vironmental Quality" in Section 10(b) of its Guidelines suggesting procedures for compliance with NEPA, 36 Fed. Reg. 7724 (April 23, 1971):

It is important that draft environmental statements be prepared and circulated for comment and furnished to the Council early enough in the agency review process before an action is taken in order to permit meaningful consideration of the environmental issues involved. To the maximum extent practicable no administrative action . . . is to be taken sooner than ninety (90) days after a draft envronmental statement has been circulated for comment, furnished to the Council and . . . made available to the public...

It is interesting that the Commission relies on these Guidelines to sustain its position. Initially, it directs us to Section 7 which would allow an agency, when it seeks the advice of other agencies pursuant to Section 102(2)(C), to circulate “(i) a draft environmental statement for which it takes responsibility or (ii) comparable information. And, Section 2.81(b) of the Commission's latest rules (issued after the Guidelines) provides that the applicant's draft statement "shall be deemed to be information comparable to an agency draft statement pursuant to Section 7 of the Guidelines of the Council on Environmental Quality." The Commission then calls our attention to Section 10(e) of the Guidelines, which provides:

Agencies which hold hearings on proposed administrative actions or legislation should make the draft environmental statement available to the public at least fifteen (15) days prior to the time of the relevant hearings except where the agency prepares the draft statement on the basis of a hearing subject to the Administrative Procedure Act and preceded by adequate public notice and information to dentify the issues and obtain the comments provided for in sections 6-9 of these guidelines.

The Commission argues that the proviso relieves it of its obligation to prepare an environmental statement prior to the licensing hearings and that the applicant's statement, "information comparable" to a statement of its own, sufficiently identifies the issues. Although the Guidelines are merely advisory and the Council on Enviornmental Quality has no authority to prescribe regulations governing compliance with NEPA, we would not lightly suggest that the Council, entrusted with the responsibility of developing and recommending national policies "to foster and promote the improvement of the environmental quality," NEPA § 204, 42 U.S.C.A. §4344, has misconstrued NEPA. Although the Commission's interpretation of Section 10(e) of the Guidelines is superficially appealing, it flies in the face of Section 102 (2) (C) of NEPA which explicitly requires the agency's own detailed statement to "accompany the proposal through the existing

22 The Council was established pursuant to Subchapter II of NEPA, 42 U.S.C. §§ 4341 et seq. Its duties include assisting the President in the preparation of the annual Environmental Quality Report to be transmitted to Congress and conducting investigations and developing programs concerning environmental quality.

agency review processes." 23 There can be no question that the hearings on PASNY's application, ordered pursuant to Section 308 of the Federal Power Act, 16 U.S.C. § 825g, and Section 1.20 of the Commission's rules, 18 C.F.R. § 1.20 (January 1, 1971), constitute an existing agency review process.

24

Though we conclude that the Commission was in violation of NEPA by conducting hearings prior to the preparation by its staff of its own impact statement, we are of the view that it did not seek improperly the advice of other agencies on the basis of PASNY's application. Section 102 (2) (C) compels the agency to seek this advice before preparing its statement. Section 102(1), however, directs that "to the fullest extent possible" regulations should be interpreted and administered in accordance with the policies of NEPA. In this record, it would be insructive for the Commission to consult the rules of the Atomic Energy Commission, 36 Fed. Reg. 18071 (Sept. 9, 1971), promulgated after the decision in Calvert Cliff's charged the AEC with a "crabbed interpretation of NEPA [which made] a mockery of the Act." 449 F.2d at 117. The Atomic Energy Commission, although it still requires an applicant to submit its environmental report, prepares a draft report of its own in advance of seeking the advice of other federal agencies. Then, on the basis of comments received from these agencies and all interested parties, it prepares its final detailed statement, which is offered in evidence at a contested hearing.

In light of our foregoing discussion, we must consider the most efficient procedure for ensuring that the policies of NEPA are implemented in Commission proceedings on the Gilboa-Leeds line. For the reasons we have set forth, we deem it essential that the Commission's staff should prepare a detailed statement before the Presiding Examiner issues his initial decision. Moreover, the intervenors must have a reasonable opportunity to comment on the statement. But, since the statement may well go to waste unless it is subject to the full scrutiny of the hearing process, we also believe that the intervenors must be given the opportunity to cross-examine both PASNY and Commission witnesses in light of the statement. "Often individuals and groups can contribute data and insights beyond the expertise of the agency involved."CEQ Report, 1 Environmental L. Rep. at 50059. We leave to

the Commission to determine the most efficient procedure for meeting this mandate.

