# Petition for Writ of Certiorari — Scenic Hudson Preservation Conference v. Federal Power Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0811%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 407 U.S. 926 ## Text years a2o= * RE EO OER OE a CN Pee COURT, U. S. 73 - 1990 (40498) | i. ' r f a 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 _ i 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 ~~ : ee . Py ROT RIC Rize sats Cam meeseus — . cieeieenatinn - SPL HOSMER NIE eres none ieuccohonanige iv 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 a 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. , . - = ’ ~ ay ee 6 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- 7 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 B a. s 7 8 900-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 9 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 ¥ 4 a ee a hes By dbl Ata Rs WAP NU HAH baa LD feene Meter 10 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. 11 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. . 13 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). 14 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- 15 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 we 16 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. 17 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 18 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. 19 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 : 4 z 4 3 / esi tata i to inca atlaisblbab Rpia 22 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 23 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. - 2 24 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 25 ~ 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 ‘s . 3 . Pen, ¥ ~ ~~ * > . eit. ae t -—/ . . al ° * 7 _ * _ 5 > 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, v. 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. ee 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 2a 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. 3a 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, a 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 4a 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 6a 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 7a 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. I. 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 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 - 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 e 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). - z — 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. ry i i F it i 4 Ht ibe hte ait et vatettis ili E 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 more than three days are dengerwes te bealth, eoele of © oa (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 24 «= The Comeniesion’s brief argues from the testimony of EPA © ‘oem 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 260 feet, exclusive of any access road.” This location, as the commission concedes, is on a small riverbottom foothill which “is visually a part of Storm King Mountain ....”** The mountain may “swallow” the project, but the concrete tailrace and abutments, as long as a good-sized football stadium—over an eighth of a mile—and three stories high, will surely be stack inv its craw. . The second point which tips the scales for reversal, I believe, is the commission’s treatment of environmental impact, a treatment required under the National Environ- mental Policy Act of 1969 (“NEPA”)." This Act requires “all agencies” to “include in every recommendation or re- port on .. . other major Federal actions significantly af- fecting the _— of the human environment, a detailed statement” on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, 28 Finding 191. 29 Finding 189. 30 © Finding 156. 31» Pub. L. 91-190, 83 Stat. 852, 42 U.S.C.A. §§4321-47, off. Jan. 1, 1970. ar 38a (iv) the relationship between local short-term uses of man’s environment and the maintenance and en- hancement of long-term productivity, and °* (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Section 102(c), 42 U.S.C.A. §§43832(2)(C)(i)-(v). In a very real sense this Act is a legislative response to and embodiment of the far-sighted and significant Scenic Hudson decision of this court™ where the commission was directed in Judge Hays’ words to “include as a basic concern the preservation of natural beauty,” 354 F.2d at 624, and to give proper consideration to “the totality of a project’s long-range effects.” Id. at 620. The commission properly included a series of eight find- ings (2211-18) purportedly dealing with NEPA, even though the record had closed before the Act became effec- tive. In measuring those findings (and other findings) avainst the Act, to determine whether they constitute the detailed statement the Act requires, it seems to me we must bear in mind some of the declared goals of NEPA: In order to carry out the policy set forth in this — chapter, it is the continuing responsibility of the Fed- eral Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— —————— 32 “Scenic Hudson, by placing a positive responsibility on the FPC to consider less environmentally damaging alternatives, laid a foundation for the obligation to develop alternatives imposed by NEPA.” Council on Environmental Quality, Favironmental — Second Anygual Report 160 (Aug. 1971). 59a (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, produc- tive, and esthetically and culturally pleasing surround- INgS ; (3) attain the widest range of beneficial uses of the | environment without degradation, risk to health or safety, or other undesirable and unintended conse- quences .... 42 U.S.C.A. §4331(b)(1)-(3). As recently pointed out by the Court of Appeals for the District of Columbia, “the very purpose of NEPA was to tell federal agencies that environmental protection is as much a part of their responsibility as is protection and pro- motion of the industries they regulate. Whether or not the spectre of a national power crisis is as real as the commis sion apparently believes, it must not be used to create a blackout of environmental considerations in the agency re- view process.” Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 40 U.S.L.W. 2067 (D.C. Cir., July 23, 1971). Here the commission’s Finding 217 says, incomprehensi- bly, “[a]ny short term adverse impact on the natural en- vironment is more than offset by the enhancement of long term productivity which will result from the project”. This is supposed to be a commission finding under NEPA, but I think the finding indicates that the commission did not read the Act very carefully. Section 102(2)(C) (iv), 42 U.S.C.A. $4332, requires a statement of “the relationship bétween local short-term uses of man’s environment and the mainte- nance and enhancement of long-term productivity” ( empha- sis supplied). Not the short-term impact on the natural environment, but the short-term uses of it in relation to 33 The Court was of course speaking of the AEC, but the language of the opinion is equally applicable to the FPC. ys he a te 60a long-term productivity, is the statement required. Here we are considering permanent structures, a long-term and sub- stantial use of an area of great natural beauty, “unique beauty,” in the words of Scenic H udson, supra, 354 F.2d at 613, involving an “irreversible and irretrievable commit- ment of resources” in the proposed project if licensed, to use the language of Section 102( C)(v) of NEPA. Finding 213 Says that “there is essentially no conflict concerning alternative uses of available resources because with the exception of the small part of the Black Rock Forest to be flooded by the reservoir practically none of the other parts of the project preclude alternative uses of avail- able resources.” This finding, as the brief of the Scenic Hudson Preservation Conference suggests, completely omits the conflicting alternative use of preserving the area free from any utility installations, tailraces, abutments and ac- cess roads. In Finding 215, the commission concludes under NEPA, and the majority opinion here relies upon the finding, that none of the most likely proposed alternatives “could be sited within one hundred miles of New York City with any less physical impact on the environmental aspects of the affected area than the Cornwall project.” In this day of high volt- age transmission, what is so magic about one hundred miles?** Are all areas within one hundred miles of New York City to be treated alike for electric generating pur- poses? Or are they all to be made to look alike, so that we will no longer have to be concerned how they are treated? Finding 217 says “[t]he resources which will be com- mitted to this project are the acreage it will necessarily encompass and the fuel resources which will be committed to pumping energy” which are “many times over” out- weighed by “the electric energy resources which will be generated by the commitment of such resources.” But this 34 See, ¢.g., note 1 supra. _ a i RiNaalacia ki 6la ; Finding overlooks both points mentioned earlier in this dissent, the risk to the Aqueduct and the increase, however temporary, of air pollution in the City to generate pumping power. To view plant-citing at Storm King Mountain as only a commitment of “acreage,” rather than as a com- mitment of a scenic wilderness area—albeit with some past intrusions and some present fairly easily rehabilatable de- facements—to a massive, if partially hidden, power struc- ture, is to beg the question of environmental preservation. The extent to which the commission has in this proceed- ing too readily rubber-stamped Consolidated Edison’s plans is indicated by its authorization of an alternative project within Palisades Interstate Park. The commission over- ruled its own examiner in this regard and the choice of an alternative site flies in the teeth of the Park Compact that the lands included within the Park “shall be used only for public park purposes.” 50 Stat. 719, Section 3. It would seem that the Specific authority of Congress is needed for the development, transmission or utilization of power within the limits of a national park. See 16 U.S.C. §797(a).** Citizens to Preserve Overton Park, Inc. y. Volpe, 35 See also Finding 188: .. . Limiting the external features at the powerhouse site to the portal entrance tailrace, and access road, totalling 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. See also Commission Brief p. 56. 105a 119. If the growth of system load projected by Con Ed is realized, Con Kd contends that combined operating and fixed costs of the system with an all nuclear alternative to the Cornwall project would cost in exeess of $192,000,000 more than for the system with the Cornwall project for the years 1972-1991 inclusive, with the annual cost differential growing in the later years. If the exponential growth of load assumed by Staff occurs, the magnitude of this differ- ential would be considerably greater for the same period. 120. Although in support of a combination nuclear-gas turbine unit as its primary and preferable alternative to Cornwall, Scenic Hudson's witness adopted Con Ed's nu- clear cost estimates, its witness in support of an all nuclear alternative did not adopt such cost estimates. Instead, his estimates were primarily based on bids to TVA in 1966. 121. In its Brief on Exceptions, Seenie Hudson, while paying lip service to an all nuclear alternative, does not attempt to support its witness’s nuclear alternative esti- mates. Because of the adverse economies of an all nuclear alternative, as well as the reliability and outage problems inherent in such units, there is now no serious support for such alternative. For these reasons, we find that an all miclear unit is not a feasible alternative to Cornwall. Alternative Conventional or Pumped-Storage ITydroelectric Sites 122. Both Con Ed and Staff conducted extensive sur- veys for conventional hydroeleetrie or pumped storage sites within a radius of approximately 100 miles from New York City. All of their witnesses coneluded that there are no suitably located alternative conventional . 106a hydroelectric or pumped storage sites available. All of the potential sites were deemed to be not as economic, or economic only for local needs but not, when combined with extensive transmission costs, for New York City. 125. None of the intervenors presented any evidence on alternative hydroelectric sites. 124. The record is uncontradicted, and we find. that there is no feasible hydroelectric alternative to Cornwall. Availability of Purchased Power as Alternative to Cornwall 125. The parties also considered the practicality and cost of purchasing firm power from generating sources on other utility systems as an alternative to construc tion of the Cornwall project. 126. The electric systems which could have available some excess power for sale to Con Ed are the New England Power Pool, the Pennsylvania-New Jerseyv-Maryland Pool (P-J-M) and the Upstate New York System. 127. The Upstate New York System and the South- eastern New York Companies (SENY) constitute the New York Power Pool. 128. Staff witness Jessel analysed the projected loads and power supplies of utility systems within practicable transmission distance of applicant’s system, and concluded that there would not be sufficient excess firm power avail- able for use as an alternative to the’ Cornwall project. 107a 129. Although the diversity between peak loads suggests that as much as 1130 mw could be exchanged seasonally by the systems in SIENY and those in Upstate New York, the requirements for maintenance of generating capacity are such that only about 500 mw could be exchanged be- tween these two groups in 1975. 130. Another opportunity is the purchase of summer power from New England and winter power from the P-J-M Power Pool. 131. The record indicates that the maximum amount of purchases that could be made in a useful manner would be 1080 mw in summer from New England and the same amount from P-J-M in the winter in order to have a bal- anced, year-around, power supply. But allowing for main- tenance of generating equipment, only about 43 per cent of the seasaqnal diversity would be available for sale to the New York Power Pool Systems. This means that if it obtained all of the energy sold to the New York Power Pool at best Con Ed would receive 465 mw on a two- way purchase basis from the New England Power Pool and the P-J-M Power Pool. | 132. To accomplish such purchases would require the construction of additional transmission facilities from the Con Ed System to the New England Power Pool and also ‘from Con Ed to P-J-M. This would require twice as much transmission capacity as would be necessary if purchases were made from only one power pool, even if they are actually available in the amount indicated. 133. Our Bureau of Power’s review of Con Ed's Ss power supply pretnane and ten-year expansion plans, issued in 10S8a December 1969, points out that power purchases are often specifically or tacitly conditioned on availability. Gen- erally, these arrangements give the delivering svstem the option of reducing the amount of delivery, after due no- tice, if that system finds itself in short supply. Thus there is no real assurance that the power will actually be ayail- able when needed. 154. Another considered alternative to the Cornwall de- velopment is the possibility of purchased power from Canada, namely from Churchill (Hamilton) Falls project, 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 in- volved and the relatively high ¢ost of transmission facili- ties makes Churchill Falls power comparable to base load nuclear power or base load iine-nouth power or other sources of base load power outside of New York City, rather than an alternative to the Cornwall development. There is no indication when, if ever, Churchill Falls Power might be available to electric svstems outside of Canada. In addition, there is no assurance that it would be avail- able upon system separation. 135. The Northfield Mountain Pumped Storage Project may help answer some of the problems of reliable economic supply in western New England but it is not a reasonable alternate to the construction of Cornwall to serve Con Ed's requirements, That is so hecause it would require addi- tional transmission capacity in Massachusetts, and the need to enlarge the upper reservoir at Northfield Mountain whether a long or short term sale were contemplated. 109a Even an enlarged reservoir would provide the equivalent of only 814 hours of dependable capacity at 500 megawatts, which is less adequate for applicant’s relatively flat daily peak than Cornwall, which will provide the equivalent of approximately 11.5 hours of operation at 2000 megawatts. The spinning reserve function of Cornwall would not be served by a purchase of power from Northfield either in quantitv of reserve (Cornwall provides 750 mw) or in ready availability. There is also a risk that Northfield might separate from Con Ed. 156. The foregoing indicates that Con Ed would not have available from its neighbors 2000 mw of purchased capacity on a reliable and economic basis.- Although about 465 mw additional might be obtained by making summer seasonal purchases from New England and winter sea- sonal purchases from P-J-M, this power supply would be much less reliable and much more expensive beeause of required duplicate investment. in transmission facilities. The power from New England and from P-J-M would have to come over substantial transmission distances, and in the event of separation-loss of such supply would agera- vate the stability problem in an isolated SENY network. Finally, if load growth exceeds plant expansion, present sellers may themselves become seckers of purchasable power. : 137. The entire capacity potentially available through purchases would be slightly in excess of 1000 mw, sub- stantially less than the amount that Cornwall would pro- vide. Scenic Tudson does not contend that an all purchases power alternative to Cornwall would be feasible, but argues oy brief that an alternative consisting of 810 mw of pur- . 110a chased power should be considered, In view of the assump. tion inherent in this suggestion by Scenic Hudson that the gas turbines would not operate as a spinning reserve, the spinning reserve would have to come from the pur- chase sources if this alternative is to be comparable to Cornwall. Accordingly this possibility cannot be deemed reliable, since such purchases would not be available in the event of a separation, the very time they would be most needed. Other Alternatives 138. In addition to the foregoing, a number of other methods of generation that might provide a feasible alter- native to Cornwall were considered, including minemouth generation and conventional thermal units, as well as fuel cells and other éxotie methods of generation. beh 139. Minemouth generation, as previously mentioned, is not suitable to provide load protection or spinning reserve. In the case of Con Ed it would require long transmission lines from Pennsylvania or West Virginia vulnerable to separation, and necessitating extensive undergrounding as they approached or crossed urban areas west of the city. The'air pollution inherent in minemouth operations while created in a more rural area is nevertheless a negative en- vironmental factor when compared with pumped storage generation at Cornwall. 140. For various reasons, including poor spinning: re- serve responses and load protection, air pollution, and in- ability to meet power requirements, we find that none of the other methods are feasible alternatives. None of them are seriously advocated by any of the intervenors, and no llla useful purpose would appear to be served by setting out in detail the deficiencies of these alternatives whieh the record developed. Aesthetic and Recreational Resources of the Region 141. Finding as we do that the record in this proceed- ing clearly establishes that the project offers more reliable, ceaner, and cheaper electricity than any other feasible al- ternative, we now consider whether, and if so to what de- gree, the project will create detrimental aesthetic and en- vironmental conditions. 142. Pursuant to the Court of Appeals’ direction that the Commission carefully consider “the preservation of natural beauty and of national histerie shrines”, extensive evidence was presented hearing upon the effect of Corn- wall on the aesthetic and recreational resources and on thie historic significance of the Hudson River Valley and the Hudson Highlands. Part of that testimony constitutes a manual, as it were, for counsel and courts on how to try the issue of environmental effects of works or facilities which require a license or permit from a publie ageney charged to consider environmental factors in making its decision to grant or withhold. 