407 U.S. 926
92 S.Ct. 2453
32 L.Ed.2d 813
SCENIC HUDSON PRESERVATION CONFERENCE et al.v.FEDERAL POWER COMMISSION et al.
No. 71-1219.
CITY OF NEW YORK

1
v.
 
                FEDERAL POWER COMMISSION et al.
 
                         No. 71-1220.
 
           The SIERRA CLUB AND ITS ATLANTIC CHAPTER
 
                              v.
 
                FEDERAL POWER COMMISSION et al.
 
                         No. 71-1221.
 
              Supreme Court of the United States
 
                         June 19, 1972
 
      On petitions for writ of certiorari to the United States
 Court of Appeals for the Second Circuit.
 
      The motion to dispense with printing the FPC opinion in No.
 71-1219 to conform with Rule 39 is granted. The petitions for
 writs of certiorari are denied.
 
 djQ  Mr. Justice DOUGLAS, dissenting.
 
      These petitions should be granted to consider whether the
 Federal Power Commission complied with its obligations under §§
 101 and 102 of the National Environ-


2
Page 927
 
 mental Policy Act of 1969, 42 U.S.C. §§ 4331 and 4332, in granting
 a license to Consolidated Edison Company of New York, Inc., for
 the construction of a pumped storage power project on Storm King
 Mountain on the Hudson River.
 
      Under § 101 of the Act federal agencies are instructed to
 take environmental consequences into account in their
 decisionmaking.1 That mandate was aimed partly at eliminating the
 excuse which had often been offered by bureaucrats that their
 statutory authority did not authorize consideration of such
 factors in their policy decisions. See Udall v. Federal Power
 Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869.2 More
 impor-


3
Page 928
 
 tantly, § 101 was meant as an affirmative duty 'to consider
 environmental issues just as they consider other matters within
 their mandates.' Calvert Cliffs' Coordinating Committee, Inc. v.
 United States AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112.
 
      Section 1023 requires that administrators incorporate


4
Page 929
 
 certain procedures into their operating routines in order (1) to
 increase the likelihood that environmental consequences of agency
 action will not be unforeseen and (2) to insure that if a project
 is approved, an environmentally acceptable alternative will be
 chosen. Section 102(2)(C) requires a detailed statement in
 connection with actions significantly affecting the quality of the
 human environment, specifying the environmental impact of the
 proposed action and alternatives. Section 102(2)(D) places bureaus
 under an affirmative duty to study and develop alternatives where
 there are unresolved conflicts concerning the alternative uses of
 available resources.
 
      This case poses issues under both sections. In 1964 Con Ed
 proposed to the Commission that it be allowed to construct a
 reservoir atop Storm King mountain along with a hydroelectric
 generating plant to be driven by water falling from the reservoir.
 During the daytime hours when energy demand is high the plant
 would be operational, but during the evening hours when part of
 Con Ed's existing facilities are normally idle, power from one of
 its existing plants would be used to pump water from the Hudson
 River to the reservoir. In 1965 the Commission approved the
 project but the Court of Appeals for the Second Circuit in a suit
 brought by conservationists and local residents set aside the
 order and remanded for more detailed consideration of various
 environmental aspects of the project. Scenic Hudson Preservation
 Conference v. FPC, 354 F.2d 608 (CA2).


5
Page 930
 
      After more hearings had been completed but before the
 Commission acted, the National Environmental Policy Act of 1969
 became effective. Although it has been conceded that the Act's
 requirements were applicable in these proceedings, no further
 hearings were held; and no environmental impact statement was
 drafted. The Commission approved the project and attempted to
 satisfy its procedural duties under § 102 by specifying certain
 environmental impact forecasts in its final opinion.
 
      The Court of Appeals affirmed over the dissent of Judge Oakes
 who thought that the Commission had not discharged its obligations
 under NEPA. The majority held that under § 101 the ultimate
 balance of energy and environmental values was the responsibility
 of the Commission and courts could upset only decisions not
 supported by 'substantial evidence.' It also held, with respect to
 the procedural requirements of § 102, that the Commission's
 hearings, and consultation with other agencies satisfied the
 command that a 'systematic, interdisciplinary approach' be
 utilized.4 It also found that the Commission's final opinion which
 contained its environmental findings would, under the
 circumstances, suffice as an environmental impact statement. A
 petition for rehearing en banc was denied by an equally divided
 court with Judge Timbers dissenting in a short opinion which
 expressed doubt as to the validity of the majority's reliance on
 the 'substantial evidence' test.
 
