Scenic Hudson Preservation Conference v. Federal Power Commission City of New York

• Citation: 92 S.Ct. 2453,407 U.S. 926,32 L.Ed.2d 813
• Decision Date: 19 June 1972
• Docket Number: No. 71-1220,No. 71-1221,No. 71-1219,71-1219,71-1220,71-1221
• Parties: SCENIC HUDSON PRESERVATION CONFERENCE et al. v. FEDERAL POWER COMMISSION et al. CITY OF NEW YORK
• Court: United States Supreme Court

407 U.S. 926

92 S.Ct. 2453

32 L.Ed.2d 813

SCENIC HUDSON PRESERVATION CONFERENCE et al.

v FEDERAL POWER COMMISSION et al.

No. 71-1219.

CITY OF NEW YORK

v FEDERAL POWER COMMISSION et al. No. 71-1220. The SIERRA CLUB AND ITS ATLANTIC CHAPTER v FEDERAL POWER COMMISSION et al. No. 71-1221. Supreme Court of the United States June 19, 1972 On petitions for writ of certiorari to the United States Court of Appeals for the Second Circuit. The motion to dispense with printing the FPC opinion in No. 71-1219 to conform with Rule 39 is granted. The petitions for writs of certiorari are denied. djQ Mr. Justice DOUGLAS, dissenting. These petitions should be granted to consider whether the Federal Power Commission complied with its obligations under §§ 101 and 102 of the National Environ-

Page 927 mental Policy Act of 1969, 42 U.S.C. §§ 4331 and 4332, in granting a license to Consolidated Edison Company of New York, Inc., for the construction of a pumped storage power project on Storm King Mountain on the Hudson River. Under § 101 of the Act federal agencies are instructed to take environmental consequences into account in their decisionmaking.¹ That mandate was aimed partly at eliminating the excuse which had often been offered by bureaucrats that their statutory authority did not authorize consideration of such factors in their policy decisions. See Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869.² More impor-

Page 928 tantly, § 101 was meant as an affirmative duty 'to consider environmental issues just as they consider other matters within their mandates.' Calvert Cliffs' Coordinating Committee, Inc. v. United States AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112. Section 102³ requires that administrators incorporate

Page 929 certain procedures into their operating routines in order (1) to increase the likelihood that environmental consequences of agency action will not be unforeseen and (2) to insure that if a project is approved, an environmentally acceptable alternative will be chosen. Section 102(2)(C) requires a detailed statement in connection with actions significantly affecting the quality of the human environment, specifying the environmental impact of the proposed action and alternatives. Section 102(2)(D) places bureaus under an affirmative duty to study and develop alternatives where there are unresolved conflicts concerning the alternative uses of available resources. This case poses issues under both sections. In 1964 Con Ed proposed to the Commission that it be allowed to construct a reservoir atop Storm King mountain along with a hydroelectric generating plant to be driven by water falling from the reservoir. During the daytime hours when energy demand is high the plant would be operational, but during the evening hours when part of Con Ed's existing facilities are normally idle, power from one of its existing plants would be used to pump water from the Hudson River to the reservoir. In 1965 the Commission approved the project but the Court of Appeals for the Second Circuit in a suit brought by conservationists and local residents set aside the order and remanded for more detailed consideration of various environmental aspects of the project. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (CA2).

Page 930 After more hearings had been completed but before the Commission acted, the National Environmental Policy Act of 1969 became effective. Although it has been conceded that the Act's requirements were applicable in these proceedings, no further hearings were held; and no environmental impact statement was drafted. The Commission approved the project and attempted to satisfy its procedural duties under § 102 by specifying certain environmental impact forecasts in its final opinion. The Court of Appeals affirmed over the dissent of Judge Oakes who thought that the Commission had not discharged its obligations under NEPA. The majority held that under § 101 the ultimate balance of energy and environmental values was the responsibility of the Commission and courts could upset only decisions not supported by 'substantial evidence.' It also held, with respect to the procedural requirements of § 102, that the Commission's hearings, and consultation with other agencies satisfied the command that a 'systematic, interdisciplinary approach' be utilized.⁴ It also found that the Commission's final opinion which contained its environmental findings would, under the circumstances, suffice as an environmental impact statement. A petition for rehearing en banc was denied by an equally divided court with Judge Timbers dissenting in a short opinion which expressed doubt as to the validity of the majority's reliance on the 'substantial evidence' test. I believe the Court of Appeals gave the Act too restrictive a meaning. As to the Commission's duty to take environmental impacts into account, Judge Oakes made a strong case for the view that the Commission (a) misjudged the risk that project construction might work irreparable injury to one of

Page 931 three vital water supply systems serving New York City; (b) underestimated the extent of additional air pollution which would be generated by nighttime burning of fossil fuels in New York City in order to generate the power needed to pump the river water to the reservoir; and (c) generally undervalued environmental considerations while overvaluing engineering and economic considerations. Although value judgments are inevitable and even though the Commission's balancing of environmental costs with other factors may be entitled to some deference, I share Judge Timber's doubts that under § 101 the balance struck by an agency unskilled in environmental matters should be reviewed only through the lens of the 'substantial evidence' test. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 28 L.Ed.2d 136 ('If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.') (But see Calvert Cliffs', 449 F.2d, at 1115.). I also am not satisfied that the procedural obligations under § 102 were honored. First, the Commission did not draft the impact statement required by § 102(2)(C). Thus when the Commissioners deliberated the fate of Storm King Mountain, they did not have before them a coherent study addressed to the environmental consequences of the project and alternatives to it. Another panel of the Second Circuit has recently ruled that the impact statement must be written before action is taken. Greene County Planning Board v. FPC, 455 F.2d 412 (CA2). Administrators cannot attempt to comply with the Act by calling their final opinion their impact statement. True, here the hearings had been completed after the Act became effective. Yet the Commission could have deferred decision until its own § 102 statement was prepared.

Page 932 Second, the Commission's final opinion suggests that its consideration of environmental issues is required only when private citizens bring...