Scenic Hudson Preservation Conference v. Federal Power Commission

In this proceeding the petitioners are the Scenic Hudson Preservation Conference, an unincorporated association consisting of a number of non-profit, conservationist organizations, and the Towns of Cortlandt, Putnam Valley and Yorktown. Petitioners ask us, pursuant to 313(b) of the Federal Power Act, 16 U.S.C. 825l(b), to set aside three orders of the respondent, the Federal Power Commission:1

(a) An order of March 9, 1965 granting a license to the intervener, the Consolidated Edison Company of New York, Inc., to construct a pumped storage hydroelectric project of the west side of the Hudson River at Storm King Mountain in Cornwall, New York;

(b) An order of May 6, 1965 denying petitioners' application for a rehearing of the March 9 order, and for the reopening of the proceeding to permit the introduction of additional evidence;

(c) An order of May 6, 1965 denying joint motions filed by the petitioners to expand the scope of supplemental hearings to include consideration of the practicality and cost of underground transmission lines, and of the feasibility of any type of fish protection device.

A pumped storage plant generates electric energy for use during peak load periods,2 using hydroelectric units driven by water from a headwater pool or reservoir. The contemplated Storm King project would be the largest of its kind in the world. Consolidated Edison has estimated its cost, including transmission facilities, at $162,000,000. The project would consist of three major components, a storage reservoir, a powerhouse, and transmission lines. The storage reservoir,3 located over a thousand feet above the powerhouse, is to be connected to the powerhouse, located on the river front, by a tunnel 40 feet in diameter. The powerhouse, which is both a pumping and generating station, would be 800 feet long and contain eight pump generators.4

Transmission lines would run under the Hudson to the east bank and then underground for 1.6 miles to a switching station which Consolidated Edison would build at Nelsonville in the Town of Philipstown. Thereafter, Overhead transmission lines would be placed on towers 100 to 150 feet high and these would require a path up to 125 feet wide5 through Westchester and Putnam Counties for a distance of some 25 miles until they reached Consolidated Edison's main connectins with New York Ciyt.6

During slack periods Consolidated Edison's conventional steam plants in New York Ciyt would provide electric power for the pumps at Storm King to force water up the mountain, through the tunnel, and into the upper reservoir. In peak periods water would be released to rush down the mountain and power the generators. Three kilowatts of power generated in New York City would be necessary to obtain two kilowatts from the Cornwall installation. When pumping the powerhouse would drawn approximately 1,080,000 cubic feet of water per minute from the Hudson, and when generating would discharge up to 1,620,000 cubic feet of water per minute into the river. The installation would have a capacity of 2,000,000 kilowatts, but would be so constructed as to be capable of enlargement to a total of 3,000,000 kilowatts. The water in the upper reservoir may be regarded as the equivalent of stored electric energy; in effect, Consolidated Edison wishes to create a huge storage battery at Cornwall. See Federal Power Commission, National Power Survey 120-21 (1964).

The Storm King project has aroused grave concern among conservationist groups, adversely affected municipalities and various state and federal legislative units and administrative agencies.7

To be licensed by the Commission a prospective project must meet the statutory test of being 'best adapted to a comprehensive plan for improving or developing a waterway,' Federal Power Act 10(a), 16 U.S.C. 803(a). In framing the issue before it, the Federal Power Commission properly noted:

'We must compare the Cornwall project with any alternatives that are available. If on this record Con Edison has available an alternative source for meeting its power needs which is better adapted to the development of the Hudson River for all beneficial uses, including scenic beauty, this application should be denied.'

If the Commission is properly to discharge its duty in this regard, the record on which it bases its determination must be complete. The petitioners and the public at large have a right to demand this completeness. It is our view, and we find, that the Commission has failed to compile a record which is sufficient to support its decision. The Commission has ignored certain relevant factors and failed to make a thorough study of possible alternatives to the Storm King project. While the courts have no authority to concern themselves with the policies of the Commission, it is their duty to see to it that the Commission's decisions receive that careful consideration which the statute contemplates. See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, 226, cert. denied, Panhandle Eastern Pipe Line Co. v. Michigan Consol. Gas Co., 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227 (1960). Petitioners' application, pursuant to 313(b), 16 U.S.C. 825l(b), to adduce additional evidence is granted.8 We set aside the three orders of the Commission to which the petition is addressed and remand the case for further proceedings in accordance with this opinion.

