Page images
PDF
EPUB

Certainly we consider we are proceeding with research and development of nuclear energy with all deliberate speed. The present state of our research and development is on the borderline of producing equipment that has practical value of commercial uses. See Cities of Statesville, et al. v. Atomic Energy Commission, U.S. App. D.C. 441, F.2d 962 (en banc, 1969). But atomic energy is not a present alternative to the oil needed to supply our internal combustion engines and meet our other fuel demands.

Certainly if any person knew where to explore for more onshore oil or gas in substantial quantities in the United States, he would not want for support. Moreover, the Impact Statement did discuss this suggestion and pointed out that it had been weighed and found to be inadequate:

Until recently, the petroleum industry has been able to satisfy domestic demand for oil and gas from the onshore areas. With the exception of Alaska, however, current seismic exploration techniques have not been able to identify sufficient numbers of new prospective oil and gas bearing geologic structures onshore that are suitable for further exploration or development investments. This has been reflected by a significant decline in both onshore drilling and proved reserves. In contrast, however, the geologic structures in the relatively unexplored or virgin areas are more easily identifiable using current seismic technology.

Final Environmental Impact Statement 52–53. I see no reasonable necessity to discuss the environmental impact of a suggested alternative that has been rejected because it is not a practical alternative.

The majority opinion is not specific as to whether in its treatment of increasing onshore exploration and development it requires the Impact Statement to discuss the alternative of substituting oil from the North Slope of Alaska for this Gulf oil and to discuss the environmental impact of that alleged alternative. If such discussion is so required, I would take judicial notice of those facts of common knowledge that the production and transportation facilities necessary for North Slope oil to constitute a realistic present alternative to this proposal are presently non-existent. The North Slope field also has its own well known environmental problems. To the extent that plaintiffs or the majority opinion may contend that this Impact Statement needs to discuss the effect on the environment of the North Slope alternative it is to my mind, presently an unreasonable suggestion.

Notice is also taken of our own decision upholding the Federal Power Commission in altering its pricing policies on natural gas to stimulate the domestic production of natural gas. City of Chicago v. Federal Power Commission, -U.S. App. D.C.

[graphic]
[graphic]
[graphic]
[graphic]

F.2d

(No. 23740, Dec. 2, 1971, slip op. 11-12).

So, much of what is suggested by these so-called alternatives is already being done and is a matter of common knowledge. Some of the suggested alternatives would require immediate changes in existing federal laws and decisions of independent federal agencies; some are impractical because they would require officials to act in a manner they have indicated is contrary to their declared intent; some suggest alternatives involving uncertain results, highly speculative prohabilities or experimental uncertainties; some suggest as alternatives proposals that would not satisfy the same need; some would only be par

[graphic]

tial alternatives; and some involve ideas that are years away, if ever, from fruition. None can be said to be realistic present alternatives. Because of these circumstances, and others referred to in the Impact Statement, I do not find any of the suggestions to be alternatives within the meaning of the Act. I would thus not enjoin the sale here to require their discussion in the Impact Statement. To do so would make delay the only victor.

I am not unmindful of the ease with which some of the required additional discussion can be inserted in the Impact Statement. I just do not consider that the law requires, or that reason dictates, the discussion of unrealistic alternatives or their environmental impact. In so requiring it is my view that the majority opinion extends the law to extreme and impractical ends. I would confine the interpretation of NEPA to call for full discussion of reasonably practical present alternatives rather than lay down requirements for the exposition of every hopeful project and legislative change that may be said to be even remotely related to the subject. To my mind, the former rule would better serve the environment. To this extent I dissent from the views of the majority opinion.

In my opinion the motion for summary reversal should be granted upon the ground that the decision of the trial court was based upon an erroneous legal premise, i.e., that NEPA required the Impact Statement to discuss alternatives that were highly speculative and remote and which are not realistic present alternatives.

[blocks in formation]

TOWN OF DURHAM, NEW YORK AND ASSOCIATION FOR THE PRESERVATION OF DURHAM VALLEY, POWER AUTHORITY OF THE STATE OF NEW YORK, THE SIERRA CLUB,

(consolidated with 71–1996)

Intervenors.

71-1996

TOWN OF DURHAM, NEW YORK AND ASSOCIATION FOR
THE PRESERVATION OF DURHAM Valley,

v.

FEDERAL POWER COMMISSION,

(consolidated with 71–1991)

Petitioners,

Respondent.

Before:

SMITH, KAUFMAN AND MULLIGAN,

Circuit Judges.

