559 F.2d 1227 (2nd Cir. 1976), 500, Greene County Planning Bd. v. Federal Power Com'n
| Citation | 559 F.2d 1227 |
| Party Name | Rep. 20,101 GREENE COUNTY PLANNING BOARD et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Power Authority of the State of New York and United Brotherhood of Electrical Workers Local 1249, Intervenors. |
| Case Date | December 08, 1976 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Second Circuit |
Page 1227
Argued Oct. 27, 1976.
On Rehearing En Banc June 30, 1977.
Page 1228
[Copyrighted Material Omitted]
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Robert J. Kafin, Glens Falls, N. Y., for petitioners, Greene County Planning Bd. and Town of Greenville.
Barry H. Garfinkel, New York City (Douglas M. Kraus, New York City, on the brief), for petitioners, Town of Durham, and others.
Robert J. Kafin, Glens Falls, N. Y., for petitioners Greene County Planning Bd. and Town of Greenville.
Barry H. Garfinkel, New York City, for petitioners Town of Durham, et al.
Philip R. Telleen, Washington, D. C. (Drexel D. Journey, Gen. Counsel, Robert W. Perdue, Deputy Gen. Counsel, Allan Abbot Tuttle, Solicitor, McNeill Watkins, II, and David P. Boergers, Attys., Federal Power Commission, Washington, D. C., on the brief), for respondent.
Thomas F. Moore, Jr., New Rochelle, N. Y. (Scott B. Lilly, John C. Mason, Vincent J. Tobin and Arthur J. Kalita, Attys., New York City, on the brief), for intervenor, Power Authority of the State of New York.
Jules L. Smith, Syracuse, N. Y. (Blitman & King, Bernard T. King, Syracuse, N. Y., on the brief), for intervenor, International Brotherhood of Electrical Workers Local Union 1249.
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Ronald A. Zumbrun, Robert K. Best, Raymond M. Momboisse, Sacramento, Cal. (Albert Ferri, Jr., Glenn E. Davis, Lawrence P. Jones, Washington, D. C., of counsel), for amicus curiae Pacific Legal Foundation.
Before LUMBARD and VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge. [*]
LUMBARD, Circuit Judge:
These petitions for review under 16 U.S.C. § 825(b) of orders of the Federal Power Commission authorizing construction of an electrical transmission line by the Power Authority of the State of New York and declining to award attorneys' fees and other litigation expenses to various intervenors provide the fourth occasion for this court to review aspects of PASNY's efforts to construct a 35 mile power line through the scenic Durham Valley in Greene County. 1 The Commission issued its opinion and order on January 29, 1976, and on April 27, 1976 it denied a motion to reopen the record.
The Greene County Planning Board and the Town of Greenville (hereinafter "Greene County") assert that the Commission violated its duties under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., and under the Federal Power Act, 16 U.S.C. §§ 791a et seq., by improperly limiting its analysis of benefits and adverse impacts rather than considering related, pending projects and broader systematic concerns and alternatives. Moreover, petitioners claim the Commission should have reopened the record to consider newly-available data on electricity consumption and other evidence tending to rebut its conclusion that the power line is necessary. They also make various complaints about the adequacy of the Commission's environmental impact statement and the fairness of the hearing conducted by the administrative law judge. We conclude that the Commission has fulfilled its obligations under NEPA and the FPA, and that none of petitioners' other claims warrant reversal.
The Town of Durham and the Association for the Preservation of Durham Valley, intervenors before the Commission who were successful in urging the selection of an alternative route for the power line, join with Greene County in asking us to reverse the Commission's refusal to pay for their litigation expenses. Since recent rulings by the Comptroller General indicate that the FPC has authority to grant these reimbursements in appropriate circumstances, we remand to the Commission for further consideration of this issue.
I.
The history of this case dates back to August 1968 when the PASNY applied for approval from the FPC for construction of an 1100-megawatt pumped storage facility near Gilboa, New York. Under 16 U.S.C. § 797(e) the FPC has licensing jurisdiction over such a hydroelectric project and over any transmission lines that are designed for the primary purpose of serving the project. The plan for the Gilboa project was approved by the Commission in June 1969, and it envisaged three 345 kilovolt transmission lines, specifications for each of which would be subject to final review by the Commission. One line was to run southwest to Dehli, one northeast to New Scotland (near Albany), and one southeast for 35 miles to Leeds. Plans for these lines were soon submitted, and the Dehli and New Scotland lines were promptly approved without arousing significant opposition. Environmental controversy arose over the proposed Leeds line, however, and various opponents ultimately received permission from the Commission to intervene. After some reworking of the Leeds proposal by the PASNY, a hearing before Administrative Law Judge William C. Levy commenced on November 9, 1971.