The Storm King project is to be located in an area of unique beauty and major historical significance. The highlands and gorge of the Hudson offer one of the finest pieces of river scenery in the world. The great German traveler Baedeker called it 'finer than the Rhine.' Petitioners' contention that the Commission must take these factors into consideration in evaluating the Storm King project is justified by the history of the Federal Power Act.

The Federal Water Power Act of 1920, 41 Stat. 1063 (1920) (now Federal Power Act, 16 U.S.C. 791a et seq.), was the outgrowth of a widely supported effort on the part of conservationists to secure the enactment of a complete scheme of national regulation which would promote the comprehensive development of the nation's water resources. See Federal Power Comm. v. Union Electric Co., 381 U.S. 90, 98-99, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965); First Iowa Hydro-Electric Coop. v. Federal Power Comm., 328 U.S. 152, 180, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). See generally Cushman, The Independent Regulatory Commission 275-283 (1941); Pinchot, The Long Struggle for Effective Federal Water Power Legislation, 14 Geo.Wash.L.Rev. 9 (1945).9 It 'was passed for the purpose of developing and preserving to the people the water power resources of the country.' United States ex rel. Chapman v. Federal Power Comm., 191 F.2d 796, 800 (4th Cir. 1951), aff'd, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953).

Congress gave the Federal Power Commission sweeping authority and a specific planning responsibility. First Iowa Hydro-Electric Coop. v. Federal Power Comm., 328 U.S. 152, 180-181, 66 S.Ct. 906, 919 (1946) ('instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted'); National Hells Canyon Ass'n v. Federal Power Comm., 99 U.S.App.D.C. 149, 237 F.2d 777 (1956), cert. denied, 353 U.S. 924, 77 S.Ct. 681, 1 L.Ed.2d 720, rehearing denied, 353 U.S. 978, 77 S.Ct. 1054, 1 L.Ed.2d 1139 (1957).

Section 10(a) of the Federal Power Act, 16 U.S.C. 803(a), reads:

'803. Conditions of license generally.

All licenses issued under sections 792, 793, 795-818, and 820-823 of this title shall be on the following conditions:

(a) That the project adopted, * * * shall be such as in the judgment of the Commission will be best adopted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interestate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.'

'Recreational purposes' are expressly included among the beneficial public uses to which the statute refers. The phrase undoubtedly encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.10 See Namekagon Hydro Co. v. Federal Power Comm., 216 F.2d 509, 511-512 (7th Cir. 1954). All of these 'beneficial uses,' the Supreme Curt has observed, 'while unregulated, might well be contradictory rather than harmonious.' Federal Power Comm. v. Union Electric Co., 381 U.S. 90, 98, 85 S.Ct. 1253, 1258 (1965). In licensing a project, it is the duty of the Federal Power Commission properly to weigh each factor.

In recent years the Commission has placed increasing emphasis on the right of the public to 'out-door recreational resources.' 1964 F.P.C. Report 69. Regulations issued in 1963, for the first time, required the inclusion of recreation plan as part of a license application. F.P.C. Order No. 260-A, amending 4.41 of Regulations under Federal Power Act, issued April 18, 1963, 29 F.P.C. 777, 28 Fed.Reg. 4092. The Commission has recognized generally that members of the public have rights in our recreational, historic and scenic resources under the Federal Power Act. Namekagon Hydro Co., 12 F.P.C. 203, 206 (1954) ('the Commission realizes that in many cases where unique and most special types of recreation are encountered a dollar evaluation is inadequate as the public interest must be considered and it cannot be evaluated adequately only in dollars and cents'). In affirming Namekagon the Seventh Circuit upheld the Commission's denial of a license, to an otherwise economically feasible project, becaue fishing, canoeing and the scenic attraction of a 'beautiful stretch of water' were threatened. Namekagon Hydro Co. v. Federal Power Comm., 216 F.2d 509, 511-512 (7th Cir. 1954).

