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CITIZENS FOR CLEAN AIR, INC. v. CORPS OF ENGRS.

February 15, 1973

CITIZENS FOR CLEAN AIR, INC., et al., Plaintiffs,
v.
CORPS OF ENGINEERS, UNITED STATES ARMY et al., Defendants


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This matter involves the construction of a water intake and discharge facility for the cooling system of Consolidated Edison's (Con Edison) planned 800 megawatt fossil-fueled electrical generating plant known as Astoria No. 6 in the East River.

 The detailed description of the project is set forth in the earlier opinion of Judge Lasker, 349 F. Supp. 696 (August 1 and 4, 1972). The Court was then called upon to review the sufficiency of administrative decisions in relation to the construction. The charge was that the Army Corps of Engineers (Army Corps) had 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) because it had not evaluated the environmental effect of its permit for such construction. The plaintiffs sought a declaration that the permit was invalid. They also sought to enjoin all construction activity.

 Judge Lasker granted summary judgment against the Army Corps for failure to comply with NEPA. He refused summary judgment against Con Edison stating that "unless plaintiffs meet their burden of showing that Con Ed is undertaking construction or intends to do so despite the absence of a valid permit, no summary judgment can be granted on the second cause of action."

 With respect to injunctive relief against Con Edison the Court made the following order:

 
"6. Upon a balancing of the equities herein and considering the public interest involved in the subject matter of this action and the probable harm to the respective parties that would result from the granting or denial of injunctive relief, and, in particular, after reviewing the draft environmental statement now received from the Army Corps dated July 28, 1972, prepared under the provisions of Section 102(2)(C) of the National Environmental Policy Act (NEPA) for circulation as required, and upon concluding therefrom that the probable impact of Astoria No. 6 on the quality of water in the East River and air in the affected metropolitan area will be of markedly limited scope, the Court has determined and hereby orders that the plaintiffs' prayer for an injunction enjoining defendant Consolidated Edison from proceeding with its construction activities pursuant to the defendant Army Corps construction permit No. 8463, dated April 20, 1972, should be and the same is presently denied, without prejudice to plaintiffs' right to apply hereafter for such injunctive relief if the ordering provisions set forth below are not complied with, or in the event that defendant Army Corps shall conclude upon completion of the circulation of its statement on the environmental impact under Section 102(2)(C) of NEPA that the said construction and operation should not be permitted to proceed. Defendants Consolidated Edison and Army Corps are directed to proceed with due diligence to complete all action necessary to bring to a conclusion the processing and determination of defendant Conolidated Edison's [sic] application for a construction permit. The Court reserves jurisdiction to enforce compliance with the foregoing provisions of this paragraph and to grant such further relief as may be appropriate." 4 E.R.C. at 1466.

 The plaintiffs now move for an order (a) enjoining Con Edison from proceeding with construction of these intake and discharge structures and enjoining the Army Corps from issuing any construction permit in connection therewith on the ground that the Army Corps' refusal to hold a public hearing on the environmental impact statement being prepared as a precondition to the issuance of any such construction permit pursuant to Judge Lasker's order is in violation of NEPA, the Army Corps Regulations and CEQ guidelines, and hence violates said order; and (b) modifying said order pursuant to Fed. R. Civ. P. 60 on the ground of newly discovered evidence; and (c) for other and further relief. *fn1"

 Judge Lasker had before him a draft environmental statement prepared by the Army Corps relating to the "Application for Discharge Permit by Con Edison Unit No. 6, Astoria, New York." This document consisted of 133 pages of text with 27 pages of comments by interested agencies and an additional 51 figures and charts. The chapter headings illustrate the comprehensive nature of the draft statement: (1) Description of the proposed action; (2) environmental setting without the project; (3) environmental impact of the proposed project; (4) adverse effects which cannot be avoided; (5) alternatives to the proposed facility; (6) the relationship between local short term use of the environment and the maintenance cycle and enhancement of long term productivity; (7) irreversible and irretrievable commitment of resources; and (8) coordination with government agencies and civic groups.

 Under the environmental impact of the proposed project the draft statement considered: (1) the impact of construction; (2) the impact of water-borne discharges on water quality standards with the physical, chemical and biological impact of water-borne discharges considered; (3) the impact of gaseous emissions, solid waste and oil spillage, the effect on recreational opportunities, the visual impact and traffic, the sound impact, and the impact on the urban environment.

 It was in the light of this comprehensive draft statement and a balancing of the equities that Judge Lasker denied the injunction "concluding therefrom that the probable impact of Astoria No. 6 on the quality of water in the East River and air in the affected metropolitan area will be of markedly limited scope" (4 E.R.C. at 1466). He apparently assumed that Con Edison would do no more construction of the intake and discharge facility until a new construction permit was granted. There is said to be an urgent need of more electric power to supply New York City and to avoid "blackouts."

 Since August 4, the date of Judge Lasker's order, the following events have occurred:

 First, Con Edison has continued its construction work at its own risk, even though it does not yet have a construction permit.

 Second, the plaintiffs requested the United States Attorney to notify them when the Army Corps intended to hold a public hearing "on its impact statement." The plaintiffs were officially informed that "the Corps contemplates no further hearing prior to the issuance of the final impact statement."

 Third, the United States Environmental Protection Agency (EPA) made a comment on the draft statement on September 25, 1972, after Judge Lasker's order (Ex. A attached to motion); and the New York State Department of Environmental Conservation (DEC) also forwarded comments on the draft statement thereafter on October 10, 1972. (Some of these comments are challenged ...


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