143. The environmental testimony began with a strong witness, appropriately qualified. Mir. Charles H. Callison, the executive viee-president of the Audubon Society, was experienced, well-travelled, and a leading conservationist. He was furnished the Court of Appeals Opinion, and di- rected to the key language in it. In clear and straightfor- ward language, he defined the ¢ourt’s term “natural li2a beauty” as he understood it, and furnished a methodology, which he believed could be used to appraise natural be aunty, This was followed by word-pictures painted by a master, then-by reference to photographs, and finally by a series of comparisons. One section illustrates how any reader might be persuaded to identify with the witness's evoca- tive descriptions: “Moreover none of the other rivers has the history, the drama of the Hilson. None has been as much the very waterway of history, the gateway to the north and west, the ‘nortlwest passice’ to an empire, if not to the Orient as Henry Hudson thought it might be. In short, the Hichlaml. agely out of the water, While Breakneck Ridlee acer -« the river resembles the winged hill of tilted stroia that looms into the Gulf of Corinth near Caledon ” (33/4888) Professor Seully was particularly disdainfal of the eo - pany’s reereation proposal, as temling toward the “euler. tanization of the mountain”. Ee ————— New Windsor Cantonment, the United States Military Academy, and Stony Point Battlefield, all important historic land- marks. However, as the Sierra Club stated “It is not daimed that from the peak of Storm King Mountain was launched a major war, or that at its base was fought a noteworthy duel . 19%. There are Revolutionary War sites from Staten Island, in New York Bay, to Lake Champlain and beyond. 197. The NENYIAC Report” states that the best pre- served Revolutionary fortification in the Highlands are on Constitution Island. It continues: The ultimate transfer of Constitution Island to the National Park Service for. development as a historic ” Report on the Land and Water Resources of the New England- New York Region, Sen. Doc. No. 14, 85th Cong. Ist. Sess. (1957), a part of the record. 1JSa site deserves serious study. The National Park Ser. vice now administers the Saratoga National Park, commemorating the defeat of Burgoyne in 1777, by there is no area under any jurisdiction where the vital significance of the Hudson Valley throughout the whole war of the Revolution is illustrated adequately. Cop. stitution Island js proposed for study as probably meeting this need. Interpretation here could include reference to Stony Point, Fort Clinton, Fort Mont. gomery, the Newburgh area, and related sites up and down the Hudson, making them into a colorful and stimulating tour. 198. Constitution Island is located at approximately river mile 33 and the proposed scenie overlook, affording a view toward Constitution Island as well as to the north, is located inland from about river mile 52.75. We believe that views of this historic spot should be available in order to impress upon visitors its. strategie location and im- portance in the infant days of our republic. The Bear Mountain Section of the Palisades Interstate Park is al- ready making known the historic sites of the area. A scenic overlook which enhanced the viewer's appreciation of this historic area is in the public interest. It seems inappro- priate to applaud scenic overlooks of historic sites when constructed on park lands by public agencies while depre- eating a similar facility situated on private lands, but equally dedicated to the public. . 199. The Highlands also gave birth to the Hudson River School of American Art which has been called one of the most important of all schools and chapters in the history ot American art. 1a 90). Similarly, a number of important literary figures lived and worked in the Highlands, of which Washington Irving and James Fennimore Cooper are perhaps the best known. . 1. In addition, a number of mansions and villas were puilt along both shores of the Hudson throughout the High- lands, some of which remain and have historical and arehi- tectural significance. 202. Despite the fact that the area is one of historical significance, no significant historical event has ever actually taken place in Cornwall or closer than Constitution Island and West Point (river mile 52.5) or Forts Clinton and Montgomery at Bear Mountain (river mile 46.75). In any event, the Cornwall site would not be visible from West Poin: or Constitution Island though environs Constitution Islax-d would be visible from the scenic overlook. It is apparent, and we find, that the project would not cause the destruction of any historical site. Advisory Council on Historic Preservation 203. Scenic Hudson objects to any consideration by the Commission of the findings of the Advisory Council on Historic Preservation, adopted on May 8, 1969, that “Plans L Il, and Alternate II presently under consideration by the Federal Power Commission are almost identical in their minimal adverse effect on the scenie values for which the Park was initially established. None of the plans affects adversely the cooperative effort that permits the continuation of the Park as a conservation area.” 204. It claims that the statement is not only contrary to the evidence but that it is ex parte in that Scenie Hudson 130a Was not permitted to participate in the deliberations of the Advisory Council whereas Staff attended and the Council previously had the benefit of Staff's brief opposing excep. tions, dated October 28, 1968. 205. We disagree with Scenic Hudson. We believe that should the Commission fail to obtain, or ignore, the views of the Advisory Council on Historic Preservation, it might be construed as a violation of statutory requirements. See Historic Preservation Act of 1966 (80 Stat. 915). 206. Contrary to’ Scenic Hudson's contention, the sub- mission to the Advisory Council of Staff's brief would not appear to be a violation of procedure since the Council does not conduct proceedings within the APA; Staff is not an advocate for the applicant; and the Council’s views are, in any event, advisory only and not conclusive on the issue. 207. Scenic Hudson, while complaining of its non-par- ticipation, does not actually accuse Staff of participating, merely stating that “Staff Counsel attended” (Scenic Hud- son Brief Opposing Exceptions, p. 5, March 3, 1970). Scenic Hudson is, or should be, aware that witness Wirth. whose environmental viewpoint Scenic Hudson has strongly supported in this proceeding, was invited to express his views before the Advisory Council at the May 7, 1969 meet- ing but did not appear. Further, the Advisory Council is the sole arbiter of the proceedings before it. The Commis- sion is not precluded from considering the views of the Advisory Council merely because Scenic Hudson's views were not presented to the Council. Scenic Hudson has had ample opportunity to present evidence in this proceeding 13la and make its views known. There ‘is no failure of due process in the premises. 208. The findings of the Advisory Council are not, de- spite Scenic Hudson's contention, contrary to the evidence, which is that the continuation of the Park as a conservation area is not precluded by the project. We find that the facilities proposed would provide expanded recreational opportunity and use of the project area by the publie. Our finding is made on the basis of record evidence, independent of consideration of the findings of the Advisory Council, which simply confirms our Gonclusion. 209. The overlook unquestionably will enable visitors to enjoy the scenic vistas of the Iludson River. The external aspects of the project, as visible from the river, comprise only a very small proportion of the project as a whole. They do not seriously er substantially impinge on the scenic, historic or environmental qualities of the area. The beauty of the Highlands will not only remain, but the cdean-up of the riverfront area and creation of a fine park will contribute substantially to those qualities. It may not be possible to prevent scars during construction, but these are of relatively short duration. The evidence amply demonstrates a desire on the part of the Applicant not only to minimize the man-anade impact of the project on the natural scene but to restore it as much as possible. 210. The issue involving the project reservoir and its impact on the scenic, historic, and environmental qualities of the area will be discussed separately, but insofar as it relates to the overall scenic, lristoric, and environmental issue we incorporate it in our finding that the project will not have a substantial or material adverse effect on the scenic, historic, or environmental qualities of the area, 132a National Environmental Policy Act of 1969 211. There is a heightening concern with the effects of energy utilization on the environment. The proper use of resources to improve man’s standard of living while pre. serving the quality of man’s environment is a major goal, Our ability to meet future requirements while avoiding further deterioration of our natural environment will very much depend on the means we seleet to meet those re. quirements. 212. Since the close of the record, the National Environ- mental Policy Act of 1969 was enacted. S83 Stat. 852 (Pub. L. No. 91-190, approved Jan. 1, 1970). That act recognizes the profound inupact which proposed activities may liave on all components of the natural environment,and declares that it is the poliey of the Federal Govermment to ereate and maintain conditions under which man and nature ean exist in productive harmony, and fulfill the social, econdmie and other requirements of Americans. To that end Section 102(2)(C) of the Aet seis forth that Federal actions affeet- ing the quality of the environment shall include a statement on (1) the environmental impact of the proposed action, (2) any adverse environmental effects which cannot be avoided should the proposal be implemented, (3) alternae tives to the proposed action, (4) the relationship between local short-term uses of man’s environment and the main- tenance and enhancement of long-term productivity, and (5) any irreversible and irretrievable commitment of. re- sourees which would be involved in the proposed action should it be implemented. 213. The Sierra Club points ont that Section 102(D) of the Act requires Federal agencies to “study, develop, and ha deseribe appropriate’ alternatives to recommended courses of action in any proposal which involves unresolved con- flicts concerning alternative Uses of available resources.” The point missed by Sierra Club im its opposition to the project i& that there is essentially no confliet concerning alternative uses of available resources because with the exception of the small part of the Black Rock Forest to be flooded by the reservoir practically none of the other parts of the project preclude alternative uses of available re- sources. The space. taken by the seenie overlook does nof preclude any alternative use of the vast remaining re- courees which are available. Nor does the project in any way preclude the development of the Storm King section of the Palisades Interstate Park. 214. It is not a question of “either-or” but rather a situa- tion of compatibility of utilization of available resources. In terms of utilization it would appear that the under- ground aspects of the project cannot reasonably be said to conflict with any alternative use.” In terms of rehabilita- tion of the waterfront area and construction of a water- front park, the utilization of available resources weighs overwhelmingly in favor of aesthetic and environmental improvement which the project brings to bear on the avail- able resource. Indeed so far as the waterfront park is con- cerned, one would be hard put to think of a better example of what is intended by the clause “other beneficial public uses, including recreational purposes.” The scenic, aes- thetic, and environmental objections raised in this proceed- ing are largely muted regarding this aspect of the project. In this connection it should be noted that the Park Commis- sion does not object to the subterranean utilization of park lands for the power tunnel and penstocks. (Tr. 120 18.049-50; 18,056- 57; Park Commission Br. Op. Ex., p. 16, Mareh 4, 1970). 134a 215. Still another = ae to weighing “alternatives to the proposed action” from an environmental standpoint js 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 combination, could be sited wi ithin 100 miles of. New York City with any less physical impact on the en- vironmental aspects of the affected area than the Corn- wall project. “16. Although the proceedings herein were prior to the Act the reeord amply demonstrates that full and careful consideration was given to all the concerns Which the Aet embodies. 