groups, adversely affected munici paalities cad variods state amd federal lewi The New Yeork fears Uege-intewe Ceanmttee ot Natoral Re wertees held) hearings om Newermder 2? and 2) Pd See Mrelom mury Keqeert et the femt Lege! tine Cosmetics on No tours’ k warces, Che the Hudson Rrewr Ualley and the ¢ casei deed Pdas Compeny Storm Aaa Verntain Porject (iesned Feheaary te. es heretmatter cned “Prelim ye Report”) The Fish ond Wildlite Servier ot the Department co the intern and the New York State Comseriation Department have exposed comcem obeat the effect et the project on the fi-h tre on the Peds See Part IV aafra Numerous conservationist group. hove imterests themeriys. mm th preject. ond meunv of them filed formal petithars te intervene bcter the Commits tem Afp 1965 Opitniran cluding seenie beauty, this application should jy denied." If the Commission is properly to discharge its duty in this regard, the record on which it bases its determination must be complete. The petitioners and the public at large have a right to demand this completeness. It is our view. and we find, that the Commission has failed to compile a record which is sutiicient to support its decision. The Com. mission has ixnered certain relevant factors and failed to make a thorough study of po 71a et seq), was the outgrowth of aowidely sapported effort on the part of conservationists to secure the enactment of a complete scheme of national regulation which would promote the comprehensive development of the nation’s water resources. Seo Federal Power Conin nv. Union Electric Ca. S81 CLS. 90, 9S 99 (1960): Ferst lowe Haudro-Electric Coop. +. Bed- eral Power Comia’n, 328 U.S. loz, ISO (1846). . See gen. erally Cushman, The lids pendent Requlatoru Commission, 275-283 (141): Pinchot, The Long Stragqale for Effective Federal Water Power Legislation, 14 Geo; Wash. L. Rev. 8 (140)." 0 Tt tt was passed for the purpose of developing % The Supreme Court has noted that “The movement toward the enzetment of the Voi 126 nin said to have taken ats Kovnote from: Pro sdent Rooseve os Vote or alaii whieh would have turm d over to private imtere ts imperium power sttes on the Raw River * federal Poser (omen 2 (wen Eleciric Co. SST US 9 OS 9 ns TT 195) Vresidemt Roosowe't’s vertu me age rene: “We are now at the beginminig of prent development im water power. Ji~ u- thirenggy) t electrical trans nisston el rs ner and more largely ime every clement ot the daily bee a tly people. Already the evils of moneapuly ure ae MMM MANES: ; wready the experi nee on the put shows the mecessary of cnaution in meking unrestricted grants of this great power.” 42 Cone Rec. 4598 (1908 ; Sec alse President Roosevelt's veto of the | mes River ial. Hf. RR. 17707, OOth Cong., 2d Sess. (10081. cote message. 43 Cong. Rec. O78 (1909): President Roosevels letter appointing the Inland Wor _ wars Commission, 42 Cong. 6908 €1908). which read in part “Works ck signed te comire’ our waterways bave thus tar ws: rally ~ been undertaken fora single purpose, suc has the IMprovement ot navigation, the development of power, the irrigation of arid bund-. the protection ot lowlinds from floods. er to supply water for demestic and manuiacturing purposes. While the rights of the people to those and similar uses of water amst be respect d. th time has come for merging local projects and use. of the intend waters ina comprehensive plan designed for the benofit 0° the entire country. Such a plen should consider and include all the Ats 1965 Opinion and preserving to the people the water power resource. of the country.”" United States ec rel. Chapman vo Federal Power Comm'n, 1 BF. 2d 796, SOO (4th Cir, 1951). afd, 345 UL S.158 (1993). Congress