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The hearing continued until interrupted by order of this court on January 17, 1972. In Greene County Planning Board v. FPC (Greene County I), 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), we ruled that the FPC was violating NEPA by conducting hearings in reliance on the environmental report submitted by the PASNY, instead of first having prepared its own environmental impact statement. Id. at 422. The FPC staff was ordered to prepare its own impact statement to serve as a foundation for cross-examination of PASNY and FPC witnesses at the hearing. In Greene County I we also cautioned the Commission not to ignore broad but potentially relevant considerations such as future power demand and supply, alternative sources of power, and impending plans for further power facility construction.
After its petition for certiorari had been denied, the FPC set about the task of complying with this court's mandate by drafting an impact statement, soliciting comments, and preparing a final impact statement. The hearing then recommenced 2 and ran for two and a half months before the record was closed on October 27, 1973. Considerable expert engineering testimony on the need for the transmission line and testimony on its environmental impact was adduced from the PASNY employees charged with the planning and evaluating of the line and also from the employees of the FPC who had prepared the environmental impact statement. The Durham intervenors put on their own environmental experts to testify against the PASNY's preference for a route running through the Durham Valley, which is an especially scenic part of Greene County. The Greene County intervenors sought to call as their own expert witness an environmental engineer employed with the Office of Environmental Planning of the New York State Public Service Commission, but Judge Levy ruled that the state was not required to furnish such expert testimony. On July 1, 1974, Judge Levy issued his opinion authorizing construction of a Gilboa-Leeds line and selecting as environmentally least harmful a route that skirted the Durham Valley, twenty-nine months later the Commission affirmed.
The Commission's finding of need for the transmission line rested on substantial evidence that the line is necessary if the PASNY is to make optimal use of the Gilboa power storage facility. Engineering opinion was unanimous that the Gilboa-Leeds line would significantly improve the "reliability and stability" of power transmission from the Gilboa project, as well as increasing the "transfer capability" of the overall PASNY network. Thus, the line would ensure access to readily available and inexpensive Gilboa power at times of peak consumption in New York City and other parts of the state, and it would also increase the PASNY's capacity to meet localized peak demands by transferring power as needed to and from various points within eastern New York.
The Commission also decided that the 345 kv transmission line should be constructed with the capability of being expanded to two 345 kv lines or a 765 kv line if the need for the additional transmitting capacity were to arise in the future. The second 345 kv circuit would be most useful if a second hydroelectric storage project presently under PASNY and FPC consideration were to be constructed in the vicinity of Gilboa; upgrading the line to 765 kv would be called for if the PASNY decided to go forward with its plans to upgrade its overall network of lines with which the Gilboa-Leeds line connects; and the Commission concluded that convertibility of the 345 kv line would result in substantial environmental and construction cost savings if either of these likely contingencies were to develop.
The Commission rejected Greene County's motion that it reopen the record in order to consider recent data indicating
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that electricity consumption in New York City and the rest of the state has significantly and unexpectedly declined, and also that since its construction in 1973 the Gilboa facility has been able to function without mishap and at full capacity by using just the Gilboa-New Scotland and Gilboa-Dehli transmission lines. The Commission said that this new information would not require any modification of its order for the construction of the Gilboa-Leeds line.
II.
The purposes of NEPA are frustrated when consideration of alternatives and collateral effects is unreasonably constricted. This can result if proposed agency actions are evaluated in artificial isolation from one another. Accordingly, an agency is required to consider the full implications of each decision in light of other potential developments in the area, and to prepare a comprehensive impact statement if...
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...(129.) See, e.g., Pac. Legal Found. v. Goyan, 664 F.2d 1221, 1224-27 (4th Cir. 1981); Green County Planning Bd. v. Fed. Power Comm'n, 559 F.2d 1227, 1235 (2d Cir. 1976). (130.) The Federal Trade Commission Act, the Equal Access to Justice Act, FOIA, and certain environmental and civil right......