217. The evidence in this proceeding establishes that the project as now designed is compatible with the natural en- vironment and will have no adverse effect on the ecology of the area. No water pollution or damage to the fishery of the river will be created by the project. No diminution of the water quality in the river will result f rom the project. Air pollution. by reason of the project will be less than would otherwise be possible in meeting the needs for elec- trie energy. New recreational resources will be created by the project. None of the numerous alternatives considered in detail can meet the social, economie and environmental requirements of our society as well as the proposed project. Its potential contribution to reliable electric energy to in- sure the health, safety, and convenience of millions of peo- ple is unique and unequalled by any other alternative. The capability of the proposed project to meet the peaking 135a energy requirements is not exceeded by any alternative and its capability to do so in a more economie manner is also established by the record in this proceeding. Any short-term adverse impact on the natural environment is wore than offset by the enhancement of long-term produe- tivity which will result from the project. The resources which will be committed to this project are the acreage it will necessarily encompass and the fuel resources which will be committed to pumping energy. But the electric energy resoureés which will be generated by the commit- ment of such resources will many times over “foster and promote the general welfare” and “fulfill the social, eco- nomic and other requirements of present and future gen- erations.” Section 101 (a). 218. Accordingly, we are licensing this pumped storage project because the record in this proceeding establishes that this is the best use of available resources to meet the requirements for electrie energy with the minimum adverse impact on our environment. The record establishes that no alternative can so well meet the requirements with lesser detriment to our environment. Fishery Resources “19. We were directed by the Court of Appeals on remand to give consideration to the question whether the Cornwall project will have an adverse effect on.the fish life of the Hudson River. The Court was concerned with lack of evidence on the major spawning grounds of striped bass and also stated that the record would be more fully developed on the issue whether eggs and larvae subject to influence of the project would be threatened with destrue- ° 136a tion and whether any screening device would protect these early stages of fish life. 220. Toward this same end a three year Hudson River fishery study, commeneing in 1965, has been conducted. This study, under the field direetion of a technical advisor of the U.S. Bureau of Sport Fisheries and sponsored by the New York State Conservation Department and the U. §, Fish and Wildlife Service, was financed by Con Ed. Although earlier portions of the study are part of the record, the complete report was not available at the close of the remanded proceedings. Since then the Hudson River Policy Committee issued the study report entitled: Hudson River Fisheries, Investigations 1965-1968. The Commis- sion takes official notice thereof. 221. The investigation and its evaluation of the project in relation to the fish in the Hudson River is a most comprehensive study of the problem and as definitive a development of the issues raised by the Court as is ever likely to be achieved within the realm of practicality. It conchided that the proposed project would have no significant effect on most fish life, although additional studies should be made after the plant is: constructed in order to establish actual effects. The report found that although substantial numbers of striped bass eggs and larvae would be drawn into the plant, less than 0.7 percent of the tetal number of eges produced in the river and 2.9 pereent of the larvae would be vulnerable to removal. Further, although young striped bass are vulnerable until they reach secreenable size, and up to 6.2 percent of these young in the Cornwall area could be withdrawn, this per- centage is negligible when related to the total population of this species in the Hudson River. The investigation studies in 1967 of 8 locations ranging from river mile 35 to river mile 123 revealed that the heaviest concentration of 137a : striped bass eggs was at Saugerties (river mile 102.5), with the next heaviest at Hyde Park (river mile 82) and the third heaviest at Cornwall (river mile 56.5). In 1966, however, Saugerties had ranked only fifth whereas Peek- skill (river mile 45.5), which tied for fifth in 1967, was first. Cornwall in 1966 ranked fourth. The fluctuations in concentration of striped bass eg¢s would seem to indicate that the spawning grounds in the river are not only far reaching but also not consistently more favorable in one location than another. To this effect, a 1955 study revealed that the concentration of eggs was highest at river mile 51, _with river mile 61 second and river mile 53 third. Yet this study which found the highest coneentration in the Corn- wall area found practically no eggs in the vicinity of river miles $2, 100 and 44, all of which in the 1966 and 1967 studies ranked first or second in egg concentration. 222. Dr. Perlmutter, a witness for Con Ed, pointed out that the area in the vicinity of Cornwall-is only a smal! part of the IIudson River spawning area for striped bass which covers about 80 miles of the river. His testimony, in this respect, is supported by the results of the Fisheries Investigation. Dr. Raney for Scenic Hudson was of the opinion that the greatest amount of spawning was in that 0 mile area 25 miles above and below Cornwall, and Mr. Dagon for the Hudson River Fishermen’s Association was of the opinion that the critical range for spawning of striped bass is no more than a 15 mile stretch of the river with the geographical center somewhere around West Point (river mile 48.25). Yet the 1967 fish studies showed the second highest concentration of eggs at river mile 82, with the highest concentration at river mile 100. , 138a . 223. The studies and expert testimony on behalf of both proponents and opponents of the project lead to the con. clusion 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. | Fish Protection Devices - 224. The fish protective facilities as redesigned and now proposed provide that the tailrace will be crossed by a railroad trestle so situated as to permit mounting of stationary fish screens with *.” square openings hung on vertical members which allows escape for small fish. The redesign of the tailrace included increasing the screening surface in order to reduce intake velocity. The protective device is comprised of 48 screens each having two sections 22 feet high and a total length of 560 feet. The 96 screen section can be lifted for cleaning, after prior insertion of a backup section. It is anticipated that these screens will not need to be cleaned more than once a month. P°5. Trash racks are mounted on the same removable frame as the sereens. The top of the fish sereen is located six feet below mean sea level, above which a flat steel plate, acting as an ice barrier, presents a continuous place surface where there will be no inward flow of water during a pumping evcle, thereby making it easier for small fish near the surface to rest or swim away from or along the tailrace. A velocity of slightly over one foot per second appears to be critical in relation to the ability of small fish to swim away from a screen of this nature. The (‘ornwall average pumping velocity would be slightly less than one foot per second one foot in front of the screens, increasing to 1.68 fps at two or three inches in front when the plant is pumping at maximum capacity. 