gave the Federal Power Commission uses te which streams may be put. and should bring tegether and coordinate the pommts of view of all users of waters * . * ° * “| The plans of the Commission shoitld be formulated | in the light et the widest acknowledge of the country and the people, and from the most diverse pots of Yew ~ 185 Opinion A6Y modifiestion of any project and of the plans and spee- ilication~ of the project work- before approval.” ( Emphasis added.) **Reereational purposes” are expressly ineluded among the beneficial public uses to which the statute refers. The phrase undoubtedly encompasse~ the conservation of nat- ural resources, the maintenanee of natural beauty, and the preservation of historic sites.” See Namekagon Hydra Co, yr. Kederal Power Comm'n, 216 F.2d 509, S1L-1z (7th Cir. 154). AL of these **beneficial uses.”* the Supreme Court has observed, **whilt unregulated, might well be coritradic- tory rather than harmonious.“” Federal Power Comacn e. Uniow Electric Co., 3S1 UL S. 90, 98 (1965). In licensing a project, it ix the duty of the Federal Power Commis-ien properly to weigh each factor. In recent years the Conunission has placed increa=ing - emphasis on the right of the public to *‘out-door recrea- tional resources." 1965 F. P. C. Report 69. Regulation issued im 1963, for the first time, required the inclusion of a recreation plan as part of a license application. F. P. C. Order No. 260-A, amending © 4.41 of Regulations under Federal Power Act, issued April 18, 1963, 29 F. P. C. 777, 28 Fed. Ree. 4092. The Commission has recognized gen- erally that members of the public have mght- in our ree- reational, historic and scenic resources under the Federal Power Act. Namekagon Huydro Co., 12 F. P. CO. 208, 206 (1954) (‘*the Commission realizes that in many cases where i eee 1G. The clear intention of Congress te emphasize “recrestional purposes” i. indicated by the tact that subsection (4) was anended m 1935 Ly substituting the present language “plan for mproving or developing . . . inchiding recreational purposes” tor “scleme of improvement and utilization ter the purpose ot navigation, oi water- power development, and, of other beneficial public uses." Senate Rep. No. 621, 74th Cong., ist Sess.. page 45 stated that the amend- ment was intended to add “an express proviston that the Commission may include consideration of recreational purposes.” ATO 1965 Opinion unique and most speci gypes of recreation are encoun. ‘tered a dollar evaluation is inadequate as the public interest must be considered and it) cannot be evaluated ade. quately only in dollars and cents’). In aflirming Nine. Kagow the Seventh Circuit upheld the Commission’s denial of a license, to cn otherwise economically feasible project, because fishing, canoeing and the scenic attraction of a “beautiful stretch of water’? were threatencd. Nave ha qoie Hudro Co. v. Federal Puwer Comin ‘a. 216 F. 2d 509, 511-1 . (7th Cir, 1954). j . Commissioner Ross said in his dissent in the present | ease: {Pit appears obvious that had this area of the ‘Hudson Highland." been declared a State or National park , that is, had the people in the area already spoken, we prob- ably would have listened and might well have refused to lieemse it." . I]. Respondent argues that ‘petitioners do not have ~tand- ing to obtain review” because they ‘tninke no claim: of an, personal economiv injury resulling from the Conunission’s action. *” Section S130b) of the Federal Power Aci, 16 U.S. ©. ~S25/(b) reads: a an “(b) Any party toa proceeding under this chapter aggrieved by an order issued by the Conimission in | such proceeding may obtain a review of such order in — the United States court of appeals for any circuit Wherein the dcensece or public utility to whieh the order relates ix located. . re The Commission takes a narrow view of the meaning | of “aggrieved party” under the Act. The Supreme Court] has observed that the law of standing is a ‘tcomplicated specialty of federal jurisdiction, the olution of whose prob- a aes + sae 1965 Opinion A71 Jems f= in any event more or less determined by the specie circutistances of individual situations. . 