Petitions for review of Federal Power Commission orders in a proceeding upon the application of the Power Authority of New York for authorization to construct a high-voltage transmission line, charging, inter alia, that the Commission failed to comply with the National Environmental Policy Act, 42 U.S.C.A. § 4321 et seq. and wrongfully refused to pay or order the Power Authority of New York to pay the expenses and fees of the intervenors. Petitions granted in part and denied in part.

NEIL E. NEEDLEMAN, Glens Falls, N.Y. (Robert
J. Kafin, Kafin and Needleman, Glens Falls,
N.Y., of counsel), for Petitioner Greene
County Planning Board.

BARRY H. GARFINKEL, New York, N.Y. (Kurt
Koegler, New York, N.Y., Robert Hermann,
New York, N.Y., Charles H. Halperin, Wash-
ington, D.C., Goeffrey Cowan, Washington,
D.C., of counsel), for Petitioners Town of
Durham and Association for the Preservation
of Durham Valley.

PLATT W. DAVIS, Ill., Attorney (Gordon Gooch,
General Counsel, Leo E. Forquer, Solicitor,
J. Richard Tiano, First Assistant Solicitor,
of counsel), for Respondent Federal Power
Commission.

SCOTT B. LILLY, New York, N.Y. (Thomas F.
Moore, Jr., New York, N.Y., John R. Dav-
ison, New York, N.Y., John C. Mason, New
York, N. Y., of counsel), for Intervenor Power
Authority of the State of New York.

ALFRED S. FORSYTH, New York, N.Y., for In-
tervenor Sierra Club.

[graphic]

KAUFMAN, Circuit Judge:

We are called upon to assess the licensing procedures of the Federal Power Commission in a proceeding upon the application 1 of the Power

1

Application was made pursuant to Section 4(e) of the Federal Power Act, 16 U.S.C. 797(e), which provides in pertinent part: The Commission is hereby authorized and empowered

[graphic]
[graphic]

(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, tranmission, and utilization of power Footnote continued on following page.

[graphic]

Authority of the State of New York (PASNY) for authorization to construct a high-voltage transmission line. Although the petitioners-Greene County Planning Board, the Town of Durham, New York, and the Association for the Preservation of Durham Valleyraise several interesting arguments, the dispute centers on compliance with the procedural mandates of Section 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332 (2) (C), which requires all federal agencies to issue a "detailed statement" on the environmental impact of all "major Federal actions significantly affecting the quality of the human environment...." This section is an essential "action forcing" provision2 in legislation designed "[t]o declare a national policy which will encourage productive harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." NEPA § 2, 42 U.S.C.A. § 4321. In addition, petitioners ask us to decide that the Commission has discretion in the public interest, to pay the attorneys' fees and other expenses of the intervenors in the proceedings. We find that the Commission has not complied with NEPA and remand for further proceedings, but under the circumstances presented to us, we refuse to order the Commission or PASNY to pay the expenses and counsel fees of the private intervenors.

[graphic]

3

A brief statement of the proceedings thus far will aid in comprehending the arguments advanced. On August 15, 1968, PASNY filed an application to construct, operate and maintain a 1,000,000 kilowatt pumped storage power project along the middle reaches of Schoharie Creek in the towns of Blenheim and Gilboa, New York, some forty miles southwest of Albany. The project as proposed, inter alia, consisted of: (1) an upper reservoir; (2) a lower reservoir (including a dam across Schoharie Creek); (3) an outdoor power house and (4) three 345 kilovolt transmission lines one from the switchyard adjacent to the powerhouse to a substation at New Scotland, one to a substation at Fraser and at the last to a substation at Leeds.5 After consulting with several federal agencies, the Commission granted the license. Power Authority of the State of New York, Project No. 2685, 41 F.P.C. (June 6, 1969). Article 34 of the license, however, specifically

across, along, from or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam.

2 See S. Rep. No. 91-296, 91st Cong., 1st Sess. 20 (1969): Environmental Quality, the Second Annual Report of the Council on Environmental Quality ch. 5 (Aug. 1971), reprinted in 1 Environmental L. Rep. 50057, 50064 [hereinafter cited as CEQ Report].

3 See generally Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 Rutgers L. Rev. 230 (1970); Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 Environmentaĺ L. Rep. 50035.

4 A pumped storage power facility is designed to provide energy during the hours of peak kilowatt demand. The functioning of such a facility is explained in our decision in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 612 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966). See also Loving, A Vast New Warehouse for Electricity, Fortune 88 (Dec. 1971).

5 Exhibit R to PASNY's application proposed a recreational use plan including overlook areas and a State Park.

[graphic]
[graphic]
« PreviousContinue »