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August 1, 1972

CITIZENS FOR CLEAN AIR, INC., et al., Plaintiffs,

The opinion of the court was delivered by: LASKER

The dynamics of a consumer system have prompted radical increases in the use of electric power in recent years. The public's demand for dependably available electricity continues to grow to a point where, in self defense, suppliers urge the consumer to "save a watt" so that the community will not be browned, blacked, or polluted out.

While efforts to educate the user proceed, construction of new facilities also goes forward. The public's need for new power sources inevitably conflicts with the public's equally stringent calls for clean air and water. This case involves precisely such competing public demands, which must be judged in accordance with the requirements of law protecting the environment.

 We are called upon to review the sufficiency of administrative decisions in relation to the construction of a New York City power plant. The heart of the complaint is that the Army Corps of Engineers (Army Corps) has failed to comply with the provisions of § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C) [ § 102], because it did not evaluate the environmental impact of its permit to the Consolidated Edison Company of New York (Con Ed) for construction in the East River at Astoria, Queens, of a water intake and discharge facility for the cooling system of Con Ed's planned 800 megawatt fossilfueled electrical generating plant known as Astoria No. 6. Plaintiffs seek a declaration that the permit is invalid and an injunction against all construction activity.

 Two multi-faceted motions are before us. Both come on the heels of plaintiffs' filing their amended complaint June 8, 1972, and are posed before any defendant has answered. *fn1" Con Ed and its Chairman, Charles Luce, move to dismiss the complaint pursuant to Rule 12(b), F.R.Civ.P., "because the complaint fails to state a claim against the defendants." Although not noticed as part of their motion, the defendants also argue now that the court lacks jurisdiction over the subject matter of the suit and that the plaintiffs lack the requisite standing to sue. Plaintiffs move for summary judgment in their favor under Rule 56(a). Con Ed and Luce oppose this motion; the Army Corps opposes it, but goes further and asks for summary judgment for the defendants.

 Prior to stating the several issues posed by these motions, it will be useful to review the facts of record.

 The Imbroglio Unraveled

 In order to meet the growing needs for electrical energy in New York City and Westchester County, Con Ed has embarked on a varied program which includes new power plants and outside purchases. We are concerned here with its decision to add a new generating plant to its existing facilities in Astoria. Unit 6 has been planned for construction just north of Units 1 to 5. It was first proposed in 1969 along with a proposal for a Unit 7. The City of New York rejected the proposal for two new units, but approved Astoria 6 by Memorandum of Understanding dated August 22, 1970.

 Construction on the generating plant has proceeded apace, Con Ed having obtained appropriate state and city permits as needed. On September 24, 1970, Con Ed applied for the permit under attack here. The permit was sought pursuant to § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, to excavate, dredge, place fill, and to construct a screen well intake structure and a discharge channel in the East River. Excavation affects approximately 1.7 acres of river bottom and the placing of fill along adjoining shorelines. Dredging for the intake structure will entail removal of some 4,000 cubic yards of soil and 22,260 cubic yards of rock. For the discharge structure 7,000 cubic yards of soil and 3,200 of rock will be removed. 10,000 cubic yards of material will be used for land fill at the site, and some 26,000 cubic yards will have to be disposed of otherwise. As designed, most of both structures will be entirely under water.

 The costs of the intake and discharge structures are not clearly set forth in the record. At the Army Corps hearings in March of 1972, Charles Luce stated that Con Ed had spent "about $ 30,000,000 on Astoria No. 6, and had "committed another $ 120,000,000." When asked about costs at oral argument on these motions, counsel for Con Ed represented that the structures will cost somewhat in excess of $ 1,500,000, while the entire Astoria No. 6 generating plant will cost $ 260,000,000, and that as of June 1st Con Ed has invested some $ 199,000,000 in Astoria No. 6.

 On January 12, 1971, the Army Corps issued Public Notice No. 6696, announcing that Con Ed had applied for the construction permit, and stating: "The decision as to whether a permit will be issued will be based on an evaluation of the impact of the proposed work on the public interest. Factors affecting the public interest include, but are not limited to, navigation, fish and wildlife, water quality, economics, conservation, aesthetics, recreation, water supply, food damage prevention, ecosystems, and, in general, the needs and welfare of the people." *fn2"

 On January 28, 1971, following the promulgation of Executive Order 11574 under which the Secretary of the Army is responsible for Refuse Act permits, *fn3" Con Ed was notified that a discharge application was required before any further action on the construction permit application would be taken. The discharge permit is required under 33 U.S.C. § 407, § 13 of the 1899 Act. The Army Corps decided to consider the construction application and the discharge application simultaneously. On February 16, 1971, the Army Corps wrote Con Ed in reference to its construction permit application, stating: "As the proposed work will have significant impact on the environment, you are requested to submit an Environmental Statement as required by Section 102 of Public Law 91-190, the National Environmental Policy Act of 1969." *fn4"

 On July 28, 1971, Con Ed applied for the discharge permit. Its application was reviewed by the Army Corps and the federal Environmental Protection Administration and was returned to Con Ed for revision on October 12, 1971. On January 10, 1972, Con Ed resubmitted its discharge permit application, and on February 14, 1972 Con Ed submitted its assessment of the environmental impact of the construction and operation of Astoria No. 6. This document, 76 pages of text, 44 pages of appendices, and 44 of figures, is largely devoted to the whole of Astoria No. 6. The construction of the intake and discharge structures is evaluated in terms of its environmental impact.

