Petition for Writ of Certiorari — Scenic Hudson Preservation Conference v. Federal Power Commission

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

years a2o= * RE EO OER OE a CN

Pee COURT, U. S. 73 - 1990

(40498) | i.

' r

IN THE

Supreme Court of the United State

OcrosEr Term, 1971

THe Criry or New York,

Petitioner,

—against—

FrperaL Power Commission, ConsoLipateD Epison CoMPaNy

or New York, Inc., Town oF CoRNWALL, VILLAGE OF

CornWaLt and Pauisapes INTERSTATE Park CoMMISSION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. Lee Rankin - ' -

Corporation Counsel of the

City of New York,

Attorney for Petitioner,

Municipal Building ©

New York, New York 10007

Peter C. DEMETRI

EVELYN J. JUNGE,

Of Counsel

I Ee =

INDEX

PAGE

Fa ai ernie d nee re ea ROR ae eae SR Rants ae De 2

ition Belew eran

Questions Presented .........02...-....-..e---e-eee- sini Sipescstisieeiee _ =

Pertinent Statutes 2.0220... EBV) Rieiceneeetee, te Te .

Statement of the Case 20.02.0002... RSs asses SEEN 6 4

A. Description of the Project -....20.00.022222eeee eee 4

B. Reasons for the City’s Opposition -...0..0.0.20.......-- 6

1. The “Aqueduct. siidattant diet canes ia sec 6

2. Increased Air Pollution —................:.. 9

3. Damages to the Hudson Highlands Cae

C. The Court of Appeals Opinion ita joensen 10

Reasons Why the Writ Should Be Granted -:....000000....... 13

I. The failure of the Court below to recognize

the Commission’s lack of expertise resulted in

erroneously limiting the scope of its review ...... 13

-A. The Danger to the Aqueduct is Not-a -

Highly Complex Technological Issue En-

trusted by Congress to the F.P.C. ............. . 16

B. The Extent to Which a Reviewing Court

Must Defer to Ageucy. Expertise .................. 17

yh Ayreesiog PPAR apes

FACES REI

ape

ngeomicemaatenyy

SLR DH NAY RMN i tpransnang 29 army ee gen

ea CS a Saas Sn ote: he a eee

NE OT OP ae Fe

7 _

PAGE

II. The Court below erred in finding compliance

with NEPA «.,..-.ccc.0- iiaeoasusbeticnciasaenetaesdaicnacan ciate 20

A. The Commission’s Final Opinion Was Not

a Sufficient -Environmental Impact State-

SIR eeisiachsapaieltttesecrecencaentnntencchdeateeseebiceeco sega 20

L. The Commission’s Consultations With Other

Agencies Failed to Meet the Requirements

oes Poa a 21

III. This license is precluded by Section 27 of ‘the

FE Pe ing ee 25

A. Section 27 Is Applicable to This License ..... 25°

B. Relief Under §27 Is Not Limited to Com-

pensation for State-Conferred Water Rights 26

CONCLUSION .....0...-:.- See Pe eee At Cr hr 28

Ce Bp erneprer gerne doe nc nan ea eR At Us MORE Ren A la

pT aT OR TR PEN NRE PORES 63a

TE ccicctes cece: , SEE SEE eR: 202a

_ APPENDIx D ose nd ON OU ETO TSO EIT TO 205a

Cirations |

Cases: | |

Burlington Truck Lines v. United States, 371 U.S. 156

(1962) .. piieriaioddanaeencdonic pcumubetiie SSE reer 19

Calvert Cliffs Coordinating Committee. v. Atomic

Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971) 24

itl

PAGE

Citizens to Preserve Overton Park, a. v. Volpe, 401

U.S. 402 (1971) ; PRT a ON WER ES oe 14

Consolidated Edison Co. of ine tut v. eel Hud-

' son Preservation Conference, 384 U.S. 941 gilding 2

‘a

Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) eS

Federal Power Commission v. Florida Power & Light

Co., 40 U.S. Law Week 4141 (1972) AS ete re 16, 18

Federal Power Commission v. Niagara Mohawk Power

Corp., 347 U.S. 239 (1954) x 26":

First Iowa Hydro-Electric Coop. v. Federal Power

' Commission, 328 U.S. 152 (1946) ... a 17, 27-28

Gainesville Utilities Department v. Florida Power Cor-

poration, 402 U.S. 515 (1971) ........ ecdicailaasietasinn Oe

Greater Boston Television Corp. v. Federal Com-

munications Commission, 444 F.2d 841 (1570), cert.

denied 403 U.S. 923 (1971) .........-..- 15, 18, 19

Greene County Planning Board v. Federal Power Com-

mission,. Docket Nos. 71- 1991, 71-1996 (2nd Cir.

1972) Seren 13, 20-21

roan Ford & Son, Inc. v. Little Falls Fibre Co., 280

U.S. 369 (1930) _ uns 26

Lathan v. Volpe, 3 ERC 1362 (9th Cir. 1971)... 18

National Labor Relations Board v. Brown, 380 U.S..

278 (1965) Saditekpiincecadeinisieacmamaudedibes 19

' Permian Basin Area Rate Cases, 390 U.S. 747 (1968) 16

~~ :

. Py

ROT RIC Rize sats Cam meeseus — .

cieeieenatinn - SPL HOSMER NIE eres none ieuccohonanige

PAGE

Portland General Electric Co. v. Federal Power Com-

mission, 328 F.2d 165 (9th’ Cir. 1964) oe 26

Scenic Hridson Preservation Conference v. Federal

Power Commission, 354 F.2d 608 (2nd Cir. 1965) .2...° 2

Udall v. Federal Power Commission, 381 U.S. 428 ©

PIO Fai ecaset snccs putt gelato caca gutta enencion alice coined 13

United States ex rel. Chapman v. Federal Power Com-

mission, 191 F.2d 796 (4th Cir. 1951) oe 16

Universal Camera v. National Labor Relations Board,

340 U.S. 474 (1951) ee Ma hale tiated ieecttaoubaats 15

Statutes:

Administrative Procedure Act

Section 10(e), 15 U.S.C. §706 (2)(A)(B)(C)(D) .. 14

Federal Power Act

Section 10(c), 16 U.S.C. §803(¢) vanced O7

Section. 27, 16 U.S.C. §821 o..ecceccceccssoeeceseoe- 11, 25, 26, 27

Section 313(b), 16 U.S.C. §825(1)(b) .. 7 2

National Environmental Policy Act ;

Section 101, 42 U.S.C. §483 oo... cccccccececccceccececceseeeeee 3

- Section 101(b){2), 42 U.S.C. §4831(b) (2) ...---o---e--- 94

Section 101(b) (3), 42 U.S.C. §4331(b) (3) ........--.-- 24

Section 102, 42 U.S.C. §4832 oo. eccceccceceeeees 3,11, 20, 21

Reclamation Act

Section 8, 43 U.S.C. §383 ccccccccccccccclccecssiccsssssseseeee 26

8 U.S.C. §1254(1) cece "coeceerceceenlectennsene 2

IN THE

Supreme Court of the United States

OcTOBER Term, 1971

THe City or New York,

Petitioner,

—against—

FrpERAL PowER Commission, CONSOLIDATED [}pISON COMPANY

oF New York, Inc., Town or CorRNWALL, VILLAGE OF

CorNWALL and Pauisapes INTERSTATE PARK CoMmMISSION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit made ‘and entered on October 22, 1971

in the cause entitled Scenic Hudson Preservation Confer-

ence et al. v. Federal Power Commission et al. in: which

the City was a petitioner. The City supports the compan-

ion petitions being filed on behalf of Scenic Hudsqn Preser-

vation Conference, The Wilderness Society, The Izaak

Walton League of America, National Audubon Society, Na-

tional Parks and Conservation Association -and the Sierra

Club and its Atlantic Chapter.

#3 St SeMreeng Copeman ver 2

Tae TMB MS Myo Sag cee

Asean ROCA

Rlwty

eee

LPOG. CSE SHEE page Dees

5 ‘

far age:

Seer

A POM oN ge Hane

CEPTS PCR IINS Bera REN Cee pe aR

; he Opinions Below

The project which is the subject of this litigation has.

twice been licensed by the Federal Power Commission |

(“F.P.G” or “the Commission”). The 2 to 1 opinion of

the Court of Appeals upholding the second license is offi-

cially reported at 453 F. 2d 463 (2nd Cir. 1971). It is an-

nexed .hereto as “Appendix A” and is referred to herein

as “Scenic Hudson 11.” The Court’s opinion reviewed and

upheld an August 19, 1970 opinion and licensing order

(No. 584) of the F.P.C. which is annexed hereto as “Ap-

pendix B.” The earlier decision of the Second Circuit

which set aside the original license and remanded the pro-

ceedings to the Commission, Scenic Hudson Preservation

‘Conference v. Federal Power Commission, 354 F. 2d 608 |

(2nd Cir. 1965), cert. denied sub nom., Consolidated Edison

Co. of New York v. Scenic Hudson Preservation Confer-

ence, 384 U.S. 941 (1966) is referred to herein as “Scenic

Hudson I.” The orders sald rehearing are found in

“Appendix C.”

Jurisdiction

The judgment of the Court of Appeals was made and

entered on October 22, 1971. On November 26, 1971, the

Second Circuit by a vote of 4 to 4 denied applications for re-

hearing in bane which had been timely filed. The time for

filing the within petition for certiorari was extended by

order of this Court dated February 15, 1972, signed by

Associate Justice Thurgood Marshall, to and including

March 24, 1972. Jurisdiction of this Court is invoked under

Title 28 of the United States Code §1254 (1) and Section

313 (b) of the Federal Power Act, 16 U.S.C. §825 I(b).

Questions Presented

1.. Whether a court properly exercises its judicial fune-

tion when it defers to conclusions reached by a federal

regulatory agency in an area in which the agency is without

expertise. -

2. Whether a final opinion licensing a project, in and of

itself, meets the requirement of §102 of the National En-

vironmental Policy Act that an agency prepare an environ-

mentai impact statement for each major federal action; and

whether §102 requires a meaningful attempt on the part

of the licensing agency to consult with other agencies with

jurisdiction and/or expertise.

3. Whether Section 27 of the Federal Power Act pre-

cluded issuance of a license for this project at the Storm

King site.

Pertinent Statutes

The statutory provisions involved are Section 27 of the

Federal Power Act, 41 Stat. 1077, 16 U.S.C. §821 (1964),

and Section i101 and Section 102 of the National Environ-

mental Policy Act of 1969 [“NEPA”)], 83 Stat. 852, 42 —

U.S.C. $4332 (Supp. 1971). These provisions are annexed

hereto as Appendix D.

rhe eno my

Statement of the Case

A. Description of the Project

The Storm King project, will be the largest pumped

storage facility in the world, capable of producing 2,000,000

kw of electricity. It will use energy generated in off-peak

hours (i.e., at night and on weekends) for which there is .

otherwise no demand, and convert it into energy to meet

peak or emergency electrical requirements of the metro-

politan New York City area served by Con Edison. For

this reason it has been likened to a storage battery, al-

though the analogy does not make clear the fact that,

because of frictional losses, more energy is consumed in

pumping water to an upper reservoir than is returned to

the system by reversing the pump-turbines to generate

electricity. For each kilowatt of power produced by the

project, 1.4 kw of power will be expended in pumping the

water. This fact is significant in assessing the effects of

project operation on pollution produced at generating

plants used to pump the Storm King project.

As this will be the world’s largest pumped storage instal-

lation, it is not surprising to note that the elements of the

project are indeed massive. Water for operation of the

project will be provided by the Hudson River. It will be

pumped to a storage reservoir, 1000 feet above the Hudson,

through a tunnel 40 feet in diameter and over 2 miles long.

‘The upper storage reservoir, formed by diking in a natur-

ally formed basin behind the mountain, will have 240 acres

of surface space. As a consequence, an existing reservoir

of the Village of Cornwall will be thereby inundated and

destroyed.® .

*In light of the City’s long-standing opposition to the Storm

King project because of the danger to its Catskill Aqueduct, it is

From the City’s point of view, the most disturbing ele-

ment of the project is the underground powerhouse which

will be blasted within the rock of Storm King Mountain.

Consisting of three chambers, the powerhouse will be 715

feet long, or the length of 2 football fields stretched from

end zone to end zone. A total of 254,000 eubie vards of

rock, or sume 580,000 tons, will be blasted and removed

from the mountain. The largest chamber will be 150 feet

high and 78-feet wide, or the height of a modern 15 story

building taking up over a third of an average City block.

This chamber will be blasted out of the rock only 140 feet

away from the Moodna Tunnel Section of the City’s Catskill

Aqueduct. This Aqueduct furnishes about 40 percent of the

City’s water supply, and as well provides the water re-

quirements of some 20 upstate communities which by law

the City is obligated to supply.

The F.P.C. has taken the unusual precaution of licensing

the Storm King project at two sites, both on the west bank

of the Hudson River and approximately 40 miles north of

New York City. [App. B, 7335 at 170a]. The primary site

(“Storm King site” or “Site 1”) is at Storm King Moun-

tain;* the alternate site (“Palisades Park site” or “Site

2”), licensed only if the primary site is overturned by a

reviewing court, is some 114 miles south of Storm King

at Crows Nest Mountain and within the Palisades Inter-

ironic to note that the Village intends to make up part of the result-

ing deficit in its water supply by tapping the City’s Catskill

Aqueduct.

* Part of this land was conveyed by the City to the Palisades

Interstate Park Commission in 1963. The deed provides that the

land shall be used for park purposes only, and contains a restrictive

—— barring drilling at depths greater than 200 feet from the

surface.

er sa a

OY Ame

Or eee,

POF ee om CRE BPE Te 20 9 >

, . - = ’

~ ay

state Park.* Except as otherwise noted, the discussion

herein is limited to the Storm King site.

B. Reasons for the City’s Opposition

A pumped storage facility has obvious benefits not only

for Con Edison but for its major area of service, New York

City. It is impossible: to conceive of a viable future for

the City whether as a hub of business and industry, or as a

cultural center, or as a major residential community with-

out an adequate and reliable supply of electricity. And it

is undisputed that the project is a means of bringing ad-

ditional peaking power and reliability to the Con Edison

system. In light of these facts, it is obvious that the City’s

opposition would not be, and is not, lightly undertaken.**

1. The Aqueduct

The primary reason for the City’s opposition to the proj-

ect is its concern for the safety of its water supply. This

concern is caused by the fact that the massive powerhouse

previously described will be excavated only 140 feet from

the Moodna Tunnel Section of the City’s Catskill —

duct.***

* Rejected by both the Commission and the Hearing Examiner

was a third site, also within the Palisades Interstate Park, referred

to as “Site 2A” or “Site 2CT.” It is not discussed herein.

** In 1966, after Con Edison had changed its plans for the project

in order to avoid the possibility of danger to the Aqueduct, the

City voiced its support of the project (contingent upon Con Edi-

son’s ability to meet objections concerning the possible destruction

of marine life and the impairment of the natural beauty of the

area) in a Memorandum of Understanding with the utility.

*** The City’s concern about damage to its Aqueduct caused by

the project dates back to 1963 when the project was first proposed.

