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POGLIANI v. UNITED STATES ARMY CORPS OF ENGINEERS

United States District Court, Northern District of New York


August 10, 2001

WALTER POGLIANI, JACQUELINE DUNN, STEPHEN DUNN, ROBERT H. BOYLE, DIMITRI SEVASTOLPOULO, IAN NITSCHKE, AND STAND TOGETHER OPPOSE POWER PLANT ("S.T.O.P.P."), PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, DEFENDANT. ATHENS GENERATING COMPANY, L.P., PROPOSED INTERVENOR-DEFENDANT.

The opinion of the court was delivered by: Norman A. Mordue, District Judge:

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 13, 2001, plaintiffs, concerned citizens and/or property owners in or near the Town of Athens, New York, filed a complaint seeking to permanently enjoin defendant, the United States Army Corps of Engineers ("the Army Corps"), from issuing a permit to proposed intervenor, Athens Generating Company ("Athens Generating"), for construction of a 1080 megawatt gas-fired power plant in Athens, New York located in scenic Hudson River Valley. On the same date, plaintiff also filed an Order to Show Cause seeking a Temporary Restraining Order ("TRO"), pending a motion to enjoin defendant from issuing the afore-mentioned permit. By way of the TRO, plaintiffs sought an Order suspending both the permit (which was issued to Athens Generating on May 25, 2001) as well as pre-construction work on the power plant project which began on or about May 29, 2001.

Also on June 13, 2001, Athens Generating filed a motion to intervene in this action as a defendant via Order to Show Cause. On June 18, 2001, the Court conducted a hearing via telephone in connection with the parties' arguments on the TRO and deferred argument on the issue of intervention by Athens Generating pending receipt of papers by plaintiffs in opposition to said relief. The Court denied plaintiffs' TRO application orally at the conclusion of said telephone conference and by written Order dated June 28, 2001, but set the return date for plaintiffs' motion for a preliminary injunction for July 5, 2001.

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 1997, Athens Generating, an indirect wholly owned subsidiary of Pacific Gas & Electric Corporation ("PG&E"), commenced a state administrative proceeding by submitting a "pre-application" report, required to obtain a Certificate of Environmental Compatibility and Public Need ("certificate") for construction of a major electric generation facility,*fn1 to the New York State Board on Electric Generation Siting and the Environment ("Siting Board") under Article X of the New York Public Service Law ("Article X"). See N.Y. Pub. Serv. Law § 160 et seq.*fn2 The Siting Board and Athens Generating thereafter received public input concerning the report by way of public hearings, mail, telephone and the internet. The Siting Board and Athens Generating simultaneously engaged in a formal stipulation process which defined the appropriate "pre-application" environmental studies, which were completed by Athens Generating and its consultants. On August 28, 1998, Athens Generating filed its formal application for a certificate and the Siting Board Chair determined that the application was complete on October 22, 1998.

Administrative Law Judges from the New York State Department of Environmental Conservation ("DEC") and the New York State Department of Public Service ("DPS") were appointed to serve as Hearing Examiners. The Hearing Examiners conducted a prehearing conference and public statement hearings in November 1998 and following pre-filed testimony on all issues, held evidentiary hearings in March, April and June 1999. After a round of initial and reply briefs from various parties including some voluntary citizens' groups, the Hearing Examiners issued a 339-page recommended decision on September 3, 1999, suggesting that the Siting Board grant a certificate, subject to a number of specified terms and conditions.

Interested parties filed exceptions to the recommended decision to the Siting Board in addition to further briefs opposing the exceptions, in September and October 1999. On November 30, 1999, the Siting Board Chair requested supplemental information from Athens Generating concerning the plant's cooling technology, visual impacts, and related issues. On remand, the Hearing Examiners considered a number of issues, including the facility's proposed configuration if dry cooling technology were to be utilized. Responsive and rebuttal testimony was filed in December 1999 and January 2000. Additional hearings were held on January 26 and 27, 2000, and supplemental initial briefs and reply briefs were filed by the parties in February 2000.

The application for Article X certification filed by Athens Generating also included an application to DEC for a State Pollutant Discharge Elimination System (hereinafter "SPDES") permit for the withdrawal of water from the Hudson River for cooling purposes and the subsequent discharge of the unevaporated remainder. Based upon the determination by the Commissioner of DEC that water intake should be limited to 0.18 million gallons per day in order to satisfy "best technology available" requirements and avoid adverse impacts on Hudson River fish populations, the SPDES permit issued by DEC on June 12, 2000, effectively required that the plant utilize "dry" cooling technology as opposed to the "wet"or hybrid evaporative cooling system which was originally proposed and which would have required considerably more water.

In a 123-page opinion and order issued June 15, 2000, the Siting Board granted Athens Generating a certificate to construct the plant subject to certain conditions. As required by Article X, the Siting Board made several findings including: (1) a determination that the plant was selected pursuant to an approved procurement process and would serve the public interest (see, N.Y. Pub. Serv. Law §§ 168(2)(a)(ii); (e)); (2) adverse impacts upon the environment would be minimized and the facility would be compatible with public health and safety by virtue of the certificate terms set forth in the Siting Board approval order and the terms of permits issued by other agencies, including the DEC requirement concerning the use of dry cooling technology (see, N.Y. Pub. Serv. Law §§ 168(2)(c)(i), (ii)); (3) the plant's effect on the area's visual resources would be mitigated by lowering the height of the emission stack and cooling tower from 225 to 213 and ultimately to 180 feet, and using dry cooling to eliminate steam plumes (see, N.Y. Pub. Serv. Law § 168(2)(b)); and (4) certain waivers from the Town's zoning ordinances deemed "unreasonably restrictive" in relation to Article X's goal of promoting development of additional major power sources while at the same time balancing environmental concerns were required (see, N.Y. Pub. Serv. Law § 168(2)(d)).

By petition dated July 14, 2000, Citizens for the Hudson Valley, Inc. (an organization in which plaintiff Sevastopoulo is a founder and a principal) along with other interested parties sought rehearing, which petition was denied by the Siting Board on August 10, 2000. On September 8, 2000, the aforementioned petitioners commenced an action pursuant to Article 78 of New York Civil Practice Law and Rules and Article X seeking nullification of the certificate arguing that the Siting Board's decision granting the Certificate was arbitrary and capricious and not supported by substantial evidence. Many of the named plaintiffs in this case as well as witnesses whom have submitted evidence in support of plaintiffs' application for injunctive relief are members or supporters of Citizens for the Hudson Valley. Residents and concerned citizens in the area to be potentially impacted by construction of the Athens Generating facility created this organization to ensure the preservation of the environmental, historical, agricultural and archaeological integrity and scenic beauty of the Hudson River Valley.

