More on Consolidated Edison's Storm King Project

One of the longest battles in environmental law concerns Consolidated Edison's ten year effort to build a pumped-storage hydroelectric generating facility on the Hudson River at Storm King Mountain. Fearing damage to the Storm King area, environmentalists managed through protracted litigation to delay the project from 1965 until the spring of 1974, when Consolidated Edison, convinced that all legal hurdles were passed, began construction of the $537 million facility. By May 8 the future of the plant was once again in doubt, as the Second Circuit Court of Appeals, in its third decision in the case, ordered the Federal Power Commission to reconsider the project in light of new evidence indicating that the potential damage to fish eggs and larvae in the river was far greater than previously believed.¹

The project would use electricity generated by Consolidated Edison's New York City plants during slack periods to pump water from the Hudson to a reservoir above the river. During times of peak demand, stored water would be released to drive turbine electrical generators. Possible environmental harm from the large quantities of water withdrawn from the river, the increased burning of fossil fuels in New York City during slack periods, the establishment of a wide corridor for aboveground transmission lines, and the expected disruption of an area of unique natural beauty with sites of significant historic value, led to legal challenges to the project by conservationist organizations, local townships, and the City of New York. The appeals court's first decision, in 1965 (Scenic Hudson I),² found that the Federal Power Commission had failed to comply with the Federal Power Act in that it had neither sufficiently considered alternatives to the proposed project nor evaluated adequately the environmental harm that could result to the area. The court remanded the case to the FPC for new proceedings. Among other factors that the Commission was ordered to consider was the potential danger to the fish living in the river and to those that use the river waters as a spawning ground.

After Scenic Hudson I, the FPC held extensive hearings on the issues raised by the groups challenging the project. Plans for the project were modified in several ways, including construction of the powerhouse entirely below ground rather than only 80 percent so, changes in the route the transmission lines would take through several New York counties, abandonment of plans for a visitor's information center and parking facilities, inclusion of fish protective devices at the intake ports, and addition of parks and other recreational facilities to the proposed development. A policy committee, sponsored by Consolidated Edison, studied the possible harm to the river's fish and reported that the plant would have no significant adverse effect. The FPC granted Consolidated Edison a license, holding that alternative sources of needed power were infeasible, and that no significant environmental harm would result from the plant.

In the second round of litigation in the case (Scenic Hudson II),³ the Court of Appeals with Judge Oakes dissenting affirmed the Commission's order, holding that the standard for judicial review under the Federal Power Act had been met and that the Commission had complied with other applicable statutes including NEPA. The Supreme Court denied certiorari over the dissent of Justice Douglas, who agreed with Judge Oakes that neither the substantive nor the procedural requirements of NEPA were met by the Commission.

The most recent decision in the matter, holding that the FPC must initiate further proceedings on the fish preservation issue, referred to the court's reliance in Scenic Hudson II on the policy committee's report in deciding that substantial evidence existed to validate the FPC's determination that the project would not constitute a significant risk to fish. That report assumed that the [4 ELR 10094] Hudson River flows only downstream, contrary to evidence now showing the Hudson River is a tidal estuary. The staff of the Atomic Energy Commission, in considering a license application by Consolidated Edison for a nuclear power plant downstream from the Storm King facility, discovered the error made by the policy committee and reported that because the river changes direction four times daily, fish eggs and larvae will be exposed to the water intake ports to a much greater degree, with a resulting death rate as high as ten times greater than assumed. No method presently exists to successfully screen fish eggs and larvae from hydroelectric intake ports, so the frequency of exposure to those ports is directly related to the substantial loss rate resulting from passage through the facility's machinery. The appeals court's recent decision held that the Commission's exercise of discretion in refusing the petitions for rehearing by the environmental groups involved is reviewable in that the FPC refused "to correct an apparent error in a report … previously relied upon …" by the court. The court stated that the FPC abused its discretion by donning "complete blinders" to the evidence reported by the AEC.

The FPC was ordered to consider petitioner Hudson River Fishermen's Association's request for suspension of plant operation during the spawning season. Although the court dismissed the petition by the Scenic Hudson Preservation Conference for reopening the license grant proceeding, if the FPC does not find fish protection adequate by January 1975, petitioners may renew their request for a reopening. Counsel for petitioners expressed confidence after the decision was announced that the issue of fish preservation could not be resolved to the benefit of Consolidated Edison. After almost ten years of litigation and some $25 million already spent by Consolidated Edison on the beginnings of construction, it appears possible that the proposed facility may never be built.

1. Hudson River Fishermen's Assoc. v. FPC, 4 ELR 20446 (2d Cir. May 8, 1974).

2. Scenic Hudson Preservation Conference v. FPC, 1 ELR 20292 (2d Cir. 1965).

3. Scenic Hudson Preservation Conference v. FPC, 1 ELR 20496 (2d Cir. 1971).