The powerhouse would have been partially above ground and

there would have been an excavation far smaller than that now pro-

The importance of the Catskill Aqueduct to the City’s

water supply system must not be underestimated. Except

for a portion of Queens, all of the City’s water supply is

carried into the City from upstate watershed areas. The

Catskill, one of the three water systems, supplies approxi-

mately 40 percent of the City’s water requirements. While .

for most of its length the Catskill Aqueduct is “eut and

cover” (i.e., a concrete tunnel covered by earth conveying

the water by gravity), in order to cross the Hudson River

at Storm King Mountain it becomes a series of pressure

tunnels known collectively as the Moodna-Hudson-Break-

neck Pressure Tunnel. The Moodna section is the -west

bank portion of tunnels which convey the water in an east-

erly direction from the surface until, by a series, of drops,

it reaches a point 1,111 feet below sea level, where the water

enters the Hudson tunnel and crosses to the east bank of

the river. When it was first constructed in 1913, the Moodna

Tunnel section consisted primarily of a long, gradually

descending tunnel from which the water fell to the Hudson

Tunnel in one precipitous drop. However, the last 900 feet

ofthe Moodna Tunnel had to be abandoned because it had

broken and was leaking. To correct the situation, the Sup-

plementary Moodna Tunnel was sunk 400 feet beneath the

posed 175 feet away from the Aqueduct. As a consquence of the

City’s objections, Con Edison changed the plans in order to avoid

interference with the Aqueduct. After the remand in Scenic Hud-

son I Con Edison decided to put the powerhouse entirely under-

ground, thereby bringing the powerhouse within 140 feet of the

Aqueduct. This of course was far worse from the standpoint of

possible damage to the Aqueduct than the original proposal that

was opposed in 1963. In October 1968, after negotiations with the

company to relocate the project had failed the City petitioned to

intervene before the F.P.C. The petition. was granted and the

record was reopened to consider the issues of danger to the Aque-

duct and possible alternate sites.

ELON Fc A DB a

a. s 7

900-foot portion which had failed, and as a result today the -

water reaches the Hudson Tunnel by two drops rather than

the original one drop. Operation was resumed in 1918 and

the tunnels have been in constant use since then. Needless

to say, with each passing year the City has become increas-

ingly dependent on the Catskill Aqueduct to help meet its

water requirements. It is that portion of the Moodna Tun-

nel which immediately precedes the 900 foot portion which

failed and was hence abandoned, which will be only 140

feet away from the massive powerhouse excavation. At this

point the tunnel is 14 feet in diameter. —

The City’s concern for the safety of its Aqueduct is based

upon several interrelated factors. First, there is the fact

that the evidence is uncontradicted that excavation of the

powerhouse will cause stress changes in the rock of Storm

King Mountain. What those stress changes will be and what

effect they will have is unknown and a subject of contro-

versy among experts. .

Second, there is the fact that the present condition of the

Moodna Tunnel is unknown. The tunnels have been in ¢on-

stant use since 1918. Thus no one: not the City, not the

F.P.C., not Con Edison—knows the present condition’ of

_ the Moodna tunnel. All that is known is that the tunnel

continues to operate. It is probable that even though the

tunnel was sunk with the greatest care, cracks and fissures,

masked by the constant hydrostatic pressure, have de-

veloped. But the number and extent of these faults, if any,

are simply not known and thus no one can judge how the

Aqueduct will react to changes in stress in the surrounding

rock caused by the massive powerhouse excavation.

Finally, there is the historical evidence that the rock in

the area of the proposed powerhouse excavation is under

high stress, prone to stress relief and consequently unstable.

Although Storm King Mountain is generally sound rock—

- indeed this is why it was chosen as the Aqueduct crossover -

point—two facts concerning the area of excavation indicate

lack of homogeneity and instability : first, failure of the

last section of the Moodna Tunnel (now replaced by the

Supplementary Moodna Tunnel) which occurred at the

depth of the portion still in use, and which was attributed

in part to stress relief; and, second, the incidence of “pop-

ping” (spontaneously scaling) rock in excavation of the

access shaft to the Supplementary Moodna Tunnel.

In light of these factors—the fact that stress relief will

occur; the fact that the condition of the Moodna Tunnel

is unknown; and the fact that there is historical .evidence

of stress relief and hence instability of rock in the area of

the. powerhouse excavation—it is the judgment of the en-

gineers entrusted with the safety of the water supply that

the risk of damaging the 14 foot diameter Aquedutt tun-

nel, which carries 40 percent of the City’s daily water sup-

ply, caused by an excavation only 140 feet. away and re-

sulting in the removal of 580,000 tons of rock should not

be taken.

2. Increased Air Pollution

The City is further opposed to ‘his project because it

will cause increased air pollution in the City even though

the City cannot now, and will not for the foreseeable future,

be able to meet acceptable air quality standards. Even after

this was pointed out, the F.P.C. refused to require that the

energy used to pump Storm King originate outside New

” York City.

: Laken. “ _S 2 "

Road SRN EDEEIRAL ST He ¥

a ee a hes

By dbl Ata Rs WAP NU HAH baa LD feene Meter

The Commission has asserted that the plant will con-

tribute to the abatement of air pollution in the City,* based

on its assumption: that “very little” City generated power

will be used to pump the project [Appendix B, 983, at 91a-

92a]. Unfortunately. this assumption is baseless both in

the record and in the “economic realities” supposedly re-

lied on. The facts are that retirement of Con Edison’s

older, inefficient plants is not tied to this project; that it

is more economical (and efficient) for Con Edison to run its

generating plants in the City around the clock than to buy

power; that Con Edison’s nuclear capacity is too small and

unreliable to pump this project for the foreseeable future;

and that even Con Edison’s most efficient conventional

generating units cause substantial pollution, ‘particularly

in light of shortages of low sulfur fuels and natural gas for

industrial purposes. . |

3. Damage to the Hudson Highlands

The City also opposes this project because the unique

scenic beauty and other natural resources of the area have

not been safeguarded. This fact assumes particular im-

portance because this largely unspoiled area is unique in

its close proximity to a major metropolis.

C. The Court of Appeals Opinion

‘Bya2 to 1 decision, the Court of Appeals approved the

F.P.C.’s grant of a license for the Storm King project.

Writing for the majority, Judge Hays found: compliance

with the Court’s earlier remand in Scenic Hudson I; sub-

* For a time this misapprehension was shared by the City. See,

e.g., its 1968 Petition to Intervene.

stantial evidence supporting the F.P.C.’s conclusions; and

compliance with applicable statutes.* [App. A at. 7a].

On the issue of danger to the City’s Aqueduct, the ma-

jority found that §27 of the Federal Power Act did not pre-

clude licensing the Storm King project; that in any event, —

$27 protected only the right to compensation for holders

of state-conferred water rights; and that the Commission’s

finding that the remoteness of probability of damage to the

Aqueduct was supported by substantial evidence. [App. A

at 3la-35a]. The Court never considered the City’s objec-

tions to the F.P.C.’s analysis of the air pollution conse-

quences of the project, but merely summarized the F.P.C.’s

findings. [App. A at 19a-20a]. The Court further found

_ that NEPA applies to this proceeding, and that the proce-

dural requirements of §102 of that Act were met by the

F.P.C.’s requests for comments and by its final opinion.

. [App. A at 36a-38a].

Judge Oakes dissented. He found that the F.P.C. al-

though purporting to follow the mandate of Scenic Hudson

I, had actually acted arbitrarily and capriciously in licens-

ing the project. Since he found that the F.P.C. had twice

failed in its obligation to analyze and consider all aspects

of the license for the Storm King project, Judge Oakes

recommended that there would be no useful purpose in

further remand and that pete tiie the F.P.C. showd

be reversed.

Specifically he was particularly disturbed that the F.P.C.

had decided the Aqueduct issue without benefit of relevant

expertise and contrary to the recommendations of its staff.

* Only those areas of the decision specifically raised by this peti- -

tion will be discussed herein.

os?

| eo

12.

[App. A at 47a]. In commenting that the F.P.C.’s findings

as tothe Aqueduct while contradictory and insufficient

nevertheless showed that the project does present a risk

to it, he noted:

“... there is a world of difference between no danger

and a ‘remote’ danger. If a danger is ‘remote’ the de-

gree of remoteness assumes importance in proportion

to the magnitude of the danger. Here the danger is

obviously great,-and there is no finding as to the de-

gree of remoteness.” [App. A at 49a] (Emphasis in

original) - |

Furthermore he found that the F.P.C. had misconstrued the

burden of proof, noting that it was not the City’s task to

show that the Aqueduct would break, but rather, Con Edi-

son’s burden to prove and the F.P.C.’s task to find that the

project would not endanger the public health, life and

property. [App. A at 49a].

Judge Oakes was also disturbed by the Commission’s con-

clusions on the air pollution consequences of the project,

finding them to be incomplete and insufficient. He found

that by failing’ to require that pumping energy originate

outside the City, the F.P.C. had failed in its statutory re-

sponsibility to avoid adding to air pollution. [App. A at

54a]. Finally, with respect to NEPA he found that there

had in fact been no compliance with the statute. [App. A

at 57a-6la].

_ Because the judges of the Second Circuit were evenly

divided, a petition for rehearing in bane was denied. Judge

Timbers filed a written dissent.

Reasons Why the Writ Should Be Granted

The F.P.C. has concluded that this project will neither

cause the Aqueduct to break nor cause increased air pollu-

tion in New York City. Should such conclusions be wrong

in law and in fact, as the City contends, the health and

safety of at least 8.5 million people will have been wrong-

fully put in jeopardy. For this reason alone, apart of the

errors specifically discussed below,. this petition presents

an important question which should be decided by this

Court. —

Additionally, this petition affords the Court an oppor-

tunity to speak definitively as to what constitutes compli-

ance with NEPA.

Finally, this case requires interpretation of §27 of the

Federal Power Act arising in a novel fact situation, but

one to which the section clearly applies.

POINT I

The failure of the Court below to recognize the Com-

mission’s lack of expertise resulted in erroneously limit- ©

ing the scope of its review.

In Scenic Hudson II, the Court was reviewing the license

for the Storm King project for the second time. While

the role of the reviewing court after remand is no different

from that of the reviewing court in the first instance, the

"very fact of remand in this and similar cases* points up

*For example, failure to gonsider environmental impact has

been adjudged an element requiring remand. See, e.g., Udall v.

F.P.C., 387 U.S. 428 (1966). Cf. cases remanded for failure to

comply with NEPA, e.g., Greene County Planning Board v. F.P.C.

(Docket Nos. 71- 1991, 71- 1996, 2nd Cir., 1972); Ely v. Velde, 451

F.2d 1130 (4th Cir., 1971) ; Lathan v. ’ Volpe, 3 ERC 1362 (9th

Cir., 1971).

the fact that the record developed by the agency has been

found to be lacking in areas where the agency may have

some peripheral experience*with the field, but no expertise

in it. It is submitted that in such a case, the court must

be especially careful not to let mere length of the record

substitute for meaningful consideration of the issues raised,

for to hold otherwise would cause remand to be a vain

gesture, resulting only in delay.

The issue squarely raised by the decision in Scenic Hud-

son II is: can a court properly defer to agency expertise

when the agency is called upon to make judgments in areas

where it is not expert? It is submitted that petitioners

in Scenic Hudson II did not, as the Court alleged, urge a

“new standard of judicial review,” [App. A at 10a], but

rather they sought to assure that the findings of the Com-

mission would be subject to searching and careful judicial

review mandated by the Administrative Procedure Act.

Although the Federal Power Act specifically provides

that findings of the Commission as to facts where supported

by substantial evidence shall be conclusive, [§16(b), 16

U.S.C, §825 1 (b) (1964) ], this provision does not preclude

the applicability of the Administrative Procedure Act.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971). Indeed in all eases where judicial review

is permitted, the administrative action must be reviewed

to determine whether it was “‘arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with

law’ or if the action failed to meet statutory, procedural, or

constitutional requirements.” Jd. at 413-14 citing §10(e) of

the Administrative Procedure Act, 5 U.S.C. §706 (2) (A)

(B) (C) (D) (Supp. V). And even though agency action

often involves areas of specialization committed by Con-

gress to the jurisdiction of that agency, the court would

be derelict in its duty if it failed to study the evidence on

technical and specialized matters to determine not only

whether the agency's findings are supported by substan-

tial evidence, but also whether it has exercised “a rea-

soned discretion.” Greater Boston Television Corp. Vv.

F.C.C., 444 F. 2d 841, 850 (1970), cert. denied 403 US.

923 (1971).

However, the scope of such review is narrow, since within

an agency’s area of expertise the courts will ordinarily

defer to an agency’s expert judgment, even where the court

might justifiably have chosen differently had it determined

the issue de novo. Universal Camera v. N.L.R.B., 3A0 US.

474, 488 (1951). See also Citizens to Protect Overton Park,

Inc. v. Volpe, supra, at 416.

The Court in Scenic Hudson II after reciting the evi-

dence concerning danger to the City’s Catskill Aqueduct

(consisting solely of conflicting expert opinion), stated:

“It is clear that the resolution of highly complex tech-

nological issues such as these was entrusted by Con-

_gress to the Commission and not to the courts. Where

the Commission’s conclusions are supported by sub-

. stantial evidence, the Courts must accept them. [App.

A at 34a] (Emphasis supplied).” .

It is submitted that this statement is erroneous in “concept

as well as in fact.

ee ere ee

Mal me ee 4

—_ a = Cee we

A. The Danger to the Aqueduct Is Not a Highly

Complex Technological Issue Entrusted by

Congress to the F.P.C.

Merely because the question of danger to the Aqueduct

from excavation of the Storm King project is a “highly

complex technological issue” does not necessarily put it

within the purview of the F.P.C.’s area of expertise. It

involves two highly complex areas of expert judgment:

the nature and effect of stress relief in rock and the evalu-

ation of a risk presented to a water supply system.

The F.P.C. has been adjudged expert in-many areas

directly related to the regulation of conventional sources

of energy.* But, as Judge Oakes cogently pointed out in

his dissent, while the F.P.C. may have some familiarity with

geology, its general familiarity does not cof&titute exper-

tise on the effects of stress relief on aqueduct pressure |

tunnels in rock. Furthermore, whatever expertise it did

have was ignored: the Commission overrode the recom-

mendation of its own staff that some precautionary measure

be taken to protect the Aqueduct.** [App. A at 47a].

* Thus for example it has been held to be expert in-resolving

highly complex issues of natural gas rate regulation [Permian

Basin Area Rate Cases, 390 U.S. 747, 767 (1968)]; in hydraulic

ineering [United States ex rel. Chapman v. FPC, 191 F2d

796, 808 (4th Cir. 1951)); in determining the necessity and condi-

sions of interconnections between electric utilities [Gainesville

Utilities Dep't v. Florida Power Corp., 402 US. 515 (1971); and,

in the flow of electricity within a transmission line [F.PC. v.

Florida Power & Light Co., 40 U.S. Law Week, 4141, 4145 (1972)].

°° It must be noted that the City opposed the two precautionary

measures considered—building a bypass or lining the Moodna

Tunnel with steel—because of the extensive shutdown of the Aque-

duct required and the resulting risk to the water supply and to the

integrity of the Aqueduct.

Had the procedures of NEPA been complied with, the

Court might have had more cause for comfort in relying

upon the F.P.C.’s determination. It is possible that in the

circulation of the required environmental impact statement

there could have resulted some relevant analysis of the

evidence by an agency of government with expertise (e.g.,

the Bureau of Mines). But all that we have here is a bare

assertion by a federal agency which, in the name of elee-

tric power as being the “lifeline of the city” [ App. B, 53,

at 8la} has abrogated to itself an expertise, which it plainly

does not have, and puts 40 percent of the City’s water sup-

ply in jeopardy. This point is most clearly underscored

by the Commission’s licensing of the alternate Palisades

Park Site without any investigation as to its geological

feasibility or as to the subsurface conditions. [App. B,

{317 at 165a]. Furthermore, not only are the F.P.C.’s find-

ings as to the danger internally meonsistent (see the dis-

cussion in Judge Oakes’ dissent, App. A at 47a-50a), but

they miss the essential point that the question is not one

of whether a risk exjsts but rather the judgment as to

whether the risk should be taken at all. Again, this re-

quires an expertise—this time in matters of water supply

—which the Commission clearly does not have.

B. The Extent to Which a Reviewing Court Must

Defer to Agency Expertise :

The City is not urging that because 40 percent of its

water supply is at stake, it thereby has the right to “‘veto”

this project. Scenic Hudson II, App. A at 34a-35a citing

First Iowa Hydro-Electric Coop. v. F.P.C., 328 U.S. 152,

164 (1946). Rather, it urges that a reviewing court may

not, simply because highly complex and technological is-

sues are at the crux, abdicate its role of review by hiding

owe

ab Mar

ore 8 FRR VRE EL Teste Peg re

= RR WE OR 8 eT,

ind ig ater eum nin)

ry VA hehiilet 30). cndeok ad aa

behind the veil of agency expertise, particularly where that

expertise is not relevant to such issues. It does not urge

a new standard of review, or a higher burden of proof.