Essentially these citizens are concerned about the adverse environmental consequences of potential re-industrialization of the Hudson River area which, in their estimation, has just begun to recover from previous decades of unremitted environmental abuse. As a further matter, because the Hudson River and Valley are designated as National Heritage Areas due to their historic and economic significance, plaintiffs as well as Citizens for the Hudson Valley and its supporters believe the state and federal government need to be keenly aware of and sensitive to the impact of industrial construction in the area. Of particular concern to plaintiffs is the potential degradation of heretofore undisturbed vistas or "viewsheds" from historical homes such as the Olana Mansion and State Historic Site*fn3 and other archaeological landmarks of state and national importance in the vicinity of the proposed power plant.

By order and decision dated April 12, 2001, the New York State Supreme Court, Appellate Division, Third Department unanimously upheld the Siting Board's issuance of the certificate in all respects. See Citizens for the Hudson Valley v. N.Y. State Bd. on Elec. Generation Siting and the Env't, 281 A.D.2d 89, 723 N.Y.S.2d 532 (3d Dep't 2001). In its decision, the court rejected the contention by petitioners that the Siting Board erred in its determination that Athens Generating was not required to describe and evaluate alternative sites pursuant to N.Y. Pub. Serv. Law § 164(1)(b). To the contrary, the court concluded that the Siting Board rationally determined that a private applicant, such as Athens Generating, lacking the power of eminent domain, could not be compelled to present alternative sites that it neither owned nor had an option to purchase.*fn4

This principle notwithstanding, the Siting Board had allowed petitioners in the Article X administrative proceeding to present evidence of alternative sites concerning whether the proposed power plant was in the "public interest." The Third Department determined that the record supported the Siting Board's conclusion that the alternatives offered by petitioners had "problems of their own" and that "[t]here [had] been no showing that there [was] an available, preferable site that should be developed instead of the site proposed by [Athens Generating]." Citizens for the Hudson Valley, 723 N.Y.S.2d at 538.

The court also found "substantial evidence in the record to support the Siting Board's conclusion that, considering the environmental impacts, the construction and operation of the [proposed] facility [would be] in the public interest" pursuant to Article X. Id. (citing N.Y. Pub. Serv. Law § 168(2)(e)). The court further found:

Most notably, the record does not support petitioner's contention that construction of the facility will unreasonably impact the viewshed from Olana, the renowned estate of Frederic Church, leader of what was to become known as the Hudson River School of landscape painting. As noted in the Hearing Examiners' decision, "[n]o issue has received more attention in this proceeding than the visual impact of the proposed generating plant," and the Hearing Examiners devoted more than 80 pages of their voluminous decision to that topic, with 26 pages dedicated to visual impacts on Olana alone.

We would first note that the record belies petitioner's representation that the proposed facility is "directly across the Hudson River from Olana." To the contrary, the facility is situated on the opposite side of the river, approximately 3.1 miles north of Olana and two miles inland. The distinction is significant because expert testimony indicated, and the Siting Board found, that the proposed facility would be located in Olana's north/northwest viewshed. Views in that direction "offer a basically flat horizon in the distance, and encompass a section of the Hudson River Valley in the foreground which includes topographic and land use features that are not unusual or extraordinary." The renowned views to the southwest are unaffected.

[Athens Generating] commissioned a visual impact study of the proposed facility which, consistent with the Visual Resources Assessment Procedure issued by the Army Corps of Engineers, was designed to assess the potential visibility of the proposed energy facility and its ancillary structures by comparing the differences in the landscape with and without the above-ground components of the project in place. Throughout the review, the proposed height of the three combustion turbine emission stacks was reduced from 225 to 213 and, ultimately, to 180 feet. One hundred and eighty-foot stacks not only eliminated the need for obtrusive aviation warning lights, but substantially reduced the degree to which the facility could be seen from distant vistas. In addition, the ultimate decision to utilize dry cooling technology not only minimized impacts on the Hudson River but provided the further benefit of essentially eliminating visible stack plumes, a very significant mitigation measure in light of the focus groups' conclusion that stack plumes represented the most significant visual impact of the facility. Based upon the voluminous record before it, the Siting Board ultimately concluded that "the probable visual impact of the proposed facility would be slight, and that such impact would not be significantly adverse to the interests and areas of concern identified in [Article X]." In our view, that conclusion has abundant support in the record.

Id. at 538-39.

Finally, the court found that the administrative record supported the Siting Board's determination that the proposed plant would "contribute to competition, thereby lowering electricity prices, displace less efficient plants, provide a reliable source of electricity at a time when there are projected energy shortfalls and relieve transmission constraints." Id. at 539.*fn5

Concurrent with the state Article X proceeding, Athens Generating had also submitted an application to the Army Corps on February 24, 1999, for a permit to undertake certain construction activities in furtherance of building the plant and its support facilities in Army Corps jurisdictional areas. Specifically, Athens Generating sought a federal permit to: (1) install the water intake and discharge heads and piping in the Hudson River; (2) cross several stream or "wetland" areas and install certain limited portions of the water pipelines in wetland areas; and (3) construct limited portions of the plant — an access road and a portion of one cooling tower — in waters of the United States, including wetlands. On May 14, 1999, Athens Generating submitted a supplement to its Army Corps application, and on July 20, 1999, the application was deemed complete for processing.

The Army Corps coordinated its review of the proposed project with other federal agencies having jurisdiction and/or significant interest in the subject permit including: (1) the National Marine Fisheries Service ("NMFS") which conducted an Endangered Species Act analysis of the potential impact of the plant's proposed water intake design on short-nosed sturgeon as well as a Fish and Wildlife Coordination Act analysis concerning project modifications necessary to protect other fish and the "diverse macrobenthic community" of the Hudson River; (2) the United States Fish and Wildlife Service ("FWS") which conducted an analysis of the impact of the proposed project on wetland and stream habitats during and after construction of water and gas lines; the United States Environmental Protection Agency ("EPA") which reviewed potential effects of the project on wetland areas, anticipated effects of discharging wastewater into the Hudson River and the possibility of significant erosion following excavation of sediment from river bottom. Athens Generating responded in writing to each of the concerns raised by the above agencies which ultimately agreed that the permit could be issued upon construction and operation conditions, modification of the project and/or construction and implementation of protective and/or restorative measures to ascertain minimal adverse environmental impacts.

On August 4, 1999, the Army Corps issued a public notice describing the proposed project and requesting public comment. On September 27, 1999, the Army Corps published a supplemental public notice which extended the comment period to November 17, 1999, and announced that a public hearing would be held on November 3, 1999. On November 3, 1999, the Army Corps held two sessions of public hearings attended by approximately 400 interested persons. In response to comments made during the public hearing and additional written comments which had been submitted by the public, Athens Generating submitted a two-volume "Response to Comments" to the Army Corps on January 28, 2000. Between June and December 2000, the Army Corps made several oral and written requests of Athens Generating for additional information on various issues of concern to the agency and the public.

The Army Corps also conducted a review of the potential impacts of the power plant project on historic properties in conjunction with the New York State Historic Preservation Office ("SHPO") as well as the Advisory Council on Historic Preservation ("ACHP") which administers the National Register of Historic Places ("NRHP"). Upon review of the original proposal submitted by Athens Generating which included hybrid cooling technology for the plant, SHPO determined that the project would have an adverse effect on the Olana State Historic Site and several other historic resources located in the vicinity of the project which were listed or eligible for listing on the State and National Registers of Historic Places. However, when Athens Generating modified its proposal to use dry cooling technology, thus eliminating or nearly eliminating potential for formation of visible steam plumes, SHPO revised its findings and concluded, in a letter to the Army Corps dated December 28, 2000, that the project revisions, along with the conditions contained in the Article X certificate issued to Athens Generating, "have resolved, to SHPO's satisfaction, the effects that initially caused SHPO to have concerns about the facility."

Nevertheless, the Army Corps subsequently issued a letter to ACHP which determined, pursuant to Section 106 of the National Historic Preservation Act ("NHPA"), that the Project would have an adverse visual effect on historic properties, including Olana and other historic residences. As a result of this adverse effect determination, the Army Corps invited ACHP, along with more than twenty other interested parties, including all but two of the plaintiffs herein, to participate in NHPA Section 106 review proceedings concerning the effect of the power plant project on historic properties. The Army Corps conducted the Section 106 review during late March to mid-May 2001. During the consulting process, the Army Corps gave interested parties the opportunity to submit written comments on three occasions, attend two meetings and provide oral comments, and review and comment on a draft Memorandum of Agreement ("MOA") between the Army Corps and Athens Generating concerning issuance of the requested permit.

In response to comments submitted by the consulting parties in the course of the Section 106 review, Athens Generating submitted two response documents to address various concerns. After consideration of final comments from the consulting parties, the Army Corps, SHPO, ACHP and Athens Generating executed a final MOA on May 16, 2001, which included agreements and conditions for the permit to avoid, mitigate and/or minimize the potential adverse effects of the power plant project on historic properties. Parties to the MOA also agreed and acknowledged that the Army Corps had thus fulfilled its obligations pursuant to Section 106 of NHPA and its implementing regulations.

On May 25, 2001, the Army Corps also filed a 107-page document entitled "Memorandum for Record" ("MFR") which detailed its "statement of findings and environmental assessment" ("EA") for the permit sought by Athens Generating. According to the Army Corps, the MFR was prepared "in accordance with the policies and procedures . . . for implementation of the National Environmental Policy Act ["NEPA"] which requires an agency to prepare an environmental impact statement ("EIS") when permitting or engaging in a "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332 (C).*fn6 The MFR sets forth in great detail the analysis conducted by the Army Corps of the various environmental, health and safety, historical and aesthetic concerns raised by the public, interested organizations and agencies concerning the power plant project. In addition, the MFR outlined the Army Corps' efforts to coordinate environmental and historic review of the proposed project with other federal and state agencies having jurisdiction or significant interest in the areas to be affected by the plant.

To wit, the MFR recounted the state review process for the proposed Athens Generating facility which resulted in the Siting Board's issuance of a Certificate of Environmental Compatibility and Public Need and DEC's issuance of both SPDES and air pollution control permits. The MFR also described the original project proposal as well as the substantial modifications made in the course of the state and federal review processes to account for potential environmental and historical impacts identified by interested parties, state and federal agencies, the public, the Siting Board and the Army Corps. In a fifty-page section entitled "Analysis of Public Comments," the Army Corps set forth each and every concern or issue raised during "public coordination" of its review process. Following each public comment, the Army Corps set forth the response of Athens Generating as well as its own analysis of the issue based on review by the Siting Board, the various involved state agencies, federal agencies having jurisdiction on the issue and its own conclusions. These public concerns included: 1) the need for the project in the first instance;*fn7 2) the need to prepare an EIS in light of the State's failure to have required Athens Generating to do so;*fn8 3) the failure to consider alternative "brownfield" sites already marred by industry or pollution;*fn9 4) the use of "hybrid" cooling as opposed to "dry" cooling which represents the best available technology to minimize environmental impact;*fn10 5) the potential impact of project construction and operation on "fishery resources" such as shad, striped bass, white perch, alewife and the endangered shortnose sturgeon due to dredging of the river bottom and discharge of heated and treated wastewater back into the river;*fn11 6) decreased waterway capacity due to use of Hudson River water to cool the plant; 7) the potential for a decrease in water quality of nearby Sleepy Hollow Lakes due to air pollution generated by the proposed plant, and storm runoff affected by discharge of chemicals into the Hudson River and groundwater near the facility;*fn12 8) the loss of wetlands, particularly in the area of Leeds Flats, the cumulative effect of which could result in major impairment of overall wetland resources;*fn13 9) the possibility that blasting and other construction activities might open bedrock fissures, impact groundwater resources and affect the constructural integrity of existing nearby structures such as the dam that maintains Sleepy Hollow Lake;*fn14 10) the likelihood of significant adverse impact to historic properties and archeological resources located within a five-mile radius of the project site;*fn15 11) concerns that the project would not have a positive economic effect on the area and that the potential for adverse historical and aesthetic impacts would reduce tourism in Columbia and Greene counties;*fn16 12) allegations that the project, regardless of the modification to dry cooling, does not comply with federal coastal management policies established by DOS and is inconsistent with the proposed Local Waterfront Revitalization Program being developed by the Village of Athens;*fn17 13) concern that the Town of Athens had insufficient emergency equipment and personnel to handle an explosion or other crisis at the plant and that plant operation would be largely unsupervised thus raising safety questions;*fn18 14) criticism of the use by Athens Generating of meteorological data from the Albany Airport, located 35 miles north of the proposed plant site, in its air dispersion modeling which rendered its air quality analysis inaccurate;*fn19 15) criticism of the use of "typical projections" when assessing the likelihood of unsightly steam plumes emerging from cooling towers and stacks at the plant rather than "worst-cases scenarios;"*fn20 16) given the location of the proposed facility near the Hudson River which has already been contaminated by decades of pollution, chemicals, nitrogen oxides, ammonia, carbon dioxide and numerous volatile organic compounds produced and discharged into the water and air via the electric generation process pose unacceptable health risks, particularly for children attending the nearby school;*fn21 17) concern that emissions from cooling towers, including aerosols, will increase local fogging and icing of nearby roads;*fn22 18) the suggestion that pooling of contaminated water processed at the facility would create a breeding ground for Legionalla, the pathogen for Legionnaires Disease;*fn23 and finally 19) increased noise and traffic in the community surrounding the proposed facility during its construction and eventual operation.*fn24

