ELR Citation: ELR 20446
No(s). 73-2258 (2d Cir. May 8, 1974)

The Second Circuit orders the FPC to hold new hearings on the impact that Consolidated Edison's proposed power plant at Storm King Mountain would have on Hudson River fish populations, in light of evidence indicating that the river is a tidal estuary which, because of flow changes, creates increased risk for fish eggs and larvae passing by the project's water intake ports. The court finds the FPC abused its discretion by not considering an AEC report that estimated a probable death rate for young fish some ten times that predicted by Con Ed's experts. The court holds that further litigation of the fish preservation issue is not barred by any res judicata effect of a state court decision on the same question. Dismissing the petition of the Scenic Hudson Preservation Conference to review the FPC's decision not to reopen the license grant proceedings, the court alludes to the interminable delay which could be caused by allowing reopening of administrative agency decisions whenever new evidence is available. Petitioner Hudson River Fishermen's Association is granted a remand because they ask only a temporary suspension of operation under an existing license, whereas petitioner Scenic Hudson seeks full reconsideration of the license. The court indicates petitioner Scenic Hudson may renew its request if the FPC has not found fish protection adequate by January 1975.

Counsel for Petitioner Scenic Hudson Preservation Conference
Albert K. Butzel
Berle, Butzel & Kass
425 Park Avenue
New York, NY 10022

Counsel for Petitioner Hudson River Fishermen's Association
Angus Macbeth
Natural Resources Defense Council
36 West 44th Street
New York, NY 10036

Counsel for Respondent Federal Power Commission
Leo E. Forquer, General Counsel
George W. McHenry, Jr., Solicitor
William M. Sawyer
Federal Power Commission
825 North Capital Street
Washington, DC 20426

Counsel for Intervenor Consolidated Edison Company of New York, Inc.
Carl D. Hobelman
LeBoeuf, Lamb, Leiby & MacRae, G.S.
One Chase Manhattan Plaza
New York, NY 10005