Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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GREENE COUNTY PLANNING BOARD v. FEDERAL POWER OOM'N 415 Cite as 455 F.2d 412 (1972) plication l of the Power 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 Valley-raise several interest­ing arguments, the dispute centers on compliance with the procedural mandates 0f 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 I. 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- * * * * * (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, transmission, and utiliza­tion of power 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 nny 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. the ecological systems and natural re­sources important to the Nation; and to establish a Council on Environmental Quality."3 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. 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 project4 along the middle reaches of Schoharie Creek in the towns of Blenheim and Gil-boa, New York, some forty miles south­west of Albany. The project as pro­posed, inter alia, consisted of: (1) an 2. See S.Rep.No.91-29G, 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. Sec 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 Environmental 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. 3S4 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). See also Loving, A Vast New Warehouse for Elec­tricity, Fortune 88 (Dec. 1971).