The City simply asks the courts to recognize the undeniable

fact that agencies are not necessarily expert in all aspects

of the decisions they are called upon to make, and that

where an agency has no particular expertise (and hence

where: the reviewing court is not justified in deferring to

the agency), the court may not stop at the determination

of substantial evidence, but must probe further to deter-

mine whether the agency has exercised the “reasoned dis-

cretion” demanded of it. Greater Boston Television Cor-

poration v. F.P.C., supra.

While theré is no ruling directly on point, it is submitted

that the treatment of agency expertise by the courts has

constituted a de facto recognition of this distinction. Con-

sequently, the extent to which the courts must defer to

agency expertise has been narrowly construed. Thus in

the Florida Light and Power case, this Court said in speak-

ing of the nature of the flow of electricity in a transmission

line:

“Particularly when we consider a purely factual ques-

tion within the area of competence of an administra-

tive agency created by Congress, and when resolution

of that question depends on ‘engineering and scientific’

considerations, we recognize the relevant agency’s

technical expertise, and defer to its analysis unless it

is without substantial basis in fact.” Supra at 4144.

This statement must be contrasted with the case at Bar

which does not involve “purely factual question[s] within

the area of competence” of the F.P.C., but revolves around

ay.

matters about which the F.P.C. does not have relevant tech-

_ neal expertise and its experience is at best limited. More-

over, lacking such expertise, the F.P.C. nevertheless chose

to ignore the urgings of its own staff.

Where 40 percent of the water supply of the nation’s

largest city is at stake, and where the F.P.C.’s decision as

to a source of additional electric power for that city must

necessarily involve a judgment as to the safety of that

water. supply, it is submitted that it is especially important

that a reviewing court take a hard look at the Commis-

sion’s conclusions to determine whether they constituted

an abuse of discretion or were arbitrary and capricious,

lest expertise become “a monster with no practical limits

on its discretion.” Burlington Truck Lines vy. U.S., 371

U.S. 156, 167 (1962).

It is submitted that in areas outside an agency’s expertise,

the courts are not to be reduced to mere “rubber stamps”

but rather, as this Court said in the context of statutory

interpretation, in such areas the courts would “abdicate

their responsibility” if they did not, in addition to finding

_ substantial evidence, determine whether a reasoned discre-

tion had been exercised, V:L.R.B. v. Brown, 380 U.S. 278,

291 (1965); Greater Boston Television Corp. v. F.C.C.,

supra. .

1A A DORR REN MEM MPRIRCT INN Nm Fe RS me ART TEEN RR RR eNO QRnERI

<¥ 7

ates

nn siaeililn ith eet,

a po a

. P

Kn de AMINA dat A etal Be y 40;

testa ht tial gi eddie MyPage ts sb Mb Se

| ewe inti’

POINT Il

The Court below erred in finding compliance with

NEPA.

The Storm King project, as a major federal action li-

censed after January 1, 1970, must comply with the require-

ments of the National Environmental Policy Act, 42 U.S.C.

§4321 et seq. (Supp. 1971). [App. A at 36a]. Those require-

ments are set out in $102 of the Act which in part (C) pro-

vides that for each major federal action a federal agency

must, prior to making the detailed environmental impact

statement required by the Act, confer with and get the

opinions of other federal agencies, having jurisdiction

or expertise, on the possible environmental consequences

of that action. In Scenic Hudson II the Court below found

that there had been compliance with the mandates of $102

and the Act as a whole. [App. A at 37a-38a]. It is sub-

mitted, as demonstrated below, that the Court erred in

so finding. © |

A. The Commission’s Final Opinion Was Not a

Sufficient Environmental Impact Statement

It was specifically found by the Court below that the Com-

mission’s opinion constituted the environmental impact

statement required by NEPA. [App. A at 38a]. It is sub-

mitted that this finding was not only in error but that it

is in conflict with a later decision by a different panel of

the same circuit court, Greene County Planning Board v.

F.P.C., Docket Nos. 71-1991, 71-1996, 2nd Cir., Jan. 17,

1972.*

—_-_—_

* The F P.C. has petitioned for rehearing in banc, alleging that

a conflict exists between Greene County and Scenic Hudson II,

While the facts in the case at Bar and in the Greene

County case differ—in the former hearings were completed

as of the effective date of NEPA, whereas in the latter

hearings are still in progress—they share a common ele-

ment: the F.P.C.’s contention that NEPA’s requirement

for an environmental impact statement prepared by the li-

censing agency can be satisfied by the Commission’s final

order. In Greene County this contention was rejected by the

reviewing court on the ground that {1062 of NEPA specifi-

cally requires that the agency’s own -impact statement ac-

company a proposal through the existing agency review

process. *

It is conceded that in the case at Bar at the effective

date of NEPA the review process was all but complete,

since all that remained undone was the Commission’s own

decision. Yet it is submitted that by postponing the impact

statement to the final agency procedure, the F.P.C. effec-

tively circumvented a fundamental purpose of NEPA: that

the licensing agency review the expert comments of other

federal agencies prior to a final evaluation of a project’s

environmental impact.

B. The Commission’s Consultations With Other Agencies

Failed to Meet the Requirements of NEPA

It was further found by the Court below that the Com- .

- mission had met the §102 requirement that. a_ licensing

agency, prior to making its detailed environmental impact

statement, consult agencies with expertise or jurisdiction

over possible environmental impact. It is submitted that

at least insofar as the issues of danger tq the Catskill Aque-

duct and air pollution consequences of the project are con-

cerned, the Court was in error in so finding because the few

n at ib ‘

ARN Re a Ge TIKee F<

;

esi tata i to inca atlaisblbab Rpia

consultations which did take place were inadequate to assess

the scope of the project’s impact, and in any event failed

to take into aceount recent-developments.

As to the issue of danger to the Aqueduct, the only com-

ments which might possibly have had relevance were made

by the Army Corps of Engineers in 1963 and 1964. These

comments were made before project plans were changed so

as to locate the powerhouse underground, and in any event

concerned only the navigational impact of the project. It is

therefore apparent that the F.P.C. relied entirely on its

_ own judgment in evaluating the risk presented to the City’s

water supply.

_ With respect to the issue of the air pollution consequences

to New York City of project operation,, tlie Commission

had found the following: that the project would permit

retirement of Con Edison’s older, inefficient plants; that

the project would be pumped primarily by energy from non-

polluting sources outside the City; that to the extent in-

City pumping power was used, this would be from Con

Edison’s more efficient generating units using relatively

pollution-free fuels. On this basis, it was concluded that

the Storm King project would have air pollution benefits

for the City. This analysis was not questioned in the ma-

jority opinion below. [App. A at 20a].

In its petition for rehearing (and subsequently in its

briefs before the Court) the City pointed out the inade-

quacies and inaccuracies of the foregoing analysis. In par-

ticular it noted that the F.P.C. should have known from Con

Edison’s 10 Year Plan, filed with the Commission, that re- .

tirement of Con Edison’s older, inefficient plants is not

linked to the Storm King project. It was shown that the

Commission’s confidence that the project would be pumped

by energy from non-air-polluting sources outside the City

was misplaced since for the foreseeable future Con’Edison’s

nuclear capacity will be too small and unreliable to pump

this project. Furthermore, the “economic realities” (sup-'

posedly relied on by the Commission in its analysis) do not

support its conclusion that power generated outside the

City will be used, since Con Edison’s conventional generat-

ing capacity outside of the City will be similarly limited,

and those “realities” actually dictate that it is cheaper to

run conventional generating plants in New York City

around the clock than to buy power. Nor, as it was further

pointed out, is there comfort if only Con Edison’s more

efficient units are used because even these generate sub-

stantial amounts of pollution and will -be creating it at a

time when there: is the least likelihood of dispersién.*

Moreover, the least polluting fuels—low sulfur content oil

and natural gas—are in short supply. Finally, it was shown —

‘that the Commission did not consider pollution from par-

ticulates or nitrogen oxides, and the Commission’s analysis

of pollution from sulfur dioxide .was clearly inadequate.

It is submitted that had the F.P.C. solicited the comments

of other agencies (e.g., the National Air Pollution Control

Administration, “NAPCA”) prior to issuing its opinion,

at least some of these errors might have been noted. In any

event, at the least the Commission might have been -bettér

* Pumped storage projects utilize off-peak hour pumping energy.

As a rule this means that the energy used to pump water will be

generated ‘during the late evening and early morning hours. While

these hours are optimum from an economic point of view, they are

the worst from the standpoint of air pollution because the stillness

of the air at these hours decreases the likelihood of dispersing the

pollutants.

able to evaluate the consequences of project operation on

the basis of current data showing the severe air pollution

problem in New York City,and in particular the City’s dif-

ficulty in meeting the air quality criteria which had been

proposed by NAPCA. The only “consultation” on air pollu-

tion which appears in the record—the testimony of an em-

ployee of the Public Health Service in 1967—was clearly

inadequate to aid'the Commission in assessing the present-

day consequences of the project. ,

Among the purposes of NEPA are assurance of “safe,

healthful surroundings” and attainment of the widest range

of beneficial uses of the environment without “risk to health

or safety”. [42 U.S.C. §4331(b)(2), (3)]. It is submitted

that this project insofar as it endangers the safety of the

water supply of 8.5 million people and will cause increased

air pollution in the already dirty atmosphere of the City

where these people live and work, presents the kind of risk

to health and safety NEPA was designed to avoid. At the

very least, the consultation required by NEPA might have

resulted in a provision, advocated by the City,.that Con

_ Edison be banned from using City-generated power to pump

* the Storm King project. Minimally, relevant expertise

should have been applied to the problems of the risk to the

water supply and air. quality of the nation’s largest city.

In Calvert Cliffs’ Coordinating Committee v. A.E.C.,

449 F. 2d 1109 (D.C. Cir., 1971), the Court found that the

procedural requirements of NEPA are “not discretionary”,

_but in fact “establish a strict standard of compliance”,

which is not substantially altered by the phrase “to the full-

est extent possible.” Jd. at 1112. It is submitted that the

case at Bar dramatically points up the fact that unless the

procedural requirements of NEPA are followed—including

~ consultation with other agencies—the purpose of NEPA

will be effectively thwarted.

POINT III

This license is precluded by Section 27 of the Federal

Power: Act. |

The words of Section 27 of the Federal Power Act are .-

clear and unequivocal:

“Nothing contained in this Chapter shall be con-

strued as affecting or intending to affect or in any way

interfere with the laws of the respective States relat-.

ing to the control, appropriation, use, or distribution

- of water used ... for municipal or other uses, or any

vested right acquired therein.” 16 U.S. C. $821. (Em-

phasis supplied.) .

It is submitted that the Court below was in error when it

determined that §27 did not preclude the license for the

Storm King project. It was also in error in holding that

the “only purpose” of $27 is to preserve the right to com-

pensation for holders of state-conferred water rights.

[App. A at 3la-32a].

A. Section 27 Is Applicable to This License

One need not go beyond a plain reading of the statute to

determine that §27 is applicable to this license. By state

law there is imposed upon the City responsibility for meet-

ing the water requirements of New York City, as well as

for making available water from its supply system to com-

munities in certain upstate counties. It is submitted that

when, despite its concession that the project would pre-

- sent some risk to the Catskill Aqueduct, the F.P.C. issued

~~.

the license for the Storm King project in disregard of the

City’s objections, the F.P.C. was interfering with the City’s

control of water used for municipal uses, thereby bringing

this case squarely within the language of $27. The type of

control here referred to is perhups best illustrated by the

restrictive covenant in the deed by which the City conveyed

the larid above the Aqueduct to the Palisades Interstate

Park Commission. That covenant bans drilling at depths

greater than 200 feet from the present surface, thereby

leaving a rock cover of over 200 fect to protect the Aque-

duct.

B. Relief Under §27 Is Not Limited to Compensation

for State-Conferred Water Rights

The statement of the Court below that 627 protects only

the right to compensation for state-conferred water rights

quotes dictum from an opinion of the Ninth Cireuit, Port

land General Electric Co. ©. F.PC., 223 F. 2a 165, 176 (9th

Cir. 1964). This dictum in turn is based upon two deci.

sions of this Court construing 68 of the Reclamation Act

(43 U.S.C. (383). Whether the Ninth Circuit is correct

in so interpreting (8 of the Reclamation Act is not at ix<ue

here. But from the history of (27 of the Federal Power

Act what is certain is that relief under this section has not

been limited to money damages. Thus in the case of Henry

Ford and Son, Inc. ¢. Little Falls Fibre Co., 230 US. aa

(130), this Court affirmed a New York State judgment

granting damages avd permanent injunctive relief. This

duality of relief was specifically recognized by this Court in

F.C. v. Niagara Mohawk Power ‘Corp., 47 US. 239,

254 (1954).

While it ix therefore clear that relief under 627 is not,

as the Ninth Circuit erroneously concluded, limited solely

a8 ee-—— —ee «--

to compensation for state-conferred water rights, the cases

decided under §27 are generally not helpful in applying ,

$27 to the facts in the case at Bar, because such cases con.

strue only the second of the two situations saved from

federal supersedure by §27—casés dealing for tie most

part with vested rights in water.

However, the statute on its face clearly presents two

categories of laws affecting rights in water which are saved

from the operation of the Federal Power Act. The first

category is concerned with the “control, appropriation,

use, or distribution of water used in irrigation or for

municipal or other uses”: ‘he second with vested richts in

the water. By using the disjunctive “or”, Congress was

clearly differentiating between the two categories: one

dealing with water used for municipal or irrigation or simi. .

lar purposes, and the other covering vested rights in water.

The absurdity of concluding that Congress meant monetary

compensation to be the only remedy for interferencs with

the first category of rights is shown by the application of

that formula to the facts in the case at Bar. Of what value

would it be to New Yorkers deprived of a substantio! por-

tion of their water to know that Con Edison must compen.

sate the City for the cost of repairs to the Aqueduct! That

Congress intended to encompass something more thon the

‘Ninth Circuit's determination as to the intent of 27 ix °

. Obvious from the fact that §10(¢) of the Federal Pow. c Act,

[16 U.S.C. §803(¢)] specifically provides that licenses are

liable for damages cansed by a project.

The only case construing §27 not dealing with ested

rights in water is First Jowa Hydroelectric Coop. +. F PC.

supra. It is urged that that case is not directly in Doint

because basically it involved a state's attempt to require

the receipt of a state permit as a condition Preeedeat to

a federal license. This Court held that such an interpreta-

tion of §9(b) of the Federal Power Act [16 U.S.C. (802

(b)] would result in the sfate having a veto power over a

federal licensing procedure, and as a consequence, the state

statute requiring such permit was not saved by §27.

The City’s rights to control its supply system and its

Aqueduct cannot be compared with the duplicative licens-

ing procedure sought to be superimposed by Iowa. The

City is not setting up a procedure to be superimposed upon

the federal licensing process, but rather is merely trying

to protect rights and obligations, created pursuant to a

state law specifieally exempted by §27, which rights and

obligations existed prior to the federal license being issued.

Whether or not Congress envisaged facts comparable to

those here, it seems clear from the wording of the statute

that Congress did not intend that the navigable waters of

the United States be developed for power if doing so meant

risking a water supply system. It is submitted that where

the country’s navigable waters cannot be developed for

power save at the expense of a water supply system, $27

precludes licensing such a power preject.

CONCLUSION

The petition for a writ of certiorari should be granted.

March 24, 1972

J. Lee Rasxrs,

Corporation Counsel of the

City of New York,

; Attorney for Petitioner.

Peres C. Demerat

Every» J. Juwoe,

; eee 3 7

3% > ‘s . 3 . Pen,

¥ ~

~~ * > .

eit. ae t

-—/

. .

