Scenic Hudson Preserv. Conf. v. Federal Power Com'n

• Decision Date: 22 October 1971
• Docket Number: 35676,Dockets 35678,No. 1033-1038,35688 and 35689.,35683,35677,1033-1038
• Parties: SCENIC HUDSON PRESERVATION CONFERENCE et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, and Consolidated Edison Company of New York, Inc., Town of Cornwall and Village of Cornwall, Intervenors.
• Court: U.S. Court of Appeals — Second Circuit

453 F.2d 463 (1971)

SCENIC HUDSON PRESERVATION CONFERENCE et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, and Consolidated Edison Company of New York, Inc., Town of Cornwall and Village of Cornwall, Intervenors.

Nos. 1033-1038, Dockets 35678, 35676, 35677, 35683, 35688 and 35689.

United States Court of Appeals, Second Circuit.

Argued June 9, 1971.

Decided October 22, 1971.

Rehearing and Hearing Denied November 26, 1971.

Lloyd K. Garrison, New York City (Albert K. Butzel, Paul Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, on the brief), for petitioner Scenic Hudson Preservation Conference.

Philip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Cyril H. Moore, Jr., Asst. Atty. Gen., on the brief), for petitioner Palisades Interstate Park Comm.

Eugene Margolis, New York City (J. Lee Rankin, Corp. Counsel, Evelyn Junge, New York City, on the brief), for petitioner City of New York.

Lloyd K. Garrison, New York City (David Sive, Sigmund Anderman, Bertram Braufman, Winer, Neuburger & Sive, New York City, on the brief), for Petitioner The Sierra Club and its Atlantic Chapter.

Lloyd K. Garrison, New York City (James Marshall, Henry Winestine, Marshall, Bratter, Greene, Allison & Tucker, New York City, on the brief), for petitioner The Wilderness Society.

Lloyd K. Garrison, New York City (Angus Macbeth, John H. Adams, New York City, National Resources Defense Council, Inc., on the brief), for petitioners Izaak Walton League of America, National Audubon Society and National Parks and Conservation Assn.

Gordon Gooch, Gen. Counsel (J. Richard Tiano, Asst. Sol., Leonard D. Eesley, Asst. Gen. Counsel, John D. Lane, Raymond E. Hagenlock, Charles K. Barrow, Attys., F. P. C., Washington, D. C., on the brief), for respondent.

Cameron F. MacRae, New York City (Carl D. Hobelman, G. S. Peter Bergen, Sheila H. Marshall, Jeffrey E. Silver, LeBoeuf, Lamb, Leiby & MacRae, New York City, on the brief), for intervenor Consolidated Edison Co. of New York, Inc.

James R. Loeb, Rider, Weiner & Loeb, Newburgh, N. Y., on the brief, for intervenor Town of Cornwall.

Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.

Rehearing and Hearing En Banc Denied November 26, 1971.

HAYS, Circuit Judge:

By Opinion No. 584, dated August 19, 1970, the Federal 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 parties¹ have filed petitions pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C. § 825l(b) (1964) seeking to set aside this order on various grounds. The issues raised by these petitions are both complex and important, involving, as they do, the conflict between the needs of a highly technological society and the increased awareness of environmental considerations.

The opinion and order of the Federal Power Commission presented here for review follow by five years the earlier remand by this court in Scenic Hudson Preservation 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, 86 S.Ct. 1462, 16 L.Ed.2d 540 (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 Commission 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 New York City at Storm King Mountain near Cornwall, New York, "an area of unique beauty and major historical 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-generation station located at the riverside containing eight reversible pumpturbine and motor generation units as well as switching gear and primary transmission lines. However, unlike the project presented in 1965, which provided 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 feet 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.² 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 and an open tailrace leading to the river. The tailrace with abutments at both ends would run 685 feet along the river. A fish protective device is to be located in front of the tailrace intake.

The third major facet of the project relates to transmission facilities. Submarine cable installations and spare pipes would transmit the energy generated in the powerhouse under the Hudson River and would continue underground 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 continue for approximately 9.2 miles through Putnam 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 generated 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 production, 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 battery at Cornwall." Scenic Hudson, supra at 612.

A visitor's information center and picnic and parking facilities, proposed in the original project for the powerhouse site, have been eliminated. In their place, a 57 acre, mile-long park is to be constructed along the riverfront. Additional recreational facilities are to be provided 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 powerhouse aspect of the project at a location within Palisades Interstate Park, approximately one and onehalf miles downstream from the Storm King Mountain site. Construction at the Palisades site is to be considered 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 support the Commission's findings, and failure to comply with statutory mandates. We find, however, that the Commission 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 review 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 Federal Power Act, 16 U.S.C. § 797(e) (1964), the Commission is authorized

"To issue licenses * * * for the purpose of constructing, operating, and maintaining dams, water conduits, resservoirs, power houses, transmission lines or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction * * *."

There are statutory limitations on the issuance of such licenses. Section 10(a) of the Act, 16 U.S.C. § 803(a) (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 interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes * * *."

The Commission is now obliged also to consider...