Encyclopedia of Environmental Science and Engineering, Volume I and II

LEGAL ASPECTS OF THE ENVIRONMENT 599

collaboration with other scientists of diverse disciplines

upon general problems of environmental concern.

The adequate determination of the highest and best use

of the limited natural resources of any regional ecological

system mandates a systems approach supported by modern

computer technology in order to determine the relevant

boundary conditions and elemental optimizations of the

complex, non-linear dynamic relationships that describe a

natural system as it actually exists. Courts increasingly are

accepting evidence in environmental litigation, and the tech-

niques of general systems analysis have become key factors

in the resolution of environmental controversy such as that

concerning the continued use of DDT, the distribution of

radionuclides from peaceful applications of nuclear energy,

and the Cross-Florida Barge Canal.

The acceptance of systems methods in ecology by the

courts now means that any land use or resource utilization

law which does not fully reflect the system characteristics

of the Regional Ecological System in which it will operate

is fatally defective in the legal sense. It cannot be sustained

in the face of sophisticated legal challenge; while any such

law which does, in fact, reflect the system characteristics of

the region can be sustained in the public interest, even where

such a law appears to limit the rights incident to private

property ownership.

The current litigation involving the adequacy of state-

ments prepared under the mandate of section 102 of the

National Environmental Policy Act (environmental impact

statements) demonstrates that any failure to consider the

ecological integrity of a region and fully determine the inter-

relationships among each element of the land, landscape and

natural processes diminishes the legal value of the effort;

while a full evaluation of any environmentally significant

action with respect to its effect upon the overall ecologi-

cal integrity of the region and the interrelationships among

each element of land, landscape, and natural processes of the

region can form the basis for legal restraints upon land use

and resource exploitation, even where such restraints appear

to infringe upon private property rights or government agency

prerogatives.

ENVIRONMENTAL LITIGATION

Environmental litigation includes almost all the actions

brought before the courts of the United States, the several

states, and the various administrative agencies exercising

quasi-judicial powers which involve a determination which

may affect natural processes, resources or the environment.

The Scenic Hudson Preservation Case

One of the landmark cases in environmental law is Scenic

Hudson Preservation Conference v. Federal Power

Commission [354 F2d. 608 (1965, CA2), certiorari denied

384 US 941, 16 LEd 2d 540, 86 SCt 1462], which established

the right of conservation organizations and other public

interest groups to challenge the extent of consideration given

to historic, scenic, aesthetic, conservation and recreational

aspects of power development by the Federal Power

Commission. The holding of that case has been extended to

permit similar organizations to challenge the consideration

of such values by the Secretary of Transportation (in approv-

ing federal-aid highways) and the Secretary of the Army

and Chief of Corps of Engineers (in licensing and granting

permits for projects on navigable waterways).

The Scenic Hudson saga began on January 29, 1963 with

Consolidated Edison of New York (the major electric power

utility servicing the City of New York) filing an application

with the Federal Power Commission (FPC) for a license

to construct a pumped-storage hydroelectric facility on the

west wide of the Hudson River at Storm King Mountain. As

information concerning the project spread, the Federal Power

Commission directed that a public hearing on the project be

held February 25, 1964. The Scenic Hudson Preservation

Conference was hastily formed and filed a petition on

February 6, 1964 seeking to intervene in the proceeding. The

petition was granted on February 14, 1964; intervention was

permitted; hearings were held in Washington, DC; and the

hearing examiner made an initial determination approving

the license application on July 31, 1964 subject to review

by the entire Federal Power Commission which eventually

licensed the project on March 9, 1965.

The pumped-storage plant proposed by Consolidated

Edison would generate electric power for use during peak

load periods in New York City using hydroelectric units

driven by water from a reservoir. The project consisted of

three major components—a storage reservoir, a powerhouse,

and transmission lines. The reservoir would be located over

the power house which was to be located on the shores of the

Hudson River at the foot of Storm King Mountain, a mountain

of striking aspect rising over 1,360 feet above the river. The

reservoir would be connected to the powerhouse by a tunnel

40 feet in diameter. During slack periods of demand for elec-

trical power in New York City, Consolidated Edison’s steam

generating plants in New York City would provide electric

power for the pumps at Storm King to force water through

the tunnel and up the mountain into the reservoir. The water

would be stored in the reservoir until periods of peak demand

for electrical power in New York City at which time the water

would be released from the reservoir to rush down the moun-

tain through the tunnel to power the generators. The project

was to have a capacity of two gigawatts (billion watts, or mil-

lion kilowatts), but would be capable of expansion to three

gigawatts. At that time, the Storm King Project was to be the

world’s largest pumped storage electric generating facility

and was estimated to cost an estimated $162,000,000.

Subsequently the United States Court of Appeals for the

Second Circuit reviewed the determination of the Federal

Power Commission holding, that

if the Commission is properly to discharge its duty in this

regard [approve those projects best adapted to a compre-

hensive plan for improving or developing a waterway], the

record on which it bases its determination must be complete.

The petitioners and the public at large have a right to

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