° *

7 _ * _

> oe

APPENDIX A

Opinion of the United States Court of Appeals for the

Second Circuit, Dated October 22, 1971

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

_—_—

—

Nos. 1033-1038—September Term 1970.

(Argued June 9, 1971 Decided October 22, 1971.)

Docket Nos. 35678, 35676, 35677, 35683, 35688, 35689

Scenic Hupson Preservation Con rerence, Pavisapes-Lyter-

staTe Park Commission, Crry or New Yorn, Tae Srerra

Civus anv 1ts AtLantic Cuaprer, Toe Wi_perness So-

ciety, Ture Izaak Wattow Leacve or America, Nation aL

Avovson Society anp Nationat Parks anp Conserva-

TION ASSOCIATION,

Petitioners,

FeperaL Power Com Miss‘ox,

Respondent,

and

Conxsotipatep Episoxn Company or New York, Iwc.,

Towns or CorNwat anp Vittace or CornwalL,

Intervenors.

Before:

Faienpiy, Chief Judge,

Hays and Oakes, Circuit Judges.

Petitions for review filed pursuant to Section 313(b) of

the Federal Power Act, 16 U.S.C. §825(b) (1964) seek-

ing to set aside an order of the Federal Power Commis-

O cure woe

sion granting a license to Consolidated Edison Company

of New York, Inc. to construct a pumped storage powe er

plant on the Hudson River.

Petitions denied. ,

_—_

Luoyp K. Garrison (Albert K. Butzel, Paul

Weiss, Goldberg, Rifkind, Wharton & Gar-

rison, New York, N.Y., on the brief), for

Petitioner Scenic Hudson Preservation Con-

ference.

Puriuip Wernsers, Ass’t Attorney General (Louis

J. Lefkowitz, Attorney General of the State

of New York.

Samuet A. Hirsnowrrz, First Assistant Attorney

General, Cyril H. Moore, Jr., Assistant At-

torney General, on the brief), for Petitioner

Palisades Interstate Park Commission.

Evcene Marcouis (J. Lee Rankin, Corporation

Counsel, City of New York, Evelyn Junge,

on the brief), for Petitioner City of New

York. |

Luoyp K. Garrison (David Sive, Sigmund

Anderman, Bertram Braufman, Winer,

Neuburger & Sive, New York, N.Y., on the

brief), for Petitioner The Sierra Club and

its Atlantic Chapter.

Liuoyp K. Garrison (James Marshall, Henry

Winestine, Marshall, Bratter, Greene, Al-

lison & Tucker, New York, N.Y., on the

brief), for Petitioner The Wilderness So-

ciety.

Luoyp K. Garrison (Angus Macbeth, John H.

_ Adams, National Resources Defense Coun-

cil, Ine., on the brief),-for Petitioners Izaak

Walton League of America, National Au-

dubon Society and National Parks and Con-

servation Association.

Gorpon Goocn, General Counsel (J. Richard

Tiano, Assistant Solicitor, Leonard D.

Eesley, Assistant General Counsel, John D.

Lane, Raymond E. Hagenlock, Charles K.

Barrow, Attorneys, Federa] Power Com-

mission, Washington, D.C., on the brief),

for Respondent.

Cameron F. MacRak (Carl D. Hobelman, G: S..

Peter Bergen, Sheila H. Marshall, Jeffrey

E. Silver, LeBoeuf, Lamb, Leiby & Mac-

Rae, New York, N.Y., on the brief), for

Intervenor Consolidated Edison Company

of New York, Inc.

James R. Lors, Rider, Weiner & Loeb, New-

burgh, N.Y., on the brief, for Intervenor

Town of Cornwall,

Hays, Circuit Judge:

By Opinion No. 584, dated August 19, 1970, the Fed-

eral Power Commission granted a license to Consolidated

Edison Company of New York, Inc., to construct, operate,

and maintain a pumped storage project along the western

shore of the Hudson River at Cornwall, New York. Eight

parties’ have filed petitions pursuant to Section 313(b) of

1 All of the petitibners except Palisades Interstate Park Commission

object to the licensing order of the Federal Power Commission in toto.

The Palisades Interstate Park Commission opposes only the site 2 alter-

Se 1 ee opr ee an

the Federal Power Act, 16 U.S.C. §825 1(b) (1964) seek-

ing to set aside this order on-various grounds. The is-

sues raised by these petitions are both complex and im-

portant, involving, as they do, the conflict between the

needs of a highly technological sociéty and the increased

awareness of environmental considerations:

The opinion and order. of the Federal Power Commis-

sion presented here for review follow by five years the

earlier remand by this court in Scenic Hudson Preserva-

tion Conference v. Federal Power, Commission, 354 F.2d

608 (2d Cir. 1965), cert. denied sub nom., Consolidated

Edison Co. of New York v. Scenic Hudson Preservation

Conference, 384 U.S. 941 (1966), in which the petitions

challenged three 1965 orders of the Commission licensing

the project and refusing to reopen proceedings and take

additional evidence on various issues. In the intervening

period extensive hearings have been held, two decisions

have been rendered by a Hearing Examiner and the Com-

mission has issued its own opinion.

The new proceedings have produced a project that is

different in some ways from the project that was before

this court in 1965. .

The functional elements of the project remain the same.

It is still to be the largest pumped storage plant in the

world and its principal function, to provide energy for

peak load periods, is unchanged. The proposed location is

the same as that previously proposed, the Hudson River at

approximately river mile 56.5, about 40 miles north of

native which calls for the location of the powerhouse within Palisades

Interstate Park. The objection of petitioner (ity of New York is based

on the aqueduct and air pollution question alone. The Izaak Walton

League of America rests its objection primarily on the fisheries ques-

tion and other environmental factors. All other petitioners raise vir-

tually all the issues discussed in this opinion. Intervenor Consolidated

Edison Company of New York, Inc., supports the Commission's order,

as does intervenor Town of Cornwall.

. . . da

New York City at Storm King Mountain near Cornwall,

New York, “an area of unique beauty and major histor-

ical significance.” Scenic Hudson, supra at 613. The

project would consist, as did the earlier version, of an

upper reservoir, a tunnel between the reservoir and the

powerhouse, and the powerhouse itself, a pumping-gen-

eration station located at the riverside containing eight

reversible pump-turbine and motor generation units as

well as switching gear and primary transmission lines.

However, unlike the project presented in 1965, which pro-

vided for a powerhouse that was 80 per cent underground,

the powerhouse now licensed by the Commission is to be

entirely underground.

The upper reservoir would be situated approximately

10,000 Yeet south and west of the powerhouse in a natural

mountain basin behind Storm King Mountain. When filled

to its 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 itself.

The capacity of the eight pumping-generating units in

the powerhouse would be 2,000 megawatts, or 2,000,000

kilowatts. However, the project would be constructed in

a manner which would permit enlargement to a maximum

of 3,000 mw. Eight discharge tunnels from the reversible

pump-turbine and motor generation units would convey

water between each turbine ard an open tailrace leading

to the river. The tailrace with abutments at both ends

would run 685 feet along the river. A fish protective de-

vice is to be located in front of the tailrace intake.

The third major facet of the project relates to trans-

mission facilities. Submarine cable installations and spare

2 One megawatt (me) equals 1 million watts; one kilowatt (kw) equals

one thousand watts. We will use the megawatt terminology throughout

this opinion. . 6

2-—eee C:—””—“—Ot——”—

a ii entettiacacnntncscernateadl

ers

pipes would transmit the energy generated in the power-

house under the Hudson River and would continue under-

ground on the east side of the river for approximately 1.6 ©

miles to a point out of sight of the river. At this point

overhead transmission. would commence and would con-

tinue for approximately 9.2 miles through Putifam County

to Con Edison’s existing Pleasant Valley-Millwood-Sprain

Brook transmission right of way. Changes have been

made in the proposed route and the towns of Cortlandt,

‘Putnam Valley and Yorktown, which challenged the route

before this court in 1965, no longer do so.

The project would function in the manner described

in our earlier opinion. Scenic Hudson, supra at 612. The

units in the powerhouse would use off-peak energy gener-

ated not at the project but at other facilities in the Con

Ed system to pump. water from the Hudson River to the

upper reservoir. When needed for peak power produc-

tion, that is,-during hours of highest kilowatt demand,

_ the units would reverse direction of rotation and provide

power derived from the fall of the water released into the

river from. the upper reservoir. This power would then

be transmitted through the transmission system described

above. “The water in the upper reservoir may be regarded

as the equivalent of stored electrical energy; in effect,

Consolidated Edison wishes to create a huge storage bat-

tery at Cornwall.” Scenic Hudson, supra at 612.

A visitor’s information center and picnic and parking

facilities, proposed in the original project for the power-

house site, have been eliminated. In their place, a 57

acre, mile-long park is to be constructed along the river-

front. Additional recreational facilities are to be pro-

vided at a 36 acre scenic overlook inland from the project

with access from the existing State Highway 9-W.

As an alternative the Commission has licensed the

powerhousé aspect of the project at a location within

Palisades Interstate Park, approximately one and one-

half miles downstream from the Storm King Mountain

site. Construction at the Palisades site is to be consid-

ered approved by the Commission only if construction

at the Storm King Mountain site “shall be precluded on a

- petition to review this order.”

The petitions in this case are occasioned by the “grave

concern” aroused among conservationist groups by the

Storm King project. Scenic Hudson, supra at 612. The

petitions allege lack of compliance with the terms of our

earlier remand, absence of substantial evidence to sup-

port the Commission’s 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 its findings are supported

by substantial evidence. In view of the extensive powers

delegated to the Commission and the limited scope of re-

view entrusted to this court, it is our duty to 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(e) of the Fed-

eral Power Act, 16 U.S.C. §797(e) (1964), the Commission

is authorized |

“To issue licenses . . . for the purpose. of construct-

ing, 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 for 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 has juris-

diction....” °

——s ee ee ne ee ee

There are statutory limitations on the issuance of such

licenses. Section 10(a) of the Act, 16 U.S.C. $803 (9)

(1964), requires |

“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 in-

and utilization of waterpower development, and for

mental Policy Act, 42US.C $§4321 ef seq. (Supp. 1971).

In the Federal Power Congress granted the Commis.

vinty 2 ePing authority and a specific planning responsi

would promote the comprehensive development of the na.

tion's water resources.” Scenic Hudson, supra at 613 and

authorities cited there. -

The scope of review of the Commission's exercise of its

authority and responsibility is narrowly limited. The Act,

“Insofar ax the Court of Appeals’ opinion implies that

there was not substantial evidence to <upport o find.

ing of some benefits, it ix clearly wrong. And insofar

to constitute ‘compensation . . - Te@sonalbly due.” the

Court of Appeals overstepped the role of the judiciary.

Congress ordained that that determination should In

made, in the first instance, by the Commission, arn ay,

the record made in this case, the Court of Appeals

erred in not deferring to the Commission's expert

judgment.” Gainesville Utilities Department «. Florida

Power Corp., 402 US. 515, 527 (1971).

Petitioners would have us reject these familiar principles

because, they argue, different standards ought to prevail

taken a similar approach. See, ¢9.. Citizens to Preserve

Overton Park, Inc. ¥. Volpe, 401 U.S. 402 (1971); Udall y.

108

Federal Power Commission, 37 U.S. 428 (1967); Zabel v.

Tabb, 430 F.2d 199, 213 (Sth Cir. 1970), cert. denied, 401

U.S. 910 (1971).

To read these cases as sanctioning a new standard of

judicial review for findings on matters of environmental

policy is to misconstrue both the holdings in the cases amt

the nature of our remand in Scenic Hudsow. An element

common to all these cases wax the failure of an agency

or other governmental authority to give adequate con<il-

eration to the environmental factors in the <ituations with

which they were presented. In Cifizens to Preserre Over.

ton Park, lac. +. Volpe, supra at 416, for example, the Court

remanded the case to the district court to determine whethe

the Secretary of Transportation's decision “wax based on

a consideration of the relevant factors.” The Court pointed

out that “[a]ithough this inqury into the fact« ix to be

searching and careful, the ultimate standard of review ix

a narrow one. The court ix not empowered to <ubstitute

its judgment for that of the agency.” Id. In Udell v. Federal

Power Commission, supra at 450-51, the remand to the

Commission instructed it to explore the “neglected phase

of the cases” and to make “an informed judgment on these

phases of the cases.” The Court explicitly stated that it

expressed “no opinion on the merits.” It added, “It is not

our task to determine whether any dam at all should be

built dy whether if one is authorized it should be private or

public.” .Id. at 450.

In our opinion in Scenic Hudsow. supra, remanding the

1965 orders of the Commission, we were careful to make it

clear that we were raising no question of change in the haxic

standard of administrative review and that the purpose of

our remand was only to require the proper performance of

its fonctions by the Commission. We said:

“While the courts have no authority to concern them-

selves with the policie« of the Commission, it ix their

lla

duty to see to it that the Commission’s decisions receive

that careful consideration which the statute contem-

plates.” ld. at 612.

“This-court cannot and should not attempt to substitute

its judgment for that of the Commission. But we must

decide whether the Commission has correctly dis-

charged its duties . . . . The Commission must see

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 by 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 deci-

sions on the issues remanded and other challenged issues,

and whether the Commission has complied with all appli-

cable statutory requirements. |

In our opinion remanding this proceeding to the Commis-

sion we directed the Commission to weigh a number of fac-

tors which we believed had not been given adequate consid

eration. Holding that “recreational purposes” in 610(a) of

the Act (16 U.S.C. §893(a)(1964)) “encompasses the con

servation of natural resources, the maintenance of natural

beauty, and the preservation of historic sites,” we required

the Commission “properly [to] weigh each [such] factor.”

Scenic Hudson, supra at 614. We held “that the Commis-

sion is under a statutory duty to give full consideration to

alternative plans” (Id. at 617). We criticized the Commis-

eens be —

Bn ols eee

12a

_sion’s refusal to “receive proffered information on fish

protective devices and underground transmission facilities

..+.” Id. at 620, and directed it to “take the whole fish-

eries question into considesation before deciding whether *

the Storm King project is to be licensed.” (Id. at 624). We

ordered the Commission to weigh “the aesthetic advantages

of underground transmission lines against the economic

disadvantages” (Id. at 623). In-sum the Commission was

admonished to “reexamine all questions on which we have

found the record insufficient and all related matters.” (Id.

at 624). -

On January 25, 1966, acting on our remand, the Commis-

sion ordered that further proceedings be commenced before

a Hearing Examiner. In that order the Commission said:

“We do not understand the Court's order as restrict.

ing any further proceedings to the specific matters on

which it found the present. record insufficient to support

our previous determinations and we do not believe it

would be in the public interest to do so. The record

in the first two hearings in the proceeding will, of

course, be part of the present hearing. But all parties

will be free to offer timely presentations of evidence

on all matters. relevant to the question whether a li-

cense should be granted.”

The hearings were commenced on November 14, 1966 and

with several brief recesses, were concluded on May 23, 1967.

A motion of the State of Connecticut's Board of Fisheries

and Game to intervene was subsequently grantetl, and fur-

ther bearings were held on the issue of the protection of

fish. These hearings were closed on October 16, 1967. On

August 6, 1968, the Hearing Examiner issued his Initial

Decision recommending that Con Ed be granted a 50 year

license for the project. On November 19, 1968, the proceed-

13a

hazards to its Catskill Aqueduct. At this proceeding, fur.

ther evidence was taken on the alternative site in Palisades

Interstate Park. The Hearing Examiner issued a Supple- )

mental Initial Decision on December 23, 1969, which con-

eluded that the project did not endanger the Aquednet and. :

that the alternative site was “not a proper and preferable

alternative location for applicant's projected project.” In :

all other respects, except for minor items,* the Initial De.

cision remained unchanged. . :

The proceedings on remand involved 100 hearing days,

the testimony of some sixty expert witnesses, and the in-

posed site and the surrounding area before rendering their ‘

decisions.