      I believe the Court of Appeals gave the Act too restrictive a
 meaning. As to the Commission's duty to take environmental impacts
 into account, Judge Oakes made a strong case for the view that the
 Commission (a) misjudged the risk that project construction might
 work irreparable injury to one of


6
Page 931
 
 three vital water supply systems serving New York City; (b)
 underestimated the extent of additional air pollution which would
 be generated by nighttime burning of fossil fuels in New York City
 in order to generate the power needed to pump the river water to
 the reservoir; and (c) generally undervalued environmental
 considerations while overvaluing engineering and economic
 considerations. Although value judgments are inevitable and even
 though the Commission's balancing of environmental costs with
 other factors may be entitled to some deference, I share Judge
 Timber's doubts that under § 101 the balance struck by an agency
 unskilled in environmental matters should be reviewed only through
 the lens of the 'substantial evidence' test. Cf. Citizens to
 Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814,
 28 L.Ed.2d 136 ('If the statutes are to have any meaning, the
 Secretary cannot approve the destruction of parkland unless he
 finds that alternative routes present unique problems.') (But see
 Calvert Cliffs', 449 F.2d, at 1115.).
 
      I also am not satisfied that the procedural obligations under
 § 102 were honored. First, the Commission did not draft the impact
 statement required by § 102(2)(C). Thus when the Commissioners
 deliberated the fate of Storm King Mountain, they did not have
 before them a coherent study addressed to the environmental
 consequences of the project and alternatives to it. Another panel
 of the Second Circuit has recently ruled that the impact statement
 must be written before action is taken. Greene County Planning
 Board v. FPC, 455 F.2d 412 (CA2). Administrators cannot attempt to
 comply with the Act by calling their final opinion their impact
 statement. True, here the hearings had been completed after the
 Act became effective. Yet the Commission could have deferred
 decision until its own § 102 statement was prepared.


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Page 932
 
      Second, the Commission's final opinion suggests that its
 consideration of environmental issues is required only when
 private citizens bring such problems to the agency's attention.
 For example, in many passages of its opinion the Commission states
 that particular objections to the project had been rejected for
 lack of evidence in the administrative record.5 This approach
 symptomatic of the phenomenon of bureaucratic
 'industry-mindedness'—wrongly assumed that a presumption of
 validity supported the Con Ed proposal and that environmental
 groups had a burden of proof to overcome.
 
      Similarly, the Commission limited its inquiry primarily to
 those program alternatives which had been submitted by the
 conservationists opposing the Con Ed project. The agency did not
 generate its own alternatives, although Congress charged each
 federal agency to represent not only the public interest in
 general but also under NEPA to pay particular attention to the
 environmental ramifications of its actions. Whether or not
 conservationists appear to register dissent, the Commission is
 told in § 102(2)(D) to 'study, develop and


8
Page 933
 
 describe appropriate alternatives to recommend courses of action.
 . . .' The agency is directed to apply its own expertise and
 imagination in exploring less drastic alternatives. And, one
 alternative, which went completely overlooked by the Commission,
 as Judge Oakes noted below, is not to build any project at all.
 Whether that option is realistic we do not know. Informing the
 public and Congress on that score is the function of the impact
 statement. In short, the Act requires that bureaucrats not only to
 listen to protests, but to avoid projects that have imprudent
 environmental impacts. There is no burden of proof for the
 objector to overcome.
 
      Finally, the Commission's opinion is too imprecise to provide
 any helpful insight for Congress, the Council on Environmental
 Quality, or the public into what value judgments it made. We know
 that the Commission rejected alternatives with less deleterious
 environmental consequences on the ground that they were 'more'
 costly and 'less' reliable. But we have no reasonably precise
 notion of how much reliability and money were gained at the
 expense of the destruction of Storm King Mountain. Whether or not
 courts may review the Commission's ultimate balance of these
 competing considerations, the fact remains that Congress and the
 public are entitled to know those judgments. One function of the §
 102 statement is certainly to make explicit the priorities of the
 agencies. That purpose is not served where all that is basically
 told is that the preferred alternative is cheaper and more
 reliable, though involving adverse implications for the
 surrounding ecology.
 
      If this kind of impact statement is tolerated, then the
 mandate of NEPA becomes only a ritual and like the peppercorn a
 mere symbol that has no vital meaning. The decision below is, in
 other words, the beginning of the demise of the mandate of NEPA.
 
