Pogliani v. United States Army Corps of EngineersPogliani v. United States Army Corps of Engineers
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 13, 2001, plaintiffs, concerned citizens and/or property owners in or near the Town of Athens, New York, filed a complaint seeking to permanently enjoin defendant, the United States Army Corps of Engineers (“the Army Corps”), from issuing a permit to proposed intervenor, Athens Generating Company (“Athens Generating”), for construction of a 1080 megawatt gas-fired power plant in Athens,
Also on June 13, 2001, Athens Generating filed a motion to intervene in this action as a defendant via Order to Show Cause. On June 18, 2001, the Court conducted a hearing via telephone in connection with the parties’ arguments on the TRO and deferred argument on the issue of intervention by Athens Generating pending receipt of papers by plaintiffs in opposition to said relief. The Court denied plaintiffs’ TRO application orally at the conclusion of said telephone conference and by written Order dated June 28, 2001, but set the return date for plaintiffs’ motion for a preliminary injunction for July 5, 2001.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 1997, Athens Generating, an indirect wholly owned subsidiary of Pacific Gas & Electric Corporation (“PG&E”), commenced a state administrative proceeding by submitting a “pre-ap-plication” report, required to obtain a Certificate of Environmental Compatibility and Public Need (“certificate”) for construction of a major electric generation facility,
1
to the New York State Board on Electric Generation Siting and the Environment (“Siting Board”) under Article X of the New York Public Service Law (“Article X”).
See
N.Y. Pub. Serv. Law § 160
et seq.
2
The Siting Board and Athens Generating thereafter received public input concerning the report by way of public hearings, mail, telephone and the internet. The Siting Board and Athens Generating simultaneously engaged in a formal stipulation process which defined
Administrative Law Judges from the New York State Department of Environmental Conservation (“DEC”) and the New York State Department of Public Service (“DPS”) were appointed to serve as Hearing Examiners. The Hearing Examiners conducted a prehearing conference and public statement hearings in November 1998 and following pre-filed testimony on all issues, held evidentiary hearings in March, April and June 1999. After a round of initial and reply briefs from various parties including some voluntary citizens’ groups, the Hearing Examiners issued a 339-page recommended decision on September 3, 1999, suggesting that the Siting Board grant a certificate, subject to a number of specified terms and conditions.
Interested parties filed exceptions to the recommended decision to the Siting Board in addition to further briefs opposing the exceptions, in September and October 1999. On November 30, 1999, the Siting Board Chair requested supplemental information from Athens Generating concerning the plant’s cooling technology, visual impacts, and related issues. On remand, the Hearing Examiners considered a number of issues, including the facility’s proposed configuration if dry cooling technology were to be utilized. Responsive and rebuttal testimony was filed in December 1999 and January 2000. Additional hearings were held on January 26 and 27, 2000, and supplemental initial briefs and reply briefs were filed by the parties in February 2000.
The application for Article X certification filed by Athens Generating also included an application to DEC for a State Pollutant Discharge Elimination System (hereinafter “SPDES”) permit for the withdrawal of water from the Hudson River for cooling purposes and the subsequent discharge of the unevaporated remainder. Based upon the determination by the Commissioner of DEC that water intake should be limited to 0.18 million gallons per day in order to satisfy “best technology available” requirements and avoid adverse impacts on Hudson River fish populations, the SPDES permit issued by DEC on June 12, 2000, effectively required that the plant utilize “dry” cooling technology as opposed to the “wet” or hybrid evaporative cooling system which was originally proposed and which would have required considerably more water.
In a 123-page opinion and order issued June 15, 2000, the Siting Board granted Athens Generating a certificate to construct the plant subject to certain conditions. As required by Article X, the Siting Board made several findings including: (1) a determination that the plant was selected pursuant to an approved procurement process and would serve the public interest
(see,
N.Y. Pub. Serv. Law §§ 168(2)(a)(ii); (e)); (2) adverse impacts upon the environment would be minimized and the facility would be compatible with public health and safety by virtue of the certificate terms set forth in the Siting Board approval order and the terms of permits issued by other agencies, including the DEC requirement concerning the use of dry cooling technology (see, N.Y. Pub. Serv. Law §§ 168(2)(c)(i), (ii)); (3) the plant’s effect on the area’s visual resources would be mitigated by lowering the height of the emission stack and cooling tower from 225 to 213 and ultimately to 180 feet, and using dry cooling to eliminate steam plumes (see, N.Y. Pub. Serv. Law § 168(2)(b)); and (4) certain waivers from the Town’s zoning
By petition dated July 14, 2000, Citizens for the Hudson Valley, Inc. (an organization in which plaintiff Sevastopoulo is a founder and a principal) along with other interested parties sought rehearing, which petition was denied by the Siting Board on August 10, 2000. On September 8, 2000, the aforementioned petitioners commenced an action pursuant to Article 78 of New York Civil Practice Law and Rules and Article X seeking nullification of the certificate arguing that the Siting Board’s decision granting the Certificate was arbitrary and capricious and not supported by substantial evidence. Many of the named plaintiffs in this case as well as witnesses whom have submitted evidence in support of plaintiffs’ application for injunctive relief are members or supporters of Citizens for the Hudson Valley. Residents and concerned citizens in the area to be potentially impacted by construction of the Athens Generating facility created this organization to ensure the preservation of the environmental, historical, agricultural and archaeological integrity and scenic beauty of the Hudson River Valley.
Essentially these citizens are concerned about the adverse environmental consequences of potential re-industrialization of the Hudson River area which, in their estimation, has just begun to recover from previous decades of unremitted environmental abuse. As a further matter, because the Hudson River and Valley are designated as National Heritage Areas due to their historic and economic significance, plaintiffs as well as Citizens for the Hudson Valley and its supporters believe the state and federal government need to be keenly aware of and sensitive to the impact of industrial construction in the area. Of particular concern to plaintiffs is the potential degradation of heretofore undisturbed vistas or “viewsheds” from historical homes such as the Olana Mansion and State Historic Site 3 and other archaeological landmarks of state and national importance in the vicinity of the proposed power plant.
By order and decision dated April 12, 2001, the New York State Supreme Court, Appellate Division, Third Department unanimously upheld the Siting Board’s issuance of the certificate in all respects.
See Citizens for the Hudson Valley v. N.Y. State Bd. on Elec. Generation Siting and the Env’t,
The court also found “substantial evidence in the record to support the Siting Board’s conclusion that, considering the environmental impacts, the construction and operation of the [proposed] facility [would be] in the public interest” pursuant to Article X. Id. (citing N.Y. Pub. Serv. Law § 168(2)(e)). The court further found:
Most notably, the record does not support petitioner’s contention that construction of the facility will unreasonably impact the viewshed from Olana, the renowned estate of Frederic Church, leader of what was to become known as the Hudson River School of landscape painting. As noted in the Hearing Examiners’ decision, “[n]o issue has received more attention in this proceeding than the visual impact of the proposed generating plant,” and the Hearing Examiners devoted more than 80 pages of their voluminous decision to that topic, with 26 pages dedicated to visual impacts on Olana alone.
We would first note that the record belies petitioner’s representation that the proposed facility is “directly across the Hudson River from Olana.” To the contrary, the facility is situated on the opposite side of the river, approximately 3.1 miles north of Olana and two miles inland. The distinction is significant because expert testimony indicated, and the Siting Board found, that the proposed facility would be located in Olana’s north/northwest viewshed. Views in that direction “offer a basically flat horizon in the distance, and encompass a section of the Hudson River Valley in the foreground which includes topographic and land use features that are not unusual or extraordinary.” The renowned views to the southwest are unaffected.
[Athens Generating] commissioned a visual impact study of the proposed facility which, consistent with the Visual Resources Assessment Procedure issued by the Army Corps of Engineers, was designed to assess the potential visibility of the proposed energy facility and its ancillary structures by comparing the differences in the landscape with and without the above-ground components of the project in place. Throughout the review, the proposed height of the three combustion turbine emission stacks was reduced from 225 to 213 and, ultimately, to 180 feet. One hundred and eighty-foot stacks not only eliminated the needfor obtrusive aviation warning lights, but substantially reduced the degree to which the facility could be seen from distant vistas. In addition, the ultimate decision to utilize dry coohng technology not only minimized impacts on the Hudson River but provided the further benefit of essentially eliminating visible stack plumes, a very significant mitigation measure in light of the focus groups’ conclusion that stack plumes represented the most significant visual impact of the facility. Based upon the voluminous record before it, the Siting Board ultimately concluded that “the probable visual impact of the proposed facility would be slight, and that such impact would not be significantly adverse to the interests and areas of concern identified in [Article X].” In our view, that conclusion has abundant support in the record.
Id. at 538-39.
Finally, the court found that the administrative record supported the Siting Board’s determination that the proposed plant would “contribute to competition, thereby lowering electricity prices, displace less efficient plants, provide a reliable source of electricity at a time when there are projected energy shortfalls and relieve transmission constraints.” Id. at 539. 5
Concurrent with the state Article X proceeding, Athens Generating had also submitted an application to the Army Corps on February 24, 1999, for a permit to undertake certain construction activities in furtherance of building the plant and its support facilities in Army Corps jurisdictional areas. Specifically, Athens Generating sought a federal permit to: (1) install the water intake and discharge heads and piping in the Hudson River; (2) cross several stream or “wetland” areas and install certain limited portions of the water pipelines in wetland areas; and (3) construct limited portions of the plant — an access road and a portion of one cooling tower— in waters of the United States, including wetlands. On May 14, 1999, Athens Generating submitted a supplement to its Army Corps application, and on July 20, 1999, the application was deemed complete for processing.
The Army Corps coordinated its review of the proposed project with other federal agencies having jurisdiction and/or significant interest in the subject permit including: (1) the National Marine Fisheries Service (“NMFS”) which conducted an Endangered Species Act analysis of the potential impact of the plant’s proposed water intake design on short-nosed sturgeon as well as a Fish and Wildlife Coordination Act analysis concerning project modifications necessary to protect other fish and the “diverse macrobenthie community” of the Hudson River; (2) the United States
On August 4, 1999, the Army Corps issued a public notice describing the proposed project and requesting public comment. On September 27, 1999, the Army Corps published a supplemental public notice which extended the comment period to November 17, 1999, and announced that a public hearing would be held on November 3, 1999. On November 3, 1999, the Army Corps held two sessions of public hearings attended by approximately 400 interested persons. In response to comments made during the public hearing and additional written comments which had been submitted by the public, Athens Generating submitted a two-volume “Response to Comments” to the Army Corps on January 28, 2000. Between June and December 2000, the Army Corps made several oral and written requests of Athens Generating for additional information on various issues of concern to the agency and the public.
The Army Corps also conducted a review of the potential impacts of the power plant project on historic properties in conjunction with the New York State Historic Preservation Office (“SHPO”) as well as the Advisory Council on Historic Preservation (“ACHP”) which administers the National Register of Historic Places (“NRHP”). Upon review of the original proposal submitted by Athens Generating which included hybrid cooling technology for the plant, SHPO determined that the project would have an adverse effect on the Olana State Historic Site and several other historic resources located in the vicinity of the project which were listed or eligible for listing on the State and National Registers of Historic Places. However, when Athens Generating modified its proposal to use dry cooling technology, thus eliminating or nearly eliminating potential for formation of visible steam plumes, SHPO revised its findings and concluded, in a letter to the Army Corps dated December 28, 2000, that the project revisions, along with the conditions contained in the Article X certificate issued to Athens Generating, “have resolved, to SHPO’s satisfaction, the effects that initially caused SHPO to have concerns about the facility.”
Nevertheless, the Army Corps subsequently issued a letter to ACHP which determined, pursuant to Section 106 of the National Historic Preservation Act (“NHPA”), that the Project would have an adverse visual effect on historic properties, including Olana and other historic residences. As a result of this adverse effect determination, the Army Corps invited ACHP, along with more than twenty other interested parties, including all but two of the plaintiffs herein, to participate in NHPA Section 106 review proceedings concerning the effect of the power plant project on historic properties. The Army Corps conducted the Section 106 review during late March to mid-May 2001. During the consulting process, the Army Corps gave interested parties the opportunity to submit written comments on three occasions, attend two meetings and provide oral comments, and review and com
In response to comments submitted by the consulting parties in the course of the Section 106 review, Athens Generating submitted two response documents to address various concerns. After consideration of final comments from the consulting parties, the Army Corps, SHPO, ACHP and Athens Generating executed a final MOA on May 16, 2001, which included agreements and conditions for the permit to avoid, mitigate and/or minimize the potential adverse effects of the power plant project on historic properties. Parties to the MOA also agreed and acknowledged that the Army Corps had thus fulfilled its obligations pursuant to Section 106 of NHPA and its implementing regulations.
On May 25, 2001, the Army Corps also filed a 107-page document entitled “Memorandum for Record” (“MFR”) which detailed its “statement of findings and environmental assessment” (“EA”) for the permit sought by Athens Generating. According to the Army Corps, the MFR was prepared “in accordance with the policies and procedures ... for implementation of the National Environmental Policy Act [“NEPA”] which requires an agency to prepare an environmental impact statement (“EIS”) when permitting or engaging in a major Federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). 6 The MFR sets forth in great detail the analysis conducted by the Army Corps of the various environmental, health and safety, historical and aesthetic concerns raised by the public, interested organizations and agencies concerning the power plant project. In addition, the MFR outlined the Army Corps’ efforts to coordinate environmental and historic review of the proposed project with other federal and state agencies having jurisdiction or significant interest in the areas to be affected by the plant.
To wit, the MFR recounted the state review process for the proposed Athens Generating facility which resulted in the Siting Board’s issuance of a Certificate of Environmental Compatibility and Public Need and DEC’s issuance of both SPDES and air pollution control permits. The MFR also described the original project proposal as well as the substantial modifications made in the course of the state and federal review processes to account for potential environmental and historical impacts identified by interested parties, state and federal agencies, the public, the Siting
III. DISCUSSION
A. Plaintiffs’ Motion for Preliminary Injunction
A party seeking a preliminary injunction “must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.”