On August 19, 1970, the Commission issued its decision. :

In its opinion the Commission reviewed the power needs :

of the area served by Con Ed and considered possible al-

ternatives to the Storm King project in terms of re- :

liability, cost, air and noise pollution, and overall environ-

mental impact. Concluding that there was no satisfactory

alternative, the Commission evaluated the environmental

5 The Tuitial Decision was amended “only to provide for the loration

l4a

undergrounding of transmission lines would result in un-

reliability in the delivery of power and would be too costly.

The Commission determined that construction of the project

would entail no appreciable hazard to the Aqueduct.*

We find that the proceedings of the Commission and its re-

port. meet the objections upon the basis of which we re-

manded the earlier determination. Examination of the

Commission’s conclusions and the evidence on which the

conclusions are based establishes that the Commission has

complied with our instructions and that the evidence sup-

porting the Commission’s conclusions amply meets the

statutory requirement of: substantiality.

A. “Alternative plans”

The Commission gave detailed and comprehensive con-

sideration to alternatives. Its initial statement of the basic

issues of the case before it and the manner of its subse-

quent dealing with those issues demonstrates that there

is no sound basis for petitioners’ contention that the Com-

mission’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 case

‘involves on the one hand the alleged greater and much

needed reliability, economic savings, and anti-air pol-

lution benefits which this project offers compared with

any feasible alternative, and on the other hand the

alleged aesthetic and enviornmental detriment the proj-

ect would impose on an area of great scenic, natural

and historic value.

6 The Commission, disagreeing with its Hearing Examiner, authorized

use of the alternative site within Palisades Interstate Park on the con-

ditions to which we have referred above. In view of our denial of the

petitions in this case, it will be unnecessary for us to review this last

determination.

Simply put, the insue | 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

to a judgment that the public convenience and necessity

would be better served by denying the appaeetion

herein.”

In deciding this issue the Commission proceeded to eval-

uate the needs of Con Ed and the probability that the pro-

posed project would supply these needs in a more desirable

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 1970 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.

Two factors were cited by the Commission as necessary

to insure availability of the required amount of energy and

to prevent major power failures, such as that which oc-

curred in the northeast United States in 1965, as well as

the lesser “brownouts” and “blackouts” which have become

all too frequent in the New York area. The first of these

two factors is the existence of adequate power facilities to

meet the growing demand for electrical energy in the area

served. The second is an adequate “reserve,” a.part of

7 The Commission noted that the annual peak loads have shifted from

the winter season to the summer.

OPP or) Mey re

et eer ee

16a

which must be what is called a “spinning reserve.” * This

“spinning reserve” is provided by units operating at less

than full capacity but synchronized to the system so that

the energy generated by them will all be immediately avail-

able to meet an increase’ in loads. It is this latter need

that the Storm King project is designed to meet.

' The Commission found that in order to prevent a

major power failure the “spinning reserve” must be fully

available within two minutes.’ The Commission expressed

the opinion, based on the record before it, that “if Corn-

wall or a pumped storage equivalent with its very fast

pick-up characteristics had been available the blackout of

1965 might have been avoided.”

The Commission examined in detail the possibility that

there were alternatives more desirable than the Storm

King project which would be capable of meeting these

needs. Our earlier opinion required the Commission to

consider the use of gas turbines. The Commissjon de-

termined that using gas turbines alone would not be a

' feasible alternative to a pumped storage unit since the

turbines would be less reliable and more expensive. Gas

‘turbines, the Commission found, take between three min-

utes and ten seconds and four minutes to be brought to

full operation from a cold start. Moreover, the Commis-

sion stated, unlike pumped storage units, gas turbines

have a relatively low capacity for storage of rotational

energy, and thus do not provide as substantial a cushion-

ing effect in the event of a disturbance.

Gas turbines were found to be considerably more ex-

- ,pensive to operate than pumped storage units. The Com-

8 Sec Prevention of Power Failures, A Report to the President br the

Federal Power Commission July 1967, Volume I at 43-44.

9 “It appears from the evidence that to be effective in such an event

70 to 75% of the spinning reserve should be synchronized and avail-

able in 30 seconds to one minute, with all of the reserve available

within two minutes.”

»-

17a

mission adopted the conclusion of a staff study that the

‘ operating costs of a pumped storage project would be

at least $119,000,000 less over a twenty-year period than’

the operating 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 found that

such an alternative would be inadequate for reasons which

are fully developed in the report. The Commission was

of the opinion that a nuclear-gas turbine combination"

“suffers from the shortcomings inherent in its com-

ponents, that is, unless the gas turbines are spinning

they cannot be brought into operation soon enough to

meet emergencies and the nuclear component has rel-

atively slow response characteristics which when com-

bined with the forced outage reduces the reliability,

quotient of such a combination.” »

“(T)he reliability quotient of a nuclear-gas turbine

combination,” the Commission said, “is far less than

Cornwall’s.”

The Commission estimated that construction of the nu-

clear-gas turbine alternative would cost $158,794,000 more

than Cornwall. On the basis of these findings the Com-

mission said:

“We do not accept the proposition put forth by Scenic

Hudson that this extra cost is de minimis when

10 A Con Ed study had estimated a twenty year operating savings of

_ $137,023,000. .

11 Several combinations of gas turbines and a nuclear unit were pro-

_ posed. Con Ed believed that eight gas turbines would be required,

Scenic Hudson, five. The staff study concluded that six somewhat larger

units would be adequate. The Commission based its conclusions on the

combination found by. the Examiner to be most appropriate: seven

turbine units coupled with a 1000 mw nuclear unit.

18a

spread among all of Con Ed’s customers. There are

often good reasons why it is in the public interest

to utilize a more expensive alternative.; In appro-

priate cases the extra cost may even be substantial.

But whether substantial or not, the extra cost mnst

be justified by a showing that the alternative is in

the public interest. There has been no showing that

a combination nuclear-gas turbine alternative offers

any advantages or indeed is even reasonably equivalent

to Cornwall.”

The Commission also considered the feasibility of using

power purchased from outside sources to supply Con

Ed’s needs as an alternative to building the Storm King

plant. It found that the maximum amount that could be

assured would be slightly in excess of 1000 mw.’ Thus

this alternative, the Commission held, would not provide

sufficient power. .

Petitioners do not suggest that interconnections alone

could provide a feasible solution. Seenic Hudson pro-

posed a combination of 810 mw of purchased power with

gas turbines. However since the gas turbines in this

combination would not be used to generate spinning reserves

but to take on the load, the Commission found that tltis

alternative would not serve the principal function for

which the Storm King project is designed:

“In view of the assumption inherent in this. sugges-—

tion by Scenic Hudson that the gas turbines would

_not operate as a spinning reserve, the spinning re-

serve would have to come from the purchase sources

12 The New York Power Pool consists of the Upstate New York System

and the Southeastern New York Companies (SENY). The Commission

estimates that the seasonal exchange between these two would amount

to 500 mw in 1975 taking into account the requirements for maintenance

of generating capacity. Another 465 mw could be secured from the

New England Power Pool and the Pennsylvania-New Jersey-Maryland

Power Pool. .

19a

if this alternative is to be comparable to Cornwall.

Accordingly this possibility eannot 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. As the

Commission poimts out, none of the petitioners offered

any evidence on possible alternative hydro-electric 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. For example, the Bashbish site, in New

England, would require a transmission system of between

-32 and 56 miles, with attendant effects on the surround-

ing land, as compared to the 9.2 miles of overhead cor-

ridor planned for the Cornwall project.

In it examination of alternatives the Commission con-

sidered their effect on air pollution, noise 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 pollution. However

since nuclear energy by itself is inadequate for’ peaking

purposes, the effect on air pollution must be measured

with relation to gas turbines, operating either as parf of

a nuclear-gas turbine system or operated partly loadéd

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-

ation of the project -will be caused by the plants which

supply the power for pumping the water into the reservoir.

OT OLED

eT ET ACR OI Igy yy

‘

ee te ei eee

aa ae ett te a ee ET

20a

As the Commission said, “if the energy necessary to pump

Cornwall comes from polluting power plants in New York

City that would otherwise be idle, little or nothing would

be gained in reducing the air pollution problem.” The

Commission concluded, liowever, that “water for Cornwall

will normally be pumped by use of electric energy from

non-polluting seurces ....” The Commission believed that

construction of the Cornwall project would permit a more

rapid replacement of old relatively inefficient steam-clectric

plants with large nuclear plants. Even during the early

years of the project’s operation, because pumping would

take place during off-peak hours, i.e., at night, “clean-

burning” natural gas would probably be available in

amounts sufficient to meet a large part of the Cornwall

requirements.

The Commission pointed out that proposed alternative

methods of meeting Con Ed’s need for power, since they

too require construction of new facilities, would have an

overall impact on the physical environment similar to that

to which the opponents of the Cornwall project are object-

ing.

“Still another approach to weighing ‘alternativés to

the proposed action’ from an environmental stand-

point is to compare the operational consequence to

the environment of the Cornwall project with similar

consequences which would result from any reasonable

alternative project. We conclude that none of the most

likely proposed alternatives, including an all-nuclear

unit or the mixed nuclear-and gas turbine combina-

tion, could be sited within 100 miles of New York City

with any less physical impact on the environmental as-

pects of the affected area than the Cornwall project.”

a -

Che a Lk er sa oS Ba ER

21a

B. “The conservation of natural resources, the mainte-

nance of natural beauty, and the preservation of historic

sites.”

The Commission gave extended consideration to the en-

vironmental aspect of our remand order. Testimony was

taken from “a veritable ‘Who’s Who’ of conservation, each

witness discussing a different facet of this esoteric and

subjective matter.” The Commission, said: “{[O]ur con-

clusion that the license must issue does not rest upon any

discounting of the case made by the intervenors relating

to the natural beauty, historical signifieance, and spiritual

qualities of the Storm King Mountain in its setting.” Its

essential finding in this regard was that the Cornwall

project, as modified by the Commission to make any struc-

tures not buried “as unobtrusive as ingenuity can make

them,” constitutes “no real impairment of the environ-

mental and seenic aspects of the Highlands.”

- The original plan for the project provided for a power-

house that would be 80 per ceni underground. The project

licensed by the Commission now ealls for the powerhouse

to be completely underground. While in-an area visually

part of Storm King Mountain, the powerhouse would not

be under the mountain itself but in the Village of Corn-

wall “on a small river-bottom foothill.” Scenic Hudson’s

witness Vincent J. Scully, professor of art and architec-

ture at Yale University, although he was opposed to other

features of the project, stated that the underground power-

house itself did not “enter into the problem of visual rela-—

tionship.” The external features of the powerhouse site

would all be located below the cut of Storm King High-

way on the mountain." The only features on the power-

house site which would be aboveground would be the en-

13 The highway crosses the mountain at an elevation varying from 200

feet to 280 feet. The height of Storm King Mountiin is 1,343 . fect.

22a

trance to the underground plant, an access road, and the

tailrace. The Commission said that “the land surface

above the power station will be planted and as much of the

existing growth as possible preserved.”

The tailtace and abutments would be located at the river’s

edge, in an area partially occupied at present by a de-

cidedly unscenic railroad bridge. The tailrace would be 685

feet long, with a vertical rock cut rising from 10 to 32 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 exist-

ing 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 level there would be

no direct view of the tailrace.”

The tailrace and the vertical cut would not, therefore,

destroy a scenic, unspoiled view of the mountain. They

would in iarge part be hidden from view hy existing man-

made structures or natural phenomena. The scenic 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 vition. The Commission could

- ae PEA LGD LIST PTR WCE BE pb THE:

ee v—

23a .

reasonably find that with the river 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 scenic aspects.

The Commission found, in summary, that:

“Limiting the external features at the power house site

to the portal entrance, tailrace, and access road, total-

ling approximately 3 or 4 acres—out of Storm King’s

total of over 400 acres—should reduce to a minimum

‘the visual impact on the scenic vistas of Storm King -

Mountain or the Highland Gorge of the Hudson River

and thereby preclude any material scenic impairment

or detriment.” ee

The reservoir would not be on Storm King Mountain

itself but behind the mountain from the river about two

miles south and west of the powerhouse site, on lands owned

in part by the Village of Cornwall and in part by Harvard

University." It would not be visible from the river; its

visibility from other points “varies in relation te the eleva-

tion and distance of the view.” From many of the points

from which the reservoir can be seen various industrial

developments can be seen as well.

The Commission found that, although the 240 acre reser-

voir will be larger than any of the other nearby bodies of

water, “in the scale of the area it does not reasonably ap-

pear to dwarf the scene. Nor should it be materially differ-

ent in appearance from ponds in the area and thus should -

not be deemed incongruous with the present character of the

area 99 15

14 The part owned by Harvard is a portion, of Black Rock Forest, a

3,700 acre experimental traet of timber. About 240 acres at the east

end of the forest would be acquired for the project. The remaining

land will be unaffected.

15 The Commission noted that all large ponds in the area are artificial.

Mas oder ow

pl ebhde Jvc ig i onsale sab Ao

— ' . SRE TAD RL IRSA TREE PRO ARI a IRIS A MMO NE RIDIN U8 Sa

24a

Finally with respect to the contention that the inside

walls of mud, or rock fill, would be exposed as the reservoir

rises and falls, the Commission found that the rock and

earth comprising the dikes would not be out of character

with the rock and bare spots common in the Highlands and

that “[t]he plantings and natural growth which would ad-

here to the exterior and possibly interior surfaces of the

dikes would also serve to ameliorate any intrusion of the

reservoir and dikes on the natural scene.”

The Commission’s criticisms led to the substantial modi-

fication of the recreational aspects of the project. Con Ed’s

original proposal included an information center and recre-

ation area to be located in the vicinity of the powerhouse

site. These features were eliminated by the Commission.

The Commission approved the construction of a riverfront

park and a scenic overlook. The park is to be built on the

rock excavated from the site of the power plant. It would be

located in that part of the river to the north and west of the

project adjacent to the shoreline. This 57 acre mile-long

recreational facility, to be linked by two bridges to the

Town of Cornwall to which it will be transferred upon com-

pletion, is to consist of play area, picnic sites, shelters, and

sanitary facilities. The scenic overlook is to occupy a

36 acre tract-abutting State Highway 9-W, and would also

inelude picnic sites."* The Commission found that the over-

look would enable visitors to enjoy “the scenic vistas of the

Hudson River” *” and “will not seriously or substantially

16 Of the one hundred and forty acres to be acquired by Con Ed, over

100 acres is to be transferred to the Palisades Interstate Park Com-

mission for recreational use.

17 This accords -with the findings of the New England-New York Inter-

Agency Committee, Report of the New England-New York Region, Sub-

region “E” (Hudson River Basin), 999 (d) (reprinted as Sen. Doc.

No. 14, 85th Cong., 1st Sess. (1957) ) which recommended for the Hud-

son River Gorge “. . . establishment of a system of highway waysides

. to make available, in a safe manner, the scenic,vistas of the

countryside.”

LEELA SCOR REHEAT EB Ie” k OO

25a

impinge on the scenic historic or environmental qualities of

the area.”

The Commission heard extensive testimony on the effect

of the project on historic sites in the area. There is no

record that any event of historical significance took place

‘at Cornwall or on Storm King Mountam. Constitution

Island and West Point, and Forts Clinton and Montgomery,

which are at Bear Mountain considerably below the project

site, are the closest areas of historical importance. The

project site is not visible from either Constitution Island or

West Point. However, Constitution Island, which has the

best preserved revolutionary fortification in the Highlands,

- will be visible from the proposed scenic overlook. None of

the parties has offered any specific rebuttal to the Com-

mission’s conclusion that “the project will not cause the

destruction of any historical site.” ’*

The thrust of petitioners’ arguments is that the principle

of preservation of scenic beauty permits of no. intrusion at

all into this area and that, therefore, no power plant, no

matter how innocuous, may be built. This is clearly a policy

determination which, whatever may be our personal views,

we do not have the power to impose on the Commission.

The Commission has complied with the terms of our re-

mand by giving careful and thorough consideration to the

18 The propriety of the use by the Commission of the findings of the

Advisory Council on Historie Preservation, set up by the Historic

Preservation Act of 1966, 16 U.S.C. §470 f (Supp. 1971), is the subject

of some dispute. The Advisory Council found that plans for the project

would have a “minimal adverse effect” on the scenic values of the arex.