139a 226. No witness suggests that eges and larvae and fish wider 14% inches in length could be sereened from the plant. The issue was the amount of eges and larvae which would be drawn in and the effect thereof. There was testimony that the survival rate would approximate 80 per cent. Basically this relates to striped bass because their eges and those of shad are not adhesive, but the shad spawn far enough upstream so that their eves and larvae are not affected. The eggs of all other species adhere to whatever they are laid on. 227. The fragility of striped bass eves is in dispute. Mr. Walburg, a fish biologist fer the Department of Interior, ‘testified that eges in a glass jar had been killed by vibrations caused by striking that jar with a ring. Also, SA he oD SRE Spee Ts eges struck by stirring rods of fine material pop. Dr.- Raney, for Scenic Hudson, stated that striped bass eres are iragile in the sense that all fresh eges are more fragile than a young juvenile or an adult fish. and that eges are more fragile at some stages than they are at others. The record also reveals, however, that exe samples have been successfully recovered hy means of towed nets. have been handled in hateheries, have survived spawning in rapids and turbulent water, and have survived water pressures similar to those which would be encountered in the project. As fsh eges go, the evidence is that striped bass eges are not particularly fragile, but are susceptible to damage in many ways. . 228. Pressure changes within the plant will range from 0 to 540 psi. In order to determine the effect on fish life drawn into the plant, pressure tests indicated that fish ean withstand extreme changes in pressure, and hydraulie 140a pressures as such are not a major factor in destroying “eges or small fish. Nor does velocity in itself represent a « hazard to eggs and larvae passing through the plant. 229, The effects of turbulence were not established. Dr. Perlmutter, for Con Id, testified that striped bass eggs are frequently laid in turbulent water and therefore have a high resistance to turbulence, whereas testimony by witnesses Walburg and Massman is to their fragility, . Similarly, damaging effects of abrasion are disputed. Abrasion would be mitigated by the smooth design of the surfaces of the intakes and tunnels and adhering layer of water. There is not much in the record on abrasion. Dr. Perlnutter testified that an occasional egg might be affected by abrasion. The Examiner concluded, and we concur, that abrasion would not present a_ significant hazard. 230. Regarding the hazard of impact with turbine blades, experiments relating to the passing of salmon fingerlings and yearlings at dams on the Coliuniyia and Elwha Rivers indicated that ‘the contact with turbine blades was not a mortality factor. At one point, 89 per cent of the fish passing through the plant survived; at the other, 100 per cent survived, Professor Bel, witness for Con Ed, testified that overall hazards of plant operation would result in an 80 per cent rate of survival of fishes of sizes 1.3 inches to- 1.5 inches in length. 931, Scenic Hudson’s witness Raney contends that any- thing resulting in destruction of eggs, larvae or young fish might have an important effect upon the number of adults in the fishery. And he asserts that the cumulative effect of l4la this operation could enhance the risk to a point where there would no longer be a substantial fishery. 93°. However, Staff’s witness Hlauck testified that while the mortality rates of fish, fish eges, 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 opmion the losses to the fishery caused by the operation of the project: would not significantly affeet the Hudson River fishery resources. 233. We find that the evidence indicates a reasonably high rate of survival of eves, larvae, and young fish of the vear drawn into the plant. 234. Debris against the screen is also a potential hazard toeggs and larvae in that it creates changes in velocity and pressure. Seenic Hudson contends that not only at maxi- mum pumping will velocities at the screen itself exeeed one fps but that blockage of the screens by trash will increase these velocities. : 23). Again, the evidence is minimal regarding this hazard. The Examiner agreed “admittedly no practical screen vet devised will sereen out either eges, or larvae. or very small fish.” However, since model studies at maximum ebb tide indicated that velocities just in front of the screens are less than one fps the Examiner con- cluded: “Nevertheless, with a velocity in front of the proposed screens of 0.75 to 0.925 fps?! small fish including early juvenile striped bass and shad should be able to Sr * Velocities varying by reason of distance ranging from 1 foot. to 2 or 3 inches and pumping rates ranging from 18,000 efs:to— 21,600 efs. 12a - move freely to the quiet areas in front of the ice barrier and piers and-even directly away from the screen...” In so far as debris is coneerned, generating eyeles would serye to: remove debris by the back washing. effeet of the dis. charge. Further, the design calls for the installation of water jets in the fish protection structure to permit the cleaning of slinie from the mesh sereens. Accordingly, we find that accumulation of debris would not be a. major hazard to fish life. 236. Stranding of eges and larvae in the reservoir is a problem in that they tend to sink so that they may smother or die on the bottom. Also, young fish might evade the withdrawal: current and thus remain in the reservoir instead of returning to the river. The Examiner suggested that pumping and generating cycles in the spawning season of May and June could be adjusted to an adequate distribu- tion of egg and larvae and thus minimize or compensate for any descent to the lower levels of the reservoir and entrap- ment in the pool. In order, however, to overcome possible losses by impoundment in the reservoir or from other aspects of plant operation, Con Ed proposes replacement by means of a hatchery. Hatchery Operations 237. Testimony on the fishery issue also considered the pros and cons of hatchery operation as a means of replacing any losses caused by operation of the project. 258. Striped bass hatcheries have been operated on the east coast by the Department of the Interior and_ the States of North Carolina and South Carolina. Suecessful — artificial’ propagation of striped bass is a problem of a - 143a - substantial magnitude. The hatchery must be located close to spawning grounds. Procurement of ripe males and gravid females within two to three weeks to natural spawn- ing? holding and conditioning the fish for ovulation, in- cubating the eggs and the holding cf larvae until free swimming may be a process of some three months. 