Resolution Trust Corp. v. Elman,
1. Inseparable Harm
Turning to the first element, the Court finds that plaintiffs have not sufficiently demonstrated that they or the environmental, historical and aesthetic concerns they purport to represent will suffer irreparable harm should construction of the power plant by Athens Generating begin and/or continue in advance of preparation of an EIS by the Army Corps.
Plaintiffs have submitted voluminous documentation in support of their claim that various environmental and historical interests in the area where the power plant is to be built will be adversely affected permanently by continuation of construction during the pendency of the present litigation. To wit, attached to plaintiffs’ original moving papers herein are the following evidentiary exhibits: 1) a copy of Executive Order 13061 issued by then President William J. Clinton in September 1997 concerning the “American Heritage Rivers” initiative whereby rivers of historic, cultural, economic, scenic or recreational importance may be designated for particular focus by the federal government on natural resource and environmental protection, economic revitalization and historic and cultural preservation; 2) a copy of the description of the Hudson River and the revitalization efforts underway there pursuant to the “American Heritage Rivers” program posted on EPA’s official public access website;
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3) a copy of a newspaper article from the Poughkeepsie Journal “Online Edition” dated June 3, 2001, describing how New York’s “new ‘fast track’ mechanism for approving proposed power plants” via the Siting Board took four years to issue a permit to Athens Generating for the project at issue herein and how “New York
Mr. Downs’ status as a environmental student and fisherman hardly qualifies him to opine regarding the environmental impact of construction activities in and around wetlands, the existence of endangered plant species along the Hudson River and the habitats and spawning grounds of the American shad and other fish. Even if Mr. Downs was qualified as an expert in these areas, his conclusory concerns regarding harm to plants, animals and “sensitive” wetlands “in the vicinity” of construction are insufficient to demonstrate that any damage to plant or animal life will actually occur or if so, how it will occur. “An injunction ‘may not be used simply to eliminate a possibility of a remote future injury.’ ”
Carey v. Klutznick,
Likewise, the affidavits of Ms. Dunn, Mr. Boyle, Ms. Feder, Mr. Pogliani, Mr. Nitschke, Mr. Jung and Mr. Sevastopoulo contain recitation of environmental, historical, archeological, architectural and economic facts which are based on general public knowledge, personal opinion, speculation and their own concern as residents and supporters of the area to be affected by construction of the power plant. Nothing in these affidavits demonstrates that actual environmental harm or damage to historical property or historical concerns will occur absent intervention by this Court. That the power plant will be situated in or near environmentally sensitive areas and historical sites and homes is not dispositive of whether construction of the facility will have an irreparable negative impact on the environment or historic property. Indeed, the undisputed status of the Hudson River and Valley as a “National Heritage Area,” standing alone, does not demonstrate the likelihood of permanent environmental or historical harm. Even if this was not true, each and every one of the facts and concerns outlined by plaintiffs was contemplated, analyzed and reconciled by the Army Corps in its 107-page MFR as well as the MOA executed
This apparently came as a complete surprise to plaintiffs, who explained through counsel in their supplemental set of submissions to the Court, that they did not know the Army Corps had conducted an EA or prepared the MFR — “in spite of their numerous Freedom of Information Act (“FOIA”) requests” — until the telephone conference the Court held on June 18, 2001, concerning their TRO application. In response to learning that the Army Corps had determined no EIS was necessary for permitting of the project, plaintiffs submitted the following additional evidentiary material in support of their application for injunctive relief: 1) the affidavit of Barbara Docktor, a professional photographer and resident of Columbia County, and copies of two photographs taken by Ms. Docktor;
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2) an affidavit from Erik Kiviat who holds a doctorate in ecology and is a professor of environmental studies at Bard College where the above-referenced Roger Downs is a student;
36
3) a supplemental affidavit from
In response to papers submitted by the Army Corps and Athens Generating in opposition to the application for injunctive relief, plaintiffs filed a second set of supplemental submissions in support of their motion which primarily attempt to demonstrate that the Army Corps knew about the proposed St. Lawrence Cement plant and nevertheless ignored potential cumulative impacts of same in permitting the Athens Generating facility and that the Army Corps failed to release the EA or MFR for public comment. Included in plaintiffs second supplemental submissions are the following: 1) a letter dated June 22, 1999, and copied to the Army Corps — from DOS’s Division of Coastal Resources to St. Lawrence Cement Company concerning the company’s need to prepare a draft EIS; 2) a letter dated January 31, 2001, from St. Lawrence Cement in response to the Division of Coastal Resources — also copied to the Army Corps; 3) a letter from the Division of Coastal Resources to St. Lawrence Cement advising the company of the time period in which the agency would be reviewing its proposal — which was again copied to the Army Corps; 4) an affidavit from Laura Skutch, Director of Citizens for the Hudson Valley, who refutes any attempt by the Army Corps to suggest it did not know about the proposed St. Lawrence Cement plant prior to issuing a permit to Athens Generating by recounting conversations with Christine Delorier, the Army Corps’ field officer in the Albany/Troy regulatory branch office in which Ms. Delorier acknowledged her status as “principle agent” responsible for reviewing the cement plant project “approximately six to eight months” prior to June 29, 2001, as well as Ms. Skutch’s success at obtaining the afore-referenced items of correspondence between St. Lawrence Cement and Department of State; 5) an affidavit from Ian Goodman, President of The Goodman Group, Ltd., a consulting firm which “specializfes] in electricity resource planning and related issues;”
44
6) an un-notarized second supplemental “declaration” from Ian Nitschke which compares statements in the affidavits of Athens Generating’s witnesses concerning future electricity supply and demand in New York
After review of these voluminous submissions, it is apparent that plaintiffs and the various other interested and concerned parties who have objected to construction of the proposed generating facility in Athens ardently believe that the project will degrade the value and enjoyment of their property and the area as well as permanently mar the ecologically sensitive Hudson River and Valley. However, the Court finds there is insufficient competent, admissible or relevant evidence to establish that any irreparable environmental, historical, archeological or aesthetic harm will
2. Likelihood of Plaintiffs’ Success on Merits
a. NEPA and its Attendant Regulations
On January 1, 1970, NEPA was enacted to promote a national policy which would “encourage productive and enjoyable harmony between man and his environment.” 42 U.S.C. § 4321. To achieve this national policy, NEPA requires that federal agencies proposing “major Federal actions significantly affecting the quality of the human environment” include in their proposals or recommendations an EIS which provides an assessment of the beneficial and adverse environmental impacts of the proposed action. 42 U.S.C. § 4332(2)(C). An EIS is evidence that an agency has considered the reasonably foreseeable environmental effects of a proposed major action before making a decision to take the action. However, an EIS is not required where the major federal action is not “significant” within the meaning of NEPA.
Hanly v. Kleindienst (“Hanly II”),
b. Scope of Review
The issue of whether a particular agency’s action is a “major federal action”
47
which will have a “significant” effect on the environment is a substantive issue which has traditionally been left to the informed discretion of the agency proposing or permitting the action or project.
