ELR Citation: ELR 20292
No(s). 29853 (2d Cir. Dec 29, 1965)

FPC order licensing Consolidated Edison to build pumped storage hydroelectric facility at Storm King Mountain on Hudson River in New York State is void. Cause remanded to FPC for new proceedings. Commission violated requirements of §§10(a) and 313(b) of Federal Power Act by failing to compile record adequate to support its findings and by failing to consider alternatives to the proposed project, including no project at all. Commission failed to weigh adequately the need to preserve an area of unique beauty and major historical significance for "recreational purposes" as expressly mandated by Act. Commission illegally failed to consider as alternatives a gas turbine system, an interconnection with other systems, or a combination of the two. Commission illegally failed to consider the possibility that no device could adequately protect fish and fish larvae in the project area and further failed to consider the desirability of running segments of the transmission lines underground. Public has right to receive "active and affirmative protection at the hands of the Commission," whose horizons cannot be limited to parties' interests alone. That the Commission cannot order the construction of a more desirable alternative does not mean it cannot reject original proposal. Association of conservation organizations, which by its activities and conduct has shown a special interest in aesthetic, conservational, and recreational aspects of power development, is an "aggrieved party" under §313(a) of the Federal Power Act and thus has standing to challenge the Commission's order, because the Act creates a legal public interest in the scenic, historical and recreational values of the area. Parent conservation group that owns 17 miles of trails in area further enhances standing of conservation association. Nearby towns also have sufficient interest in litigation to maintain standing.

Counsel for Scenic Hudson:
Albert K. Butzel
Lloyd K. Garrison
Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison
345 Park Ave.
New York, NY 10022
(212) 935-8000

Counsel for Town of Putnam Valley, N.Y.:
Samuel L. Slutsky Town Attorney
Putnam Valley, NY 10579
(914) 528-5815

Counsel for Town of Cortland:
John C. Tuttle
Peekskill, NY 10566
(914) 737-3784

Counsel for Town of Yorktown:
John R. Kibbe
582 Viewland Dr.
Yorktown Heights, NY 10598
(914) 962-3886

Counsel for FPC:
Josephine H. Klein Counsel
Richard A. Solomon General Counsel
Howard E. Wahrenbrock Solicitor
Melvin Spaeth Assistant General Counsel
441 G. St., NW
Washington, DC
(202) 386-5443

Counsel for Consolidated Edison:
Randall J. LeBoeuf Jr.
LeBoeuf, Lamb, Leiby & MacRae
One Chase Manhattan Plaza
New York, NY 10005
(212) HA2-6262

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.