455 F.2d 412 | 2d Cir. | 1972
We are called upon to assess the licensing procedures of the Federal Power Commission in a proceeding upon the ap
A brief statement of the proceedings thus far will aid in comprehending the arguments advanced. On August 15, 1968, PASNY filed an application to construct, operate and maintain a 1,000,000 kilowatt pumped storage power project
PASNY applied for construction authorization of the three lines on November 24, 1969. When no protests or petitions were filed with respect to the Gil-boa-New Scotland and Gilboa-Fraser lines, the Commission approved construction of these two lines without holding a hearing. Power Authority of the State of New York, Project No. 2685, 43 F.P.C. 521 (April 10, 1970). Nevertheless, the Commission, after conducting a full inspection and conferring with PASNY’s staff and consultants, “concluded that from an aesthetic and environmental values point of view, the selected locations of the two lines involved herein are preferable to all of the alternative routings that were considered.” Id. at 522-523.
The Commission, however, received several protests with respect to the Gil-boa-Leeds line which was to run from the project in Schoharie County, through the Durham Valley, past the town of Durham (in Greene County) to the Leeds Substation less than two miles from the Hudson River near Catskill. Motions to intervene were filed by the Greene County Planning Board, the Town of Durham, the Association for the Preservation of the Durham Valley,
NEPA became effective on January 1, 1970, after PASNY applied for the transmission line permits, but before the permits were issued for the Gilboa-New Scotland and Gilboa-Fraser lines. It was not until almost a year later, on December 2, 1970, that the Commission issued Order No. 415 to implement procedures in accord with NEPA. 18 C.F.R. §§ 2.80-.82 (January 1, 1971). Section 2.81 (b) of the regulations required each applicant for a license for a “major project” to file its own detailed statement of environmental impact developing fully the five factors listed in section 102(2) (C) of NEPA.
In accordance with Commission regulations, PASNY filed its impact statement on March 26, 1971, covering the proposed Gilboa-Leeds line and two alternative routings. The Commission reviewed the statement as to sufficiency of form, see 18 C.F.R. § 2.81(b) (January 1, 1971), and then circulated it for comment to agencies with “special expertise with respect to any environmental impact involved.”
Finally, by order issued May 4, 1971, the Commission ordered a hearing on PASNY’s proposals and set a prehearing conference for June 22, 1971. At this conference, Durham and Greene County moved that PASNY, or alternatively the Commission, pay the expenses and fees, including attorneys’ fees, incurred by the intervenors in the proceeding. Greene County also requested the Presiding Examiner to set a date for the Commission to file its own impact statement pursuant to NEPA. Then, by motions filed July 6 and July 12, 1971, the intervenors moved for an order vacating, rescinding or suspending the June 6, 1969, license of the entire project and enjoining further construction, alleging that the Commission did not comply with the notice requirements of the Federal Power Act and the mandates of NEPA.
The Presiding Examiner denied each of the motions, and the movants filed timely notices of appeal to the Commission. See 18 C.F.R. § 1.28 (January 1,
Before passing to the merits of petitioners’ contentions, we note that the latest round of hearings commenced on November 9, 1971. Petitioners moved for a stay of these hearings in this Court, but the motion was denied on November 1. To date, the hearings have been concerned with cross-examination of PASNY and Commission witnesses. They are expected to continue for several months. In addition, the entire project, exclusive of the Gilboa-Leeds transmission line, is now more than 80% complete.
I. COMPLIANCE WITH NEPA
A. Gilboa-Leeds Transmission Line
Section 102(2) (C) of NEPA, as we stated at the outset, requires every federal agency to “include in every recommendation or report on proposals for . major Federal actions significantly affecting the quality of the human environment” a detailed environmental impact statement. Prior to making the statement, the agency must “consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.” The detailed statement, however, “must accompany the proposal through the existing agency review processes . . . . ”
It is conceded that authorization of the Gilboa-Leeds line, an integral part of the Blenheim-Gilboa Project, would constitute a major federal action. The parties, however, are in vigorous disagreement over when the Commission must make its impact statement. The Commission argues that PASNY’s statement, reviewed as to form by the Commission and circulated by it, suffices for the purposes of Section 102(2) (C) and that the Commission is not required to make its own statement until it files
Section 101(a) of NEPA, 42 U.S.C.A. § 4331(a), declares that “it is the continuing policy of the Federal Government ... to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” To this end the government must “coordinate Federal plans, functions, programs, and resources. .. . ” NEPA § 101(b), 42 U.S. C.A. § 4331(b). As long as six years ago, this Court remanded a case to the Commission because, in granting á ' license for the construction of a similar pumped storage power project at Storm King Mountain on the Hudson River, it had failed to weigh the factors of “the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.”