Fully recognizing that delay unfortunately is incident to our mandate and PASNY's claim that the Blenheim-Gilboa project is a vitally needed power facility, we can only add our voice to that of the District of Columbia Circuit in Calvert Cliffs': Delay is a concomitant of the implementation of the procedures prescribed by NEPA, and the spectre of a power crisis "must not be used to create a blackout of environmental consideration in the agency review process." 449 F.2d at 1122. "It is far more consistent with the purposes of the Act to delay operation at a stage where real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible." Id. at 1128.

The petitioners inform us also that the Commission has violated its comprehensive planning duties by not requiring PASNY to divulge in its environmental statement any plans it may have with respect to future power projects and transmission lines. PASNY has admitted that the Gilboa-Leeds line is part of a plan which may include three massive pumped storage hydroelectric projects, six 345 kilovolt transmission lines and three 765 kilovolt transmission lines. The Commission responds that its planning responsibility under Section 10(a) of the Federal Power Act, 16 U.S.C. § 803 (a),25 does not require analysis of future projects which are not presented in license applications. PASNY adopts the benign position that it has disclosed the feasibility studies presently in progress 26 and that the Commission should take them into account in considering the Gilboa-Leeds line.

We cannot agree with petitioners that the Commission erred when it did not require PASNY to supplement its impact statement. NEPA places the onus of formulating the statement solely on the Commission, and, unless there is any indication that the Commission's procedures will not allow it to comply with its statutory duty this Court should defer to the Commission's discretion as to the proper information gathering techniques.

In an effort to avoid any confusion or misunderstanding on remand, we are constrained to comment on the Commission's planning responsibility. Under Section 10(a) of the Federal Power Act, the Commission cannot issue a license unless the project is "best adapted to a comprehensive plan. . . for the improvement and utilization of waterpower development and for other beneficial public uses, including recreational purposes; . . . " In Scenic Hudson I we commented that the Commission's failure to inform itself of Consolidated Edison's future interconnection plans "cannot be reconciled with its planning responsibility under the Federal Power Act." 345 F.2d at 622. And, less than two years later, Justice Douglas writing for the Supreme Court in Udall v. Federal Power Commission, 387 U.S. 428 (1967), made it clear that the Federal Power Act does not command the immediate construction of as many projects as possible and that the determination whether to license any one project "can be made only after an

25 See note 16 supra.

26 PASNY is making a study to determine the physical, environmental and economic feasibility of constructing additional pumped storage facilities downstream from the Blenheim-Gilboa project.

exploration of all issues relevant to the 'public interest,' including future power demand and supply, alternate sources of power, [and] the public interest in preserving reaches of wild rivers and wilderness areas... ." Id. at 450. Although these decisions may not have established long-range planning requirements," they evidence a clear intent that the Commission at least should consider all available and relevant information in performing its functions.

The Commission's "hands-off" attitude is even more startling in view of the explicit requirement in NEPA that the Commission "recognize the worldwide and long-range character of environmental problems" and interpret its mandate under the Federal Power Act in accordance with the policies set forth in NEPA. NEPA §§ 102(1), (2) (E), 42 U.S.C.A. §§ 4332(1), (2) (E). Any doubt about the intent of these provisions is obviated by the following statement in the Senate Report accompanying the Act:

"Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man's future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades." S. Rep. No. 91–296, 91st Cong., 1st Sess. 5 (1969).

The Commission has indicated that the June 6, 1969, license of the Blenheim-Gilboa Project did not commit it to authorize construction of the Gilboa-Leeds line. But we fail to see how the Commission, if it is to fulfill the demanding standard of "careful and informed decisionmaking,” Calvert Cliffs', 449 F.2d at 1115, can disregard impending plans for further power development. For example, it may be that it would be proper to defer decision on the Gilboa-Leeds line until these plans were crystallized, particularly if there is a likelihood that future development might affect the optimum location of the line or even make the line unnecessary. Although the basic defect of current planning and licensing processes is "the inevitably narrow scope of the decision the agency [has] to make: whether or not to license a single and specific [project],"28 we cannot tolerate the Commission cutting back on its expanded responsibility by blinding itself to potential developments notwithstanding its lack of authority to compel future, alternate construction.

