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Show 424 455 FEDERAL REPORTER, 2d SERIES dence 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 28. Id. at 872. 29. 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 line unnecessary. Although the ba3ic 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 [12] 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 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- 1129 (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, 743-749 (E.D.Ark.1971) (Gillham Dam to be built as part of on-going Millwood Reservoir project), we see no basis for applying NEPA 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 the lengthy order of October 28, 1971, deals solely with that point. Petitioners have not raised the objection here. 30. See generally Note, Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich.L.Rev. 732 (1971). |