See Sierra Club v. United States Amy Corps of Eng’rs,
Plaintiffs argue that the Army Corps committed several procedural violations of NEPA and/or its attendant regulations in issuing its EA and determination of no significant impact. In the first instance, plaintiffs contend that the EA completed by the Army Corps on May 25, 2001, “betrays [the agency’s] complete prejudgment of the question of whether or not the proposed Athens Plant would cause significant environmental impacts” based on the MOA which was executed by the various parties including the Army Corps on May 14, 2001. The “pre-EA” endorsement of the Army Corps on the MOA, however, is in-apposite to the agency’s “objectivity” in reviewing the environmental impacts of the Athens Generating facility or its compliance with^NEPA since the MOA was intended only to address the Army Corps’ analysis of the proposed project and its potential effects on cultural resources pursuant to NHPA.
Citing
Greene County Planning Bd. v. Fed. Power Comm’n,
Plaintiffs contend further that the Army Corps violated NEPA because the agency based its finding of no significant impact in large part on mitigation measures employed by Athens Generating at the behest of various agencies and organizations which reviewed the project. According to plaintiffs, “the question of significance is to be addressed separately and, logically, prior to the problem of mitigation.” Plaintiffs simply misstate and misconstrue current law on this issue. To wit, NEPA affords federal agencies latitude in considering mitigation measures which might minimize environmental impacts to a level
of no or little
significance
if
such measures are supported by substantial evidence.
Nat’l Audubon Soc’y v. Hoffman,
Plaintiffs also aver that the Army Corps failed to conduct any meaningful analyses of alternatives to the proposed project including the “no action”
Plaintiffs allege that the Army Corps violated NEPA and perhaps FOIA by failing to make its EA and MFR available for public review and/or comment pri- or to issuance of the documents. Although plaintiffs correctly assert that such pre-filing disclosure and public involvement is required prior to an agency’s issuance of an EIS, or in “certain limited circumstances” involving actions which “normally require[ ] the preparation of an [EIS],” 40 C.F.R. § 1501.4(e)(2)(i), an EA does not carry the same burden. Indeed, CEQ regulations provide that agencies must “involve the public” in the NEPA process, 40 C.F.R. § 1506.6(a) and should make any finding of no significant environmental impact “available to the public.” 40 C.F.R. § 1502(e)(1). The Army Corps clearly involved the public in its NEPA review process by publishing notice of the action, holding public hearings and incorporating the litany of public concerns raised about the project in the MFR. Moreover, notwithstanding plaintiffs’ indignation at not receiving notice of the MFR and EA prior to commencement of the present litigation, there is no evidence that the Army Corps misled plaintiffs about the existence of such documents or its intention to issue them. Although plaintiffs’ interest in the outcome of the Army Corps review of the project was undoubtedly ihtense, CEQ regulations do not require federal agencies to notify the concerned public in advance of or even contemporaneously with issuing an EA or finding of no significant environmental impact. Rather, such findings and documents are to be made available upon request via standard FOIA procedures. 48
Even if this was not true, however, plaintiffs have not submitted any evidence that the Army Corps of Engineers had any knowledge that St. Lawrence Cement Co. had been or would be permitted to construct a new plant in the vicinity of the Athens Generating facility at the time it issued its permit in this case. Clearly, the unauthenticated copies of letters attached to Ms. Skutch’s affidavit between DOS and St. Lawrence Cement Co. which indicate they were forwarded to the Army Corps are unpersuasive in this regard as are Ms. Skutch’s conversations with Christine De-lorier of the Army Corps concerning that agency’s obligation to review the proposed St. Lawrence Cement Co. project after completing review of the Athens Generating project. NEPA does not require federal agencies to consider the cumulative effects of industrial projects which are “speculative and contingent.”
Village of Grand View v. Skinner,
Turning to plaintiffs’ substantive NEPA claim — that the Army Corps’ conclusion that no EIS was required in this case was erroneous — the determination of “no significant impact”
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is neither a rulemaking nor an adjudicatory function of the Army Corps, but rather a factual finding made by an agency with particular expertise in environmental matters. The appropriate scope of review is therefore prescribed by the Administrative Procedure Act (“APA”), which provides that agency action may be overruled by a court only if the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
see also Citizens to Preserve Overton Park, Inc. v. Volpe,
In view of this limit on reexamination of the environmental issues in this case, the Court’s primary concern is whether the EA or MFR prepared by the Army Corps contains the type of reasoned elaboration required to support the agency’s determination not to prepare a more elaborate EIS. In short, this Court’s appropriate role is to ensure that the Army Corps has taken a “hard look” at the environmental consequences which are likely to result from the proposed Athens Generating facility and whether the agency has convincingly documented its determination of “no significant impact.”
See, e.g., Maryland-National Capital Park & Planning Comm’n v. United States Postal Serv.,
Since plaintiffs have not, in this Court’s view, supported their motion with evidence that the Army Corps violated any of NEPA’s substantive or procedural requirements, that its challenged determination was not supported by substantial evidence, that the agency was arbitrary and capricious or abused its discretion, it is not likely to be within the competence of this Court to overrule the Army Corps’ determination.
See City of New York v. United States Dep’t of Transp.,
c. Plaintiffs’ NHPA claim
Although the thrust of plaintiffs’ arguments herein concern the Army Corps’ alleged failure to follow the requirements of NEPA in issuing a permit to Athens Generating, they also assert that the agency violated NHPA. To wit, plaintiffs argue that the Army Corps analysis of
Having failed to establish either the likelihood of irreparable harm or success on their claims under either NEPA, the APA or NHPA, plaintiffs’ application for injunc-tive relief must be and hereby is DENIED.
B. Motion to Intervene by Athens Generating
The Court notes the divergent views of the various circuits concerning the issue of intervention by non-governmental parties in NEPA compliance cases,
see, e.g., Sierra Club v. Espy,
IV. CONCLUSION
The Court notes that the present action by plaintiffs is nearly the last depot in a four-year administrative, political and legal odyssey which will likely result in construction of this very controversial power plant. Controversy notwithstanding, however, nearly every state and federal official, agency and organization with any interest or oversight in this matter has reviewed the potential environmental, historical and aesthetic impacts of the Athens Generating project and reconciled them with equally important and arguably more pressing economic and societal concerns. No one seriously disputes that New York, like other populous states, faces potentially devastating economic consequences if it does not take meaningful action to ensure the continued reliability of its power supply in the face of ever-increasing consumer demand. Indeed, newspapers and news broadcasts are flooded with reports that the state and nation are confronting a new and gripping energy crisis.
Yet solutions to the crisis inexorably pit the public, the government and industry which generally agree that something must be done against those who must look at and live with the results of progress in their own backyards and communities. While the Court recognizes and appreciates plaintiffs’ impassioned opposition to the Athens Generating plant and the conviction with which they assembled their present legal challenge, it is not likely to invalidate the considered and reasonable judgment of the experts who have already struggled with and examined plaintiffs’ concerns on the basis of their current submissions. In this case, the Army Corps permitted and approved the project based on its determination that there was sufficient evidence to suggest any significant environmental or aesthetic impacts would be eliminated or dramatically reduced by appropriate mitigation measures and unavoidable remaining impacts would not be significant. Thus, the Army Corps concluded that an EIS was not required pursuant to NEPA. Based on the evidence submitted in connection with this motion, the Court cannot say that plaintiffs are likely to persuade it otherwise.