B. Blenheim-Gilboa Project and Approved Transmission Lines

Petitioners ask us to stay construction of the pumped storage facility and the two approved transmission lines, now 80% complete, pending compliance with NEPA.29 Although there can be no question that the

27 The author of this opinion has suggested that:

a major share of the blame for the unnecessary delays and ineffectual public planning in the United States may be laid at the doorstep of fragmented government regulation of power development. We sorely lack a federal agency-with sufficient authority, power and purse to choose among the infinite patterns of potential develop. ment--responsible for planning and controlling the growth and dispersal of electric generating capacity over a realistically extensive span of space and time. Kaufman, Power for the People—and by the People:"Utilities, the Environment and the Public Interest, 46 N.Y.U.L. Rev. 867, 872–73 (1971).

Petitioners before the Commission also challenged the license and the approval of the Gilboa-New Scotland and Gilboa-Fraser lines on the ground that the Commission did not comply with the notice provisions of the Federal Power Act, and the lengthy order of October 28, 1971, deals solely with that point. Petitioners have not raised the objection here.

Act applies to all major federal actions taken after January 1, 1970, despite the fact that construction of the project under consideration may have commenced prior to that date, see, e.g., Calvert Cliffs', 449 F.2d at 1127-29 (construction permit for nuclear facility granted prior to effective date, but operating license not yet issued); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 743-49 (E.D. Ark. 1971) (Gillham Dam to be built as part of on-going Millwood Reservoir project), we see no basis for applyingN EPA retroactively 30 to the licensing of the basic project which became final nearly six months prior to the effective date of the Act. See Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238 (M.D. Pa. 1970).

With respect to the Gilboa-New Scotland and Gilboa-Fraser lines, however, there can be no question that the Commission failed to comply with NEPA. The lines were approved on April 10, 1970, but the Commission failed to issue the requisite detailed environmental statement. Nevertheless, we find no compelling basis for halting construction of the lines so far advanced and decline to reopen the authorization proceedings. It is of no small consequence that petitioners, having made timely motions to intervene, offered no objections to the construction of the two lines and did not petition this Court or the District of Columbia Circuit for review within 60 days as provided by Section 313(b) of the Federal Power Act, 16 U.S.C. § 8257(b). Thus, construction of the lines began pursuant to a final order of the Commission. Although we might arrive at a different conclusion if there were significant potential for subversion of the substantive policies expressed in NEPA, cf. Calvert Cliffs', 449 F.2d at 1121 n. 28, the Commission did require PASNY in submitting its plans to “give appropriate consideration to recognize guidelines for protecting the environment” 31 and also conducted its own independent investigation of alternative routings. Moreover, it would be unreasonable to expect instant compliance with all of the Act's procedural requirements, see id. at 1121, and there is no indication (as there is with respect to the Gilboa-Leeds line) of obstinate refusal to comply with NEPA. Compare Scenic Hudson Preservation Conference v. Federal Power Commission [Scenic Hudson II], 1970 Slip Op. 5279, 5314–16 (2d Cir. Oct. 22, 1971).

II. EXPENSES AND FEES

The petitioners' final request is for an order requiring PASNY, or in the alternative the Commission, to pay the expenses and fees incurred by petitioners. Recognizing as they do that a rule requiring reimbursement of all intervenors would be subject to abuse, they limit their request to reasonable out-of-pocket expenses, including fees for experts as they are incurred, and reasonable attorneys' fees at the conclusion of the proceedings before the Commission in the event that their participation is determined to have been in the public interest. As we read the Commission's order of October 29, 1971, the Commission denied petitioner's motion for payment of fees on the ground that it had no authority to grant them. But, in an effort to buttress its argument that the petitions for review are in this regard untimely, the Commission now argues that it has foreclosed only the present award of fees and has left open the question of whether ultimately to award them when the proceedings have come to an end. Whether or not the Commission will entertain renewed motions at the close of its proceedings, we find that the petitions are timely and that his Court has jurisdiction to review the Commission's order.

Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251(b), provides that "[a]ny party to a proceeding under [the Act] aggrieved by

30 See generally Note, Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich. L. Rev. 732 (1971).

31 See, e.g., Guidelines for the Protection of Natural, Historic, Scenic, and Recreational Values in the Design and Location of Right-of-Way and Transmission Facilities, Report of the Working Committee on Utilities of the President's Council on Recreation and Natural Beauty (Dec. 27, 1968), reprinted in Commissioner Bagge's concurrence in the June 6, 1969, license. 41 F.P.C. at 725.