In conclusion, the MFR announced that in the estimation of the Army Corps, issuing the requested permit to Athens Generating would "not significantly affect the quality of the human environment either in an adverse or beneficial manner." Thus, the Army Corps concluded that preparation of an EIS was unnecessary. Based thereupon, on May 25, 2001, following execution of the MOA and on the same day it filed the MFR, the Army Corps issued a permit to Athens Generating which allowed the company to commence construction work on the power plant project. Athens Generating began pre-construction activities at the site on May 29, 2001, and to the Court's knowledge, continues this work to date.

III. DISCUSSION

A. Plaintiffs' Motion for Preliminary Injunction

A party seeking a preliminary injunction "must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief." Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991); accord Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).

1. Irreparable Harm

Turning to the first element, the Court finds that plaintiffs have not sufficiently demonstrated that they or the environmental, historical and aesthetic concerns they purport to represent will suffer irreparable harm should construction of the power plant by Athens Generating begin and/or continue in advance of preparation of an EIS by the Army Corps.

Plaintiffs have submitted voluminous documentation in support of their claim that various environmental and historical interests in the area where the power plant is to be built will be adversely affected permanently by continuation of construction during the pendency of the present litigation. To wit, attached to plaintiffs' original moving papers herein are the following evidentiary exhibits: 1) a copy of Executive Order 13061 issued by then President William J. Clinton in September 1997 concerning the "American Heritage Rivers" initiative whereby rivers of historic, cultural, economic, scenic or recreational importance may be designated for particular focus by the federal government on natural resource and environmental protection, economic revitalization and historic and cultural preservation; 2) a copy of the description of the Hudson River and the revitalization efforts underway there pursuant to the "American Heritage Rivers" program posted on EPA's official public access website;*fn25 3) a copy of a newspaper article from the Poughkeepsie Journal "Online Edition" dated June 3, 2001, describing how New York's "new `fast track' mechanism for approving proposed power plants" via the Siting Board took four years to issue a permit to Athens Generating for the project at issue herein and how "New York officials never sought serious consideration of any location for the plant other than the one the builder wanted;" 4) an affidavit from Robert E. Henshaw, a former Environmental Analyst with DEC who has a doctorate in comparative environmental physiology, which sets forth alleged deficiencies in the Article X review process conducted by the Siting Board as compared to what would have been required if the Athens Generating project had been subject to review under SEQRA;*fn26 5) an affidavit from Roger Downs, a "graduate student in the environmental program at Bard College and a Hudson River fisherman" who opines that the construction of the power plant will involve the destruction of mature forest habitat and the degradation of environmentally sensitive wetlands in addition to disruption of an area of the Hudson River which serves as a spawning ground for American shad;*fn27 6) an affidavit from Jacqueline Dunn, one of the named plaintiffs, who owns a house and property directly adjacent to the site of the proposed pumping station for the power plant;*fn28 7) an affidavit from author and journalist Robert Boyle who has "been actively involved in protecting the environmental resources of the Hudson River since 1963;"*fn29 8) an affidavit from Walter Pogliani, another named plaintiff in this action who owns the historic O'Grady House located within 3000 feet of the proposed plant site;*fn30 9) an affidavit from Carrie Feder, a "lifelong resident of New York State" and a twelve-year resident and property owner in Athens; *fn31 10) an affidavit from Ian Nitschke, a named plaintiff and resident of Claverack, New York, located 6.7 miles across the Hudson River from the site of the proposed Athens Generating plant, who has a Ph.D in theoretical physics and is presently employed as a Utility Analyst for the New York DPS;*fn32 11) an affidavit from Peter Jung, a member of the Board of Trustees of the Olana Partnership, who owns an art gallery in Hudson, New York, directly across the river from the site of the proposed plant;*fn33 and finally 12) an affidavit from Dimitri Sevastopoulo, a named plaintiff in this action and owner of a house and property on Mt. Merino Road in Hudson, New York.*fn34

In short, the observations, opinions and sentiment espoused by these affiants are simply insufficient to demonstrate that irreparable environmental harm or damage to historical properties will occur if construction of the power plant is not halted. In many cases, the facts and opinions which appear in the affidavits are not based on personal knowledge while those facts and opinions which are in admissible form are irrelevant to the legal analysis herein. For example, Dr. Henshaw's opinion that Article X of the Pub. Serv. Law is insufficient to adequately balance environmental and economic concerns is not relevant since this Court has not been asked to examine the lawfulness of Article X. Moreover, that Dr. Henshaw believes the state statute's review process is not equivalent to the full-fledged EIS required by NEPA is inapposite here since the Army Corps opted not to conduct an EIS under NEPA.

Mr. Downs' status as a environmental student and fisherman hardly qualifies him to opine regarding the environmental impact of construction activities in and around wetlands, the existence of endangered plant species along the Hudson River and the habitats and spawning grounds of the American shad and other fish. Even if Mr. Downs was qualified as an expert in these areas, his conclusory concerns regarding harm to plants, animals and "sensitive" wetlands "in the vicinity" of construction are insufficient to demonstrate that any damage to plant or animal life will actually occur or if so, how it will occur. "An injunction `may not be used simply to eliminate a possibility of a remote future injury.'" Carey v. Klutznick, 637 F.2d 834, 837 (2d Cir. 1980) (quoting New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 755 (2d Cir. 1977). "[E]very irreparable injury is merely a possibility until it is actual and can no longer be averted. Real and imminent, not remote, irreparable harm is what must be demonstrated. . . ." Id.