Petitioner Scenic Hudson contends that the Council’s finding is not only

contrary to evidence but also that it ought not to be considered by the

Commission because Scenic Hudson did not participate in the delibera-

tions 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

“finding is made on the basis of record evidence, independent of con-

sideration of the findings of the Agnes Council, which simply affirms

our conclusion.”

————— rt t—

26a

impact of the project on the envirnoment. The conclusions,

it has reached are supported by substantial evidence.

C. The “fisheries question.”

In our remand order, in additional to requiring further

consideration of the overall environmental impact of the —

project, we specifically directed the (‘ommission to “take

the whole fisheries question into consideration before decid-

ing whether the Storm King Project is to be licensed.”

Scenic Hudson, supra at 624. We had im mind the allega-

tions of fishermen’s groups that the project threatened to

destroy the eggs of the striped bass whose major spawn-

ing grounds, they maintained, are in the immediate vicinity

of the project, and “that ‘no sereening device presently

feasible would adequately protect these early stages of fish

life’ and that their loss would ultimately destroy the eco-

nomically valuable fisheries.” Id.

The Commission took official notice of the report of the

Hudson River Policy Committee entitled “Hudson River

Fisheries Investigations 1965-1968,” which was based upon

a study sponsored by the New York State Conservation

Department and the United States Fish and Wildlife Ser-

vice and conducted under the field direction of a technical

advisor of the United States Bureau of Sport Fisheries.

The “Hudson River Fisheries Investigations” concluded

that: - ’

* .. the evidence indicates that there would not be any

vigiebioned adverse effects to the striped bass and

American shad fisheries of the Hudson River from a

‘pumped storage generating plant at Cornwall, New

York.” |

The Policy Committee’s study lends strong support to

the views presented by a number of witnesses at the hear-

27a

ings to the effect that the spawning grounds of striped bass

extend from locations at river mile 35 to river mile 123,

and that these spawning grounds are, in the Commission's

words, “not consistently more favorable in one location

than another.” The Commission found “that bass spawn

substantially in the Hudson River over an 80 mile reach,

including the Cornwall area, and that no part thereof is

distinguished as a major spawning area.” ee

The devices originally proposed to protect the fish Have

been redesigned to afford greater protection. Referring to

the testimony of a fishery biologist from the Commission

staff, the Commission said:

. that while the mortality rates of fish, fish eggs,

and larvae inhabiting the water which will be drawn

through the screen and the plant cannot be measured

‘short of actual measurement during project operation,

in his own opinion the losses to the fishery caused by

the operation of the project would not significantly

affect the Hudson River fishery resources.”

In order to compensate for the loss of fish resulting from

the operation of the proposed plant, Con Ed proposed, and

the Commission approved, construction of a fish hatehery.

The Commission concluded :

“Witness Raney’s fear’ as to what might or could hap-

pen are counterbalanced by testimony based on sam-

19 Scenic Hudson’s witness, Raney, testified:

“Anything that man does is substantially opposed to natures So ff

you build any sort of a structure you will have situations which

are not found naturally in the environment so here you have an

additional situation where you have fishes drawn up into an arti-

ficial impoundment, eggs drawn up, larvae drawn up, possibly

thirty species upon which they féed. So it is a very complicated .

business to try to evaluate the overall effect this will have. But

basically the effect will be harmful to the fishes.

28a

« pling studies which relating egg producing capacity of.

the striped bass to volumes of water in plant operation

indicates that the impact on Hudson fishery would: not

he substantial. Thus even if none of the fish and eggs

at Cornwall survived, the total impact would be small.

The evidence, however, is to the effect that no such

disaster would befall the Cornwall segment. Eggs,

larvae and ‘fish entering the plant would have a’ sur-

‘al rate in the area of 80 per cent. Further, hatchery

bee A elsewhere indicate the Secaibility of an

‘operation in the Hudson which would be capable of

replacing any losses attributable to the project.”

D. The “aesthetic adv itunes of underground transmis-

sion lines against the economic disadvantages” and related

routing problems. :

In compliance with our mandate, the Commission investi-

gated the possibility of constructing the transmission lines

of the project entirely underground. The Commission

weighed the obvious aesthetic advantage of underground

transmission as against its economic and functional dis-

advantages. ,

The evidence shows that putting the transmission tam

underground would cost substantially more than having

them overhead. The Commission’s staff estimated that con-

sidering both construction and maintenance costs, under-

ground lines would be approximately 16 times as expensive

as overhead lines: The Commission explained that:

*“The relative costs of undergrounding can be appre-

ciated from the fact that the problems. inherent in

transmitting power underground at high voltages are

T think anything that affects any substantial number of eggs, lar-

vae, young or adult, could ultimately have a substantial effect on

a fishery. But the degree of the effect I don’t know.”

. 29a

not simply a matter of putting an overhead transmis-

sion line, ‘which is merely a bare insulated piece of

metal conductor, into a trench. The phenomena of heat

buildup and condenser (or capacitance) effect require

that underground cables be an entirely different spe-

cles of equipment. ° 3

The Commission cited a number of technological factors

_ that result in higher labor and material costs for under-

grounding. Underground cable requires a: type of insula-

tion which can be applied only by highly skilled 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 and thermal

properties of underground lines. |

The Commission found that there were functional dis-

advantages in underground cables. Although overhead

lines have more outages, there can generally be immediate

' automatic reclosure with no disruption of service. Outages

in underground cables, on the other hand, result in consid-

erably greater disruption of service since the failure must

be located, the damaged area excavated, and complicated

repairs made.

The Commission, balancing he several factors which are

involved, concluded:

“It is thus apparent that only for the most cogent rea-

sons, as where no feasible alternative is possible or

where the aesthetic detriment is so violent as to pre-

clude any consideration of overhead transmission facil-

ities, that undergrounding ‘should be required.

Nor do we believe it is in the public interest to burden

consumers with the cost of undergrounding cables un-

30a

-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 ney route is not the route preferred by Con Ed, but

is a modified route developed by the Commission staff.

Although it is 5 to 6 miles longer than the route proposed by

Con Ed, it would require 4 miles less of transmission cor-

ridor because it uses a greater length of the existing Pleas-

ant Valley-Millwood corridor. The alternative route was

selected because “it will impinge less on the area through

which it passes than would any other route.” The area

traversed is “rough, wooded and hilly. More importantly,

its valleys lie in a north-easterly direction and are oriented

so as to provide the possibility of locating lines below

crests.” The wooded nature of the area will provide natural —

screening. The Commission found that “the area will re-

main what it is now—scenic and pleasant, with open farm-

land and orchards and partly wooded with some brooks.

To say that this will be seriously damaged or destroyed

by an overhedd transmission liné is not consistent with

reality.” *

Since the Commission’s conclusions on this issue are

hased upon consideration of all relevant factors and are

supported by substantial evidence, they cannot be rejected.

20 Con Ed is required by the license order to follow recognized guide-

lines for the construction of overhead transmission lines. Article 35(5)

of the Commission's license order includes the guidelines contained in

the Hudson Valley Power Commission's “Power Lincs and Scenic Values

in the Hudson River Valley.” In addition, Con Fa ‘is bound by the

Commission's Order No. 414 which prescribes general regulations for

the “protection and enhancement of aesthetic and related valuce in the

design, location, construction, and operation of project works” (35 Fed.

Reg. 18585 (1970)).

3la

E.. The Catskill, Aqueduct

The issue of possible danger to New York City’s Catskill

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 feet from the Moodna Pres.-

sure Tunnel, a 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 Cornwall 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,

“S21 (1964), which provides that:

“Nothing contained in this chapter shall be construed

ax 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 authorize

Con Ed to divert any of the city’s water or to interfere

with the tunnel. Moreover the “only purpose of Section 27

is to preserve to holders of state-conferred water rights a

right to compensation if those rights are taken or destroyed

as an incident to the exercise by another, of a license granted

by the Commission.” Portland General Electric Co. v.

Federal Power Commission, 328 F.2d 165, 176, & no. 23

(th Cir, 1964), citing City of Fresno x. California, 372

32a

U.S. 627, 629-30 (1963) and Ivanhoe Irrigation District v.

McCracken, 357 U.S. 275, 291 (1958), both of which involved

the very similar language of Section 8 of the Reclamation

Act of 1902, 48 U.S.C. (383 (1964).2' Section 27 was not

intended to give the city the power to veto Commission

action.

The Commission concluded that excavation of the power-

house site would not cause damage to the Moodna Pres-

sure Tunnel, that controlled blasting during construction

would not endanger the Aqueduct and, generally, that

“the probability of damage to the Aqueduct is remote.”

We think that there is substantial evidence in the record

to support the Commission's determination.

The Commission found that the rock underlying the

project “is a very large mass of dense uniform crystalline

- rock underlain by sedimental rock capable of sustaining

great loads.” The city contends that, on the contrary, in-

stability of the rock at the Aqueduct site can he deduced

from a failure of the original Moodna Tunnel in 1913 and

by the phenomenon of “popping rock” encountered in

construction of the tunnel. However, the evidence shows

that the failure of the original Moodna Tunnel was due to

excessive water pressure and insufficient rock cover. The

tunnel was corrected by construction of an alternate shaft

and has operated for a period of over 50 years without

untoward incident. The Commission found that “(t]he

phenomenon of ‘popping rock’ occurs in rock of this area

only at depths below 1,000 feet,” far below the depth pro-

_ posed for the Cornwall project.

21 That statute provides: :

“Nothing in sections . . . of this title shall he construed a= affecting

or intended to affect or to in any way interfere with the laws of

any State or Territory relating to the control, appropriation, use,

or distribution of water used in irrigation, or any vested rights

acquired thereunder... .” 43 U.S.C. §383 (1964).

2. aR ge tee - ad are.

' 33a

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

hazardous from a geological point of view.” Dr. Bartlett W.

Paulding, Jr., Associate Professor and Acting Head of the

Basic Engineering Department of the “olorado School

of Mines, who was retained by Con Ed at the suggestion

of the City, testified that the effect of excavations on the

aqueduct would be insignificant. Dr. Paulding, whom the

Commission described as “a geologist and geophysicist

specializing in rock mechanics,” concluded, in the Com-

mission’s words

“that the absence of adverse geological conditions,

coupled with the results of a photoelastic analysis of

22 Torris Eide, consultant engineer to the Chief Engineer of the New

York City Board of Water Supply testified that the removal of 254,000

cubic yards of rock might disturb the equilibrium in the forces within

the rock formation, and thus present a risk to the Aqueduct. However,

he had conducted no geologic or seismic tests of the area. Thomas

Fluhr, engineering geologist and consultant to the New York City Board

of Water Supply testified that the rock in the area appeared to be

under stress. He stated “[t]he risk of failure of the aqueduct cannot

be regarded as imminent but it represents a definite hazard.” He con-

ceded that the risk was small, but stated that “there certainly is some

- tisk.” He too had made no surveys beyond general mathematical studies.

Malcolm T. Wane, Associate Professor of Mining and Engineering at

Columbia University, testified for the city that he found that a vertical

stress relief of 14% and a horizontal stress relief of 11% would result

from excavation. He did not know what effect such changes would have

since the present state of equilibrium of the Aqueduct was unknown.

Don W. Deere, Professor in the Department of Civil Engineering and

Geology at the University of Mlinois, testified that there were too

many unknowns to permit evaluation of stress changes. He believed

that “there was a small but real risk involved to the present aqueduct

because of the changes in stress and nae activities associated with

the construction of the project at this si

34a

the stress conditions around rectangular openings .. .

indicate that the existing Catskill Aqueduct will not

be endangered ... during . . . excavation for the

power plant.”

Similar testimony was offered by Charles P. Benziger

» who based his conclusion on lew stress conditions 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,

Malcolm T. Wane, testified that the effects of blasting are

somewhat conjectural. Con Ed’s witness Paulding 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 blasting

presented at’ most a “remote” danger is not seriously

challenged by the city.

It is clear that the resolution of highly complex techno-

logical issues such as these was entrusted by Congress

to the Commission and not to the courts. Where the

Commission’s conclusions are supported by substantial

evidence, the courts must accept them. It seems to us

that it would he very difficult indeed to argue that the

evidence supporting the Commission’s determination with

respect to the Aqueduct is insubstantial. In fact 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 should be able to

exercise what, in effect, amounts to a veto power. However,

there is no authority whatever to support the imposition

35a

of any greater burden of proof than that provided in the

statutory standard and “[{s]uch 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 Iowa

Hydro-Electric Cooperative v. Federal Power Commission,

328 U.S. 152, 164 (1946) (footnote omitted).

11.

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:

“$803. Conditions of license generally.

All licenses issued under sections 792, 793, 795-818,

and 820-823 of this — 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

interstate or foreign commerce, for the improvement

and utilization of water-power development, and for

other beneficial public uses,-ineluding recreational

purposes; and if necessary in order io 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.”

5 INR nee EM aR aa aI I si AM Aesot

J ei LAT ad GS)

36a

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” “undoubtedly encompasses

the conservation of natural resources, the maintenance of

natural beauty, and the preservation of historic sites.”

Scenic Hudson, supra at 614. We directed the Commission

to consider all of these factors in.reaching its decision.

It is obvious 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 “recreational purposes,” and, indeed, has used its “au-

thority to require the modification of [the] project” in a

number of aspects related to this end.

There is no real dispute as to other findings required

by the statute. The Commission found that there would

be no impediment to navigation, that use of the Hudson

River for electric 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

not 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 responsibility” en-

trusted to it by Congress in Section 10(a).

The petitioners also claim that the Commission has vio-

lated the National Environmental Policy Act, 42- U.S.C.

§§4321 et seq. (Supp. 1971). This Act was passed after the

close of the hearing, but before the Commission’s decision.”*

Its applicability to this proceeding is clear, and is con-

ceeded. See Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970),

cert. denied, 401 U.S. 910 (1971). Section 101 “recognizing

23. The Act became effective January 1, 1970.

pe aaa

37a

. the critical importance of restoring and maintaining

environmental quality to the overall welfare and develop-

ment of man” requires the federal government to

“(b) ... use all practicable means, consistent with other

ccnentiol considerations of national policy, to improve

and coordinate Federal plans, functions, programs,

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 possible, an environment which supports diversity

and variety of individual choice ;

(5) achieve a balance between population and re-

source use which will permit high standards of living

and a wide sharing of life’s amenities ... .” 42 U.S.C.

§4331 (Supp. 1971).

Section 102 of the Act, 42 U.S.C. §4332 (Supp. 1971),

requires agencies of the federal government to take certain

prescribed 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

that all factors be fully explored. ‘The eventual decision

_ still remains the duty of the responsible agency. a

The Commission has complied with the specific direc-

tives contained in Section 102 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 Historic

Preservation, the Department of the Interior, the Atomic

fay

7 ,

. sini 4 sp Balainatonsdnulithet bi eins DSURT Ney »

‘ - , . ieatbancen AGS nba eo laradania et Monies actbanii! LAI Delia gto 4 Minish Branston nec +

olla Neca wreawlaR wlll Dacia RaSh csc

38a -

Energy Commission and a number of state and local .

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 con-

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 eariier

ease, and later before the Commission. By reason of their

efforts the Commission has reevaluated the entire Cornwall

project. The modifications in the project reflect a height-

ened awareness 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.

_—own

—-

———

39a

OaKEs, Circuit 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, I 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 énergy,’ the court would be conclusively bound,

1 The FPC findings on the feasibility of purchasing, rather than creat-

ing, power are not entirely consistent. Finding 82 says in pertinent

part: ;

If the energy necessary to pump Cornwall comes from polluting

power plants in New York City that would otherwise be idle, little

“or nothing would be gained in reducing the air pollution problem.