Commissioner Ross said in his dissent in the present case: 'It appears obvious that had this area of the 'hudson Highlands' been declared a State or National park, that is, had the people in the area already spoken, we probably would have listened and might well have refused to license it.'

Respondent argues that 'petitioners do not have standing to obtain review' because they 'make no claim of any personal economic injury resulting from the Commission's action.'

Section 313(b) of the Federal Power Act, 16 U.S.C. 825l(b), reads:

'(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located * * *.'

The Commission takes a narrow view of the meaning of 'aggrieved party' under the Act. The Supreme Court has observed that the law of standing is a 'complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations * * *.' United States ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 156, 73 S.Ct. 609, 612, 97 L.Ed. 918 (1953). Although a 'case' or 'controversy' which is otherwise lacking cannot be created by statute, a statute may create new interests or rights and thus give standing to one who would otherwise be barred by the lack of a 'case' or 'controversy.' The 'case' or 'controversy' requirement of Article III, 2 of the Constitution does not require that an 'aggrieved' or 'adversely affected' party have a personal economic interest. See State of Washington Dept of Game v. Federal Power Comm., 207 F.2d 391 (9th Cir. 1953), cert. denied, 347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087 (1954); Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953); cf. Scripps-Howard Radio, Inc. v. Federal Communications Comm., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); Federal Communications Comm. v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869 (1940); International Union of Electrical, Radio and Machine Workers v. Underwood Corp., 219 F.2d 100, 103 (2d Cir. 1955); Associated Industries, Inc. v. Ickes, 134 F.2d 694 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 (1961). Even in cases involving original standing to sue, the Supreme Court has not made economic injury a prerequisite where the plaintiffs have shown a direct personal interest. See, e.g., School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952).

In State of Washington Dept. of Game v. Federal Power Comm., 207 F.2d 391, 395 n. 11 (9th Cir. 1953), cert. denied, 347 U.S. 936, 74 S.Ct. 626 (1954), the Washington State Sportsmen's Council, Inc., a non-profit organization of residents, the State of Washington, Department of Game, and the State of Washington, Department of Fisheries, opposed the construction of a dam because it threatened to destroy fish. The Federal Power Commission granted the license; the interveners applied for a rehearing which the Commission denied. Petitioners asked for review under 313(b) and the court upheld their standing, noting:

All are 'parties aggrieved' since they claim that the Cowlitz Project will destroy fish in which they, among others, are interested in protecting.'

The Federal Power Act seeks to protect non-economic as well as economic interests.11 Indeed, the Commission recognized this in framing the issue in this very case:

'The project is to be physically located in a general area of our nation steeped in the history of the American Revolution and of the colonial period. It is also a general area of great scenic beauty. The principal issue which must be decided is whether the project's effect on the scenic, historical and recreational values of the area are such that we should deny the application.'

In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of 'aggrieved' parties under 313(b). We hold that the Federal Power Act gives petitioners a legal right to protect their special interests. See State of Washington Dept. of Game v. Federal Power Comm., supra.

At an earlier point in these proceedings the Commission apparently accepted this view. Consolidated Edison strongly objected to the petitioners' standing, but the Commission did not deny their right to file an application for a rehearing under 313(a) of the Act which also speaks in terms of 'aggrieved parties.'12

Moreover, petitioners have sufficient economic interest to establish their standing. The New York-New Jersey Trail Conference, one of the two conservation groups that organized Scenic Hudson, has some seventeen miles of trailways in the area of Storm King Mountain. Portions of these trails would be inundated by the construction of the project's reservoir.

