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Greene County Planning Board v. Federal Power Commission

decided: December 27, 1973.

GREENE COUNTY PLANNING BOARD, TOWN OF GREENVILLE, TOWN OF DURHAM AND ASSOCIATION FOR THE PRESERVATION OF THE DURHAM VALLEY, PETITIONERS
v.
FEDERAL POWER COMMISSION, RESPONDENT, POWER AUTHORITY OF THE STATE OF NEW YORK, INTERVENOR



Motions for a stay of proceedings before the Federal Power Commission in the application of the Power Authority of the State of New York to build a power project near the towns of Blenheim and Gilboa in upstate New York (Project No. 2685); and to dismiss petition for review. Motion for stay denied; motion to dismiss granted.

Moore, Hays and Mansfield, Circuit Judges. Mansfield, C.j. (Dissenting).

Author: Moore

MOORE, Circuit Judge:

Pursuant to Rule 18 of the Federal Rules of Appellate Procedure, Rule 27 of the Second Circuit, Section 10(d) of the Administrative Procedure Act and Section 313(b) of the Federal Power Act, the Greene County Planning Board and others (petitioners) have moved (1) for a stay of all proceedings before the respondent Federal Power Commission (FPC) in the case presently before the Commission known as "Power Authority of the State of New York -- Project No. 2685"; (2) for a preference; and (3) to dispense with an appendix permitting the appeal to be heard on the original record. Subsequent to the return day of this motion (October 29, 1973) the FPC moved to dismiss a petition for review dated October 16, 1973 annexed to petitioners' motion papers on the grounds that (1) the challenged order is interlocutory; and (2) no application for rehearing was timely made before the FPC.

Since our original decision on January 17, 1972,*fn1 a draft EIS was prepared and circulated (January 1973) and, after comments thereon, a final EIS (FEIS) was prepared and made available (May 1973).

In March 1973, petitioners, dissatisfied with the draft EIS which they claimed was deficient in many respects, made this claim by motion filed with the Presiding Administrative Judge. The claim was denied. Petitioners on April 24, 1973 appealed this ruling which was certified to the FPC on May 16, 1973. On June 15, 1973 the FPC issued an order deferring decision on the motion until further consideration had been had. Hearings continued and November 19, 1973 was fixed as the date for the filing of initial briefs.

The motions here under consideration are part of a larger dispute between the Greene County Planning Board and the FPC. The disagreement started in 1968 when the Power Authority of the State of New York (PASNY) filed an application with the Federal Power Commission to construct, operate and maintain a 1,000,000 kilowatt power project near the towns of Blenheim and Gilboa in upstate New York. The Greene County Planning Board has intervened in the licensing process employed by the Commission in passing upon the PASNY application.*fn2 In Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir.), cert. denied 409 U.S. 849, 34 L. Ed. 2d 90, 93 S. Ct. 56 (1972), this Court agreed with the intervenors that the construction of the Gilboa-Leads Transmission Line, an integral part of the Blenheim-Gilboa Project, required the Commission to prepare a specific Environmental Impact Statement before hearings could continue on the application. The FPC prepared just such a statement and now the Greene County Planning Board is complaining that the statement was inadequate as a matter of law because: it dealt with only "a small, isolated segment of an integrated, comprehensive plan," it "does not reflect a 'detailed independent analysis' or a 'systematic, interdisciplinary' approach," and it "is nothing more than a brief in support of the outcome favored by the staff and does not even try objectively to describe . . . in any manner the alternatives the Staff rejects."*fn3

The conflict between our nation's seemingly insatiable demand for energy production and its parallel concern for the preservation of its wildlife and natural resources has created a mass of litigation. See, e.g., Willrich, The Energy-Environment Conflict: Siting Electric Power Facilities, 58 VA. L. REV. 257 (1972). However, the fact that this conflict is substantial and that its resolution may have far -reaching effects does not mean that decisions regarding the conflict must be prolonged beyond reasonable limits.

The Federal Power Commission has both fulfilled its statutory obligation and sufficiently complied with this Court's order by providing for an Environmental Impact Statement. The draft EIS was subjected to criticism as is evidenced in the motion papers. The parties are free to comment on any claimed inadequacy in the FEIS.

In its motion to dismiss the present petition for review, the FPC argues that there is no final order to be reviewed. Petitioners claim that non-action by the Commission had the effect of creating an order which is presently appealable. Even assuming, arguendo, that an order came into being by this process, there would be no finality attached thereto. Despite the protracted procedural sparring, there can be no final appealable order until some decision has been handed down by the administrative hearing officer and/or the FPC. At that time the adequacies or deficiencies of the EIS or all other matters relative to a decision on the merits can be argued. There will scarcely be an EIS filed which will not appear to some party to be deficient according to his point of view. If appeals were to be countenanced at the behest of every party who might find the statement deficient in certain respects, appeals would be unending and to little avail. Until a final decision has been rendered, there is nothing to review.

The motion for a stay is denied; the motion to dismiss the petition for review is granted. Nothing contained herein is to be regarded as dealing with the merits of such issues as may come before the court on appeal from a final order.

MANSFIELD, C.J. (Dissenting):

Once again Greene County Planning Board has invoked our aid in its dispute with the Federal Power Commission ("FPC"). The petitioners ask this Court to stay further FPC proceedings on a proposed power transmission line until the FPC is in compliance with an antecedent order of this Court.

In January 1972 we directed the FPC to prepare a "single coherent and comprehensive environmental analysis" of the Gilboa-Leeds transmission line as a part of the larger Blenheim-Gilboa power project. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, cert. denied, 409 U.S. 849, 34 L. Ed. 2d 90, 93 S. Ct. 56 (1972). We made it clear that while one or more draft impact statements might suffice for the purpose of eliciting comments from other federal agencies pursuant to § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), the FPC was directed to prepare a final detailed statement that would itself be subject to scrutiny during the agency review process. 455 F.2d at 420-21. It was specifically contemplated that ...


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