Greene County Planning Board v. Federal Power Com'n
| Decision Date | 17 January 1972 |
| Docket Number | No. 434,71-1996.,435,Dockets 71-1991,434 |
| Citation | 455 F.2d 412 |
| Parties | GREENE COUNTY PLANNING BOARD, Petitioner, v. FEDERAL POWER COMMISSION. Respondent. Town of Durham, New York and Association for the Preservation of Durham Valley, Power Authority of the State of New York, the Sierra Club, Intervenors. TOWN OF DURHAM, NEW YORK AND ASSOCIATION FOR the PRESERVATION OF DURHAM VALLEY, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
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Neil E. Needleman, Glens Falls, N. Y. (Robert J. Kafin, Kafin & Needleman, Glens Falls, N. Y., of counsel), for petitioner Greene County Planning Board.
Barry H. Garfinkel, New York City (Kurt Koegler, Robert Hermann, New York City, Charles R. Halpern, Geoffrey Cowan, Washington, D. C., of counsel), for petitioners Town of Durham and Association for Preservation of Durham Valley.
Platt W. Davis, III, Atty., Washington, D. C. (Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., of counsel), for respondent Federal Power Commission.
Scott B. Lilly, New York City (Thomas F. Moore, Jr., John R. Davison, New York City, John C. Mason, Washington, D. C., of counsel), for intervenor Power Authority of State of New York.
Alfred S. Forsyth, New York City, for intervenor Sierra Club.
Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges.
We are called upon to assess the licensing procedures of the Federal Power Commission in a proceeding upon the application1 of the Power Authority of the State of New York (PASNY) for authorization to construct a high-voltage transmission line. Although the petitioners—Greene County Planning Board, the Town of Durham, New York, and the Association for the Preservation of Durham Valley—raise several interesting arguments, the dispute centers on compliance with the procedural mandates of Section 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332(2) (C), which requires all federal agencies to issue a "detailed statement" on the environmental impact of all "major Federal actions significantly affecting the quality of the human environment . . ." This section is an essential "action forcing" provision2 in legislation designed "to declare a national policy which will encourage productive harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."3 NEPA § 2, 42 U.S.C.A. § 4321. In addition, petitioners ask us to decide that the Commission has discretion in the public interest, to pay the attorneys' fees and other expenses of the intervenors in the proceedings. We find that the Commission has not complied with NEPA and remand for further proceedings, but under the circumstances presented to us, we refuse to order the Commission or PASNY to pay the expenses and counsel fees of the private intervenors.
A brief statement of the proceedings thus far will aid in comprehending the arguments advanced. On August 15, 1968, PASNY filed an application to construct, operate and maintain a 1,000,000 kilowatt pumped storage power project4 along the middle reaches of Schoharie Creek in the towns of Blenheim and Gilboa, New York, some forty miles southwest of Albany. The project as proposed, inter alia, consisted of: (1) an upper reservoir; (2) a lower reservoir (including a dam across Schoharie Creek); (3) an outdoor powerhouse and (4) three 345 kilovolt transmission lines —one from the switchyard adjacent to the powerhouse to a substation at New Scotland, one to a substation at Fraser and the last to a substation at Leeds.5 After consulting with several federal agencies, the Commission granted the license. Power Authority of the State of New York, Project No. 2685, 41 F.P.C. (June 6, 1969). Article 34 of the license, however, specifically prohibited construction of the transmission lines until further Commission approval was given to "plans for preservation and enhancement of the environment as it may be affected by the transmission lines design and location."6Id. at 718. In preparing the plans, PASNY was required to "give appropriate consideration to recognized guidelines for protecting the environment and to beneficial uses, including wildlife, of the transmission lines right-of-way." Ibid.
PASNY applied for construction authorization of the three lines on November 24, 1969. When no protests or petitions were filed with respect to the Gilboa-New Scotland and Gilboa-Fraser lines, the Commission approved construction of these two lines without holding a hearing. Power Authority of the State of New York, Project No. 2685, 43 F.P.C. 521 (April 10, 1970). Nevertheless, the Commission, after conducting a full inspection and conferring with PASNY's staff and consultants, "concluded that from an aesthetic and environmental values point of view, the selected locations of the two lines involved herein are preferable to all of the alternative routings that were considered." Id. at 522-523.
The Commission, however, received several protests with respect to the Gilboa-Leeds line which was to run from the project in Schoharie County, through the Durham Valley, past the town of Durham (in Greene County) to the Leeds Substation less than two miles from the Hudson River near Catskill. Motions to intervene were filed by the Greene County Planning Board, the Town of Durham, the Association for the Preservation of the Durham Valley,7 the Sierra Club and several individuals.8 Intervention was granted on May 19, 1970, but participation was limited to the issues raised in the petitions to intervene—namely, the impact of the line on the Durham Valley in particular and Greene County in general.
NEPA became effective on January 1, 1970, after PASNY applied for the transmission line permits, but before the permits were issued for the Gilboa-New Scotland and Gilboa-Fraser lines. It was not until almost a year later, on December 2, 1970, that the Commission issued Order No. 415 to implement procedures in accord with NEPA. 18 C.F.R. §§ 2.80-.82 (January 1, 1971). Section 2.81 (b) of the regulations required each applicant for a license for a "major project" to file its own detailed statement of environmental impact developing fully the five factors listed in section 102(2) (C) of NEPA.9 Although the regulations required the Commission staff to prepare a detailed statement in the case of all uncontested applications, no such statement was required where applications were contested.10See 18 C.F.R. §§ 2.81(e)-(f) (January 1, 1971).
In accordance with Commission regulations, PASNY filed its impact statement on March 26, 1971, covering the proposed Gilboa-Leeds line and two alternative routings. The Commission reviewed the statement as to sufficiency of form, see 18 C.F.R. § 2.81(b) (January 1, 1971), and then circulated it for comment to agencies with "special expertise with respect to any environmental impact involved."11 See NEPA § 102 (2) (C) 42 U.S.C.A. § 4332(2) (C).
Finally, by order issued May 4, 1971, the Commission ordered a hearing on PASNY's proposals and set a prehearing conference for June 22, 1971. At this conference, Durham and Greene County moved that PASNY, or alternatively the Commission, pay the expenses and fees, including attorneys' fees, incurred by the intervenors in the proceeding. Greene County also requested the Presiding Examiner to set a date for the Commission to file its own impact statement pursuant to NEPA. Then, by motions filed July 6 and July 12, 1971, the intervenors moved for an order vacating, rescinding or suspending the June 6, 1969, license of the entire project and enjoining further construction, alleging that the Commission did not comply with the notice requirements of the Federal Power Act and the mandates of NEPA.12
The Presiding Examiner denied each of the motions, and the movants filed timely notices of appeal to the Commission. See 18 C.F.R. § 1.28 (January 1, 1971). Although each appeal was denied sub silentio by operation of law,13 the Commission granted rehearings and by orders dated October 28 and 29, 1971, it formally denied the appeals. Petitioners ask us to review those orders. See Federal Power Act § 313, 16 U.S.C. § 825l.
Before passing to the merits of petitioners' contentions, we note that the latest round of hearings commenced on November 9, 1971. Petitioners moved for a stay of these hearings in this Court, but the motion was denied on November 1. To date, the hearings have been concerned with cross-examination of PASNY and Commission witnesses. They are expected to continue for several months. In addition, the entire project, exclusive of the Gilboa-Leeds transmission line, is now more than 80% complete.14
Section 102(2) (C) of NEPA, as we stated at the outset, requires every federal agency to "include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment" a detailed environmental impact statement. Prior to making the statement, the agency must "consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." The detailed statement, however, "must accompany the proposal through the existing agency review processes . . . ."15 (Emphasis added.)
It is conceded that authorization of the Gilboa-Leeds line, an integral part of the Blenheim-Gilboa Project, would constitute a major federal action. The parties, however, are in vigorous disagreement over when the Commission must make its impact statement. The...
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