In addition to the environmental impact statement, Section 102(2) requires the agency, inter alia, to:
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planing and in decisionmaking Which may have an impact on man’s environment;
* * * * * *
(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
-X- * * * * tf-
*420 (E) recognize the worldwide and long-range character of environmental problems ....
We view this section as did the District of Columbia Circuit. It is a mandate to consider environmental values “at every distinctive and comprehensive stage of the [agency’s] process.” The primary and nondelegable responsibility for fulfilling that function lies with the Commission. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1119 (D.C. Cir. 1971) (holding that rules of the AEC which did not require a detailed statement in an uncontested licensing proceeding did not comply with Section 102(2) (C)).
The Federal Power Commission has abdicated a significant part of its responsibility by substituting the statement of PASNY for its own. The Commission appears to be content to collate the comments of other federal agencies, its own staff and the intervenors and once again to act as an umpire.
Moreover, although decisions like Scenic Hudson I have greatly expanded the concept of standing to challenge administrative action,
The danger that the review process will bog down once an initial decision has been rendered is fully recognized by the Council on Environmental Quality
It is important that draft environmental statements be prepared and circulated for comment and furnished to the Council early enough in the agency review process before an action is taken in order to permit meaningful consideration of the environmental issues involved. To the maximum extent practicable no administrative action . is to be taken sooner than ninety (90) days after a draft environmental statement has been circulated for comment, furnished to the Council and . . . made available to the public ....
It is interesting that the Commission relies on these Guidelines to sustain its position. Initially, it directs us to Section 7 which would allow an agency, when it seeks the advice of other agencies pursuant to Section 102(2) (C), to circulate “(i) a draft environmental statement for which it takes responsibility or (ii) comparable information . . . . ” And, Section 2.81(b) of the Commission’s latest rules (issued after the Guidelines) provides that the applicant’s draft statement “shall be deemed to be information comparable to an agency draft statement pursuant to Section 7 of the Guidelines of the Council on Environmental Quality.” The Commission then calls our attention to Section 10(e) of the Guidelines, which provides:
Agencies which hold hearings on proposed administrative actions or legislation should make the draft environmental statement available to the public at least fifteen (15) days prior to the time of the relevant hearings except where the agency prepares the draft statement on the basis of a hearing subject to the Administrative Procedure Act and preceded by adequate public notice and information to identify the issues and obtain the comments provided .for in sections 6-9 of these guidelines.
The Commission argues that the proviso relieves it of its obligation to prepare an environmental statement prior to the licensing hearings and that the applicant’s statement, “information comparable” to a statement of its own, sufficiently identifies the issues. Although the Guidelines are merely advisory and the Council on Environmental Quality has no authority to prescribe regulations governing compliance with NEPA, we would not lightly suggest that the Council, entrusted with the responsibility of developing and recommending national policies “to foster and promote the improvement of the environmental quality,” NEPA § 204, 42 U.S.C.A. § 4344, has misconstrued NEPA. Although the Commission’s interpretation of Section 10(e) of the Guidelines is superficially appealing, it flies in the face of Section 102(2) (C) of NEPA which explicitly requires the agency’s own detailed statement to “accompany the proposal through the existing agency review processes.”
Though we conclude that the Commission was in violation of NEPA by conducting hearings prior to the preparation by its staff of its own impact statement,
In light of our foregoing discussion, we must consider the most efficient procedure for ensuring that the policies of NEPA are implemented in Commission proceedings on the Gilboa-Leeds line. For the reasons we have set forth, we deem it essential that the Commission’s staff should prepare a detailed statement before the Presiding Examiner issues his initial decision. Moreover, the intervenors must have a reasonable opportunity to comment on the statement. But, since the statement may well go to waste unless it is subject to the full scrutiny of the hearing process, we also believe that the intervenors must be given the opportunity to cross-examine both PASNY and Commission witnesses in light of the statement. “Often individuals and groups can contribute data and insights beyond the expertise of the agency involved.” CEQ Report, 1 Environmental L.Rep. at 50059. We leave to the Commission to determine the most efficient procedure for meeting this mandate.