Likewise, the affidavits of Ms. Dunn, Mr. Boyle, Ms. Feder, Mr. Pogliani, Mr. Nitschke, Mr. Jung and Mr. Sevastopoulo contain recitation of environmental, historical, archeological, architectural and economic facts which are based on general public knowledge, personal opinion, speculation and their own concern as residents and supporters of the area to be affected by construction of the power plant. Nothing in these affidavits demonstrates that actual environmental harm or damage to historical property or historical concerns will occur absent intervention by this Court. That the power plant will be situated in or near environmentally sensitive areas and historical sites and homes is not dispositive of whether construction of the facility will have an irreparable negative impact on the environment or historic property. Indeed, the undisputed status of the Hudson River and Valley as a "National Heritage Area," standing alone, does not demonstrate the likelihood of permanent environmental or historical harm. Even if this was not true, each and every one of the facts and concerns outlined by plaintiffs was contemplated, analyzed and reconciled by the Army Corps in its 107-page MFR as well as the MOA executed by the Army Corps and various consulting parties. Indeed, it strikes the Court that plaintiffs' failure to produce affidavits from any of the experts involved in reviewing the proposed Athens Generating facility regarding the environmental and/or historical damage likely to occur in the absence of granting an injunction is based on the fact that each of the federal and state agencies and organizations responsible for reviewing and approving the projects and permits at issue in this case has already "signed off" on construction of the facility.

This apparently came as a complete surprise to plaintiffs, who explained through counsel in their supplemental set of submissions to the Court, that they did not know the Army Corps had conducted an EA or prepared the MFR — "in spite of their numerous Freedom of Information Act ("FOIA") requests" — until the telephone conference the Court held on June 18, 2001, concerning their TRO application. In response to learning that the Army Corps had determined no EIS was necessary for permitting of the project, plaintiffs submitted the following additional evidentiary material in support of their application for injunctive relief: 1) the affidavit of Barbara Docktor, a professional photographer and resident of Columbia County, and copies of two photographs taken by Ms. Docktor;*fn35 2) an affidavit from Erik Kiviat who holds a doctorate in ecology and is a professor of environmental studies at Bard College where the above-referenced Roger Downs is a student;*fn36 3) a supplemental affidavit from Mr. Downs to which he attaches portions of a workbook entitled "Mastering NEPA: A Step by Step Approach," as well as a guide published by the New York DOS entitled "Hudson River Significant Tidal Habitats;"*fn37 4) the supplemental affidavit of Dr. Henshaw who opines that the MFR "suffers from grammatical and analytic errors leading to unjustified conclusions;"*fn38 5) a memorandum dated November 8, 1999, from an employee named Steve Resler of the Department of State Division of Coastal Resources which summarizes a public hearing regarding the proposed Athens Generating plant and recounts that Joe Seebode of the Army Corps "indicated to [him] that given the range of substantive issues involving the proposal and the controversy concerning it, the Corps is quite likely to require the preparation of a [NEPA EIS;]" 6) a memorandum from the Council on Environmental Quality's website entitled "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Regulations," many of which explain the scope of an agency's obligations when preparing an EIS; 7) portions of the Article X administrative transcript which, according to plaintiff's counsel, "evidenc[e] the applicant's lack of commitment to selling the power from the Athens Plant within New York State;" 8) an affidavit from Christopher Lindner who has a Ph.D. in anthropology and prepared a dissertation on the "archaeology, geomorphology and environmental history of the Scoharie Creek section of the Hudson River drainage in New York State and has been intricately involved in studying and teaching the archaeological history of the Hudson River Valley area;"*fn39 9) a supplemental affidavit from Peter Jung who questions the determination of the Army Corps not to prepare an EIS concerning the cumulative impact of the Athens Generating facility will have on the historic viewshed from Olana when combined with the proposal by St. Lawrence Cement to build a new plant "directly across the River" from the power plant and the announcement by Lehigh Cement that it may "re-fire" its old kiln in the hamlet of Cementon, "just miles away" from the proposed cement and power plants;*fn40 10) a copy of an unsworn letter dated June 19, 2001, from Richard Moe, President of the National Trust for Historic Preservation, to Richard Tomer, Acting Chief of the New York District Office of the Army Corps outlining the agency's decision not to sign the MOA as had been anticipated by the Army Corps and various consulting parties;*fn41 11) an affidavit from Alexander Boyle, an art dealer and art historian, who co-authored a book entitled "Acid Rain" and directed a PBS documentary based on the Hudson River School of painting founded by Thomas Cole in which he recounts a "statement" given by a professor of American Art at Princeton University in opposition to a proposal for a nuclear power plant in the vicinity of the proposed Athens Generating site over twenty years ago*fn42; 12) a signed but unsworn "statement" of Robert Boyle dated June 23, 2001, which, according to plaintiffs, gives "an historical perspective on the Corps' prior environmental analyses in [prior controversial industrial projects,] as well as insights from 37 years of experience as one of the pre-eminent environmentalist [sic]"; 13) the affidavit of Susan Falzon, a resident of Athens and member of S.T.O.P.P. who submits the "comments" of Donald Jenson, a retired geologist and hydrologist, concerning the potential environmental impact of the Athens Generating facility, "based on [her] conversations with Mr. Jenson and review of his notes;*fn43 "and finally 14) an unnotarized supplemental "declaration" from Mr. Nitschke who details, without reference to his personal knowledge, various "factual errors" in the MFR prepared by the Army Corps including the size of the cooling tower required for "dry" cooling technology and the visibility of stack plumes."