Based on the assumption that Cornwall would go into operation in

1972 a Staff study introduced in evidence showed that by 1980 ap-

proximately 89 percent of its pumping requirement eould be met by

virtually non-polluting sources of generation. Cornwall, to the extent

that its water is not pumped by power from Con Ed low cost nuclear

plants will be powered primarily from sources in areas adjacent to

. the Con Ed service area, and perhaps by imported Canadian hydro-

electric power. .

Finding 134 says in pertinent part:

Another considered alternative to the Cornwall development is the

possibility of purchased power from Canada, namely from Churebill

(Hamilton) Falls projeet, now under construction. To be a proper

source of power supply, the energy from Canada would have ,to be

taken substantially 24 hours per day; otherwise this would not be an

economic source. The transmission distance involved and the relatively

high cost of transmission facilities makes Churchill Falls pewer com-

patable to base load nuclear power or base load mine-mouth power

or other sources of base load power outside of New York City, rather

than an alternative to the Cornwall development. There is no indica

tion when, if ever, Churchill Falls Power might ‘be available to electric

systems outside of Canada. In addition, there is no assurance that it

would be available upon system separation.

It has been reported that on July 30, 1971, “dedication ceremonies”

were_held for a 345 KV transmission line linking the Canadian New

Brunswick Power Commission with twelve investor-owned and- two co-

operative New England Utilities, with a power transfer capability of

600 megawatts. The intertie runs 230 miles southeast from Frederickton,

New Brunswick, to Wiseasset, Maine. In its first 25 days of operation

40a

both under Section 313(b) of the Federal Power Act, 16

U.S.C. §8251(b), and the case law, e.g., Gainesville Utilities

Dep’t v. Florida Power Corp., 91 S.Ct. 1592 (1971), by

findings supported by “substantial evidence,” particularly

when the Commission is acting within its own field of

“expertise and judgment” Gainesville, supra, 91 S.Ct. at

‘1598. It is also true, of course, that the courts cannot

: quarrel with the Congressional policy impliedly expressed

in Sections 207 and 311 of the Federal Power Act, that puts

great emphasis on “adequate service,” 16 U.S.C. §824f, the

“cost of generation .. .” and “the development of naviga.,

tion, industry, commerce, and the national defense,” 16

U.S.C. $825.” : |

it transmitted 58,000,000 KWH of base-load and peaking energy. Other

Canadian interconnections total about 3540 MW, including 2,000 MW

to New York and Michigan. See Public Power Weekly Newsletter

(A.P.P.A.), Aug. 6, 1971, at 5. It is also interesting to note that on

July 21, 1971, Senators Metcalf and McGovern introduced 8. 2324, a

bill to establish “a national power grid system,” the underlying concept

of which was perhaps first advanced by the father of modern conserva-

tion, Governor Gifford Pinchot of Pennsylvania. In the course of Rhode

Island Representative Tiernan’s remarks on the companion House Bill

(H.R. 9970), he said:

Only with a national grid system can we assure all Americans an ade-

quate and reliable supply of electric power. . . . An [sic] an example

of how the national grid could accomplish this, consider the acute

power shortage which struck New York City in 1969. Basin Electric

Power Cooperative in North Dakota, along with the Bureau of Recla-

mation and Missouri Basin System wired Consolidated Edison in New

York to say that they would supply all of the power New York

needed. The city remained dim, however, because there was no way

to transmit the power from North Dakota-to New York. Had a

national grid existed, this power would have -been readily available

to the energy-starved area. 117 Cong. Rec. H7005 (daily ed. July 21, .

_ 1971).

Section 207 of the Federal Power Act, 16 U.S.C. §824f, does not

speak of conserving use of electrical energy, a policy which Consolidated

Edison, the applicant here, is at least partially promoting with its

1971 “Save-A-Watt” advertising campaign. Nor does Section 311, 16

U.S.C. $825j (dealing with the investigatory and information-gathering

function of the FPC) in any way refer to conservation of the environ-

4la

On the other hand Congress has now placed a measure of

responsibility with the FPC, and the other federal agencies,

to take environmental factors into account.’. The FPC also

has its own duties, specified in Section 10(a) of the Federal

Power Act, 16 U.S.C. §803(a), to issue a license to use

water power only when the project will be best adapted for

“beneficial public uses, including recreational purposes.”

And indeed as Judge Learned Hand once put it, alfhough in

reference to agency interpretation of statutes:

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

ment. We are left with Congressional policy underlying the Federal

Power Act that is read to assume that future electrical needs will in-

crease and that the only way to meet them is to construct more and

more generating capacity. This is an assumption that certainly bears

re-examination [see P. Ehrlich & J. Holdren, “The Energy Crisis,”

Saturday Review, August 7, 1971, at 50], and one which automatically—

depletable natural resources (coal, oil, natural gas, uranium), an adverse

impact of one sort or another on the environment, or both. The 1970

National Power Survey (FPC) Pt. II estimates annual “peak demands”

for the metropolitan New York City power supply area at 7,350,000

Kilowatts in .1970, 13,360,000 in 1980 and 21,160,000 in 1990, id., at

II-1-8, and on this basis one could argue for perhaps three or four

Storm King projects. The same report makes reference, inter alia, to

the problems of air pollution from coal-fired plants,id., at II-1-19; deple-

tion of oil and gas reserves, id., at II-1-19, 27; thermal pollution by

nuclear plants, id., at II-1-48; thermal discharges generally, id., at

II-1-49; ash disposal and nuclear fuel disposal, id., at II-1-50. See also

Sarvicki, “The National Power Crisis and Its Effect on Rural America,”

Rural Electrification, June 1971, at 15; M. Katz, “Decision-making in

the Production of Power,” Scientific American, Sept. 1971, at 191.

See Council on Environmental Quality, Environmental Quality—The

Second Annual Report. 25-26 (Aug. 1971). Sec. 102 of the National

Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. saan 47,

’ directs “all agencies of the Federal Government” to

(A) utilize a systematic, interdisciplinary approach which will insure

the integrated use of the natural and social sciences and the environ-

mental design arts in planning and in decision making which may

have an impact on man’s environment ; ;

42e

end one can 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 themselves—look for light from every

quarter, and after all crannies have been searched, will

vield to the administrative interpretation in all doubt-

(B) identify and develop methods and procedures, in consultation with

the Council on Environmental Quality established by tithe II of this

Act, which will insure that presently cxqualified environmental ameni-

ties and values may be given appropriate consideration in derision-

making along with economic and technical considerations ;

lation and other major Federal actions significantly affecting the

quality of the human environment, a detailed statement by the re-

sponsible official on

(i) the environmental impact of the propowd action,

(ii) any adverse environmental effects which cannot be avoided

should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environ-

ment and the maintenance and enhancement of long-term produc-

tivity, and

Cv) eng teseveniite onl teschiorshte commitualio of vewsusets

which would be involved in the proposed @ction should it be imple-

mented.

Prior to making any detailed statement, the responsible Federal -

official shall consult with and obtain the comments of any Federal

agency which has jurisdiction by law or special expertise with respect

to any environmental impact involved. Copies of such statement and

the comments and views of the appropriate Federal, State, and local

agencies, which are authorized to develop and enforce environmental

standards, shall be made avaiiable to the President, the Council 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 agency review processes ;

(D) study, develop, and describe appropriate alternatives to recom-

mended courses of action in any proposal which involves unresolved

conflicts concerning alternative uses of available resources; . . . 42

U.S.C.A. $4332. ‘

The efficacy of this Act is in large part dependent on the decision in

the instant case; as Schroeder puts it in “Pollution in Perspective: A

43a

ful cases; but they can never abdicate. Niagara Falls

Power Co. v. FPC, 137 F.2d 787, 792 (2d Cir. 1943).

I take it also that we cannot abdicate when the Commission

fails “to make findings or evaluate considerations relevant

to its determination.” Gainesville Utilities Dep't v. Florida

Power Corp., supra, 91 S.Ct. at 1598 n.7; and see Schaffer

Transportation Co. v. United States, 355 U.S. 83 (1957):

Scemic Hudson-Preservation Conference v. FPC, 354 F 2d

608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966). Simi-

larly, if the agency findings are internally inconsistent, the

court is not bound to accept them. Cf. Gallick v. Baltimore

& Ohio R. Co., 372 U.S. 108, 119 (1963); Telex Corp. v.

Balch, 382 F.2d 211, 215 (8th Cir. 1967); Freightways, Inc.

v. Stafford, 217 F.2d 831, 835 (8th Cir. 1955); Williams v.

United States, 126 F.2d 129, 132-33 (7th Cir.), cert. denied,

317 U.S. 655 (1942). Finally, while judicial deference to

administrative expertise is required, not every agency is

expert in every aspect of science, technology, aesthetics or

human behavior. Cf. Universal Camera Corp. v. NLRB,

340 U.S. 474, 476 (1951); see L. Jaffe, Judicial Control of

Survey of the Federal Effort and the Case Approach,” Vol. IV, No. 2,

Natural Resources Lawyer, 381, 419 (April 1971): “The key question

ahead is whether, after balancing all pertinent considerations, an ad-

ministrative decision is made that provides for less than full environ-

mental protection—whether that decision will be upheld if challenged

jn the courts.” It is interesting to note, although I place little signif

cance on it here, that at a meeting of the Subcommittee on Environ-

mental Quality Control of the ABA Committee on Environmental Quality,

the Assistant to the Chairman of the FPC strenuously criticized NEPA,

quoting a former AEC attorney who termed NEPA “an atrocious piece

of legislation,” calling it “woefully ambiguous,” “an invitation to

litigation,” and expressing the hope that “reviewing courts will take a

practical approach” and the fear that “to construe the statute as a rigid

prescriptior of the quality or quantity of evidence required would

quickly cripple the administrative process.” Annex A, Minutes of Meet

ing 14, 19 (April 20, 1971). To what extent this genuinely reflects thix

agency's attitude toward NEPA, however, is doubtful; one might hope

that Congressional concern with the U.S. environment might be given

more respect by the Commission as a whole.

Pee ee ee ee

44a

Administrative Action 576 et seq. (1965). As Professor

Jaffe has said, “ ... expertness is not a magic wand tvhich

can be indiscriminately waved over the corpus of an

agency's findings to preserve them from review.” Id. at

615; see also 4 K. Davis, Administrative Law Treatise

(30.07 (1958).

With these considerations in mind, I dissent. I dissent

because I think the FPC acted arbitrarily, abusing its dis-

cretion while purporting to act under the mandate of this

court in Scenic Hudson, supra; because its findings in re-

spect to the Catskill Aqueduct are inconsistent and in-

sufficient ; because its findings as to the effect of the project

upon New York City air pollution are incomplete and fail

to take into account relevant factors; and because the Com-

mission's findings and conclusions show that it has not

really followed the mandates of the National Enyironmental

Policy Act of 1969, Pub. L. 91-190 (Jan. 1, 1970), 42 U.S.C.

°£4321-47.

The City of New York has pointed out, in opposition to

the license granted by the FPC, that the Storm King (some-

times called “Cornwall”) project powerhouse is proposed

to be built only 140 feet from the Moodna Tunnel section of

the Catskill Aqueduct. This aqueduct is one of three svs-

tems supplying water to New York City. It is a gravity-

flow aqueduct over 50 years old, conveying approximately

40 per cent of the city’s average daily water supply from

the Ashokan Reservoir, 100 miles north of the city to the

Kensico Reservoir, 15 miles north of the city line. Those

who may remember the effects of severe droughts in the

1940's and the 1960's on the New York City water supply

must realize the importance of such a vast quantity of water

to the city, and imagine th» consequences of its disruption.‘

4 In addition to New York City, some twenty-four smaller communities

tap into the Catskill Aqueduct. Any of those towns which rely on it

exclusively for water would be perhaps more seriously endangered than

the City by any damage to it.

45a

- The Moodna Pressure Tunnel begins at a downtake shaft

some five miles westerly of the Hudson River, set in the

rock of Storm King Mountain. Lined with concrete, it

tunnels through the mountain at an clevation of minus 220

_ feet until it is 900 feet from the river; there it descends to

an elevation of minus 616 feet to the river. From this point

water continues to flow under pressure at 1100 feet below

the Hudson Riyer through the Hudson Pressure Tunnel

and then connects to an uptake shaft on the east side of

the River, surfacing at Breakneck Ridge. This whole com-

plex of tunnels by which the Aqueduct crosses the Hudson

is known as the Moodng-Hudson-Breakneck Pressure Tun-

nel. It has had a continuous water flow since it broke down

and was repaired in 1913°; consequently it has not been in-

spected since then. In a “pressure” tunnel, hydrostatic

pressure is constantly maintained. The City, aware of the

risk to its water supply from drilling, in its deed of Storm

King land to the Palisades Interstate Park Commission, in-

cluded a protective covenant to ban drilling within 200 fect

of the Aqueduct.‘ When Consolidated Edison first proposed

5 After the completion of the Aqueduct in 1913 there was considerable

leakage in the No. 7 downshift leading to the Hudson Tunnel, apparently

attributable to the eombination of hydrostatic pressure and “relief of

_ Stress” in the rock surrounding the tunnel. The tunnel had to he

“dewatered” and a new shaft (No. 7A) which by-passed the failed sec-

tion was drilled to correct the situation.

6 Whereas, the Board of Estimate of the City of New York...

authorized a grant and’ conveyance to the Palisades Interstate Park

Commission, of the fee of the City-owned land hereinafter described . _.

Subject to the following conditions, covenants and restrictions... :

"1 The City of New York retains a permanent sub-surface easement

to operate, maintain, and repair the Catskill Aqueduct which,

at this location, is approximately 400 feet below the surface.

5 Drilling of any kind is not permitted to depths greater than 200

feet below the present surface.

ht aie

46a

in 1963 to build a powerhouse some 175.feet from the Aque-

duct the City objected and in the original Consolidated Edi-

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 engineers, Professor Malcolm T. Wane,

with experience in mine design and rock mechanies and with

mine failures due_to stress conditions, and Dr. Don U.

Deere, a professor of engineering and geology familiar with

the major pump storage projects at Yard’s Creek, North-

field Mountain and Churchill Falls. Dr. Deere concluded, on

the basis that the Consolidated Edison excavation would

cause an estimated 31 per cent increase in tangential

stresses at the top and bottom of the tunnel and a decrease

of 50 per cent on the sides, that there is “a small, but real”

risk to the Aqueduct from the project. Dr. Deere pointed out

that the degree of risk is unknown:

Moreover, considering for the moment that the pre-

cise magnitude of the stress changes around the tunnel

were accurately known, the effect of these stresses on

stability of the tunnel lining and adjacent rock, i.e.,

the factor of safety, could still not be determined

because neither the strength of the lining in its present

condition nor of the adjacent jointed and fractured rock

mass is even approximately known. Deere, 124/18,-

577-78."

He was joined in this conclusion by Dr. Wane:

One of the outstanding features of the whole problem is

a lack of specific knowledge of what exists at this

7 When Consolidated Edison came up with its presently proposed

project the City rather slowly moved to intervene and the FPC reopened

the proceedings to take evidence on this project. Presumably we should

pot penalize the City for its delay on this, an issue of mountainous

importance.

° References are to volume/page @umber of the transcript of the

hearings. :

47a

site... [since] we do not know anything about the state

of nature in the immediate neighborhood of the aque-

duct. Wane, 124/18,550-51.

Consolidated Edison’s chief witness, Dr. Bartlett Pauld-

ing, a geologist who had done no work on tunnels or under-

ground excavations, testified that on the basis of a “photo-

elastic” technique his estimate of radial stress changes

. around the Aqueduct resulting from the powerhouse exca-

vation would come to only 11 per cent, and that this meant

that the excavation would not significantly affect the exist-

ing Aqueduct. Paulding, 112/17,203. Professor Wane sig-

nificantly indicated that the photo-elastie method, while

sound as far as it goes, only accounts for the unloading or

“vertical effect of excavation, not for the horizontal effects.