Fully recognizing that delay unfortunately is incident to our mandate and PASNY’s claim that the Blenheim-Gilboa Project is a vitally needed power facility, we can only add our voice to that of the District of Columbia Circuit in Calvert Cliffs’: Delay is a concomitant of the implementation of the procedures prescribed by NEPA, and the spectre
The petitioners inform us also that the Commission has violated its comprehensive planning duties by not requiring PASNY to divulge in its environmental statement any plans it may have with respect to future power projects and transmission lines. PASNY has indicated that this line is part of a plan which may include an additional massive pumped storage hydroelectric project with attendant transmission lines. The Commission responds that its planning responsibility under Section 10(a) of the Federal Power Act, 16 U.S.C. § 803 (a),
We cannot agree with petitioners that the Commission erred when it did not require PASNY to supplement its impact statement. NEPA places the onus of formulating the statement solely on the Commission, and, unless there is any indication that the Commission’s procedures will not allow it to comply with its statutory duty this Court should defer to the Commission’s discretion as to the proper information gathering techniques.
In an effort to avoid any confusion or misunderstanding on remand, we are constrained to comment on the Commission’s planning responsibility. Under Section 10(a) of the Federal Power Act, the Commission cannot issue a license unless the project is “best adapted to a comprehensive plan . . . for the improvement and utilization of waterpower development and for other beneficial public uses, including recreational purposes; . . . ” In Scenic Hudson I we commented that the Commission’s failure to inform itself of Consolidated Edison’s future interconnection plans “cannot be reconciled with its planning responsibility under the Federal Power Act.” 354 F.2d at 622. And, less than two years later, Justice Douglas writing for the Supreme Court in Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967), made it clear that the Federal Power Act does not command the immediate construction of as many projects as possible and that the determination whether to license any one project “can be made only after an exploration of all issues relevant to the ‘public interest,’ including future power demand and supply, alternate sources of power, [and] the public interest in preserving reaches of wild rivers and wilderness areas. . . . ” Id. at 450, 87 S.Ct. at 1724. Although these decisions may not have established long-range planning requirements,
The Commission’s “hands-off” attitude is even more startling in view of the explicit requirement in NEPA that the Commission “recognize the worldwide and long-range character of environmental problems” and interpret its mandate under the Federal Power Act in accordance with the policies set forth in NEPA. NEPA §§ 102(1), (2) (E), 42 U.S.C.A. §§ 4332(1), (2) (E). Any doubt about the intent of these provisions is obviated by the following statement in the Senate Report accompanying the Act:
“Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man’s future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades.” S.Rep.No.91-296, 91st Cong., 1st Sess. 5 (1969).
The Commission has indicated that the June 6, 1969, license of the Blenheim-Gilboa Project did not commit it to authorize construction of the Gilboa-Leeds line. But we fail to see how the Commission, if it is to fulfill the demanding standard of “careful and informed deci-sionmaking,” Calvert Cliffs’, 449 F.2d at 1115, can disregard impending plans for further power development. For example, it may be that it would be proper to defer decision on the Gilboa-Leeds line until these plans were crystallized, particularly if there is a likelihood that future development might affect the optimum location of the line or even make the line unnecessary. Although the basic defect of current planning and licensing processes is “the inevitably narrow scope of the decision the agency [has] to make: whether or not to license a single and specific [project],”
B. Blenheim-Gilboa Project and Approved Transmission Lines
Petitioners ask us to stay construction of the pumped storage facility and the two approved transmission lines, now 80% complete, pending compliance with NEPA.
With respect to the Gilboa-New Scotland and Gilboa-Fraser lines, however, there can be no question that the Commission failed to comply with NEPA. The lines were approved on April 10, 1970, but the Commission failed to issue the requisite detailed environmental
II. EXPENSES AND FEES
The petitioners’ final request is for an order requiring PASNY, or in the alternative the Commission, to pay the expenses and fees incurred by petitioners. Recognizing as they do that a rule requiring reimbursement of all intervenors would be subject to abuse, they limit their request to reasonable out-of-pocket expenses, including fees for experts as they are incurred, and reasonable attorneys’ fees at the conclusion of the proceedings before the Commission in the event that their participation is determined to have been in the public interest.
As we read the Commission’s order of October 29, 1971, the Commission denied petitioners’ motion for payment of fees on the ground that it had no authority to grant them. But, in an effort to buttress its argument that the petitions for review are in this regard untimely, the Commission now argues that it has foreclosed only the present award of fees and has left open the question of whether ultimately to award them when the proceedings have come to an end. Whether or not the Commission will entertain renewed motions at the close of its proceedings, we find that the petitions are timely and that this Court has jurisdiction to review the Commission’s order.
