600 LEGAL ASPECTS OF THE ENVIRONMENT
demand this completeness. It is our view, and we find, that
the Commission has failed to compile a record which is suf-
ficient 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.The court found that the Commission must take into
consideration the unique beauty and important historical sig-
nificant of the Hudson River noting that the Federal Power
Act sought to “promote the comprehensive development of
the Nation’s water resources.”
The court directed the Federal Power Commission to
reexamine all the issues that the court found had not been
properly considered.
The commission’s renewed proceedings must include
as a basic concern the preservation of natural beauty and of
national and historic shrines, keeping in mind, that, in our
affluent society, the cost of a project is only one of several fac-
tors to be considered. The record as it comes to us fails mark-
edly to make out a case for the Storm King Project on, among
other matters, cost, public convenience and necessity, and
absence of reasonable alternatives. Of course the Commission
should make every effort to expedite the new proceedings.
Following the hearings on remand, the hearing
examiner made an initial determination on August 6, 1968
recommending that the license be issued. New York City
then petitioned to intervene prior to a decision by the
Commission in order to introduce evidence of the effects
project construction activities might have upon the safety
of the Catskill Aqueduct which supplies a substantial part
of the water for New York City. The proceedings were
reopened and on December 23, 1969 a supplemental deci-
sion was issued by the hearing examiner recommending
that the licence be granted with some modifications.
On August 17, 1970, the Federal Power Commission
issued the license for construction of a pumped-storage plant
by Consolidated Edison at Storm King Mountain. In a lengthy
opinion, the Commission paid close attention to the decision of
the Second Circuit Court of Appeals, giving detailed consid-
eration to areas in which the court had found that the previous
decision had been deficient, including alternative sources for
the needed power, alternative sties for the project, fish protec-
tive devices, underground transmission lines, and the scenic,
aesthetic, and historical values that would be affected by the
project. The Commission found the project to be compatible
with the natural environment, and not to have an adverse effect
upon the ecology of the area, the water quality of the Hudson
River, or the fishery resources of the Hudson River. The
area would be replanted after construction; the power house
would be totally underground and the Commission found
that the project, as modified and as licensed, represented no
real impairment to the environment and scenic aspects of the
highlands and the natural beauty of the area. The Commission
recognized man’s already awesome impact on this section of
the Hudson River shoreline, by stating that,... it should not be inferred that previous and existing envi-
ronmental detriment permits additional detriment which
would otherwise not be permitted but for existing condi-
tions, pointing out that Consolidated Edison would rehabili-
tate the waterfront area in the vicinity of the project site, an
area which the Commission euphemistically described as
“blighted.”Although the hearings had been conducted prior to the
passage of the National Environmental Policy Act, the
Commission found that full and careful consideration had
been given to all the concerns which the Act embodies and
that the licensing of the facility complied with the require-
ments of that Act.
All parties appealed to the Second Circuit Court of
Appeals which affirmed the Commission’s issuance of the
license. The majority of the Court found that the decision of
the Federal Power Commission was supported by substantial
evidence and had been based on a consideration of all rel-
evant factors, and had in fact complied with the requirements
of the Federal Power Act and the National Environmental
Policy Act.
After 8 years of litigation, at enormous cost to the
Scenic Hudson Preservation Conference, its supporters, and
Consolidated Edison, not to mention the inconvenience and
cost to the electric power-hungry people of the City of New
York, the project would be constructed, little modified from
the initial proposal.
The first decision of the Court of Appeals in the Scenic
Hudson Preservation case represented a crucial selection
event in the evolution of Environmental Law. If the con-
servationists were willing to submit the controversy to the
Federal Power Commission, then, according to the Court,
the Federal Power Commission should hear and consider
evidence on natural values and environmental impacts in
addition to evidence on the economics of electric power gen-
eration and distribution. The alternative choice open to the
conservationists was to remain before the court and challenge
the inherent suitability of the Federal Power Commission
as a body capable of resolving environmental conflict. The
Scenic Hudson Preservation Conference, a coalition of pres-
ervationists and aesthetically concerned conservationists,
chose to yield to the Federal Power Commission the author-
ity to make an ecological judgment binding upon genera-
tions yet unborn, cloaking the Federal Power Commission
with a mantle of ecological competence. Since the Scenic
Hudson Preservation Conference chose to take its “day in
court” before an administrative agency rather than a court
of equity, the findings of fact made by the Commission were
binding upon the conservationists in subsequent review by
the Courts.
Fortunately, the principles set forth by the Court of
Appeals in its initial review of the Scenic Hudson case
mandating consideration of all relevant issues including
environmental issues, and requiring affirmative action by
the Agency to protect the public interest are not limited in
application to the Federal Power Commission. Other agen-
cies, including the Corps of Engineers of the United States
Army, the Atomic Energy Commission, the Department
of Transportation, the Department of the Interior and theC012_001_r03.indd 600C012_001_r03.indd 600 11/18/2005 10:33:19 AM11/18/2005 10:33:19 AM