2 .°° Uviled States ex rel, Chapman (. Federal Power Comm'n, 345-U. 8. lo. 166 (1993). Although a *tease"* or ‘teontroversy * which is otherwise lacking cannot be created by statute, a each ot tour Lroups, concerned with fishing, peti- tioned for the right to intervene and present evidence, They wished to show that the niajor spawning wrounds tor the distinct race of Hudson River striped bass was An the immediate vicinity of the Storm King project and not ‘‘muech tarther upstream’ as inferred by Dr. Perl- mutter, the one expert witness called br Consolidated Edison; to attenipt to prove that, contrary to the impres- sion given by Dr. Perimutter, bass eges and larvae tloat in the water, at the merey of currents; that due to the location of the spawning ground and the Tudson’s tidal How, the eges and larvae would be directly subject to the Influence of the plant and would be threatened with de- struction; that “tno serecning devieer presently feasible would adequately protect these cariv stages of fish life” ~_ — —_—— = -_--+—+-+--- a ne ee ee ———————— York, where there is just as much or more resson te put tiie trans- mission nes underground as there ws here.” Lhias appronch is unacceptable, i. wh Case must be pudged mm its own merits. “The area invoived here is an area of “yang as Commissioner Koss noted in his dissenting opinion 1965 Opinion AS9 and that their loss would ultimately destroy the economi- eally valuable fisheries. Their evidence also indicated that in the case of shad, the young migrate from their spawn- ing grounds, down past Cornwall, and being smaller than the meshes of the contemplated fish screens, would be sub- ject to the hazards already described’ The Commission > and seemingly placing great reliance on the testimony of Dr, Perlmutter, concluded : rejected all these petitions as ‘tuntimely,’ J J; ‘The project will not adversely affeet the fish resourees of the Hudson River provided adequate protective facilities are installed. ** Although an opportunity was made available at the May hearings for petitioners to submit evidence on protee- tive designs, the question of the adequacy of any protective design was inexplicably excluded by the Commission, Recent events illustrate other deficiencies in the Com- mission’s record. In hearings before the House Subcom- mittee on Fisheries and Wildlife Studying the Hudson River Spawning’ Grounds, 89th Cong. Ist Sess., May 10, 11, 1965, Mr. James McBroom, representing the Depart- ment of the Interior, stated: Practical screening methods are known which conid prevent young-of-the-year striped bass and shad from. being caught up in the [Storm King] project’s pumps, 25. The Committee concluded : “The Hlad-on River is a spawning ground for shad and striped bass. A multi-million doliar fishing industry, both commercial and sport, has been built on this process of nature 2.0. Thi Joint Legislative Committee 0.0. goes on record as being un- titerably opposed to the grunting ot Con Ed's appheatton, until such time as there is definite, impartial and conclusive proot that the project will not have an adverse effect on the fish lire and spawning process upon which the fishing industry depends for it liveliheod.” Prelininary Report ¢ AQ9O 1965 Opinion but practical means of protection of eggs and larva stages have yet to be devised. : Furthermore the location of the proposed plant ap. ‘pears from available evidence to be at or very near the crucial spof as to potential for harm to the overal) production of eggs and larvae of the Hudson River striped bass. The cumulative effect of unmitigated loss of eggs and larvae of striped bass by this power project could have a serious effect on the Hudsor River striped bass fishery and the dependent fisheries around Long Island and offshore.