In response to papers submitted by the Army Corps and Athens Generating in opposition to the application for injunctive relief, plaintiffs filed a second set of supplemental submissions in support of their motion which primarily attempt to demonstrate that the Army Corps knew about the proposed St. Lawrence Cement plant and nevertheless ignored potential cumulative impacts of same in permitting the Athens Generating facility and that the Army Corps failed to release the EA or MFR for public comment. Included in plaintiff's second supplemental submissions are the following: 1) a letter dated June 22, 1999, and copied to the Army Corps — from DOS's Division of Coastal Resources to St. Lawrence Cement Company concerning the company's need to prepare a draft EIS; 2) a letter dated January 31, 2001, from St. Lawrence Cement in response to the Division of Coastal Resources — also copied to the Army Corps; 3) a letter from the Division of Coastal Resources to St. Lawrence Cement advising the company of the time period in which the agency would be reviewing its proposal — which was again copied to the Army Corps; 4) an affidavit from Laura Skutch, Director of Citizens for the Hudson Valley, who refutes any attempt by the Army Corps to suggest it did not know about the proposed St. Lawrence Cement plant prior to issuing a permit to Athens Generating by recounting conversations with Christine Delorier, the Army Corps' field officer in the Albany/Troy regulatory branch office in which Ms. Delorier acknowledged her status as "principle agent" responsible for reviewing the cement plant project "approximately six to eight months" prior to June 29, 2001, as well as Ms. Skutch's success at obtaining the afore-referenced items of correspondence between St. Lawrence Cement and Department of State; 5) an affidavit from Ian Goodman, President of The Goodman Group, Ltd., a consulting firm which "specializ[es] in electricity resource planning and related issues;"*fn44 6) an unnotarized second supplemental "declaration" from Ian Nitschke which compares statements in the affidavits of Athens Generating's witnesses concerning future electricity supply and demand in New York with an attached publication from NYISO regarding same and concludes that "the Athens Generating plant [is not] needed to ensure that there is adequate generating capacity in New York to meet customers' needs" and [t]he northeast region, as a whole, has a substantial surplus [of electricity] for the next several years;" 7) a supplemental affidavit from Mr. Sevastopoulo who again, with no reference to his personal knowledge, details the financial status of PG&E and its relationship to National Energy Group, which is allegedly seeking financing to build the Athens Generating facility and repeats his concerns regarding the ability of Athens Generating to complete construction of the plant;*fn45 8) a further unsworn "declaration" by Dr. Henshaw who opines that counsel for Athens Generating "seems to recognize that cumulative impacts of the earlier Corps approval of the Project are the Achilles Heel of this project" when she "tellingly relegated her rebuttal of this point to only two paragraphs of unsubstantiated denial" of the Army Corps' obligation to consider the potential impact of as yet proposed or built industrial projects in the Hudson River Valley area prior to approving the Athens Generating facility;*fn46 9) a copy of a New York Times article dated January 14, 2001, setting forth the author's brief interview of Clarence D. Rappleyea, Chairman and CEO of the New York Power Authority concerning the likelihood that the power crisis in California would migrate east to New York State; and finally 10) a copy of an order issued by the Federal Energy Regulatory Commission ("FERC") which set rates for the power proposed to be produced by Athens Generating.

After review of these voluminous submissions, it is apparent that plaintiffs and the various other interested and concerned parties who have objected to construction of the proposed generating facility in Athens ardently believe that the project will degrade the value and enjoyment of their property and the area as well as permanently mar the ecologically sensitive Hudson River and Valley. However, the Court finds there is insufficient competent, admissible or relevant evidence to establish that any irreparable environmental, historical, archeological or aesthetic harm will occur absent intervention by the Court in halting construction. Even if this were not true, however, plaintiffs have also failed to demonstrate the likelihood of their success on the merits in this case which prevents the Court from granting their request for injunctive relief in any event.

2. Likelihood of Plaintiffs' Success on Merits

a. NEPA and its Attendant Regulations

On January 1, 1970, NEPA was enacted to promote a national policy which would "encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. To achieve this national policy, NEPA requires that federal agencies proposing "major Federal actions significantly affecting the quality of the human environment" include in their proposals or recommendations an EIS which provides an assessment of the beneficial and adverse environmental impacts of the proposed action. 42 U.S.C. § 4332(2)(C). An EIS is evidence that an agency has considered the reasonably foreseeable environmental effects of a proposed major action before making a decision to take the action. However, an EIS is not required where the major federal action is not "significant" within the meaning of NEPA. Hanly v. Kleindienst ("Hanley II), 471 F.2d 823, 830 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

b. Scope of Review

The issue of whether a particular agency's action is a "major federal action"*fn47 which will have a "significant" effect on the environment is a substantive issue which has traditionally been left to the informed discretion of the agency proposing or permitting the action or project. See Sierra Club v. United States Army Corps of Eng'rs, 701 F.2d 1011, 1029 (2d Cir. 1983); see also Scenic Hudson Pres. Conference v. Fed. Power Comm'n, 453 F.2d 463, 480 (2d Cir. 1971) cert. denied, 407 U.S. 926 (1972) ("[T]he resolution of highly complex technological issues such as these was entrusted by Congress to the [agency] and not to the courts."). NEPA does, however, provide a procedural framework within which substantive judgments must be made. Courts must ensure that agencies comply with the "procedural duties" mandated by NEPA, see Kleppe v. Sierra Club, 427 U.S. 390, 406, n. 15 (1976), while still assuring compliance with the substantive purposes of the statute.

Plaintiffs argue that the Army Corps committed several procedural violations of NEPA and/or its attendant regulations in issuing its EA and determination of no significant impact. In the first instance, plaintiffs contend that the EA completed by the Army Corps on May 25, 2001, "betrays [the agency's] complete prejudgment of the question of whether or not the proposed Athens Plant would cause significant environmental impacts" based on the MOA which was executed by the various parties including the Army Corps on May 14, 2001. The "pre-EA" endorsement of the Army Corps on the MOA, however, is inapposite to the agency's "objectivity" in reviewing the environmental impacts of the Athens Generating facility or its compliance with NEPA since the MOA was intended only to address the Army Corps' analysis of the proposed project and its potential effects on cultural resources pursuant to NHPA. Citing Greene County Planning Bd. v. Fed. Power Comm'n, 455 F.2d 412 (2d Cir.) cert. denied, 409 U.S. 849 (1972), plaintiffs also argue that the Army Corps impermissibly relied on the findings of the state administrative law judges during the Article X process in issuing a finding of no significant environmental impact. In the first instance it is apparent from review of the MFR and EA that the Army Corps did not simply adopt and circulate the determination of a state agency regarding environmental impacts of the Athens Generating facility. Rather, the MFR and EA detail the Army Corps' consultation with appropriate state and federal agencies, consideration of the state's findings and its own analysis of environmental issues. Furthermore, plaintiff's criticism of the Army Corps reference to factual findings made in the Article X proceeding is misplaced since the regulations which govern NEPA compliance specifically require federal agencies to "cooperate with" state agencies to "reduce duplication between NEPA and State" requirements. 40 C.F.R. § 1506.2(b).

