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Show GREENE COUNTY PLANNING BOARD v. FEDERAL POWER COM'N 425 Cite as 455 P.2d 412 (1972) 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. § 825Z(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 recognized 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 TScenic Hudson I I ] . 1970, 453 F.2d 463 (2d Cir. 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 pro- 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 Commit- 455 F.2d-27V2 ceedings before the Commission in the event that their participation is determined to have been in the public interest. [13] As we read the Commission's order of October 29, 1971, the Commission denied petitioners' 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 this Court has jurisdiction to review the Commission's order. Section 313(b) of the Federal Power Act, 16 U.S.C. § 825i(b) provides that "[a]ny party to a proceeding under [the Act] aggrieved by an order issued by the Commission in such proceedings may obtain a review of such order . . . ." This language, unlike those provisions limiting review to "final orders," see, e. g., Section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f), seemingly would allow review of all Commission orders. But the courts, sensitive to the policies underlying the requirement of exhaustion of administrative remedies, have declined jurisdiction where the issues raised could be disposed of in review of a final Commission order without serious detriment to the rights of the parties. See, e. g., Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383-384, 58 S.Ct. 963, 82 L.Ed. 1408 (1938) ; Mid-America Pipeline Co. v. Federal Power Commission, 112 U.S.App.D.C. 42, 299 F.2d 126 (1962). Review is available, however, where an interlocutory order has "an tee on Utilities of the President's Council on Recreation and Natural Beauty (Dec. 27, 196S), reprinted in Commissioner Bagge's concurrence in the June 6, 1969, license. 41 F.P.C. at 725. |
