OpenJurist

407 US 926 Scenic Hudson Preservation Conference v. Federal Power Commission

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

1

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-

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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-

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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

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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).

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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

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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.

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Page 932

Second, the Commission's final opinion suggests that its
consideration of environmental issues is required only when
private citizens bring such problems to the agency's attention.
For example, in many passages of its opinion the Commission states
that particular objections to the project had been rejected for
lack of evidence in the administrative record.5 This approach
symptomatic of the phenomenon of bureaucratic
'industry-mindedness'—wrongly assumed that a presumption of
validity supported the Con Ed proposal and that environmental
groups had a burden of proof to overcome.

Similarly, the Commission limited its inquiry primarily to
those program alternatives which had been submitted by the
conservationists opposing the Con Ed project. The agency did not
generate its own alternatives, although Congress charged each
federal agency to represent not only the public interest in
general but also under NEPA to pay particular attention to the
environmental ramifications of its actions. Whether or not
conservationists appear to register dissent, the Commission is
told in § 102(2)(D) to 'study, develop and

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Page 933

describe appropriate alternatives to recommend courses of action.
. . .' The agency is directed to apply its own expertise and
imagination in exploring less drastic alternatives. And, one
alternative, which went completely overlooked by the Commission,
as Judge Oakes noted below, is not to build any project at all.
Whether that option is realistic we do not know. Informing the
public and Congress on that score is the function of the impact
statement. In short, the Act requires that bureaucrats not only to
listen to protests, but to avoid projects that have imprudent
environmental impacts. There is no burden of proof for the
objector to overcome.

Finally, the Commission's opinion is too imprecise to provide
any helpful insight for Congress, the Council on Environmental
Quality, or the public into what value judgments it made. We know
that the Commission rejected alternatives with less deleterious
environmental consequences on the ground that they were 'more'
costly and 'less' reliable. But we have no reasonably precise
notion of how much reliability and money were gained at the
expense of the destruction of Storm King Mountain. Whether or not
courts may review the Commission's ultimate balance of these
competing considerations, the fact remains that Congress and the
public are entitled to know those judgments. One function of the §
102 statement is certainly to make explicit the priorities of the
agencies. That purpose is not served where all that is basically
told is that the preferred alternative is cheaper and more
reliable, though involving adverse implications for the
surrounding ecology.

If this kind of impact statement is tolerated, then the
mandate of NEPA becomes only a ritual and like the peppercorn a
mere symbol that has no vital meaning. The decision below is, in
other words, the beginning of the demise of the mandate of NEPA.

I would grant these petitions.

1

Section 101 of the National Environmental Policy Act, 42
U.S.C. § 4331, provides in pertinent part:

'(b) In order to carry out the policy set forth in this
chapter, it is the continuing responsibility of the Federal
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——

'(1) fulfill the responsibilities of each generation as
trustee of the environment for succeeding generations;

'(2) assure for all Americans safe, healthful, productive,
and esthetically and culturally pleasing surroundings;

'(3) attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or
other undesirable and unintended consequences;

'(4) preserve important historic, cultural, and natural
aspects of our national heritage, and maintain, wherever possible,
an environment which supports diversity and variety of individual
choice.'2.In that case we held that the grant of authority to this
Commission to alienate federal water resources does not turn
simply on whether the project will be beneficial to the licensee.
Nor is the test solely whether the region will be able to use the
additional power. We said 'The test is whether the project will be
in the public interest. And that determination can be made only
after an exploration of all issues relevant to the 'public
interest,' including . . . the public interest in preserving
reaches of wild rivers and wilderness areas, the preservation of
anadromous fish for commercial and recreational purposes, and the
protection of wildlife.' 387 U.S., at 450, 87 S.Ct. 1712.

The Commission's attitude in that case re-appeared in the
present case: 'Implicit in the reasoning of the Commission and the
Examiner is the assumption that this project must be built and
that it must be built now.' 387 U.S., at 448, 87 S.Ct. 1712.

3

Section 102 of the National Environmental Policy Act, 42
U.S.C. § 4332, provides in pertinent part:

'The Congress authorizes and directs, that, to the fullest
extent possible: (1) the policies, regulations, and public laws of
the United States shall be interpreted and administered in
accordance with the policies set forth in this Act, and (2) all
agencies of the Federal Government shall——

'(C) include in every recommendation or report on proposals
for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed
statement by the responsible official 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,

'(iv) the relationship between local short-term uses of
man's environment and the maintenance and enhancement 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.

'Prior to making any detailed statement, the responsible
Federal official shall 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. Copies of such
statement and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and
enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public
as provided by section 552 of title 5, United States Code, and
shall accompany the proposal through the existing agency review
processes;

'(D) study, develop, and describe appropriate alternatives
to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available
resources; . . .'

4

NEPA, § 102(2)(A).

5

For example, see Judge Oakes dissent below. Scenic
Hudson's Petition, at A47. See also the following paragraphs of
the Commission's opinion: 113 ('There has been no showing that a
combination nuclear-gas turbine alternative offers any advantages
or indeed is even reasonably equivalent to Cornwall.') 123 ('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.') 176 ('No party to this proceeding has suggested any
other plan or project for improving or developing the waterway. .
. .'). And see n. 25 of the Commission's opinion: 'There is no
evidence concerning the condition of the Aqueduct's lining. Its
structural integrity is unknown to the City or any of its
witnesses. . . .'