      I would grant these petitions.



1
 Section 101 of the National Environmental Policy Act, 42
 U.S.C. § 4331, provides in pertinent part:
 
       '(b) In order to carry out the policy set forth in this
 chapter, it is the continuing responsibility of the Federal
 Government to use all practicable means, consistent with other
 essential considerations of national policy, to improve and
 coordinate Federal plans, functions, programs, and resources to
 the end that the Nation may——
 
       '(1) fulfill the responsibilities of each generation as
 trustee of the environment for succeeding generations;
 
       '(2) assure for all Americans safe, healthful, productive,
 and esthetically and culturally pleasing surroundings;
 
       '(3) attain the widest range of beneficial uses of the
 environment without degradation, risk to health or safety, or
 other undesirable and unintended consequences;
 
       '(4) preserve important historic, cultural, and natural
 aspects of our national heritage, and maintain, wherever possible,
 an environment which supports diversity and variety of individual
 choice.'2.In that case we held that the grant of authority to this
 Commission to alienate federal water resources does not turn
 simply on whether the project will be beneficial to the licensee.
 Nor is the test solely whether the region will be able to use the
 additional power. We said 'The test is whether the project will be
 in the public interest. And that determination can be made only
 after an exploration of all issues relevant to the 'public
 interest,' including . . . the public interest in preserving
 reaches of wild rivers and wilderness areas, the preservation of
 anadromous fish for commercial and recreational purposes, and the
 protection of wildlife.' 387 U.S., at 450, 87 S.Ct. 1712.
 
       The Commission's attitude in that case re-appeared in the
 present case: 'Implicit in the reasoning of the Commission and the
 Examiner is the assumption that this project must be built and
 that it must be built now.' 387 U.S., at 448, 87 S.Ct. 1712.


3
 Section 102 of the National Environmental Policy Act, 42
 U.S.C. § 4332, provides in pertinent part:
 
       'The Congress authorizes and directs, that, to the fullest
 extent possible: (1) the policies, regulations, and public laws of
 the United States shall be interpreted and administered in
 accordance with the policies set forth in this Act, and (2) all
 agencies of the Federal Government shall——
 
       '(C) include in every recommendation or report on proposals
 for legislation and other major Federal actions significantly
 affecting the quality of the human environment, a detailed
 statement by the responsible official on
 
       '(i) the environmental impact of the proposed action,
 
       '(ii) any adverse environmental effects which cannot be
 avoided should the proposal be implemented,
 
       '(iii) alternatives to the proposed action,
 
       '(iv) the relationship between local short-term uses of
 man's environment and the maintenance and enhancement of long-term
 productivity, and
 
       '(v) any irreversible and irretrievable commitments of
 resources which would be involved in the proposed action should it
 be implemented.
 
       'Prior to making any detailed statement, the responsible
 Federal official shall consult with and obtain the comments of any
 Federal agency which has jurisdiction by law or special expertise
 with respect to any environmental impact involved. Copies of such
 statement and the comments and views of the appropriate Federal,
 State, and local agencies, which are authorized to develop and
 enforce environmental standards, shall be made available to the
 President, the Council on Environmental Quality and to the public
 as provided by section 552 of title 5, United States Code, and
 shall accompany the proposal through the existing agency review
 processes;
 
       '(D) study, develop, and describe appropriate alternatives
 to recommended courses of action in any proposal which involves
 unresolved conflicts concerning alternative uses of available
 resources; . . .'


4
 NEPA, § 102(2)(A).


5
 For example, see Judge Oakes dissent below. Scenic
 Hudson's Petition, at A47. See also the following paragraphs of
 the Commission's opinion: 113 ('There has been no showing that a
 combination nuclear-gas turbine alternative offers any advantages
 or indeed is even reasonably equivalent to Cornwall.') 123 ('None
 of the intervenors presented any evidence on alternative
 hydroelectric sites.') 124 ('The record is uncontradicted, and we
 find, that there is no feasible hydroelectric alternative to
 Cornwall.') 176 ('No party to this proceeding has suggested any
 other plan or project for improving or developing the waterway. .
 . .'). And see n. 25 of the Commission's opinion: 'There is no
 evidence concerning the condition of the Aqueduct's lining. Its
 structural integrity is unknown to the City or any of its
 witnesses. . . .'


