Scenic Hudson Preservation Conference v. Federal Power Commission
"Scenic Hudson Preservation Conference v. Federal Power Commission" is a landmark case from the early 1960s that highlights the intersection of environmental advocacy and federal regulatory processes in the United States. The case arose when the Scenic Hudson Preservation Conference, a coalition advocating for the protection of natural resources, challenged the Federal Power Commission's (FPC) decision to issue a license to Consolidated Edison Company (Con Ed) for a controversial hydroelectric project at Storm King Mountain on the Hudson River. The project was seen as a significant threat to the local environment, including public lands and recreation areas, sparking concerns over economic and ecological impacts.
The U.S. Court of Appeals ruled that Scenic Hudson had the standing to sue, emphasizing that aggrieved parties do not need to demonstrate personal economic harm to seek judicial review. This case set a precedent for environmental organizations to assert their interests in federal licensing matters, pushing regulatory bodies to consider comprehensive environmental implications when evaluating projects. The court's decision mandated that the FPC conduct thorough inquiries into alternative solutions and ecological effects before granting licenses. Ultimately, the case initiated a lengthy legal battle that culminated in a compromise in 1981, leading to the preservation of the Storm King site as a public park. This case remains a pivotal moment in environmental law, illustrating the growing recognition of ecological concerns in governmental decision-making.
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Scenic Hudson Preservation Conference v. Federal Power Commission
The Case: U.S. Court of Appeals decision regarding basic principles of standing in U.S. environmental law
Date: Decided on December 29, 1965
The Scenic Hudson decision was a declaration of judicial authority that granted environmental groups with noneconomic interests the right to intervene in federal regulatory agency licensing decisions and held a federal regulatory agency responsible for engaging in its own evidentiary inquiry, considering alternatives to granting a license, and weighing the environmental impacts of its decisions.
In the early 1960’s the Scenic Hudson Preservation Conference, a coalition of conservation and environmental groups, and the towns near Storm King Mountain in New York challenged the license that Consolidated Edison Company (Con Ed) had obtained to construct a storage reservoir, a powerhouse, and transmission lines on the Hudson River in the region. However, the Federal Power Commission (FPC) denied their motions to intervene and reopen the hearings to consider evidence on alternatives to the Storm King facility, the cost and practicality of underground transmission lines, and the feasibility of fish protection devices.
In the case Scenic Hudson Preservation Conference v. Federal Power Commission, the U.S. Court of Appeals dismissed the FPC’s argument that Scenic Hudson lacked standing to seek judicial review of Con Ed’s license because the organization had made no claim of personal economic injury. Scenic Hudson clearly had economic interests to protect. The Storm King reservoir would inundate 27 kilometers (17 miles) of hiking trails, and the planned aboveground transmission lines would decrease the value of public land and the tax revenues of private land and would interfere with community planning. Scenic Hudson also had noneconomic interests that would be affected by the Storm King project that were not barred from judicial review. The Court of Appeals held that the U.S. Constitution does not require an aggrieved party to have a personal economic interest, nor does the Federal Power Act (the FPC governing legislation), which permits “any aggrieved party” to obtain judicial review of an FPC order.
In terms of the licensing decision, the FPC had acknowledged that the “principal issue . . . is whether the project’s effects on the scenic, historical and recreational values are such that we should deny the application.” Since the FPC’s standing argument was at odds with its recognition of the importance of noneconomic issues in its licensing decision, the court broadly read the statute to grant standing to organizations, such as Scenic Hudson, that had special interests in “aesthetic, conservational, and recreational” issues to act as private attorneys general to ensure that the FPC would protect the public interest. Since Scenic Hudson was an aggrieved party, the court read the statute’s language, which gave the FPC the discretion to admit as a party “any person whose participation in the proceeding may be in the public interest,” to create “an absolute right of intervention.”
After the appellate court settled the standing issue, it found that the Federal Power Act gives the FPC a specific planning responsibility for the development of waterways for commerce, water power, and recreation. The statute’s planning responsibility requires the agency to weigh these three factors in making a licensing decision. Then the court broadly read the FPC’s responsibility to consider recreational objectives to include “the preservation of natural resources, the maintenance of natural beauty, and the preservation of historic sights.” In fact, the FPC regulations require a recreation plan.
The FPC, in granting Con Ed a license for the Storm King project, did not fulfill its statutorily mandated planning duties because it failed to develop a complete record. First, the FPC did not explore alternatives to the Storm King project, including the use of gas turbines or the purchase of power from interconnections with other electric utilities, nor did the agency require Con Ed to supply this information. Therefore, the agency was unable to determine whether Con Ed needed Storm King to meet its future power needs. Second, the FPC did not seriously consider the cost of underground transmission routes; it simply accepted Con Ed’s estimates of their cost even though the estimates had been questioned by the FPC’s staff and hearing examiner. As a consequence, the agency was unable to weigh “the aesthetic advantages of underground transmission lines against the economic disadvantages.” Third, there was sufficient evidence before the FPC on the danger of the Storm King project to fish that the FPC should have made further inquiries, but the agency failed to do so. It even dismissed as “untimely” the petitions of several groups to intervene and present evidence on Storm King’s destructive impact on the spawning grounds for striped bass and shad and the unavailability of any powerhouse screening devices to protect fish eggs and larvae.
The Court of Appeals set aside the FPC’s licensing order because the record had failed to support the agency’s decision and then remanded the case with instructions to reexamine the alternatives to Storm King, the cost of underground transmission lines, and the fish spawning issue. In sum, the Scenic Hudson opinion was a bold declaration of judicial authority that granted environmental groups with noneconomic interests the right to intervene in federal regulatory agency licensing decisions and held a federal regulatory agency responsible for engaging in its own evidentiary inquiry, considering alternatives to granting a license, and weighing the environmental impacts of its decisions.
The FPC subsequently held hearings and issued Con Ed a license to build the Storm King project, which the federal Court of Appeals affirmed. However, the Scenic Hudson case was only the beginning of a two-decade controversy over the Storm King project. Further litigation on the project’s threat to fish life expanded to include six other power stations along the Hudson River once the newly created Environmental Protection Agency conducted extensive hearings under the Federal Water Pollution Control Act amendments of 1972. The controversy was not resolved until 1981, when seventeen months of mediation led to Con Ed’s agreement to forfeit its Storm King license and donate the site as a public park.
Bibliography
Dunwell, Frances F. “The 1960s: Scenic Hudson, Riverkeeper, Clearwater, and the Nature Conservancy Campaign to Save a Mountain and Revive a ’Dead’ River.” In The Hudson: America’s River. New York: Columbia University Press, 2008.
Hoban, Thomas, and Richard Brooks. Green Justice: The Environment and the Courts. 2d ed. Boulder, Colo: Westview Press, 1996.
Houck, Oliver A. “Storm King.” In Taking Back Eden: Eight Environmental Cases That Changed the World. Washington, D.C.: Island Press, 2010.
Lewis, Tom. The Hudson: A History. New Haven, Conn.: Yale University Press, 2005.
Talbot, Allan. Power Along the Hudson: The Storm King Case and the Birth of Environmentalism. New York: Dutton, 1972.