ELR Citation: ELR 20080
No(s). 73-2553 (2d Cir. Dec 27, 1973)

Plaintiffs' motion for a stay of all Federal Power Commission proceedings regarding the Blenheim-Gilboa Power project until the adequacy of the final environmental impact statement, upon which the Commission has deferred making a decision, has been reviewed is denied and the petition for review dismissed. The court agrees with defendant's contention that there is as yet no final order to review, and notes that the adequacy of the EIS can be tested when a final decision has been handed down by the administrative hearing officer or by the Commission.

A vigorous dissent argues that the FPC"s pattern of conduct constitutes an attempt to thwart judicial review, insulate the hearing process, and violate the court's specific mandate concerning EIS preparation. It notes that the final EIS does not even consider the effects of related power facilities planned in the area, and therefore, in view of the court's earlier mandate that the EIS be comprehensive and take such effects into account, is clearly inadequate. The dissent urges that although a stay is an extraordinary remedy, it is surely appropriate in this case considering the Commission's conduct, the nature of the EIS, and the fact that the four traditional prerequisites to granting a stay are present. For the court's earlier opinion, see 2 ELR 20017.

Counsel for Petitioners
Robert J. Kafin
Neil E. Needleman
Kafin & Needleman
8 Pine Street
Glens Falls, NY 12801

Barry H. Garfinkel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022

Counsel for Respondent
George W. McHenry Solicitor
Bruce F. Kiely
Federal Power Commission
Washington, DC 20426