Plaintiffs contend further that the Army Corps violated NEPA because the agency based its finding of no significant impact in large part on mitigation measures employed by Athens Generating at the behest of various agencies and organizations which reviewed the project. According to plaintiffs, "the question of significance is to be addressed separately and, logically, prior to the problem of mitigation." Plaintiffs simply misstate and misconstrue current law on this issue. To wit, NEPA affords federal agencies latitude in considering mitigation measures which might minimize environmental impacts to a level of no or little significance if such measures are supported by substantial evidence. Nat'l Audobon Soc'y v. Hoffman, 132 F.2d 7, 17 (2d Cir. 1997) (citations omitted). In this Court's view, the Army Corps relied heavily but reasonably on the agreement by Athens Generating to switch from hybrid to dry cooling technology which, as demonstrated via documentary and testimonial evidence in the Article X hearings, would undisputedly eliminate and/or significantly reduce many, if not all, of the environmental and aesthetic concerns raised by state agencies and the public regarding the project.

Plaintiffs also aver that the Army Corps failed to conduct any meaningful analyses of alternatives to the proposed project including the "no action" alternative. As referenced above, however at note 8, the Army Corps did review the alternative sites analyses completed during the Article X process and considered the option of not building the plant at all but ultimately concluded that the project was needed and that the alternative sites proposed by Athens Generating and the public were not viable or were less desirable than the proposed Athens site. Under NEPA, the range of alternatives which an agency is required to consider is within its discretion. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 551-52 (1978). Notably, where an agency determines as a threshold matter that an EIS is not required under NEPA, the scope of practicable alternatives analysis is narrowed considerably but ultimately governed by the "rule of reason" given the scope and purpose of the project under consideration. See City of New York v. United States Dep't of Transp., 715 F.2d 732, 742-43 (2d Cir. 1983). Based thereupon, this Court finds that the Army Corps engaged in a meaningful and reasonable review of alternatives to the project. NEPA requires no more.

Plaintiffs allege that the Army Corps violated NEPA and perhaps FOIA by failing to make its EA and MFR available for public review and/or comment prior to issuance of the documents. Although plaintiffs correctly assert that such pre-filing disclosure and public involvement is required prior to an agency's issuance of an EIS, or in "certain limited circumstances" involving actions which "normally require[] the preparation of an [EIS]," 40 C.F.R. § 1501.4 (e)(2)(i), an EA does not carry the same burden. Indeed, CEQ regulations provide that agencies must "involve the public" in the NEPA process, 40 C.F.R. § 1506.6(a) and should make any finding of no significant environmental impact "available to the public." 40 C.F.R. § 1502(e)(1). The Army Corps clearly involved the public in its NEPA review process by publishing notice of the action, holding public hearings and incorporating the litany of public concerns raised about the project in the MFR. Moreover, notwithstanding plaintiffs' indignation at not receiving notice of the MFR and EA prior to commencement of the present litigation, there is no evidence that the Army Corps misled plaintiffs about the existence of such documents or its intention to issue them. Although plaintiffs' interest in the outcome of the Army Corps review of the project was undoubtedly intense, CEQ regulations do not require federal agencies to notify the concerned public in advance of or even contemporaneously with issuing an EA or finding of no significant environmental impact. Rather, such findings and documents are to be made available upon request via standard FOIA procedures.*fn48

Finally, plaintiffs argue that the Army Corps erred in failing to consider the "cumulative impact" of other industrial projects in the Hudson River Valley area as required by NEPA. Plaintiffs contend that at the time it issued its permit to Athens Generating, the Army Corps "most certainly knew that St. Lawrence Cement Co. is planning to construct one of the largest coal burning cement plants directly across the River in the Hudson/Greenport area." In fact plaintiffs have submitted no competent admissible evidence to establish that at the time the Army Corps issued its permit to Athens Generating, St. Lawrence Cement Company was planning or had applied to build such a plant, that the alleged proposed plant would be anywhere near the Athens Generating facility or that the alleged proposed plant was more than a proposal. There is no competent admissible evidence before the Court demonstrating that at the time the Army Corps was engaged in its NEPA review of the Athens Generating facility, the alleged St. Lawrence Cement Co. project had been subject to state administrative review and approved and permitted by the appropriate state and/or federal agencies. The aerial photograph submitted by Barbara Docktor purporting to show with red star stickers the "approximate" locations of the two proposed plants on either side of the River is clearly not relevant or admissible on this issue.

Even if this was not true, however, plaintiffs have not submitted any evidence that the Army Corps of Engineers had any knowledge that St. Lawrence Cement Co. had been or would be permitted to construct a new plant in the vicinity of the Athens Generating facility at the time it issued its permit in this case. Clearly, the unauthenticated copies of letters attached to Ms. Skutch's affidavit between DOS and St. Lawrence Cement Co. which indicate they were forwarded to the Army Corps are unpersuasive in this regard as are Ms. Skutch's conversations with Christine Delorier of the Army Corps concerning that agency's obligation to review the proposed St. Lawrence Cement Co. project after completing review of the Athens Generating project. NEPA does not require federal agencies to consider the cumulative effects of industrial projects which are "speculative and contingent." Village of Grand View v. Skinner, 947 F.2d 651, 659 (2d Cir. 1991).

Turning to plaintiffs' substantive NEPA claim — that the Army Corps' conclusion that no EIS was required in this case was erroneous — the determination of "no significant impact"*fn49 is neither a rulemaking nor an adjudicatory function of the Army Corps, but rather a factual finding made by an agency with particular expertise in environmental matters. The appropriate scope of review is therefore prescribed by the Administrative Procedure Act ("APA"), which provides that agency action may be overruled by a court only if the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971); City of New York v. United States Dep't of Transp., 715 F.2d at 748; Cross-Sound Ferry Serv., Inc. v. United States, 573 F.2d 725, 729 (2d Cir. 1978); Hanly II, 471 F.2d at 828-29.

In Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980) (per curiam), the Supreme Court addressed the question of the scope of review of agency decisions on environmental issues. Although the holding of the case is limited to the question of whether NEPA requires the agencies to elevate environmental concerns over other legitimate concerns, the Court quoted from Vermont Yankee, 435 U.S. at 558, in finding that, under NEPA, the judicially reviewable duties imposed on agencies are "essentially procedural," and that "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences." 444 U.S. at 227. A court cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe, 427 U.S. at 410, n. 21 (quoting Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)).

In view of this limit on re-examination of the environmental issues in this case, the Court's primary concern is whether the EA or MFR prepared by the Army Corps contains the type of reasoned elaboration required to support the agency's determination not to prepare a more elaborate EIS. In short, this Court's appropriate role is to ensure that the Army Corps has taken a "hard look" at the environmental consequences which are likely to result from the proposed Athens Generating facility and whether the agency has convincingly documented its determination of "no significant impact." See, e.g., Maryland-National Capital Park & Planning Comm'n v. United States Postal Serv., 487 F.2d 1029, 1040 (D.C. Cir. 1973).

