Petitions for review of rulings of the Federal Power Commission dismissing motion to reopen the grant of a license to Consolidated Edison Company of New York for the construction of a pump storage power plant at Storm King Mountain and dismissing motion for hearing and reconsideration of fish conservation and modification of the license. Ruling on motion to reopen is affirmed without prejudice to renewal; and ruling on motion to review means for the protection and preservation of fish life in the Hudson River is vacated and the issue is remanded for hearing and reconsideration.
Anderson, Mansfield and Oakes, Circuit Judges.
In Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2 Cir. 1965), cert. denied, 384 U.S. 941, 16 L. Ed. 2d 540, 86 S. Ct. 1462 (1966), hereinafter cited as Scenic Hudson I, this court vacated the Federal Power Commission's grant of a license to Consolidated Edison Company of New York, Inc., for construction of a hydroelectric pump-storage plant*fn1 on Storm King Mountain in Cornwall, New York. The determinative reason underlying the decision was that the Commission had failed fully to comply with 16 U.S.C. § 803(a) in that it neither considered alternative sources of power nor did it resolve the crucial issue of whether the project was "best adapted to a comprehensive plan for improving or developing a waterway" with minimal disruption of the environment. The Commission was ordered to investigate "among other matters, costs, public convenience and necessity, and absence of reasonable alternatives," as well as the potential danger to fish "before deciding whether the Storm King project [was] to be licensed."*fn2 354 F.2d at 624-25.
During the next six years the Commission gave detailed and comprehensive consideration to alternatives and rejected a gas turbine plant as a means of providing reserve power because of prohibitive operating costs, frequency of breakdowns and the lengthy turbine starting time. Interconnections with other electrical systems were also rejected because they could not provide sufficient power and because the connections might be terminated during emergencies.
In addition Consolidated Edison sponsored a Policy Committee*fn3 to determine the extent to which the plant operation would deplete fish population. The Policy Committee's report, entitled "Hudson River Fisheries Investigation 1965-68", hereinafter referred to as Study Report, declared that the evidence indicated there would not be any significant adverse effect on the striped bass. Although the Committee estimated that one percent of all eggs in the River, three percent of all larvae, and over six percent of the young-of-the-year fish would be destroyed by the plant in one year of operation,*fn4 it concluded that these percentages were "negligible when related to the total population of the species in the Hudson river." The Study Report stated, however, that additional tests would be necessary and that "if these suggested studies indicate adverse effects not established in pre-construction surveys the plant operation schedules should be modified to produce minimal effects on fish populations."
The Study Report was not issued until after the hearings concluded and the Policy Committee was, therefore, never subjected to cross-examination. Nonetheless, the Commission relied heavily on the report in affirming the Trial Examiner's finding that the project posed no threat to fish. Consolidated Edison Company of New York, Inc., Federal Power Commission Opinion and Order Issuing License (1970). The Commission adopted the Policy Committee's proposal for future studies, and, in Article 36 of the license, ordered Consolidated Edison to engage in a continuing study of the plant's potential impact on the fish in the River. The Commission reserved the power under Article 15 to order Consolidated Edison to "coordinate the operation of the project" to protect "beneficial uses of water resources" and under Article 16 to order Consolidated Edison "for the conservation, and development of fish and wildlife resources" to construct or modify such facilities or operations as the Commission might order.
In affirming the issuance of the license in Scenic Hudson Preservation Conference v. Federal Power Commission, 453 F.2d 463 (2 Cir. 1971), cert. denied, 407 U.S. 926, 32 L. Ed. 2d 813, 92 S. Ct. 2453 (1972), hereinafter cited as Scenic Hudson II, this court relied primarily on the Study Report in finding that there was substantial evidence to support the Commission's conclusion that fish were not endangered, 453 F.2d at 476. But it has meanwhile become apparent that the Policy Committee assumed, for purposes of its projections, that the Hudson River flows only downstream, and consequently it apparently calculated the fish mortality rate on the assumption that the eggs and larvae would only be exposed to the plant intake once. The River, however, is a tidal estuary and the water flows north on the flood and south on the ebb, changing direction four times each day. A given number of eggs or larvae, therefore, might be exposed to the plant four times in the course of a 24-hour day rather than just once on their way to the sea. Further, the Policy Committee calculated the speed of the River as the average of the downstream flow which included both the rates of the ebbing tides and the natural drift of the River during the same period. But the actual rate of speed of a given hatch of larvae is far less than the maximum downstream flow because they are pushed upstream again by the flooding tide. Therefore, the eggs and larvae do not pass the plant as quickly as the Committee estimated, and the chances for a given set of eggs or larvae to enter the plant increase accordingly.
The potential impact of the Committee's failure to assess the effect of the tidal flow was not evident until 1972-73 when the Atomic Energy Commission held hearings on Consolidated Edison's license to operate the nuclear power plant at Indian Point, a few miles south of Cornwall. Using the Study Report data, but correcting the Policy Committee's assumptions, the AEC staff concluded that the Indian Point plant alone would reduce a black bass generation from 14 to 43 percent. In the Matter of Consolidated Edison of New York, Inc., Atomic Safety and Licensing Board, September 14, 1973. As a result, the Board conditioned its grant of a license upon the installation, not later than January 1, 1978, of a closed-cycle cooling system. According to a statement of Consolidated Edison's counsel upon oral argument the Board may consent to the substitution of other suitable methods for fish protection. The Indian Point facilities utilized half the amount of water as that of Storm King, and consequently the loss of bass at Storm King could be substantially greater than the AEC projections.
On February 2, 1973, the Hudson River Fishermen's Association (HRFA), a group of commercial and sports fishermen petitioned the Commission, pursuant to 16 U.S.C. § 803, to determine the feasibility of taking no water into the reservoir during the 49-day spawning period in May and June. The HRFA did not request a complete hearing but asked the Commission to exercise the power reserved under Articles 15 and 16 of the license to consider modification of plant operations for the protection of fish.
On March 29, 1973, the Scenic Hudson Preservation Conference, a coalition of individuals and groups interested in protecting the beauty and resources of the River valley, also petitioned, pursuant to 16 U.S.C. §§ 797 and 803, for complete reconsideration of the license based on the newly discovered danger to fish, the increased capital cost of the project, and the New York utilities' working agreement which no longer requires the amount of reserve power that the Storm King project was designed to provide.
The FPC dismissed both petitions, stating that all the issues had been previously decided. With regard to the danger to fish, the FPC said the Trial Examiner had been aware of the tidal effects of the River, and that the evidence presented consisted of "no new basic data but only differences of opinion and interpretation by professional biologists in connection with matters already in the record." Consolidated Edison of New York, Inc., Project No. 2338, Order Denying Petition to Reopen and For Further Hearings, Federal Power Commission (May 31, 1973).
While Scenic Hudson's petition, based on increased costs and decreased power requirements, was denied with prejudice, the petitions concerning fish conservation were denied without prejudice to allow renewal after Consolidated Edison's studies relating to fish spawning are completed. Consolidated Edison of New York, Inc., Project No. 2338, Order Denying Application for Rehearing, Federal Power Commission (July 26, 1973).
The Commission relies on two principles of administrative law in arguing that a reopening of these proceedings would be improper. First, it contends that it has unreviewable discretion on this issue; and, second, it states that all of the questions raised have been finally decided and are, therefore, ...