Greene County Planning Board v. Federal Power Commission

No. 74-2638 (2d Cir. December 22, 1975)

ELR Digest

The court lacks jurisdiction over a petition submitted by the Greene County Planning Board seeking revocation of a Federal Power Commission construction permit issued for a "circuit tower" in Franklin County, New York. The tower would enable the New York Power Authority to import Canadian electricity to help meet the demands of New York City. Petitioner argues that the permit should be revoked because the FPC failed to comply with the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., ELR 41009, and the Federal Power Act, 16 U.S.C. § 8251(b). According to petitioner, these statutes require the FPC to consider environmental impacts before issuing a permit or license for a hydroelectric project. The court finds that Greene County has standing to sue even though it is located far from the project site. While there is no direct and immediate "injury in fact" to Greene County, the project could substantially alter transmission corridors throughout the state, and the County thus has a "real probability" of being affected by such changes. The court finds, however, that it lacks jurisdiction to hear the petition because the border crossing facility is not a "primary line" within the meaning of the Federal Power Act. It also points out that the project was specifically exempted from the requirements of NEPA by the Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. § 793(d), ELR 41231. Even if the Administrative Procedure Act did provide an independent basis for review, a question which is as yet undecided in the Second Circuit, such jurisdiction would lie originally in the district court, not in the court of appeals.

The full text of this opinion is available from ELR (18 pp. $2.25, ELR Order No. C-1014).

Counsel for Petitioner
Robert J. Kafin
Kafin & Needleman
8 Pine Street
Glens Falls, NY 12801
(518) 793-6631

Counsel for Respondent
Philip R. Telleen
Drexel D. Journey
John R. Staffier
Federal Power Commission
Washington, DC 20426
(202) 275-4346

Counsel for Intervenor New York State Power Authority
Scott B. Lilly
State Power Authority
10 Columbus Circle
New York, NY 10019
(212) 265-6510

Oakes, J. for himself, Wateman and Meskill, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]