In light of the substantial state and federal administrative review processes that occurred in this case in addition to judicial review by the Third Department and the expansive MFR prepared by the Army Corps, this Court finds that the agency did not abuse its discretion in not issuing an EIS. See City of New York v. United States Dep't of Transp., 715 F.2d at 746 n. 14 ("The fact that effects are only a possibility does not insulate the proposed action from consideration under NEPA, but it does accord an agency some latitude in determining whether the risk is sufficient to require preparation of an EIS."). Something more than the mere speculation and conclusory assertions by plaintiffs that construction and operation of the Athens Generating facility will result in significant environmental, historical, archaeological, aesthetic and economic impacts is necessary before this Court could find the Army Corps abused its discretion or acted not in accordance with the law under the APA.

Since plaintiffs have not, in this Court's view, supported their motion with evidence that the Army Corps violated any of NEPA's substantive or procedural requirements, that its challenged determination was not supported by substantial evidence, that the agency was arbitrary and capricious or abused its discretion, it is not likely to be within the competence of this Court to overrule the Army Corps' determination. See City of New York v. United States Dep't of Transp., 715 F.2d at 745, 748; Morningside Renewal Council, Inc. v. United States Atomic Energy Comm'n, 482 F.2d 234, 238 (2d Cir. 1973); Scenic Hudson Pres. Conference v. Fed. Power Comm'n, 453 F.2d at 468.

c. Plaintiffs' NHPA claim

Although the thrust of plaintiffs' arguments herein concern the Army Corps' alleged failure to follow the requirements of NEPA in issuing a permit to Athens Generating, they also assert that the agency violated NHPA. To wit, plaintiffs argue that the Army Corps analysis of the impact of the proposed project on cultural and historical resources in the area was not "reasonable and in good faith" as required by NHPA and its attendant regulations. 36 C.F.R. § 800.4(b). NHPA "was passed with the specific intention of identifying [historic resources] and assuring their continued existence." Pres. Coalition of Erie County v. Fed. Trans. Admin., 129 F. Supp.2d 551, 575 (W.D.N.Y. 2000). In the present case, there is no evidence that any historic resources will be physically destroyed. To the contrary, plaintiffs claim that the viewsheds from historic properties and places will be affected by construction of the plant. However, to the extent that NHPA regulations require federal agencies to identify adverse effects to historic properties from proposed actions and prevent or mitigate those effects, the Army Corps clearly did so in this case. Indeed, the Army Corps conducted an analysis of the impacts to cultural and historic resources as required by Section 106 of NHPA and ultimately issued an MOA which was executed by SHPO, the state office specifically designated to preserve and protect historic and cultural resources. By executing the document, SHPO acknowledged that the Army Corps had fulfilled its obligations pursuant to Section 106 of NHPA. This Court is unlikely to second guess that expert and informed determination.

Having failed to establish either the likelihood of irreparable harm or success on their claims under either NEPA, the APA or NHPA, plaintiffs' application for injunctive relief must be and hereby is DENIED.

B. Motion to Intervene by Athens Generating

The Court notes the divergent views of the various circuits concerning the issue of intervention by non-governmental parties in NEPA compliance cases, see, e.g., Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994) (reversing district court's denial of intervention as of right to trade associations which had legally protectable property interest in existing timber contracts threatened by challenge to management of logging program by United States Forest Service); Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105, 1114 (9th Cir. 2000) (only federal government may be defendant in NEPA compliance action; private parties asserting requisite property or financial interests may intervene in remedial phase of action); Kleissler v. United States Forest Service, 157 F.3d 964, 971 (3rd Cir. 1998) (disagreeing with Ninth Circuit's categorical rule barring private support for governmental agencies in NEPA compliance actions), but need not reach this issue in this case. The only "legally protectable" interest of Athens Generating which might be impaired or affected herein is its right to continue pre-construction work followed by construction of the power plant within the confines of its state and federal permits during the pendency of this NEPA compliance action. This Court has denied plaintiffs' application for a preliminary injunction halting such activities while plaintiffs prosecute their NEPA and APA claims against the Army Corps. Thus, Athens Generating has no present legal interest warranting intervention as of right under Fed.R.Civ.P. 24(a) nor does this Court view its current status as triggering permissive intervention pursuant to Fed.R.Civ.P. 24(b). If plaintiffs ultimately prevail in obtaining a determination that the Army Corps failed to follow NEPA's requirements in issuing a finding of no significant impact, the Court will entertain anew any application by Athens Generating to participate in the remedial phase of this action. Based thereupon, the application by Athens Generating to intervene as of right or by permission in accordance with Fed.R.Civ.P. 24 is DENIED without prejudice.

IV. CONCLUSION

The Court notes that the present action by plaintiffs is nearly the last depot in a four-year administrative, political and legal odyssey which will likely result in construction of this very controversial power plant. Controversy notwithstanding, however, nearly every state and federal official, agency and organization with any interest or oversight in this matter has reviewed the potential environmental, historical and aesthetic impacts of the Athens Generating project and reconciled them with equally important and arguably more pressing economic and societal concerns. No one seriously disputes that New York, like other populous states, faces potentially devastating economic consequences if it does not take meaningful action to ensure the continued reliability of its power supply in the face of ever-increasing consumer demand. Indeed, newspapers and news broadcasts are flooded with reports that the state and nation are confronting a new and gripping energy crisis.

Yet solutions to the crisis inexorably pit the public, the government and industry which generally agree that something must be done against those who must look at and live with the results of progress in their own backyards and communities. While the Court recognizes and appreciates plaintiffs' impassioned opposition to the Athens Generating plant and the conviction with which they assembled their present legal challenge, it is not likely to invalidate the considered and reasonable judgment of the experts who have already struggled with and examined plaintiffs' concerns on the basis of their current submissions. In this case, the Army Corps permitted and approved the project based on its determination that there was sufficient evidence to suggest any significant environmental or aesthetic impacts would be eliminated or dramatically reduced by appropriate mitigation measures and unavoidable remaining impacts would not be significant. Thus, the Army Corps concluded that an EIS was not required pursuant to NEPA. Based on the evidence submitted in connection with this motion, the Court cannot say that plaintiffs are likely to persuade it otherwise.

In view of the foregoing, plaintiffs' motion for a preliminary injunction is DENIED and the motion by Athens Generating to intervene is likewise DENIED.

IT IS SO ORDERED.


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