Section 313(b) of the Federal Power Act, 16 U.S.C. § 825Z(b) provides that “[a]ny party to a proceeding under [the Act] aggrieved by an order issued by the Commission in such proceedings may obtain a review of such order . . . . ” This language, unlike those provisions limiting review to “final orders,” see, e. g., Section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f), seemingly would allow review of all Commission orders. But the courts, sensitive to the policies underlying the requirement of exhaustion of administrative remedies, have declined jurisdiction where the issues raised could be disposed of in review of a final Commission order without serious detriment to the rights of the parties. See, e. g., Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383-384, 58 S.Ct. 963, 82 L.Ed. 1408 (1938); Mid-America Pipeline Co. v. Federal Power Commission, 112 U.S.App.D.C. 42, 299 F.2d 126 (1962). Review is available, however, where an interlocutory order has “an
In accordance with these precepts we find that the petitions are reviewable. Despite the Commission’s argument that petitioners have made an inadequate showing of financial hardship, it is clear to us that a refusal to award petitioners expenses as they are incurred, particularly expenses related to production of expert witnesses, may significantly hamper a petitioner’s efforts to represent the public interest before the Commission.
Having determined that the petition for review is timely, we find ourselves in agreement with the Commission’s position that at this posture of the proceedings and under current circumstances, without a clearer congressional mandate we should not order the Commission or PASNY to pay the expenses and fees of petitioners, either as they are incurred or at the close of the proceedings.
Petitioners rely on two provisions of the Federal Power Act — Sections 309 and 314(c), 16 U.S.C. §§ 825h, 825m(c) — and buttress their interpretations of those sections with the mandate in Section 102(1) of NEPA that all public laws, “to the fullest extent possible,” should be interpreted in accordance with national environmental policies. Section 309 empowers the Commission “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of [the Federal Power Act].” Although this section, which carries the title “Administrative powers of Commission; rules, regulations, and orders,” is not restricted to “procedural minutiae,” Niagara Mohawk Power Corporation v. Federal Power Commission, 126 U.S.App.D.C. 376, 379 F.2d 153, 158 (1967) (FPC empowered to backdate a license), we perceive no basis in the terms of the provision to extend the Commission’s power to include paying or awarding the expenses or fees of inter-venors. We would need a far clearer congressional mandate to afford the relief requested, especially in dealing with counsel fees, when Congress has not hesitated in other circumstances explicitly to provide for them when to do so was in the public interest. See Clayton Act, 15 U.S.C. § 15; Communications Act of 1934, 47 U.S.C. § 206; Interstate Commerce Act, 49 U.S.C. § 16(2).
Nor is there any basis for reaching a different conclusion with respect to counsel fees under Section 314(c) of the Federal Power Act. It provides that “[t]he Commission may employ such attorneys as it finds necessary for proper legal aid and service of the Commission . . .” The legislative history bears out the only reasonable interpretation so clear on the
Finally, petitioners rely on the Supreme Court’s decision in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), which held that plaintiffs who successfully brought a derivative action under Section 14(a) of the Securities Exchange Act of 1934 were entitled to an award of costs, including counsel fees, against the corporation, even if the corporation recovered no money as a result of the action. Noting that the Securities Exchange Act did not provide for counsel fees, the Court based its decision on its equitable power to enforce the policies of the Act and to prevent unjust enrichment: “The dissemination of misleading proxy solicitations was a ‘deceit practiced on the stockholders as a group,’ J. I. Case Co. v. Borak, 377 U.S. [426], at 432 [84 S.Ct. 1555, at 1560, 12 L.Ed.2d 423], and the expenses of petitioners’ lawsuit have been incurred for the benefit of the corporation and the other shareholders.” 396 U.S. at 392, 90 S.Ct. at 625. Whether or not Mills could support such an award as petitioners seek without a more specific congressional mandate,
Fully mindful that petitioners invoke our equitable powers, we cannot ignore parallel developments in this rapidly changing area of administrative law. As recently as December 7, 1971, the Administrative Conference of the United States refused to adopt a recommendation which would have endorsed the principle of reimbursing the legal expenses incurred by intervenors in administrative proceedings. The Conference, however, did adopt a recommendation which would oblige agencies to minimize filing and distribution requirements, to minimize the costs of obtaining transcripts, to make available the agency’s technical files and to experiment with allowing access to their staff as advisers and witnesses. Recommendation 28, Public Participation in Administrative Hearings § D, adopted December 7, 1971. Without a showing of compelling need, it would be premature for us to inject the federal courts into this area of administrative discretion, perhaps foreclosing more flexible approaches through agency action or rules.
The petitions for review are granted in part and denied in part, and the case is remanded for further proceedings in accordance with this opinion.
. Application was made pursuant to Section 4(e) of the Federal Power Act, 16 U. S.C. § 797(e), which provides in pertinent part:
The Commission is hereby authorized and empoweml—
•I* *i*
(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam.
. See S.Rep.No.91-296, 91st Gong., 1st Sess. 20 (1969) ; Environmental Quality, the Second Annual Report of the Council on Environmental Quality ch. 5 (Aug. 1971), reprinted in 1 Environmental L. Rep. 50057, 50064 [hereinafter cited as GEQ Report].
. See generally Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 Rutgers L.Rev. 230 (1970) ; Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 Environmental L.Rep. 50035.
. A pumped storage power facility is designed to provide energy during the hours of peak kilowatt demand. The functioning of such a facility is explained in our decision in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 612 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). See also Loving, A Vast New Warehouse for Electricity, Fortune 88 (Dec. 1971).
. Exhibit R to PASNY’s application proposed a recreational use plan including overlook areas and a State Park.
. Other restrictions on the license included provisions for flood control, additional studies with respect to fish and wildlife resources, protection for the covered Blenheim Bridge and development of a plan to blend the project works with the natural view.
. The Association is a voluntary, unincorporated, nonprofit association organized in 1969 to protect and preserve the scenic, historical and ecological values of the Durham Valley area. In January, 1970, the Association had over 100 members who in the aggregate owned more than 5,000 acres of land in Durham Valley and its immediate vicinity.
. The individual intervenors own land in the Durham Valley.
. The five factors are:
(i) the environmental impact of the proposed action.
(ii) any adverse environmental effects which cannot be . avoided should the proposal be implemented.
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
. Under Section 2.81(e) (1), the Commission staff was expected to “specifically analyze and evaluate the evidence in the light of the environmental criteria 1)
The Commission revised its rules by Order No. 415-B, issued November 19, 1971. 36 Fed.Reg. 22738 (Nov. 30, 1971). Section 2.81 no longer requires the Commission to prepare its own statement in uncontested proceedings.
. The statement was circulated to the Hudson River Valley Commission, the Secretary of the Interior, the Secretary of Agriculture, the Army Corps of Engineers, the New York Department of Environmental Conservation and the Environmental Protection Agency.
. Intervenors made several motions, either orally or in writing, which are not recounted here, since they were merely variations of the theme we already have presented.
Intervenors, however, unsuccessfully moved that they be provided copies of the transcript without charge, that their non-expert witnesses be allowed to testify orally without first filing written testimony, and that the hearings be held in Greene County. The Commission denied appeals from the Presiding Examiner’s decisions, noting that it is within his discretion to determine procedural matters relating to the hearings. Although petitioners preserved their objections to the Presiding Examiner’s decisions by petitioning for review of the Commission’s orders, they have not raised these issues on appeal. Nevertheless, we are constrained to note that the Commission at nearly every turn has made it difficult procedurally for the intervenors. For example, intervenors were forced to go to court to compel disclosures under the Freedom of Information Act. See Town of Durham v. Federal Power Commission, 71 Civ. 3993 (S.D.N.Y. Oct. 26, 1971). We suggest that the Federal Power Commission, as „well as other Federal Agencies, must review their rules. and rethink encrusted, entrenched positions in light of the provision in NEPA that, “to the fullest extent possible,” all regulations of the agencies must be interpreted and administered in accordance with the policies of the Act. NEPA § 102(1), 42 U.S.C.A. § 4332(1). We fully agree wih the Council on Environmental Quality that compliance is required not only with the letter, but the spirit of the Act. Council on Environmental Quality, Guidelines § 1, 36 Fed.Reg. 7724 (April 23, 1971).
. Section 1.28(c) of the Commission’s rules provides in part:
(c) Commission action. Unless the Commission acts upon questions referred by presiding officers to the Commission for determination or upon appeals taken to the Commission from rulings of presiding officers within thirty days after referral or filing of the appeal, whichever is later, such referrals or appeals shall be deemed to have been denied.
. We are told that more than 75% of the estimated $160,000,000 total cost has been spent or committed.
. Section 102(2) (C) provides in full:
Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: . . . (2) all agencies of the Federal Government shall—
* * * *
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes.
. The decision was based upon Section 10(a) of the Federal Power Act, 16 U.S.C. § 803, which provides:
All licenses issued under this Part shall be on the following conditions:
(a) That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of *he plans and specifications of the project works before approval.