In view of the foregoing, plaintiffs’ motion for a preliminary injunction is DENIED and the motion by Athens Generating to intervene is likewise DENIED.
IT IS SO ORDERED.
Notes
. The site of the proposed power plant is located approximately 2 miles west of the Village of Athens, in the Town of Athens, Greene County, New York. The plant would consist of three generation units, each with its own emission stack, a common cooling tower and an administrative building. Support facilities would include an intake-discharge facility, located three miles away on the Hudson River, which would supply water to the plant and return discharge water through a series of underground pipes. The plant will be powered by natural gas via an underground natural gas pipeline linked to the existing Iroquois Gas Pipeline Company system approximately 2000 feet north of the plant site. The plant will interconnect to the state's power grid at Niagara Mohawk Power Corporation’s Leeds Substation, which is located on an adjacent parcel of land approximately 2,000 feet southeast of the proposed facility and use the New York State Bulk Transmission System to provide electric power through the New York Independent Systems Operator ("NYISO").
. N.Y. Pub. Serv. Law Article X (see, L.1992, ch. 519, § 6, as amended by L.1999, ch. 636) provides for a comprehensive review of environmental and public interest impacts and the issuance of a certificate of environmental compatibility and public need as a precondition to the siting of a major electric generating facility, i.e., one with an output of 80,000 kilowatts or more, within the state of New York. See N,Y. Pub. Serv. Law §§ 160(2); 162. Ultimate authority for the prescribed review and issuance of a certificate is vested in the Siting Board, within New York's Department of Public Service, which consists of the Chair of the Department of Public Service, the Commissioner of Environmental Conservation, the Commissioner of Health, the Chair of the Energy Research and Development Authority, the Commissioner of Economic Development, and two ad hoc public members appointed by the Governor. See N.Y. Pub. Serv. Law § 160(4). The application submitted by Athens Generating was the first to propose a private, fully merchant, generating facility since enactment of Article X.
. Olana was the home and studio of nineteenth century painter Frederick Edwin Church who was the "prize” student of Thomas Cole, the founder of the Hudson River School of American landscape painting. The panoramic views from Church’s hilltop estate were the inspiration for some of his most important paintings. Olana, included on the National and State Registries of Historic Places, is located in Greenport, New York, across the Hudson River and less than four miles from the project site.
. New York’s State Environmental Quality Review Act ("SEQRA"), N.Y. Envtl. Conserv. Law § 8-0101
et seq.,
which does require investigation and elimination of alternatives for siting of industrial facilities likely to have
. In connection with this determination, the court noted:
Evidence also established that, as a modern natural gas fueled facility, certain noxious gas levels would be reduced and the use of dry cooling technology would result in fewer fish kills because production will be displaced from other Hudson River power plants that draw more water and, therefore, kill more fish. Petitioner’s speculation that [Athens Generating] intends to market its electricity in New England lacks support in the record and, at most, raised a credibility issue that the Siting Board was entitled to resolve in favor of [Athens Generating] [citation omitted]. Further, the record indicates that the plant was required as a condition of approval to submit to the [NYISO] for the dispatch of electricity. Thus, even if the plant’s electricity were to be sold outside the State, transmission of the electricity through NYISO would commit generators to minimize costs and maintain reliability and the overall amount of electricity produced in the State would be increased, thereby resulting in lower electricity prices.
Id.
. Whether a particular proposed action significantly affects the environment, thus necessitating the preparation of an EIS, is a threshold question. The Council on Environmental Quality ("CEQ”), created under NEPA, is responsible for promulgating regulations that supplement NEPA’s statutory requirements. The CEQ regulations provide that if the agency is uncertain whether the impacts rise to the level of a major federal action requiring an EIS, the agency must prepare an environmental assessment. 40 C.F.R. §§ 1501.3, 1501.4, 1508.9. An EA is "a concise document that briefly discusses the relevant issues and either reaches a conclusion that preparation of [an] EIS is necessary or concludes with a finding of no significant impact, in which case preparation of an EIS is unnecessary.”
Sierra Club v. Espy,
. The Army Corps concluded that the State Energy Plan for New York, its governor, the Public Service Commission and NYISO unanimously agreed that the additional capacity which could be generated by the proposed facility as well as the facility itself were needed to "maintain the reliability” of New York’s electric supply.
. In connection with this issue, the Army Corps concluded that both the state and federal administrative review processes have allowed sufficient opportunity for public involvement and input regarding the potential impacts of the proposed project. Indeed, the Army Corps stated that "the need for an EIS is a primary evaluation factor in [its] regulatory review process.”
. While the Army Corps agreed that alternative sites "should be explored to determine if the proposed project represents the least environmentally damaging practicable alternative,” the agency reviewed the “no action alternative” of not building the plant at all, alternative siting analysis completed during the Article X proceeding, public comments it received regarding the issue — including five "brownfield” sites discussed by Dr. Robert Henshaw, who represented Citizens for the Hudson Valley, during the Article X administrative hearing — and conducted its own analysis of alternative sites. Because of the proximity of the Athens site to fuel and power transmission infrastructure as well as water supply, the agency concluded that the proposed Athens site was the "only practicable alternative that meets the Project Purpose.”
. The Army Corps agreed that dry cooling was the best available technology and that Athens Generating had already modified its proposal to include it.
. In consultation with DEC, NMFS, and the New York Department of State ("DOS”), the Army Corps concluded that the modification of the project to utilize dry cooling, plans to minimize turbidity during construction using port-a-dams and silt curtains and limits on the amount and rate of discharges into the river as well as water temperature would minimize or eliminate any adverse impacts to fish, water quality and quantity.
. The Army Corps concluded after review of DEC's position on this issue that modification of the project as well as stormwater management plans, controls and conditions of Athens Generating's SPDES and Army Corps permits would significantly reduce or eliminate water or air contamination at Sleepy Hollow Lake. In addition, to further minimize the risk of adverse impact, Athens Generating had agreed to pay the Town of Sleepy Hollow to develop and implement a water quality monitoring program and to enhance the quality of the lake.
. Athens Generating had proposed to siting, design and appropriate construction methods to "avoid dredging and filling impacts, and to minimize the extent and significance of unavoidable impacts.” The Army Corps noted that to install the proposed electric transmission line, only 0.01 acre of wetlands would be permanently impacted by construction of tower footings. Athens Generating also agreed to create 1.6 acres of new wetlands and enhance and restore 3.4 acres of degraded wetlands in Leeds Flats. The Army Corps concluded that these measures would ensure there was no net loss of wetlands. The agency also stated it would attach special conditions to any permit it issued to ensure that: 1) proposed temporary impacts to wetlands during construction of the access road and transmission structures were restored; 2) the impacts associated with the project were limited to authorized areas; 3) final mitigation are developed and approved in a timely manner; and 4) work areas and wetland mitigation areas are monitored for successful recovery.
