UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 1, 1974
HUDSON RIVER FISHERMEN'S ASSOCIATION, AND SCENIC HUDSON PRESERVATION CONFERENCE, PETITIONERS,
FEDERAL POWER COMMISSION, RESPONDENT, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., INTERVENOR
498 F.2d 827 ON PETITION FOR REHEARING
Anderson, Mansfield and Oakes, Circuit Judges.
Author: Per Curiam
ON PETITION FOR REHEARING
In its petition for rehearing Consolidated Edison of New York Inc. states, in effect, that the latest decision of this court has confronted it with an impossible choice. It says that § 13 of the Federal Power Commission Act, 16 U.S.C. § 806, requires commencement of construction within two years of the award of a license and limits extensions of this period to two additional years; and that, due in large part to litigation, the Storm King project has already been granted the two-year extension. It asserts that if it is required by economic considerations or by the Federal Power Commission to cease construction pending reconsideration of the fish conservation issue in compliance with this court's mandate, it will be foreclosed from this project under the time limits of the statute.
The strictures which it mentions, however, are not as inflexible or stringent as Consolidated Edison assumes. It has already commenced construction within the plain meaning of the statute; and, after construction begins, "the period for the completion of construction carried on in good faith and with reasonable diligence may be extended by the commission when not incompatible with the public interest." 16 U.S.C. § 806. It is hardly conceivable that the Commission would not conclude that a delay for purposes of complying with the mandate of this court is in good faith and compatible with the public interest.
The petitions for rehearings submitted by both Consolidated Edison and the Scenic Hudson Preservation Conference reveal some confusion regarding the further proceedings required by this court. The hearings pursuant to the license should deal with the extent to which the plant poses a danger to fish life and whether such danger can, as a practical matter, be eliminated or greatly minimized. If the danger is found to be greater than previously predicted and if the plant or plant operations cannot be altered effectively to remove or substantially prevent this danger, then the Commission must decide whether to reopen completely the licensing proceedings to determine whether the benefits to be provided by this plant outweigh its costs in terms of danger to fish life. Such a reopening will also be required if Consolidated Edison or the Commission fails to make a good faith effort to comply with the deadline set by this court for the completion of the hearings.
Consolidated Edison's petition for rehearing and Scenic Hudson Preservation Conference's motion for stay of construction and its petition for rehearing are denied.
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