124 The Environmental Debate
The Court of Appeals, Hays, Circuit Judge,
held, inter alia, that Federal Power Commission
licensing order and subsequent related orders
would be set aside for failure of commission to
compile record sufficient to support its decision
and because it ignored certain relevant factors
and failed to make thorough study of possible
alternatives, and matter would be remanded
for its new proceedings which were required to
include study of preservation of natural beauty
and historic shrines and fisheries questions.
Order [“of the Federal Power Commission
granting an intervener a license to construct a
pumped storage hydroelectric project”] set aside
and case remanded with directions.
To be licensed by the [Federal Power] Com-
mission a prospective project must meet the
statutory test of being “best adapted to a com-
prehensive plan for developing a waterway.”...
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 com-
pile a record which is sufficient to support its
decision. The Commission has ignored certain
relevant factors and failed to make a thorough
study of the possible alternatives to the Storm
King project. While the courts have no author-
ity 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 con-
sideration which the statute [Federal Power Act]
contemplates.
* * *
The Storm King project is to be located in an
area of unique beauty and major historical sig-
nificance. The highlands and gorge of the Hud-
son offer one of the finest pieces of river scenery
in the world. The great German traveler Bae-
deker called it “finer than the Rhine.” Petition-
ers’ complaint 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.
* * *DOCUMENT 103: Scenic Hudson Preservation Conference v. Federal
Power Commission (1965)In the early 1960s, Consolidated Edison, the power company for New York City and Westchester County (just
north of the city), proposed the creation of a huge reservoir a thousand feet above the Hudson River on Storm
King Mountain. When the water in the reservoir was released down into the river, it could turn a turbine and
generate energy. According to the proposal, river water would be pumped into the reservoir and stored there
until power was needed to deal with peak energy demands.
After the Federal Power Commission (FPC) granted a license for this substantial project, the Scenic Hudson
Preservation Conference (a group formed in opposition to the project and consisting of several conservation
organizations and representatives of three Westchester towns) asked the court to require the FPC to reconsider
approval of the license application and examine alternatives to the project, as well as other evidence that had
been available before the project was approved but had been ignored.
The circuit court of appeal’s decision broke new ground and is seen by many as the innauguration of modern
environmental law. The decision was significant for four reasons: it was the first case to elevate environment
factors to a position of equal consideration with economic factors; it was the first to require the government to
consider alternatives in evaluating proposals for projects with negative environmental impact (a requirement
established as law in the National Environmental Policy Act of 1969 [see Document 111]); it was among the
first to require federal agencies to develop evidence relevant to the public interest, not simply weigh evidence
presented by the applicant for license; and it was the first modern case to allow environmental groups with no
economic interest in the issue to sue based on environmental issues.