. The Army Corps examined the data submitted by Athens Generating along with technical reports and testimony prepared regarding this issue and determined that impacts associated with any blasting activities would be minimal and, in any event, limited to or very near the project site. As a further matter, the Army Corps stated that an appropriate plan would be developed "to monitor groundwater and consider corrective measures should any excessive groundwater level fluctuations be observed.”
. The Army Corps addressed and accounted for these concerns by reviewing the results of the extensive visual impact analysis prepared by Athens Generating in conjunction with SHPO, DPS and other interested parties as well as conducting a full-fledged Section 106 review pursuant to NHPA as referenced above. The agency thereafter noted that Athens Generating had agreed to modify its proposal to include dry cooling and adopt design measures such as lighting, landscaping, tree protection and facility color, to minimize visual impacts. Thus, the Army Corps concluded that although the project would have some adverse effects on cultural resources, the impacts would be slight.
. The Army Corps agreed with the evidence submitted by Athens Generating that the project would provide economic benefits through job creation, tax revenues, use of local businesses by employees and the commitment of the company to provide energy locally at wholesale prices. Furthermore, because the Army Corps determined via its visual impact analysis and the Section 106 review process that negative aesthetic impact of the project would not be significant, it concluded that tourism and property values would be minimal. Furthermore, Athens Generating agreed to fund landscaping to screen views of the facility from affected properties and provide funds to enhance properties in the Town and Village of Athens in accordance with its draft Local Waterfront Revitalization Program.
. The Army Corps noted that since DOS, the agency responsible for administering the federal Coastal Management Program, determined that modification to dry cooling technology rendered the project "consistent” with the state’s coastal management efforts, this concern was adequately addressed.
. The Army Corps noted that Athens Generating had consulted with appropriate local officials in the Town of Athens who determined the Town could adequately respond to any emergency situation at the facility with additional training which Athens Generating had agreed and was required to provide as a condition of the Article X certificate. With respect to the latter issue, the Army Corps stated that each state and federal agency, including the Army Corps, has authority to determine compliance with permits, statutes and regulations as well as authority to enforce non-compliant activities should they occur.
. The Army Corps noted that DEC, the agency responsible for determining the proposed project’s compliance with federal and state air quality standards, determined that use of meteorological data from the Albany airport was adequate to assess air quality and in accordance with EPA guidelines.
. The Army Corps concluded that based on the use of dry cooling technology, stack plumes were not an expected occurrence at the plant. Furthermore, to the extent that such plumes developed, Athens Generating would create a monitoring program and employ corrective measures to eliminate any visible plumes.
. The Army Corps reviewed the evidence submitted by Athens Generating on this subject, the available technical information, the findings of the state authorities responsible for authorizing the proposed emissions, in-eluding air and water pollution control permits issued by DEC, and determined that the health and safety concerns for residents in or near the project site had been adequately addressed.
. Given the modification to dry cooling technology and use of less water, the Army Corps concluded emissions would be reduced which would, in turn, reduce the potential for increased fogging and icing. Because appropriate meteorological data was used by Athens Generating in preparing its Seasonal and Annual Cooling Tower Impacts model, the Army Corps determined that any increased impacts to safety regarding the emissions issue was not significant.
. After noting that the state and federal authorities responsible for determining health risks and compliance with air quality standards had concluded that an increased potential for exposure to Legionalla was not significant, the Army Corps did likewise, although Athens Generating agreed to follow applicable guidelines to further minimize any such risk.
. The Army Corps noted that the Article X certificate issued by the Siting Board was conditioned on ensuring that the existing roadway system in and near the Town of Athens was sufficient for expected increases in traffic and that any unavoidable traffic impacts would be minimized. As a further matter, the Army Corps stated that all of the information submitted concerning the issue of noise pollution demonstrated that impacts as
. EPA's website states that: "[l]he Hudson River is one of America’s most important commercial and recreational waterways and is recognized as an estuary of national importance ... [The] Estuary extends for 154 miles of the river's 315-mile length. It is a unique natural resource, home to over 206 species of fish. The [Hudson River] valley is an important flyway for migratory birds and is home to many endangered and threatened species such as bald eagles and heartleaf plantain.”
.Dr. Henshaw testified during the Article X review process on behalf of Citizens for the Hudson Valley in opposition to permitting of the proposed Athens Generating plant. He also authored an article entitled "Taking a 'Hard Look’ at Article X: Its Failure to Provide Complete Environmental Review” which criticized Article X as a so-called “one-stop power plant siting law" because it does not, in Dr. Henshaw's estimation, adequately balance environmental and economic issues nor does it comply with the EIS requirement in SEQRA or NEPA. Without stating the basis of his personal or expert knowledge on these issues in his affidavit, Dr. Henshaw further discusses inter alia: 1) the recovery of existing abandoned power plants and "brown-fields” as an alternative to siting the Athens Generating plant in an undeveloped "greenfield;” 2) the present and future electric generating capacity needs of New York State as well as constraints likely to be faced on transmission of electrical power from the Athens Generating plant to downstate New York; 3) the scenic, cultural and economic history of the Hudson River along with the history of revitalization efforts in the river and valley areas; 4) the degradation of the Hudson River's aesthetic “viewshed” from the Town of Athens, the City of Hudson and surrounding areas including the Olana Mansion based on the massive physical presence of the proposed plant and its anticipated steam plumes against the "discordant” topography of the Hudson River Valley; and 5) finally, the possibility of using alternative water sources or technology to cool the plant and thus avoid the requirement of siting the plant near the Hudson River in the first place.
. Mr. Downs purports to have "expert” knowledge concerning the habitats and spawning activities of various fish species as well the expected increase in fish morbidity from being drawn into the proposed water intake pipe for the plant. Mr. Downs also avers that "in the vicinity” of the intake/discharge pipes there are three species of plants — heartleaf plantain, beggars tick and spongy arrowhead — on the otherwise unidentified "Threatened Species List” but he does not state if or how these plant species will be affected by plant construction or operation. Mr. Downs states "upon information and be- ■ lief” that no comprehensive EIS has addressed what he estimates will be adverse visual impact of the plant on two prehistoric sites, Mine Hill and West Athens Hill, which the National Park Service has considered designating as "National Landmarks.” Finally, Mr. Downs suggests, as did Dr. Henshaw, that Athens Generating should be required to explore the possibility of using a "cooling pond, municipal water or other sources” to cool the plant rather than Hudson River water. Nowhere in Mr. Downs’ affidavit does he state the basis for his personal knowledge of the adverse environmental and visual effects he anticipates from construction of the power plant project or his expertise in power plant cooling alternatives and technology.