The primary transmission lines are an integral part of the Storm King project. See Federal Power Act 3(11), 16 U.S.C. 796(11).13 The towns that are co-petitioners with Scenic Hudson have standing because the transmission lines would cause a decrease in the proprietary value of publicly held land, reduce tax revenues collected from privately held land, and significantly interfere with long-range community planning. See City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741, 748 (1956). Yorktown, for example, fears that the transmission lines would run over municipal land selected for a school site, greatly decreasing its value and interfering with school construction. Putnam Valley faces similar interference with local planning and a substantial decrease in land tax revenues.14

We see no justification for the Commission's fear that our determination will encourage 'literally thousands' to intervene and seek review in future proceedings. We rejected a similar contention in Associated Industries, Inc. v. Ickes, 134 F.2d 694, 707 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74 (1943), noting that 'no such horrendous possibilities' exist. Our experience with public actions confirms the view that the expense and vexation of legal proceedings is not lightly undertaken.

In any case, the Federal Power Act creates no absolute right of intervention; 308(a), 16 U.S.C. 825g(a), reads:

'In any proceeding before it, the Commission, in accordance with such rules and regulations as it may prescribe, may admit as a party any interested State, State commission, municipality, or any representative of interested consumers or security holders, or any competitor of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest.'

Since the right to seek review under 313(a) and (b) is limited to a 'party' to the Commission proceeding, the Commission has ample authority reasonably to limit those eligible to intervene or to seek review. See Alston Coal Co. v. Federal Power Comm., 137 F.2d 740, 742 (10th Cir. 1943). Representation of common interests by an organization such as Scenic Hudson serves to limit the number of those who might otherwise apply for intervention and serves to expedite the administrative process.

The Federal Power Act 313(b), 16 U.S.C. 825l(b), reads in part:

'(b) If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper.'

The Commission in its opinion recognized that in connection with granting a license to Consolidated Edison it 'must compare the Cornwall project with any alternatives that are available.' There is no doubt that the Commission is under a statutory duty to give full consideration to alternative plans. See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, 224-226, cert. denied, Eastern Pipe Line Co. v. Michigan Consol. Gas. Co., 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227 (1960); City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).

In City of Pittsburgh, three months after the hearings were closed, the petitioners attempted to present to the Commission memoranda supporting an alternative suggestion. The District of Columbia Circuit set aside the Commission's order and remanded the case with directions to reopen the record. It found that the Commission had improperly rejected as 'untimely' evidence concerning the proposed alternative. The court stated that:

'The existence of a more desirable alternative is one of the factors which enters into a determination of whether a particular proposal would serve the public convenience and necessity. That the Commission has no authority to command the alternative does not mean that it cannot reject the (original) proposal.' City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741, 751 n. 28 (1956).

In the present case, the Commission heard oral argument on November 17, 1964, on the various exceptions to the Examiner's report. On January 7, 1965 the testimony of Mr. Alexander Lurkis, as to the feasibility of an alternative to the project, the use of gas turbines, was offered to the Commission by Hilltop Cooperative of Queens, a taxpayer and consumer group. The petition to intervene and present this new evidence was rejected on January 13, 1965 as not 'timely.' It was more than two months after the offer of this testimony, on March 9, 1965, that the Commission issued a license to Consolidated Edison. When Mr. Lurkis's testimony was subsequently reoffered by the petitioners on April 8, 1965, it was rejected because it represented 'at best' a 'disagreement between experts.' On the other hand, we have found in the record no meaningful evidence which contradicts the proffered testimony supporting the gas turbine alternative.