 Meanwhile, on February 3, 1972, Con Ed wrote to the Army Corps "to request permission to commence, on or before April 1, 1972, certain of the activities which are the subject of [construction permit] application and to initiate a request for emergency action relief pursuant to Section 10(d) of the Guidelines with Respect to Statements of Proposed Federal Actions Affecting the Environment, /--" *fn5" The letter sought leave to begin the dredging, excavation and "associated in-river activities" and asked that the Army Corps call upon the Council on Environmental Quality to expedite the § 102 Statement review to permit the issuance of a permit on or before June 1, 1972. Con Ed offered to go ahead with the dredging and other activity at its own risk, and to agree that its interim work should not be considered as a factor in the Army Corps' decision on the construction or operation permit applications.

 On February 23, 1972, the Army Corps issued a notice for a hearing on the construction permit application pursuant to its own regulations, 33 C.F.R. § 209.120(g). The hearing was held March 24 and 25, 1972. The Corps limited the hearing to the construction permit application, and not the discharge application. *fn6" The notice of hearing invited participation and stated:

"Subsequent to, and based upon the information presented at the public hearing, a draft environmental impact statement, in accordance with Section 102(2)(C) of the National Environmental Policy Act of 1969, will be prepared and circulated for formal review and comment to Federal, State and local agencies. A copy of this draft environmental statement will also be made available to interested parties at the District Office for review and comment. Based upon the comments received a Final Impact Statement will be prepared." *fn7"
At the hearing the presiding officer, Colonel James W. Barnett, District Engineer for the New York District of the Army Corps, stated in his opening remarks:
"Because of the significant impact that the proposed work [intake and discharge structures] will have on the environment this office required the applicant to submit an environmental assessment for the pboject. The information contained in this assessment has been made available to the public and it will be used in this office in the preparation of an Environmental Statement. This Environmental Statement which we must prepare, will be prepared in accordance with Section 102 of Public Law 91-190 of the National Environmental Policy Act [sic] of 1969 and it will also contain any pertinent information presented at this hearing or as a result of this hearing." *fn8"
The hearing contains the statements of Con Ed's Chairman, numerous local government officials, Congressmen, local business and civic leaders, and citizens and residents of Astoria, Queens. The addition of the new power plant to the area had stirred up considerable public sentiment, pro and con. Colonel Barnett observed, after appropriate sections of the 1899 Act and § 102 of NEPA were read to the audience:
"In view of the widespread interest in this project and a possible misunderstanding of the ramifications and particulars, thereof, it is deemed desirable to both require the applicant to submit an Environmental Assessment in accordance with Section 102 that Environmental Policy Act [sic] and to hold a public hearing. In this way we hope that everyone could be informed of the proposal and be given an opportunity to express their views and comments." *fn9"
At the hearing the testimony was not limited to the construction permit application. Most of it (pro and con) evaluated the entire Astoria No. 6 and its environmental impact. Colonel Barnett clarified the relationship between Astoria No. 6 and the construction permit by stating that, "although this hearing and this application addresses the matter of the construction of certain items in the navigable waters of the United States, the national Environmental Policy Act requires me, as the Federal Official, proposing to take the major action having an effect on the environment to assess its total impact, not just its impact on the water, so we must do as [sic] exactly what you [prior speaker, Councilman Thomas J. Manton] said we must do and assess the entire impact, including that of air, noise and water. *fn10" Several other speakers stated explicitly that the hearing's scope under § 102 was the full environmental impact of Astoria No. 6, the occasion for this review being the construction permit. *fn11" One speaker specifically opposed the permit for its own sake, *fn12" but all the rest either supported or opposed the construction in the context of the entire power plant.
On March 29, 1972, Colonel Barnett prepared a memorandum to the Division Engineer, North Atlantic, on the subject of "Advance Approval of Construction by Consolidated Edison Company of New York, Inc., in East River at Astoria, N. Y." *fn13" The memorandum was in response to Con Ed's February 3, 1971 letter requesting permission to begin construction before the issuance of a permit and help in accelerating the § 102 statement.
In Barnett's memorandum he states that, although the original intention had been to treat the construction and discharge permit applications together, since the hearing produced no objections to the construction work in itself (memorandum, para. 4), since four to six months were needed on the evaluation of environmental impact before a draft could be readied (Id., para. 5), since Con Ed was ready to do the work at its own risk and had to commence it if Astoria No. 6 was to be operational by the summer of 1974 (Id., para. 6), since New York State had given its approval where required (Id., para. 7), since the federal Environmental Protection Administration "offered no objection to the proposed construction work specifically," although questioning "the effects of the proposed plant expansion on both air and water pollution" (Id., para. 8), and since the United States Department of the Interior had determined on May 14, 1971, that discharges from the plant would not block migration routes of anadromous fish (Id., para. 9),
"10. It is recommended that Consolidated Edison Company of New York, Inc., be advised that the Department of the Army will not interpose any objection to the commencement of work on the intake and discharge facilities prior to formal decision on the application on the understanding that such work is undertaken at the sole risk of the company and on the further understanding that such construction at the company's own risk will not be a factor which will be considered in evaluating the pending application. It is further recommended that the company be also advised that under the circumstances, the Department would not ask the Department of Justice to initiate any action against the company because of any construction it may undertake at this locality in accordance with the plans filed with the District Engineer covering such work."
This memorandum proceeded through the appropriate ranks of the Army Corps. On April 13, 1972, Major General J. W. Morris, Director of Civil Works in the Corps, sent a memorandum to the Under Secretary of the Army. *fn14" In it he rejects the proposal that Con Ed be allowed to proceed without a permit on the assurance that it would not be prosecuted. (Morris memorandum, para. 2). He sets forth three grounds for the conclusion that the application for discharge permit-rather than the construction permit-"would be the major Federal action significantly affecting the human environment" (Id., para. 3). The reasons were that
"a. The proposed construction has received the State water quality certification and the ...

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