. Ms. Dunn’s affidavit, like the others referenced above, is replete with factual, scientific and historical averments based on "information and belief” or something other than personal knowledge. For example, Ms. Dunn avers that for the past several years, she and her husband have "become very informed on the nature and history of the River and the
.Mr. Boyle wrote a book entitled
The Hudson River. A Natural and Unnatural History
in which he "took note” of Thomas Cole, the founder of the Hudson River School of American art. Mr. Boyle does not specifically state that either Frederic Church or the Olana Mansion where he lived and worked were discussed in his book but he does state with no reference to his personal knowledge of these facts that "[w]hen unable to paint because of arthritis, Church busied himself making his estate into a work of landscape art” and that "[m]any visitors to Olana still rejoice in the magnificent views from Church’s well-planned roads.” Indeed, Mr. Boyle notes that if "recent vegetation blocking the views from [Church's] studio window were removed and the view was restored to its original condition, it would readily permit visitors to see exactly where the planned intrusive power plant would befoul the vista.” In his affidavit, Mr. Boyle also details his efforts in founding the Hudson River Fisherman's Association "which led to the first prosecutions ever of industrial polluters in the United States,” as well as the "Robert H. Boyle Advocacy Center” at Pace University School of Law which has acted as attorney for the "River-keeper” organization. Although Mr. Boyle does not claim to have a law degree, his "active” status in fighting industrialization and pollution in the Hudson River Valley area have apparently led him to conclude that the Second Circuit’s decision in
Scenic Hudson Pres. Conference v. Fed. Power Comm'n,
. Mr. Pogliani states that although he submitted extensive comments and suggestions regarding alternative siting for the project during the NHPA Section 106 review proceedings, he did not receive a response nor were any of his concerns adopted by the Army Corps.
. Ms. Feder and her husband own two historic houses in Athens, both of which are listed on the National and State Historical Registers. She holds a B.A. in studio art from Brown University where she concentrated in American Art History and American
.Mr. Nitschke has been "an active member of local, state and national historic preservation organizations since at least 1976” and founded Clover Reach, an organization which has received grants and awards for its work in preserving and enhancing Claverack's heritage, charm and vitality. Mr. Nitschke avers that he was an "active party” in the Article X siting case and "filed extensive testimony and briefs concerning historic preservation issues in that flawed case.” He also provided extensive comments as a consulting party on drafts of the "specious” MOA drafted by the Army Corps and claims to have "extensively studied the history and archeology of the [Hudson River Valley] area.” Mr. Nitschke avers he is "familiar with” other power plants owned by PG&E or its subsidiaries and compares the proposed Athens Generating facility to a PG&E generating plant in Pittsfield, Massachusetts with stacks measuring 200 feet which “dominates the area and is one of the most unattractive and oppressive objects in the Berkshires.” Mr. Nitschke contends that "[NYISO] reports that, for the next few years, there will be ample electric capacity in Upstate New York but a possible deficiency in New York City and Long Island. The proposed Athens plant would not help overcome the downstate capacity deficiency because of transmission constraints.” According to Mr. Nitschke, there are ample alternative "brownfield” sites available for construction of the Athens Generating plant which might not have to be built in any event if the state would rebuild existing abandoned generating facilities. Mr. Nitschke states that the DPS’s website lists 21 proposed new power plants while "NYISO is considering more than 80 proposals for new generating facilities in New York,” all of which, in Mr. Nitschke's estimation, could never be built. Thus "[i]f not all the proposed generating facilities will be built, then the proposed Athens Generating facility, that has some of the most severe impacts on historic properties in New York State, definitely should not be built.” Like Ms. Feder's affidavit, Mr. Nitschke's is replete with factual, historical, archeological, economic and technical data of which he does not appear to have personal or expert knowledge.
. Mr. Jung states the proposed Athens Generating plant is "within several miles of some of the most important nineteenth century Hudson River School of Painting sites, including the Thomas Cole House in Catskill and Olana, the home of Frederick Church. These sites and the surroundings that inspired the Hudson School painters are of prime importance in American art history.” Mr. Jung avers in conclusory terms that the construction of the plant will destroy panoramic views of the landscape, impact the viewshed from historical sites, and interfere with the $9 million tourism industry in Columbia County.
. Mr. Sevastopoulo is a First Vice President and Financial advisor for Morgan Stanley and a member of the board of Citizens for the Hudson Valley. He states that Athens Generating submitted no serious analysis of alterna-
. According to Ms. Docktor, one of the photographs depicts the area which Athens Generating had cleared as of June 10, 2001, in furtherance of pre-construction activities at the site of the plant. Contrary to repeated implications and even direct assertions by plaintiffs that the power plant is going to be constructed directly "on” the Hudson River, the photograph shows a square brown area which has been cleared of trees and other vegetation nowhere near anything resembling the Hudson River. Indeed, the cleared area appears to be directly adjacent to a paved road or railway and surrounded by trees, fields and other vegetation. Ms. Docktor avers that the other photograph shows an aerial view of the Hudson River. Ms. Docktor has placed star stickers on the photograph to mark the "approximate” locations of the newly permitted Athens power plant as well as a proposed cement plant currently under review by the state. Ms. Docktor states with no reference to her personal knowledge that when built, the two industrial plants will "sit less than five miles apart on each side of the river and be seen clearly from many perspectives in this National Heritage Area.”
. According to his affidavit, Dr. Kiviat conducted a "field reconnaissance” of the proposed Athens Generating facility site accompanied by Mr. Downs. Dr. Kiviat states that the temporary road created to allow access to the Hudson River where the pumping station and intake/discharge pipes will be constructed "crosses federal jurisdiction wetland” with no reference as to the basis of his personal knowledge regarding the scope or location of federally protected wetlands. Further, Dr. Kiviat states that this wetland "could support rare plants or animals” as suggested by "indicators that are commonly associated with the occurrence of rare plants and animals in the Hudson Valley.” Moreover, Dr. Kiviat avers that "[t]he proposed access road and transmission line towers could directly affect State-listed rare species that might occur in the footprint of this infrastructure or that might be vulnerable to altered hydrology upstream or downstream of the access road.” In Dr. Kiviat’s hypothetical and conclusory estimation, "[ajlthough the access road is intended to be temporary, its effects on rare species could be permanent.” Although Dr. Kiviat claims to have seen a "freshly dead common snipe on the railroad” [near where a plant pipeline is intended to cross the Corlaer Kill] and heard two rare birds — the bobolink and alder flycatcher — singing in the vicinity of the Athens Flat wet meadow, he does not state or even suggest that the snipe’s death was caused by construction activities connected to the plant or that the singing birds nest or breed in the area and would thereby be impacted by facility construction. Dr. Kiviat also hypothesizes that "[t]he Corlaer Kill is likely to support wood turtle (State Special
. According to Mr. Downs, the former publication states that "[a]t a minimum ... [a federal] agency must make [an] EA available to the public on request,” and yet neither he nor any other concerned member of the public was informed that the Army Corps was preparing an EA or had declined to undertake an EIS. Mr. Downs criticizes the failure of the Army Corps in the MFR to consider the alternative of using a cooling pond or other water source in lieu of taking water from the Hudson River. Mr. Downs' affidavit further recounts some of the same conclusory observations as Dr. Kiviat's concerning the potential impact of plant construction on soil stability as well as rare animal and plant species. Mr. Downs also criticizes the Army Corps failure to follow NEPA’s requirement — as set forth in the afore-referenced "Mastering NEPA” guide — that a reviewing agency consider the "cumulative” and "precedent-setting” effect of permitting a project. In Mr. Downs’ estimation, this obligated the Army Corps to consider the cumulative impact of the Athens Generating project along with the proposed St. Lawrence Cement plant, "which are relatively close together.” Indeed, Mr. Downs notes that he "understand[s] that the St. Lawrence Cement is already using the Army Corps’ permitting of the Athens Plant in support of their own huge industrial project.” Finally, Mr. Downs states that the other publication attached to his affidavit "describes the areas in the general vicinity of the proposed pump house and intake/discharge facility, which is in an environmentally sensitive area containing threatened/endangered species.” Mr. Downs placed an area on a part of a map taken from the book in the "approximate location” where the pumping station will be constructed.
