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Greene County Planning Bd. v. Federal Power Comm'n

Citation: 2 ELR 20017
No. No. 71-1996, 455 F.2d 412/3 ERC 1595/(2d Cir., 01/17/1972)

The Federal Power Commission (FPC) regulations purporting to implement the National Environmental Policy Act of 1969 (NEPA) are invalid to the extent that they delegate the responsibility for preparation of an environmental impact statement to the applicant for a license. The FPC abdicated its responsibility under NEPA by substituting a statement prepared by the Power Authority of the State of New York (PASNY) for a draft impact statement prepared by its own staff. The FPC must prepare such an independent statement prior to holding hearings on the license. Moreover, the FPC must consider, both under NEPA and Section 10(a) of the Federal Power Act, whether future needs or plans affect (or make unnecessary) the project under consideration. Sections of PASNY's project which were licensed prior to the effective date of NEPA are not subject to the requirements of the Act. Construction of certain lines licensed after NEPA became effective and which are now some 80% complete will not be enjoined despite the fact that no independent NEPA statement was filed, since the petitioners did not appeal the granting of the license and there was no effort to subvert the substantive policies of NEPA. There is no clear Congressional mandate which would require an order forcing either the FPC or PASNY to pay the expenses incurred by the petitioners.

Counsel for Petitioner Greene County Planning Board
Neil E. Needleman
Kafin & Needleman
8 Pine Street
Glen Falls, New York 12801

Counsel for Petitioners Town of Durham and Association for the Preservation of Durham Valley
Barry H. Garfinkel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022

Counsel for Respondent Federal Power Commission
Platt W. Davis
Federal Power Commission
GAO Building, Room 2492
Washington, D.C. 20426

Counsel for Intervenor Power Authority of the State of New York
Scott B. Lilly
State Power Authority
10 Columbus Circle
New York, New York 10019

Counsel for Intervenor Sierra Club
Alfred S. Forsyth
51 W. 51st Street
New York, New York 10019

Before Smith, Kaufman and Mulligan, Circuit Judges