I 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-

duct 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. If this be so, one ma v

wonder why the commission did not follow the reeommenda-

tions of its staff that “an appropriate precautionary mea-

_ Sure should be undertaken by the Applicant to safeguard

the Moodna Tunnel Section- of the Catskill Aqueduct.” *

Several of the commission’s own “findings” on the danger

' to the Aqueduct tend to support the City’s position and not

the applicant’s, and most of the commission’s findings on

the Aqueduct are couched in terms of uncertainty. For

example, in Finding 270 reference is made to the city’s wit-

ness Fluhr and mention is made of his testimony that “there

8 - See Commission Staff Brief on Exceptions to Initial Supplemental

Decision, February 12, 1970, at 11. The City itself takes the position

- that either to construct a by-pass of the Moodna Tunnel section of the

Aqueduct or to line that section with steel would require an extensive

shutdown of the Aqueduct with “a resultant risk to the integrity of

the aqueduct.” °

VTT Ory,

sh. ee 2S

velthete

48a

is certainly some risk,” but the commission never tells us

what this risk is or indeed whether the commission finds

any risk. Again, Finding 271 refers to the former leaking

of the aqueduct necessitating its closing down during con-

struction in 1913 and goes on to say, “any large open joints

connecting the bypass* and aqueduct could be grouted off if

‘the experience of the original construction is typical.” The

- commission, however, does not tell us whether it is likely

that “the experience of the original construction” will be

“typical” or just how this grouting would be accomplished.

Indeed, one surmises that to accomplish any grouting the

Aqueduct would have to be shut down, and that this might

impair the integrity of the Aqueduct.

The Findings fail to convince me that there is no sub-

stantial risk to the Aqueduct. Finding 272 says that the

operation of the Aqueduct for over fifty years indicates

that it ean withstand all of the hydrostatic pressures and

stresses involved in the construction at Cornwall. But how

such operation can establish this is not indicated, since even

on the Consolidated Edison evidence there will be new

and changed stresses resulting from drilling and blasting

for the powerhouse excavation. .

In Finding 284 the commission states that “[t]he evi-

dence, thus, reasonably is to the effect that the probability

of damage by reason of blasting is remote” (italics sup-

plied). But Footnote 25 to Finding 287 says “[t]here is no

evidence concerning the condition of the Aqueduct’s lining.

Its structural integrity is unknown to the city or any of its

witnesses.”

The mere recitation of testimony by the Federal Power

Commission does not amount to the making of. findings.”

9 By “by-pass” here it is unclear whether the Commission was referring

to the tunnel “rom the reservoir to the power station.

10 Cf. Schneiderman v. United States, 320 U.S. 118, 129-31 (1943);

Kelley v. Everglades Drainage District, 319 U.S. 415, 422 (1943);

Brown Paper Mill Co. v. Irvin, 134 F.2d 337, 338 (8th Cir. 1943).

49a

. The comment above in Footnote 25 to Finding 287 is

revealing, moreover, in that it seems to imply that there

is some duty on the part of the City to make a substantial

showing that the Aqueduct will break. If the structural

integrity is unknown to the City or any of its witnesses,

presumably it is also unknown to the commission and to

‘Consolidated. Edison’s witnesses. The burden is not on

the City to prove that the Aqueduct will not break, but

on the applicant to prove and the commission to find no

danger to public “life, health and property.” " The com-

mission’s reliance in its Footnote to Finding 287 on trouble-

free operation for fifty years under entirely different

circumstances seems’ to me insufficient to support the

required finding of safety.

Finding 290 contains the conclusion “that the evidence

in the record indicates that the probability of damage to

the aqueduct is remote and that a by-pass is not required.”

Even if this in and of itself be supported by the evidence,

Finding 295 that “construction of the powerhouse will not

endanger the aqueduct” is inconsistent with it and not

based on the evidence: there is a world of difference be-

tween no danger and a “remote” danger. If a danger is

“remote” the degree of “remoteness” assumes importance .

in proportion to the magnitude of the danger. Here -the

danger is obviously great, and there is no finding as to

the degree of remoteness.

11 “Further, the project must be safe so as not to endanger life, health

and property.” Commissioner Ross, dissenting in Consolidated Edison

Co. of New York, Inc. (FPC March 1965), rev’d in Scenic Hudson

Preservation Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied,

384 U.S. 941 (1966). See also Section 10(c) of the Federal Power Act,

16 U.S.C. §803(¢), requiring a licensee to “conform to such rules and

regulations as the Commission may from time to time prescribe for the

protection of: life, health and property,” and rendering the licensee liable

“for all damages occasioned to the property of others by the construc-

tion... of the project works. . . .”

Se ak a eth Heed Bia ON INCE) ot sot

* { “

dg St Daher tte

a Tat a te gu ace ARI LE ee LM ET el ILA Nar eT

pe eae)

Pere een

50a

The commission’s Added Findings 33 and 34 are not

based upon the earlier findings and in turn are not based

on the evidence when they say (1) that the constfuction

will not constitute a hazard to the aqueduct and (2) that

the site does not constitute a hazard to the aqueduct.

The most compelling statement in the record evaluating

the problem is that of City’s witness Thomas W. Fluhr,

an engineering geologist who is a consultant for the City

of New York Board of Water Supply:

The geologic risk is that during construction of the

- project or during construction of the proposed bypass,

stresses already present in the rock may be triggered

and cause failure of the aqueduct. Moreover, even if

the bypass were successfully constructed and placed

in operation, and the pump-generator and transformer

_ galleries also completed, there would be no assurance

that orogenic stresses would not build up and cause |

failure of the aqueduct even after a lapse of many

years.

The risk of failure of the aqueduct cannot be re-

garded as imminent but it represents a definite hazard.

When the Moodna Tunnel was first constructed and

failed, ample time was available to rebuild it since

there were no consumers dependent on it for water

supply. At present there is no substitute for the

Catskill Aqueduct; its failure could have catastrophic

consequences. , |

Evaluation of the risk involved in constructing the

power plant near the aqueduct tunnel cannot be made

on an actuarial basis. The risk might be taken as a

calculated business risk if only money were involved;

however, a failure of this water supply system might

jeopardize the lives and welfare of millions of persons

5la

in the city and the upstate communities served by

the Catskill Aqueduct. Fluhr, 110/16,837-38,"2

On this record and on the commission’s findings and in

the light of the commission’s own staff recommendation,

I would dissent as to the Storm King site even if the

aqueduct were the only factor involved. But there are

other points on which it seems to me the commission was

only paying lip service to the mandate of this court in

Scenic Hudson, supra.

The first of these is air pollution? While the extent

to which the FPC possesses any particular expertise on

air pollution may be doubted, we may assume some

familiarity with the subject in the light of the commission’s.

comments’ in, and experience in preparing, the 1970

National Power Survey." Unfortunately, one generating

plant after another has been constructed in the past with-

out much attention to this problem'*—one that by contrast

is perhaps more readily visible for a visitor to New York

12 Mr. Fluhr was originally engaged by the consultants to Consolidated

Edison Co. and later by,Consolidated Edison directly, with the under-

standing that the interests of the City of New York would take priority.

He thought the original surface plant, rejected in Scenic Hudson,

supra, safe and “geologically sound.”

13 “Air is our mést vital resource, and its pollution is our most serious

environmental problem.” President Nixon’s Message to Congress, re-

ported in 21 BNA Environmental Reporter 0201, 0204 (Feb. 10, 197Q).

14 See pt. IT, at IT-2-61-62.

15 “Industries, power plants, furnaces, incinerators—these and other so-

called “stationary sources’ add enormously to the pollution of the air.

In highly industrialized areas, such pollution can quite literally make

breathing hazardous to health, and can cause unforeseen atmospheric

and metéorological problems as well.” President Nixon’s Message to

Congress, 21 BNA Environmental] Reporter at 0204 (Feb. 10, 1970).

— wet gata >

. Sth pectin Smee. cat.

52a

than it may be to full-time citizens of the city..° The

Cornwall project as an alternative to other generating

methods on its face is more conducive to eliminating air

pollution, except for one catch: in order to pump water

from the river to the reservoir at Cornwall, Consolidated

Edison may, as the commission order now reads, pollute

_ the city during pumping hours, which are usually at

night,’? when the air is most still and the pollutants sit

low over the city. In other words, there is no requirement.

that Consolidated Edison refrain from using its - present

generating facilities for pumping purposes; most of those

facilities are, according to fhe commission’s Finding 82,

relatively inefficient and burn relatively expensive, de-

pletable fossil fuels, and some of them are outmoded."

16 New York City is subject to pollutants emitted in both a gaseous

and particulate form from a wide variety of sources, including power

generating plants. Finding 75.

It should be noted that serious air pollution episodes resulting from

inversions have occurred in New York City in 1953, 1963, and 1966.

An “inversion” occurs in periods of little or no wind when a layer

of cold air covers a layer of warm air to prevent it from rising.

Without an: upward current of air or wind the pollutants cannot be

dispersed. As a result, the pollutants mass in a thickening stagnant

cloud above the area affected and they diffuse down to the ground

line. While inversions are not very frequent, they can last for several

days and can be present day and night. A typical episode, to which

are attributed 168 deaths, occurred during the Thanksgiving holiday,

November 22 to 26, 1966. Finding 76.

17 By utilizing energy surplus to system needs during night-time and

_ week-ends, or purchasing low cost surplus energy. from interconnected

systems, ‘Cornwall is designed to convert low cost surplus energy into

high value energy during periods of peak demand. Finding 70.

18 Consolidated Edison’s eleven fossil fuel plants contributed in 1969

34 percent of the sulphur dioxides and 9.1 percent of the fly ash and

"other “particulate matter” that is so evident to the senses of sight and

smell in New York City. skies.

The United States Public Health Service estimates that in 1969

approximately 400,000 tons of sulphur dioxide and approximately

70,000 tons of “particulate matter” were emitted in New York City.

Of that total, Con Ed’s eleven fossil fuel plants accounted for ap-

53a

Since by FPC calculations it will take 1.4 KWH of pump-

ing energy supplied during non-peak periods to produce

1 KWH of project energy, Finding 71, it is obvious that

additional air pollution will result if the pumping energy

comes from those old fossil fuel plants.’® If, as Finding

83 says, “[vJery little city generated power will be used

to pump Cornwall, particularly as Con Ed’s interconnec-

_ tions and_nuclear generated capacity increase with time,”

why would it not be proper to order that only the most

efficient and least polluting fossil fuel generating units

be utilized for pumping purposes now ??° Indeed, Finding

proximately 156,000 tons of sulphur dioxide and approximately 6,400 -

tons of fly ash and other particulates, primarily from the combustion

of bituminous coal and residual oil for the generation of electricity.

Although Con. Ed’s emissions are less than half of what they were a

_ few years ago, and are expected to be even less with the planned

elimination by 1972 of coal and a further reduction in ‘sulphur content

of residual oil, Con Ed is likely to continue to be a substantial con-

tributor to air pollution in the City so long as fossil fuel generating

facilities comprise the greater part of its system. Finding 77 (em-

phasis supplied). :

19 If the energy necessary to pump Cornwall comes from polluting

power plants in New York City that would otherwise be idle, little or

nothing would be gained in reducing the air pollution problem. Based

on the assumption that Cornwall would go into operation in 1972 a

Staff study introduced in evidence showed that by 1980 approximately

89 percent of its pumping requirement could be met by virtually non-

polluting sources of generation. Cornwall, to the extent that its water

is not pumped by power from Con Ed low cost nuclear plants will

be powered primarily from sources in areas adjacent to the Con Ed

service area, and perhaps by imported Canadian hydroelectric power.

Findig 82. -

20 The FPC argues this is impractical, because electrical energy “flows

through a system like Con Edison’s in a unitary fashion.” But surely

the Commission’s great expertise in transmission matters ean come into

play here: experience must have shown what the minimum safe loading

parameters are for night-time base-load plants to assure the necessary

system stability and to provide the necessary load service; operation —

above such limits, with possible exceptions for emergency situations,

could be prohibited as a condition to the license.

S4a

84" seems to suggest that gas plants will be used for

pumping but the order does not require their use. Of

course, it may be that Consolidated Edison will be pro-

hibited from using its old fossil fuel plants for pumping

or otherwise under the Clean Air Amendments of 1970*

to the Clean Air Act, 42 U.S.C. §§1857-18571. But this

does not absolve the FPC of its responsibilities to avoid

adding to air pollution under its own governing Act

or under NEPA, supra note 3. Consolidated Edison's own

studies made in 1966-67 show that Storm King will result

in more fossil fuel usage in New York City than would

certain other alternatives. While this study has been ques-

tioned by the FPC itself, one of the justifications made

by the company for the Storm King plant bas been that it

would permit otherwise idle large base-load plants in the

city to generate at night.

ibe

hte

ait

vatettis

ili

itty

He -

pifte

ite |

iiiatt

ith

See. 111(4)), 1

wre

’ (1970)

Our customers’ demands for electricity are high when .

they are awake and at work. Conversely, during the

night time when most are sleeping, their need for elec-

tricity is at a low level—much below the capability of .

our most modern and efficient generating capacity.

We plan to use this otherwise idle but efficient eapecity

to pump and store water in the upper reservoir at

times of ligt customer demand. 32/4191.

Beyond this, we are told that Consolidated Edison gen-

erating facilities in the City produced 113,700 ton» of

nitrogen oxides, constituting about 38 per cent of ‘otal

emissions of those compounds in the City.” Yet there is

no mention of these in the Commission findings, «scent

perhaps by implication in Finding 76° To my mind. re-

mand is required not only on the strength of the provent

record and Scenic Hudson, supra, for insufficiency of ‘nd.

ings, but also in view of the changes which have occurred

in Congressional policy 6n air pollution control,” an) in

22 hee City Petition for Rebearing p. 19 (R. 276, 694). Nitregen decide,

ome of the oxides, le apparently « compenrst of eeeg, HT! ore

(4 be. avetage) promote ecg formations Thee levels ote sooty

vxcecded im the city. With the thought that operation of th = ity.

located plants will be im the relatively still night-time cit, Ger bee

vistons of evonoméiral and ficient pemping at Storm King eb) Nee

Vortere rough and gacp for treath

Lowgeker thet “the exe of eulfer oxide eerved a6 & more ieper ant

‘parameter or index of pollution from large stationary sources ‘has

particelate emissions,” as if te tell the court that the index of @'" ere

otrde «mLemon me

SS ee OPP PSR s-oe eng + enone”

' ’

eo ge ee

_ .o-

nS . eo ow

a |

he te et eh

Le +

mee |

*--s

- plans to eliminate air pollution in New York City.” It

is no answer to say that the City may invoke its own

police power, if necessary, to regulate the dispersions from

Consolidated Edison fossil fuel plants; Consolidated Hdi-

son would be the first to cite, indeed it already relies upon,

First lowa Hydroelectric Coop. v. FPC, 328 US. .152

(1946), to avoid undue inhibition of its rights under any

license granted for Storm King.

The final matters which, to my mind, tip the scales for

a reversal rather than simply a reversal and remand are

two. The first concerns what may broadly be called ae«thet-

ies,” impairment by the project of the mountain's scenic

grandeur. The commission's Finding 148 refers to the

mountain “swallow|ing|)” the “sear of the highway, the

intrusive railroad structure and fills and tolerat{ing} both

the barges and scows which pass by it and the thoughtless

humans [sic] who visit it without sewing it... .” The

finding goes on to say that just ax the mountain «wallows

present day intrusions, “it will «wallow the structures

which will serve the needs of people for electric power.”

This argument borders on the outrageous; it can be used

to justify every intrusion on nature from strip mining to

ocean oil spills, riz., “the Santa Barbara coastline already

has an ocean-side highway, numerous offshore oil rigs,

and a lot of flotsam and jetsam comes on to Wie beaches,

ete... .” Two scenic wrongs do not necessarily make a

right. On the basis of the commission's thesis, wherever

57a

one overhead transmission line you can put another, you

can add blight to blight to blight. That a responsible fed-

eral agency should advance that proposition in the form

of a finding and in the teeth of the NEPA seems to me

shockipg. The commission’s finding overlooks the fact

that we are considering here a power station which above

ground will consist of a concrete tailrace with abutments

32 feet high and 685 feet long, cutting back existing

shore line from 195 to

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.