. Dr. Henshaw’s supplemental affidavit is essentially a lengthy discussion concerning the Army Corps’ failure to conduct the type of in-depth analysis required to prepare an EIS under NEPA. In particular, Dr. Henshaw faults the Army Corps for failing to adequately invite and record formal public input or consider alternative sites, transmission problems, cumulative impact of other proposed projects, effects on tourism, spoilation of historic vistas, and finally, the potential effects of the project of mature forests in the area and ”possibl[e] dewatering [of] part or all of the water-dependent wetlands” at and east of the construction site. Of course the fact that the Army Corps ultimately determined that an
. Although Dr. Lindner appears to have expansive knowledge of the archaeology of the area in the vicinity of where the Athens Generating plant is to be built, he discusses the potential impact of construction and operation of the facility on these archaeological sites in merely conclusory terms. For example, in discussing West Athens Hill, a prehistoric "high ridge flint quarry,” he stales that "[a] massive plant less than two miles away would irreparably harm the vision of the past this viewshed offers.” Further, according to Dr. Lindner, “[t]he MFR also fails to consider issues of landscape archaeology from West Athens Hills and other viewpoints, which is, in Chis] opinion, a serious omission.”
. Indeed, Mr. Jung finds the determination not to prepare an EIS particularly curious because in proposing to restore the structures, collections and landscape at Olana, SHPO was required to prepare and submit an EIS with full public notice and participation.
. The letter — which is not in admissible form in any event — states that although the National Trust had anticipated signing the MOA based on the parties’ "willingness to consider significant steps to mitigate the adverse impacts of the proposed project,” the agency still had unresolved concerns regarding the absence of consideration of alternative sites for the Athens Generating project and the cumulative impact of the generating facility on other “re-industrialization” efforts afoot in the Hudson River Valley. Thus, the letter concludes that "despite the merits of the agreement within the specific context of the Section 106 process, [the agency was] concerned that [its] concurrence in the [MOA] may be read by some to indicate that the agreement addresses [the agency’s] broader concerns about the siting of industrial facilities in the Valley.”
. Indeed, attached to Mr. Boyle's affidavit is an unsworn copy of the same statement dated June 21, 2001, signed by its author, Dr. John Wilmerding.
. Ms. Falzon avers that her restatement of Mr. Jenson’s opinions is necessary based on his "current medical condition and the shortness of time given to submit comments to the court,” but curiously, attached to Ms. Fal-zon's affidavit are two unsworn statements and/or memoranda by Mr. Jenson signed and dated June 24, 2001.
. Plaintiffs submitted Mr. Goodman’s affidavit presumably to controvert the allegations by Athens Generating that disruption or delay in construction of the Athens Generating facility will have a negative future impact on New York’s supply of electricity and result in shortages, brownouts and possibly even blackouts. According to Mr. Goodman, he reviewed the affidavits of witnesses submitted by Athens Generating regarding this concern as well as a "variety of documents relating to the supply and demand situation in New York” and concluded that "none of the information I have reviewed indicates that there would be any significant adverse impact upon the state’s electricity supply from delay, or even cancellation of the Athens plant.”
. As a further matter, Mr. Sevastopoulo, who is not a lawyer, states that under the former provision of the Pub. Serv. Law which regulated approval of power plants in New York, "a utility had to reveal the economics of an electric generation facility in order to avoid the consequences cited above.'' According to Mr. Sevastopoulo, ''[t]here are no such protections for the public under New York’s Article 10 which removes the burden of proof from the project’s sponsor and has us, the People, believe that the sponsor’s assurances in court, the press and public forums are truthful and beyond scrutiny.”
. In his unsworn declaration, Dr. Henshaw states that the St. Lawrence Cement company "has been very direct that it considers the Athens decision as opening the door for its application.” Indeed, Dr. Henshaw avers "[o]n 3 August 2000 Ms. Denise Brubaker, Environmental Manager, SLC [St. Lawrence Cement], stated to me approximately ’once the Athens Power Plant is approved, we [SLC] should be able to get our approval' (personal communication).” Aside from the fact that the "declaration” itself is not in admissible form, the Court is not persuaded that Dr. Henshaw’s "approximate” recollection of a statement made by someone at St. Lawrence Cement is evidentiary or even relevant to the present inquiry. And although, Dr. Henshaw recognizes he is "not competent” to substantively opine on the subject, he nevertheless attempts to demonstrate that New York's ability to produce sufficient electricity capacity will be met by new generation plants "coming on line in the very near future” as proven by the "table of Article X cases” which appears on DOS’s website. Dr. Henshaw caps his opinion concerning future electric capacity by offering his "best estimate^]” of whether the proposed new generating facilities are inside of the "transmission constraints to the southeastern part of New York State.”
. Plaintiffs argue in the first instance that the Army Corps erred by failing to categorize the proposed Athens power plant as a "major federal action.” Indeed, implicit in the Army Corps' determination that the project would have no significant environmental impact is a finding that its granting of a permit to Athens Generating did not constitute a major federal action. CEQ regulations define "major federal actions” to include "actions with effects that may be major and which are subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. When the facts material to a determination of the scope of a "major federal action” such as degree of control federal agencies exert over related private actions are in dispute, “courts are generally no less expert than agencies in settling such disputes.”
Landmark West! v. United States Postal Serv.,
. That plaintiffs may not have been aware of the fact that the MFR and EA had been filed and did not have copies of the documents until recently is not dispositive of whether the Army Corps prevented plaintiffs from obtaining copies through FOIA. Indeed, the Army Corps submitted an affidavit from Rita Fisher, its Assistant FOIA Officer, who stated that all FOIA requests made by Laura Skutch, director of Citizens for the Hudson Valley, had been complied with prior to issuance of the permit to Athens Generating and that the organization had no "open" FOIA requests pending at the time the permit was issued. Furthermore, Ms. Fisher averred that the only FOIA request which Ms. Skutch made subsequent to issuance of the Army Corps permit demanded that the entire Athens Generating file be moved from Troy, New York to New York City for review by plaintiffs' counsel and others within 48 hours rather than the 20 days normally allotted to comply with FOIA demands. According to Ms. Fisher and the letter she attached from Ms. Skutch, at no time did Ms. Skutch nor anyone else associated with plaintiffs request copies of the MFR or EA.
. CEQ regulations provide that a “finding of no significant impact” means a document filed by a federal agency which briefly presents the reasons why an action "will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared” and includes the environmental assessment or a summary of it as well as any other related environmental documents. 40 C.F.R. § 1508.13.