939. Staff witness Stevens, an employee of the Depart- ment of Interior’s Bureau of Sport [Fisheries and Wildlife, and a former director of the Moncks Corner, 8S. C. hatchery from its inception in 1961 through 1965, is a pioneer in the development of large seale artificial propaation of striped bass. He testified that techniques and procedures developed and utilized at Moncks Corner had been successfully used in 1967 in the Roanoke River, N. C. and on the Staunton River in Virginia. In his opinion, striped bass could be artificially ovulated on the Hudson River. 240. In recent years there has also been a breakthrough in the rearing of striped bass to the finge ‘rling stage, i.e., about the length of a finger. The plantine of fingerlings instead of larvae would greatly reduce loss to predators. 241. On the issue whether such fingerlings upon maturity would be able to spawn successfully in the Iludson River witness Stevens was of the opinion that they would be she ‘to do so. 242. Witness Hauck, Staff fishery biologist, was of the opinion that artificial propagation of striped bass is feasible, and obtaining an adequate stock of adult fish in * The obtaining of an adequate supply of brood fish without damage is apparently the most critical step. I4tta the Hudson as proposed by applicant appears to be pos- sible. Ile stated that the State of South Carolina is doing a commendable job with their striped bass hatchery and it is his belief that their methods are equally applicable, at reasonable costs, to the Hudson River stocks. Using only adult fish which spawn above Cornwall and returning their egys and larvae to the river below Cornwall, artificial prop. agation could be expected to increase the survival rates of eges and larvae over those rates which would be experienced in the Hudson River under natural conditions. The in. creased: production to the river could offset any losses ‘caused by the project. , 245. Scenic Hudson's position on hatcheries is that they are generally not feasible at all; that if feasible elsewhere, they are not feasible in the Hudson; that hatchery fish are sterile; and that costs are prohibitively high. Seenie Hud- son contends not only. that the difficulty of securing an adequate supply of breeding fish in the necessary quantities at the precise times when they would be ripe for hatching operations but that reliance on hatcheries in saving fish in an estuary has never been tried and would be a forlorn hope. It argues that while no absolute conclusions can be drawn from the evidence, the hazards ought not be incurred in the absence of positive necessity. - 244. In this regard it is joined by the Tzaak Walton League which asserts that operation of a fish hatchery isa far more difficult matter than is realized by Con Id in its offer to replace lost fish eggs and larvae; and it expresses doubt about Con Ed being able to make good on its pro- posal. Jt-also claims that the myriad problems relating to total ecology of the river have not been considered. 145a 945, Witness Raney’s fears as to what might or could happen are counterbalanced by testimony based’ on sam- pling studies which relating egg producing capacity of the striped bass to volumes of water involved in plant operation indicates that the impact on Hudson fishery would not be stibstantial. Thus even if none of the fish and eggs at Cornwall survived, the total impact woud be small. The: evidence, however, is to the effect that no such disaster would befall the Cormwall segment. Kees, larvae and fish entering the plant would have a survival rate in the area of 80 per cent. Further, hatchery operations elsewhere indi- cate the feasibility of an operation in the Hiudson which would be capable of replacing any losses attributable to the project. 246. The record shows, and we find, that striped bass hatcheries, while still continuing experimental procedures, have been suecessful and striped bass fingerlings can be hatched from Hudson River stock and upon re aching maturity should be the equal of river born.. The record supports a finding that there ts no substantial adverse effect on the fishery. In fact enhancement of the fishery ean be accomplished by artificial propagation in the state of the scientific art as it now exists. 247. Assertions by Scenic Hudson, the Nature Con- servency, the Citizens’ Cemmittee on Natural Resources, and the Hudson River Fishermen’s Association — that material ecological detriment will result is not supported by evidence which is susceptible of reasonable measure- ment. The evidence on which Scenie Hudson relies in its exceptions to refuté the Examiner’s findings that no such detriment will result are the following generalities set 145, Sabet OEY LAE l46a forth by its witness Raney, “anything that is done with a substantial amount of water which would result in the destruction of eges or larvae or young or juvenile might have an important effect upon the number of adults: that - were available in the fishery...” “Anything that man does is substantially opposed to nature. So if you build any sort of a structure vou will have situations which are not found naturally in the environment so here vou have an additional situation where you have fishes drawn up into an artificial impoundment, eggs crawn up, larvae drawn wp, possibly thirty species upon which they feed. So it is a very compli- cated business to try to evaluate the overall effect this will have. But basically the effect will be harmful to the fishes,” 248. But Raney also testified that he was not prepared to testify to the degree of that effect. “I think that any- thing that affects any substantial nwuber of ewes, larvae, young or adult, could ultimately have a substantial effect on a fishery. But the degree of the effect 1 don't know.” 249. We are aware that there has been a substantial destruction of fish at Con Ed's nuclear plant at Indian Point (river mile 42.5). The record, however, does not set forth with any particularity the cause thereof. It has been surmised that the fish are attracted to the warmer water discharged close to the conduit, especially in’ unusnally cold weather, and that the intake screens in close proximity to the discharge conduit became clogged because of the large numbers of fish so attracted. As a consequence, they are thought to have suffocated. In any event there is no evidence or reason to believe that the causes of the fish damage at the nuclear plant at Indian Point are applicable to a pumped storage project at Cornwall. 147a 950. We find that the evidence susceptible of scientific measurement is that the probabilities are that fish of a given size have the capability to resist being drawn into the system; that some of the fish life drawn into the system will surv [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0811%3A1. Public record. Not legal advice.