the water supply system of the City of New York is too great to be disposed of on a determination of probabilities.

It was the conclusion of the Commission that any loss of water by reason of a shut-down of the Aqueduct during construction of a by-pass might be supplied from alternate sources and that the Aqueduct could be rewatered and restored to service "in only 60 hours" should such alternate sources fail and the need for the Aqueduct's water arises before the completion of the by-pass (opinion, par. 296). But 60 hours of reduction in water to eight million people from a source that supplies 40% of New York City's water is a harrowing thought. It must be recalled that during the recent years of comparative drought, the constant threats to the water supply of New York were appropriately treated as grave problems. What the Commission is, in effect, saying is that 60 hours of reduced water supply is less important than two minutes' delay in activating the spinning reserves if some other source of power than the proposed pumped storage project should be utilized by Con Edison. It is submitted, however, that the 60 hour figure is merely hypothetical. In 1914 when the Catskill Aqueduct collapsed during its construction precisely where this project is to be located, it took a year to repair the Aqueduct and restore it to service. (Record, 16,743, 16,8358). Whatever the probabilities of damage to the Aqueduct may be, the testimony is that the hazard is real and there should be no license issued where there is a reasonable doubt, as there is here, as to the security of the New York City water supply. What we are faced with is a situation of unknown but extraordinary hazard.

We have seen how in the Woodby, Sherman, Schneiderman and Rowoldt cases, supra, the Supreme Court has imposed stringent burdens of proof upon the government in proceedings involving immigration and citizenship where irreparable damage to the lives of individuals may be concerned. An increase of the burden upon Con Edison and the Commission in this case is no more than a mirror image of what has been found appropriate in those cases. Here, instead of irreparable damage to individuals, there is involved the possibility of irreparable damage to a community of approximately eight million people.

This argument is supported by other situations in which the courts have imposed a strict burden of proof. Thus the presumption of a child's legitimacy can be refuted only "by clear and irrefragable proof", "proof so clear and certain 'as not to admit of denial, dispute or controversy", Admire v. Admire, 180 Misc. 68, 42 N.Y.S.2d 755, 760 (Albany Co. 1943). Fraud must be proved by "clear, cogent and convincing evidence", Fruit Industries Foundation v. National Cash Register Co., 406 F.2d 546, 548 (9th Cir. 1969); Borowicz v. Chicago Mastic Co., 367 F.2d 751 (7th Cir. 1966). In certain situations the analogous rule of res ipsa loquitur is applied, creating an otherwise impermissible inference of negligence and, in some jurisdictions, shifting the burden of proof completely. Prosser, Law of Torts (3d Ed.) 234; Ten Ten Chestnut St. Corp. v. Quaker State Coca Cola Bottling Co., 186 Pa. Super. 585, 142 A.2d 306 (1968).

One of the dangers to the Aqueduct is the blasting which the project would require. It is no coincidence that blasting is such an inherently dangerous activity that the common law imposes absolute liability for resulting damages.

Once injury is shown to have been caused by the use of explosives, the burden of proof is insuperable. The old New York rule of Booth v. Rome, W. & O. T. R.R. Co., 140 N.Y. 267 that absolute liability for blasting did not extend to damage caused by concussion or vibration has been rejected by this Court, Exner v. Sherman Power Const. Co., 54 F.2d 510 (2d Cir. 1931), as well as a lower New York Court. Heimer v. Johnson, Drake and Piper, 51 Misc.2d 958, 274 N.Y.S.2d 520 (Queens Co. 1966).

The lesson of the blasting cases is obvious and is directly applicable here: There is such a possibility for damage from blasting, even when undertaken with care, that the blaster must assume the responsibility of an insurer if he wishes to use explosives. Where, as in the present case, the issue is presented before the blasting occurs, it is incumbent on the tribunal to recognize the inherent possibility of unpredictable damage, coupled with the known risks of real damage, and require of the applicant unequivocal evidence that the project will not disrupt the water supply of a metropolis.

These are analogous situations in which courts have used one doctrine or another to increase a burden on a party where critical problems of public interests are presented. Concededly, this is not a suit for damages. But the mirror image of the heavy burden in those cases is to place such a burden in advance of damage on those whose actions might be a hazard to the health, sanitation and fire protection of eight million human beings.

The same rule should apply to the possible risk of damage to the Aqueduct from shifting geological stress resulting from the removal of 245,000 cubic feet of rock.

Whatever the degree of care used, there is the possibility of damage, just as in blasting. Where it is demonstrated that the risk is more than conjectural, the applicant should be required to meet a strict burden of proof that its project will cause no damage.

The imposition of such a burden of proof in the instant case is fully consonant with this Court's prior opinion on the Storm King project, if indeed it is not required by it:

"This role [of the Commission as representative of the public interest] does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission." 354 F.2d at 620.

As one commentator has noted, "Scenic Hudson itself is in many ways a case which employed burden-of-proof techniques to improve the decision-making process." Krier, "Environmental Litigation and the Burden of Proof" in Baldwin and Page (eds.), Law and the Environment 105, 114, fn. 33 (1970).

Such a hazardous situation as is presented by the danger to the New York City Aqueduct permits no room for probability judgment. No license for the proposed construction should be issued unless the water supply of New York is secured beyond a reasonable doubt or, at the very least, by "clear, unequivocal and convincing evidence" that it will be safe. This burden Con Edison and the Com-. mission have failed to meet; and, it is submitted, they could not meet it in the absence of evidence as to the condition of the Aqueduct lining. There was "no evidence

concerning the condition of the Aqueduct's lining. Its integrity is unknown to the City or any of its witnesses" (opinion, par. 287). The burden was not on the City to prove the probability of risk, but rather on Con Edison to establish that the project would not involve danger. Absent such proof, the Commission had an obligation to deny the license in order to assure the Aqueduct's "integrity."

POINT II

Where natural resources of unique beauty are threatened as in this case, the burden of proof should be on the Commission and the utility to show that there is no other way of securing power. This burden has not been

met.

In his excellent monograph "An Analysis of Title I of the National Environment Policy Act of 1969", I Environmental Law Reporter 50035, 50040, Ronald C. Peterson

says:

"Those wishing to disturb the environment must prove either that the proposed action will not impair environmental quality or that the social benefits outweigh the social costs. They must also prove that no alternatives exist which would eliminate the adverse effects or minimize such effects if the environmental destructive action has been justified by social utility."

In discussing the provisions of Sec. 101 (a) of the National Environmental Policy Act of 1969 ("NEPA") requiring "restoring and maintaining" certain environmental qualities, he goes on to say: