Scenic Hudson Preservation Conference v. Callaway

4 ELR 20530 | Environmental Law Reporter | copyright © 1974 | All rights reserved


Scenic Hudson Preservation Conference v. Callaway

No. 74-1311 (2d Cir. June 11, 1974)

The Second Circuit Court of Appeals affirms a lower court ruling that Con Ed may not dump rock and fill material from its Storm King Project into the Hudson River without first obtaining a permit from the Corps of Engineers under § 404 of the Federal Water Pollution Control Act Amendments of 1972. An additional permit under § 10 of the Rivers and Harbors Act of 1899 is not necessary, and the court refuses to expand the lower court's limited injunction which allows construction activities other than filling to continue.

Counsel for Plaintiffs
Albert K. Butzel
Berle, Butzel, & Kass
425 Park Avenue
New York, N.Y. 10022

David Sive
Winer, Neuburger & Sive
425 Park Avenue
New York, N.Y. 10022

Angus MacBeth
Natural Resources Defense Council, Inc.
15 W. 44th Street
New York, N.Y. 10036

Counsel for Federal Defendants
Paul J. Curran U.S. Attorney
T. Gorman Reilly Asst. U.S. Attorney
Federal Building
641 Washington Street
New York, N.Y. 10014

Counsel for Defendant Consolidated Edison
G. S. Peter Bergen
Carl D. Hobelman
Andrew Gansberg
One Chase Manhattan Plaza
New York, N.Y. 10005

[4 ELR 20531]

PER CURIAM:

In this fourth appeal to this court involving the challenged Storm King Project, a hydroelectric facility slated to be built on the west bank of the Hudson River,1 defendant Consolidated Edison Company of New York, Inc. ("Con Ed") appeals from a portion of a final judgment entered in the United States District Court for the Southern District of New York, Morris E. Lasker, J. Plaintiffs (collectively "Scenic Hudson") cross-appeal from other parts of that judgment.

In the district court, plaintiffs contended that Con Ed could not dump rock and other fill material into the Hudson River, as planned, without first obtaining a permit from the United States Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1344. They also claimed that an additional permit was required by section 10 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 403. Judge Lasker agreed with Scenic Hudson on the need for a section 404 permit but held that Con Ed was not obliged to obtain a permit under section 10. He therefore granted plaintiffs' motion for summary judgment as to section 404, awarding them permanent injunctive and declaratory relief, and denied it as to section 10. The judge also granted Con Ed's motions for summary judgment dismissing the complaint and for declaratory relief as to the section 10 claim and denied it as to the section 404 claim. Both Scenic Hudson and Con Ed appeal from those portions of the judgment rejecting their respective positions. As to those issues, we affirm the judgment of the district court on the well-considered opinion of Judge Lasker. 370 F. Supp. 162 (1973).

Scenic Hudson's cross-appeal raises one additional question not dealt with in the court's written decision.2 Plaintiffs argue that the judge erred in limiting injunctive relief to the actual discharge of fill material into the River rather than enjoining construction activities of any kind. Their rationale for this claim is that commencement of excavation would exert "tremendous pressure" on the licensing agency to grant Con Ed's application. But there is also pressure on Con Ed to proceed as far and as fast as possible in order to avoid still further cost escalation and to preserve its license against a claim that it has not begun construction within the stipulated period. Under these circumstances, we cannot say that Judge Lasker abused his discretion in confining the injunction as he did.

We therefore affirm the judgment below in all respects.

1. For the prior history of this case in our court, see Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (1965), cert. denied, 384 U.S. 941 (1966) ("Scenic Hudson I") and Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (1971), cert. denied, 407 U.S. 926 (1972) ("Scenic Hudson II"). See also Hudson River Fishermen's Ass'n v. FPC, slip op. 3361 (2d Cir. May 8, 1974).

2. Plaintiffs moved to amend the judgment to expand the scope of injunctive relief. Judge Lasker denied the motion without opinion.


4 ELR 20530 | Environmental Law Reporter | copyright © 1974 | All rights reserved