See also Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967).
. See Hanks & Hanks, supra note 3, at 265-269.
. The Commission did not face squarely the issue of compliance with NEPA in its orders. In upholding the Presiding Examiner’s refusal to delay the hearings until the Commission had prepared its statement, the Commission said:
. . . they [Durham and Greene County] simply ask the Commission to reconsider that which the Presiding Examiner found to be not in the public interest. For the reasons given in connection with the preceding appeal [the Presiding Examiner has broad discretion over hearing procedures], reconsideration of such procedural matter will be denied ....
. Cf. Scenic Hudson I, 354 F.2d at 619:
“self-serving general statements by officials of Consolidated Edison . . . .”
. See, e. g., Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ; Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970). See generally Hanks & Hanks, supra note 3, at 231-244; Peterson, supra note 3, at 50047-48.
. See Calvert Cliffs’, 449 F.2d at 1118-1119 (“It is, moreover, unrealistic to assume that there will always be an inter-venor with the information, energy and money required to challenge a staff recommendation which ignores environmental costs.”) ; Gellhorn, Public Participation in Administrative Hearings, Report Prepared for the Committee on Agency Organization and Procedure of the Administrative Conference of the United States 29-37 (October 29, 1971).
. The Council was established pursuant to Subeliapter II of NEPA, 42 U.S.C. § 4341 et seq. Its duties include assisting the President in the preparation of the annual Environmental Quality Report to be transmitted to Congress and conducting investigations and developing programs concerning environmental quality.
. An alternative interpretation, and one we would deem acceptable under the Act, is that the agency may hold two hearings —one solely to gather information to aid the Commission in formulating its statements, the second to consider the merits of the license application.
It is interesting to note that the Council on Environmental Quality assumed that when the Commission circulated the PASNY report, it subsequently would circulate its own report. In its June 1971
Applicant’s drafts. (These are not official FPC drafts. They will be followed by staff-prepared draft statements.) . . ' .
. In its brief to this Court, the Commission argued that it would be in contravention of Section 8(a) of the Administrative Procedure Act, 5 U.S.C. § 557, which prohibits Commission participation in the decision-making process until the record is completely developed, if it were required to adopt a position in an environmental impact statement. Certainly no one has suggested that the detailed statement prepared before ‘the bearings must be prepared by the Commission members. It is sufficient for the purposes of NEPA if the statement is prepared by the Commission’s staff on the basis of the staff’s investigations. Counsel for the Commission conceded at oral argument that this procedure would not violate the APA. Bee also Section 6(d) of the Guidelines of the Council on Environmental Quality :
Where an agency follows a practice of declining to favor an alternative until public hearings have been held on a proposed action, a draft environmental statement may be prepared and circulated indicating that two or more alternatives are under consideration.
. See note 16 supra.
. PASNY is making a study to determine the physical, environmental and economic feasibility of constructing additional pumped storage facilities downstream from the Blenheim-Gilboa project.
. The author of this opinion has suggested that:
a major share of the blame for the unnecessary delays and ineffectual public planning in the United States may be laid at the doorstep of fragmented government regulation of power development. We sorely lack a federal agency — with sufficient authority, power and purse to choose among the infinite patterns of potential development — responsible for planning and controlling the growth and dispersal of electric generating capacity over a realistically extensive span of space and time.
Kaufman, Power for the People — and by the People: Utilities, the Environment and the Public Interest, 46 N.Y.U.L.Rev. 867, 872-873 (1971).
. Id. at 872.
. Petitioners before the Commission also challenged the license and the approval of the Gilboa-New Scotland and Gilboa-Fraser lines on the ground that the Commission did not comply with the notice provisions of the Federal Power Act, and the lengthy order of October 28, 1971, deals solely with that point. Petitioners have not raised the objection here.
. See generally Note, Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich.L.Rev. 732 (1971).
. See, e. g., Guidelines for the Protection of Natural, Historic, Scenic, and Recreational Values in the Design and Location of Right-of-Way and Transmission Facilities, Report of the Working Committee on Utilities of the President’s Council on Recreation and Natural Beauty (Dec. 27, 1968), reprinted in Commissioner Bagge’s concurrence in the June 6, 1969, license. 41 F.P.C. at 725.
. See page 420 and note 21 supra.
. See Note, The Allocation of Attorneys Fees after Mills v. Electric Auto-IAte, 38 U.Chi.L. Rev. 316, 329-330 (1971).