*’ Mr. k. L. Cheatum, tepresenting the New York Stat: Conservative Department, gave similar testimony. At the May hearings the testimony of Mr. Walburg and Mr. Wagner, witnesses for the Department of Interior, and Dr. Raney and Mr. Massmann, witnesses for Scenic Hudson, was substantially to the same. effect. Indeed. the Commission in its October 4 order acknowledged that the protective device to which it had previously referred favorably (March 9 order) ‘‘may not be adequate to pro- vide the protection, required’* (October 4 order). On remand, the Commission should take the whole fisb- eries question into consideration before deciding whether | the Storm King project is to be licensed. The Commission should reexamine all question’ on which we have found the record insufficient and all related matters, The Commission's renewed proceedings must- melude es a basic concern. the preservation of natural beauty and of national historic shrines, keeping in mind that, in our affluent society, the cost of a project is only one _of several factors to be considered. The record as it comes to us fails markedly to make out a case for the Storm King project on, among.other matters, costs, public convenience ‘and necessity, and absence of reasonable alternatives. Of 1965 Opinion A991 course, the’Commission should make every effort to ex- pedite the new proceedings. Petitioners’ application, pursuant to Federal Power Act § 313(b), 16 U. S. C, § 8251(b), to adduce additional evi- dence concerning alternatives to the Storm King project and the cost and practicality of entergroune transmission facilities is granted. The licensing order of March 9 and the two orders of May 6 are set aside, and the case remanded for further proceedings. AQ2. Order Denying Petition for Review ORDER DENYING PETITION FOR REVIEW. UNITED STATES COURT OF APPEALS Seconp Crrcuir. At a Stated Term of the United States Court of Ap. peals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the twenty-second day of October, one thousand nine hundred and seventy-one. ed Present: Hon. Henry J. Frienpiy, Chief Judge Hox. Patt R. Hays, Hon. James L. Oakes, Circuit Judges. ——— SCENIC HUDSON PRESERVATION CONFERENCE, PALISADES INTERSTATE PARK COMMISSION, CITY OF NEW YORK, THE SIERRA CLUB AND ITS ATLANTIC CHAPTER, THE WILDERNESS SOCIETY, THE IZAAK WALTON LEAGUE OF AMERICA, NATIONAL AUDUBON SOCIETY AND NATIONAL PARKS AND CONSERVATION AS.- . SOCIATION, Petitioners, v. FENERAL POWER COMMISSION, Respondent, AND CONSOLIDATED EDISON COMPANY OF NEW YORK. INC., TOWN OF CORNWALL AND VILLAGE OF CORNWALL, Intervenors. — Order Denying Petition for Review A93 Petitions for review of an order of the Federal Power Commission, This case came on to be heard on ‘the certificate of record of the Federal’ Power Commissicn and was argued by counsel. | On consideration thereof, it is now hereby ordered, adjudged and decreed that the petitions be and they hereby are denied in accordance with the opinion of this court with costs to be taxed against the petitioners. A. Danteu Fvsaro, Clerk. AM Order Denying Rehearing ORDER DENYING REHEARING. WOOTG-TS, SSGS3 & S5G88-9. UNITED STATES COURT