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Silentman v. Federal Power Comm'n

ELR Citation: 7 ELR 20758
Nos. No. 76-1192, 566 F.2d 237/10 ERC 1796/(D.C. Cir., 08/26/1977)

The court holds that the Federal Power Commission (FPC) may issue a conditional certificate of public convenience for a proposed coal gasification plant without writing a full National Environmental Policy Act (NEPA) environmental impact statement (EIS). The FPC initially held that it had jurisdiction over only the "tap and valve" portion of the plant, which is to be built in New Mexico, and that this involvement was not a major action for purposes of NEPA. Following reversal of this position in Henry v. FPC, 6 ELR 20508, the agency issued a certificate conditioned upon Commission approval of the environmental consequences of the project as developed in the EIS written by the lead agency, the Department of the Interior. Upon petitioners' challenge to this position, the court holds that, although agencies cannot avoid addressing the environmental aspects of an entire project because of their small involvement, they can rely on a lead agency's EIS. The Council on Environmental Quality's guidelines do not require that agencies issue their own EIS in these situations, because that would vitiate the lead agency concept. The lead agency statement must be issued prior to irreversible commitments of resources being made; the FPC's conditional certificate is not irreversible. Nonetheless, the FPC must consider environmental [aspects] of the project. This consideration will occur according to the present posture of the certificate. Therefore, petitioners' request that the FPC start its environmental proceedings anew must be denied.

Counsel for Petitioners
Richard W. Hughes
P.O. Box 306, Window Rock AZ 86515
(602) 871-4151

Counsel for Respondent

Thomas M. Walsh (with Drexel D. Journey, General Counsel; Robert W. Perdue, Deputy General Counsel; Allan Abbot Tuttle, Solicitor)
Federal Power Commission, Washington DC 20001
(202) 655-4000

Counsel for Intervenor Transwestern Pipeline Company
P.M. Schenkkan (with James W. McCartney, Norman D. Radford, Thomas D. Clarke)
Vinson & Elkins
2100 First City National Bank Bldg., Houston TX 77002
(713) 651-2222

Before WRIGHT and MACKINNON, Circuit Judges, and HOWARD T. MARKEY,* Chief Judge, United States Court of Customs and Patent Appeals.