Mr. Lurkis is a consulting engineer of thirty-nine years experience. He has served as Chief Engineer of the New York City Bureau of Gas and Electric, in charge of a staff of 400, and as Senior Engineer of the New York City Transit Authority, where he supervised the design and construction of power plants.15 The New York Joint Legislative Committee on Natural Resources,16 after holding hearings on the Storm King project on November 19 and 20, 1964, summarized Mr. Lurkis's testimony as follows:

'Mr. Alexander Lurkis * * * presented a detailed proposal for using gas turbines. This, he claimed, would meet the alleged peaking need of Con Ed and result in a saving for its customers of $132,000,000. The Committee has learned that similar gas turbine installations are now in use or proposed for use by a number of progressive electric utilities throughout the nation. In addition to meeting the alleged peak power needs and saving money for the ratepayer, the gas turbines proposed by Mr. Lurkis would have the following advantages:

1) Permit the company greater flexibility in meeting the power needs of its service area. Admittedly, technological developments in power production are changing and improving this field at such a rapid rate that it may well be entirely revolutionized in 10 to 15 years. There are obvious advantages in the gas turbine installations. Small installations can be added as needed to meet demand. This, in contrast to a single, giant, permanent installation such as Con Ed proposes at Storm King Mountain, which would tie the technology and investment of one company to a method of power production that might be obsolete in a few years.

2) Keep the power production facilities within New York City. This would not only avoid the desecration of the Hudson Gorge and Highlands, but, also, would eliminate the great swathe of destruction down through Putnam and Westchester Counties and their Beautiful suburban communities.' Preliminary Report as 6.

The Committee report, issued on February 16, 1965, three seeks before the license to Consolidated Edison was granted, concluded:

'The whole situation involved in the Consolidated Edison Storm King Mountain project, and the protection of the Hudson River and its shores, requires further and extensive study and investigation. This Committee goes on record as opposing Con Ed's application until there has been adequate study of the points indicated in this report.' Preliminary Report at 8.

Mr. Lurkis's analysis was based on an intensive study of the Consolidated Edison system, and of its peaking needs projected year by year over a fifteen year period. He was prepared to make an economic comparison of a gas turbine system (including capital and fuel operating costs) and the Storm King pumped storage plant. Moreover, he was prepared to answer Consolidated Edison's objections to gas turbines by indicating:

(1) that gas turbines could meet Consolidated Edison's reserve needs;

(2) that the blackouts of 1959 and 1961 were caused by breakdowns in distribution, not by a lack of power;

(3) that gas turbines would avoid the hazards of weather damage to high transmission lines involved in the Storm King project;

(4) that since 3 kilowatts of power must be generated by steam plants in New York City in order to get 2 kilowatts of power from the Storm King project, gas turbines would be even more useful than the project in reducing air pollution;

(5) that noise from the turbines would be at acceptable industrial levels.

Other benefits envisioned from gas turbines were higher reliability, increased system flexibility, and possible savings in transmission line investment.17

Aside from self-serving general statements by officials of Consolidated Edison, the only testimony in the record bearing on the gas turbine alternative was offered by Ellery R. Fosdick. Fosdick's hastily prepared presentation considered turbines driven by steam and liquid fuel as well as gas; his direct testimony occupied less than ten pages of the record.18 Fosdick's testimony was too scanty to meet the requirement of a full consideration of alternatives. Indeed, under the circumstances, we must conclude that there was no significant attempt to develop evidence as to the gas turbine alternative; at least, there is no such evidence in the record.

The Commission argues that petitioners made 'no attempt to secure additional testimony.' Yet the record indicates that more than two months before the license was granted the Commission summarily rejected the offer of Mr. Lurkis's testimony.

It is not our present function to evaluate this evidence. Our focus is upon the action of the Commission. The fact that Lurkis's testimony was originally offered by a non-petitioner, Hilltop Cooperative, is irrelevant. A party acting as a 'private attorney general' can raise issues that are not personal to it. See Associated Industries, Inc. v. Ickes, 134 F.2d 694, 705 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed 414 (1943); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 283 (1961) ('the right to attack an order resting on a record made by others, or no record at all, could be valuable').

Especially in a case of this type, where public interest and concern is so great, the Commission's refusal to receive the Lurkis testimony, as well as proffered information on fish protection devices and underground transmission facilities,19 exhibits a disregard of the statute and of judicial mandates instructing the Commission to probe all feasible alternatives. Michigan Consolidated Gas Co. v. Federal Power Comm.,