OF APPEALS - Secoxp Cirevrr. SCENIC HUDSON PRESERVATION CONFERENCE, er at... Petitrone rs. v. FEDERAL POWER COMMISSION, Respondent Petitions for a rehearing containing a suggestion thy the action be reheard in bane having been filed herein br counsel for Seenic Hudson Preservation Conference, the Sierra Club and its Aflantic Chapter, the Izaak Walton League of America, National Audubon Society and Na.ione ‘arks and Conservation Ass‘n, The City of New York, anc the Wilderness Society, a poll of all the active cirenit jude having been taken, and a majority for rehearing in hane pe having been obtained, it is ordered that ERO ot (Wl Tes. rpyrcat fos rs. i, toend Fr. 2 foth Cir, Te): Wilde rie cs Sov'a Waele, ~ F. Supp. SS ch. Fk ¢". 170). tik) Cases in whieh an imianet on was denied: The rnc! Kenloag © AEC. 422 Fob 524 Oe OL Cir 1970) Theria! NEPA Cases AST Eeology v. AEC. 2 ERC 1405 (7th Cir. 1970); Brooks +. Volpe, 319 FL Supp. 90 (W. DD. Wash. 1970) :-Daeckleian +. Volpe. 2 ERC 1082, 1 ELR 20045 (NX. DD. Cal. 1970); Arley. fon Coalition i Volpe, oo r. Supp. 11s ( EB. 1). Va. 71 ie Citizen's to Preserve Foster Park +. Volpe. * ERC 1081, 1 ELR 20380 ON. DD. Ind. 1971); Daly rv. Volpe. 326 F. Supp. sos (WL OD Wash. IST1) UeQueary ¢. Laud. 3 ERC liso (DD. Colo. 1971): teen ‘ounty Conservation Assn. r. Hansen, 3 ERC 1208, 1 ELR 20562 (W. 41). N.Y. 1971); Pennsylvania Envicronwental Conneil vo. Bartlett. SWF. Supp. 25s (M.D. Pa. 1970), afd. 3 ERC 1421 (rd Cir. 1): Seerre Clah v, Hard, 325 F.Supp. 08 OD. Alaska 71): State Commun. to Stop Senquine ¢. Laird OV F.Supp. HH CW. DD. Wis. 1970).. tc) Miscellaneous sage eases: Edgy or, Velde. 451 F. “1 1130 (4th Cir). rer?’a S21 PL Supp. loss (EL DL Va. Wt); Upper Pecos Assn. vr. Stans, 452 F. 2d cia (10th Cr.) afq 328 F. Supp. 332 (DN. M. 1971): Zabel r. rai. $50 FL 2 1998 (oth Cir. ITO). cert, denied. 39 U, L. Wo 3860 (1971): Businesswen for the Publy Sad. rest Resor. 3 ERO 1216 ON. De TL 1971 ): Eeho Parl Residents Comm. nr, Ranney. 3 ERC 1255 60. DD. Cal. 1971) 2 Delawar \ Peunsylrania N,V. Central Transp. Co.. 2 ERC 1355, 1 ELR -20106 (D. Del. 1971): [raat Walton Leaque >. Macchia, 2 ERC 1661 (C. N. 0. 1971): deeak Walton Le aque r St. Clair, S18 FL Supp. 1272 0D. Minn. 1970): Lloae Harbor Study Group. luc. o. Seahbora. 2 ERC W3s0,1 ELR AOR NEPA Cases | 20Iss (EL DN.Y. 1971); Northwest Area WRO v. Volo | 2 ERC 1704, 1 ELR 20186 (KE. D. Wash. 1970); VRDC > & TVA. 3 ERO 1468 (8S. DN.Y. 1971): United States +. Brookhaven, 2 ERC 1761, 1 ELR 20877 CE. D. N.Y. 1971): United States v. Moretti, Ine. 331 F. Supp. lot (S. D. Fla. 1971): United States v. 247.37 Acres. 3 ERC 1099 (S. I). \ Ohio 1971). No. /1-1219 Separate appendix to petition NOT PRINTED. ee ti le | , . IN THE = ; : Pn sak Supreme Court of the United States | OcToBER TERM, 197] ' cet —~> ; NPP KD ? No. 71-1219 SceNiC PHtpsox PRESERVATION CONFERENCE} Fab ick tf : Petitioners, —Vv.— FEDERAL Powrrk COMMISSION, CoNSOLIDATED Epison Company: or New York, Inc... cf al., Respondents. —<>-—_ No. 71-1220 Thue Crry op New York, Petitioner, — KepDERAL Power COMMISSION, CaNSOLIDATED Epison Company or New York, Inc., ct al. Respondents. ~~ No. 71-1221 True Sterka Chen anp rs ATLANTIC CHAPTER,. Petitioners, —, aa FEDERAL Power COMMISSION, CONSOLIDATED Epison COMPANY oF New York, Inc... ef al., BRIEF OF CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. IN OPPOSITION TO PETITIONS FOR A WRIT OF CERTIORARI Respondents. Camerkon F. MacRar Attorney for Respondent LeBorvr, LAMBS Leiy & Machar Qne Chase Manhattan Plaza New York. New York 10005 Dated: April 25, 1972 + ooo --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0810%3A1. Public record. Not legal advice.