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

ELR Citation: 7 ELR 20101
Nos. No. 76-4151, 559 F.2d 1227/9 ERC 1611/(2d Cir., 12/08/1976) Remanded for reconsideration of attorney fees request

The Second Circuit Court of Appeals rules that the Federal Power Commission (FPC fulfilled its obligations under the National Environmental Policy Act and the Federal Power Act in deciding to authorize construction of an electrical transmission line through the scenic Durham Valley. The case must be remanded to the FPC, however, for reconsideration of the agency's denial of petitioners' requests for reimbursement of attorney fees and witness expenses. The court concurs in the FPC's conclusion that the Gilboa-Leeds transmission line is an appropriate unit for environmental impact statement (EIS) coverage. The Commission found, on the basis of substantial evidence, that the line is necessary in order for the state to make optimal use of the existing Gilboa pump storage facility, and the project thus has independent utility. The EIS therefore need not encompass related present and future proposals. Furthermore, the FPC adequately considered alternative routes and the possibility that the line may ultimately be upgraded from 345 to 765 kilovolts. The Commission did not abuse its discretion in refusing to reopen the record to consider new evidence concerning the recent decline in New York power consumption levels and the successful operation of the Gilboa facility without the Gilboa-Leeds line, since these facts at best only partially undercut the agency's determination that the line is necessary. The FPC based its denial of attorney fees and witness expenses on the conclusion that it lacked authority to make such payments and that none of the intervenors deserved compensation in any event. A recent authoritative opinion issued by the Comptroller General indicates that the FPC does in fact have the power to pay intervenors for these expenses under certain circumstances. Because it appears the intervenors in this case may be able tomeet the standard enunciated by the Comptroller General, the equitable course of action is to remand the compensation issue to the Commission.

A dissent argues that the majority errs in according the Comptroller General's opinion as much authority as a statute or Supreme Court decision, and that the FPC should in any event not be made to reconsider its discretionary determination not to award compensation.

Counsel for Petitioners
Robert J. Kafin
8 Pine St.
Glens Falls NY 12801
(518) 793-6631

Barry H. Garfinkel
Skadden, Arps, Slate, Meagher & Flom
918 Third Ave.
New York NY 10022
(212) 371-6000

Counsel for Respondent
Philip R. Telleen
Drexel D. Journey
Robert W. Perdue
Allan A. Tuttle
McNeil Watkins, II
David P. Boergers
Federal Power Commission
Washington DC 20426
(202) 275-4346

Counsel for Intervenor Power Authority of the State of New York
Thomas F. Moore, Jr.
Scott B. Lilly
John C. Mason
Power Authority of the State of New York
10 Columbus Circle
New York NY 10019
(212) 265-6510

Joined by Bonsal, J.*; Van Graafeiland, J., dissents.