In Scenic Hudson Preservation Conference v. Federal Power Commission, environmentalists successfully prevented the government from building an environmentally destructive power plant in New York State. The case represented one of the environmental movement’s first successful uses of litigation, and the ruling by the U.S. Court of Appeals for the Second Circuit established that environmentalists had legal standing to sue on behalf of the environment.
During the 1960’s, there was increasing public awareness of the environmental problems that accompanied technological advances. What later became known as the Scenic Hudson Preservation Conference began as a group of citizens concerned about the effects of a new water-storage facility and electric power plant in the lower Hudson Valley. The project was proposed in 1965 by Consolidated Edison
The Storm King hydroelectric plant would have been the largest in the world. The design called for a tunnel forty feet wide, a large pumping and generating station, eight pump generators, an 8-billion-gallon mountaintop reservoir, and twenty-five miles of electric lines strung 125 feet above the ground. From the reservoir, which was to be built on the western bank of the Hudson River near the top of Storm King Mountain, transmission lines were to run under the river to the opposite bank and through two intervening counties to the power plant’s main connection with New York City, which was yet one more county removed. The path of the power lines between the Hudson River and the city’s connection point would have been more than a hundred feet wide.
Consolidated Edison Company intended for the plant to provide New York City with electricity. When demand for electricity in New York rose, the reservoir water would flow down the mountain and rotate the turbines to generate electricity. During nonpeak hours, already existing steam plants would power the pumps at Storm King, forcing water back up the tunnel to the reservoir at the top of the mountain.
The Federal Power Act
In the case of Consolidated Edison’s request, the commission received an examiner’s report, after which oral arguments were heard in a hearing in November, 1964. Two months later, the commission granted a license for the Storm King project. A short time earlier, a private group of local residents had drafted an alternative plan, but the group was denied a second hearing in which to present their information and evidence. The Federal Power Commission also denied motions to expand supplemental meetings to consider issues such as the practicality and cost of underground lines or the feasibility of trying to protect the river’s fish. The citizens thereupon formed an organization called the Scenic Hudson Preservation Conference and sued the Federal Power Commission and the power company.
Among the issues before the U.S. Court of Appeals for the Second Circuit,
Perhaps the most important issue before the court concerned the question of who has the legal right to intervene, and when, in an administrative case concerning the environment. Both the commission and Consolidated Edison sought to have the case dismissed on the basis that the conservation groups and town had no standing to sue on behalf of the environment; “standing” is the right of an individual to seek legal redress for an injury, typically an economic injury.
The remaining issues the court had to decide were whether the Federal Power Commission should be required to consider alternatives to plans proposed by a license applicant and whether the commission should be required to seek facts other than those presented by the applicant. In the original hearing on November 17, 1964, only verbal arguments were presented. One expert had introduced information about gas turbines as a possible alternative; the commission had recommended further study of this and other alternatives but had not pursued the matter.
Congress had made the Federal Power Commission responsible for considering various aspects of a plan, including engineering, navigation, and short- and long-term effects on the environment. The commission was above all required to protect the public when licensing a new power plant, and it was supposed to take the initiative in seeking relevant information concerning the project. In the course of the Scenic Hudson case, it was established that the commission that granted Consolidated Edison a license had, among other things, refused to allow fishing groups or a representative from the Department of the Interior to present evidence about the fish that spawn in the Hudson River. The rush of water from the power plant would have destroyed fish eggs and young fish.
On December 29, 1965, the Court of Appeals ruled that the Scenic Hudson Preservation Conference had the right to bring suit because of its aesthetic, conservational, and recreational interest in the area. The court further declared that the group had standing because the Storm King project might inflict economic injury on its members collectively; portions of the hiking trails would be flooded once the reservoir was filled, and transmission lines might decrease property values and thus the amount of property taxes collected. As a result, the court set aside the licensing order for the Storm King project, ruling that the Federal Power Commission had shown no concern for natural resource conservation, possible side effects, or alternative plans.
The commission was ordered to review its findings. It did so, and again granted the power company a license. In 1972, the court reviewed the second licensing proceedings and again ruled to deny Consolidated Edison the license. The commission was told a second time to review the issues but again refused to alter its findings, leading the court to review the commission decision yet a third time. The stalemate ended when Consolidated Edison in 1980 withdrew its application for the Storm King plant. In return, conservation groups agreed to ease their pressure to stop a nearby nuclear power complex. The power company and four other power companies eventually built a fish hatchery in the area and stocked the river with fish.
The case of Scenic Hudson Preservation Conference v. Federal Power Commission set an incalculably important precedent for the legal pursuit of environmental issues. The decision gave the emerging conservation movement a powerful weapon in fighting threats to the environment. Perhaps most important was the fact that the ruling firmly established the legal standing of environmental groups to sue federal agencies on behalf of the environment. Hundreds of cases, many of them successful, succeeded Scenic Hudson, and in the following decades, environmental organizations used litigation to stop dams, protect national parks, revise offshore leasing agreements, and enforce regulations already in place.
Occurring at a time when legal standards for environmental cases were just beginning to be established, Scenic Hudson established that the decisions of federal agencies would no longer be automatically approved by the courts without substantive questioning of the issues involved. Moreover, the case established the importance of public input and the use of citizen experts as well as professionals, both for the decision-making process and as an enforcement tool. The ground won by the case was reflected in many later environmental laws, especially the National Environmental Policy Act of 1969, the amended Clean Air Act of 1970, and the amended Clean Water Act of 1972.
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Bonine, John E., and Thomas O. McGarity. The Law of Environmental Protection: Cases, Legislation, Policies. 2d ed. St. Paul, Minn.: West, 1992. A textbook of modern environmental law beginning with the National Environmental Policy Act of 1969. -
Hoban, Thomas More, and Richard Oliver Brooks. Green Justice: The Environment and the Courts. Boulder, Colo.: Westview Press, 1987. Reviews the principles and processes of environmental law, with an emphasis on historical context and perspective. -
Mandelker, Daniel R., and Roger A. Cunningham. Planning and Control of Land Development. Charlottesville, Va.: Michie, 1990. A casebook on land-use law and regulation. -
Shaw, Bill. Environmental Law: People, Pollution, and Land Use. St. Paul, Minn.: West, 1976. A multidisciplinary text that examines the relationships between law, the sciences, and other fields as they relate to the environment. -
Talbot, Allan R. Power Along the Hudson: The Storm King Case and the Birth of Environmentalism. New York: Dutton, 1972. The only major treatise devoted entirely to the Scenic Hudson case. Bibliography and maps. -
Weinberg, Philip. Environmental Law: Cases and Materials. 2d ed. San Francisco: Austin & Winfield, 1998. Summaries of major environmental court cases, with questions and discussions following each case.
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