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Storm King Revisited: A View From the Mountaintop

Lawyer Albert Butzel litigated the Storm King case for Scenic Hudson for 15 years, beginning with work leading to the landmark 1965 Scenic Hudson decision through the 1980 settlement preventing construction of Con Ed’s hydroelectric plant. In an April 15 talk* at Pace University, Butzel recounted the events leading up to the decision, a milestone in America’s grassroots environmental movement, which granted people a voice in protecting cherished lands and waters.

It was by complete serendipity that I ended up in Lloyd Garrison’s office that day in 1965. When I had gone to Paul Weiss Rifkind Wharton & Garrison 6 months earlier, I had agreed to do anything but litigation. That day, however, there were no litigation associates available. So I was commandeered from the corporate department to help on what became the Storm King case.

Lloyd Garrison was not a litigator either. His expertise lay in corporate and labor law. He also was long interested in civil rights. He was president of the National Urban League from 1947 to 1952, and he represented Arthur Miller and Langston Hughes when they were summoned before the House Committee on Un-American Activities. It was shortly after this that he represented Robert Oppenheimer before the Atomic Energy Commission when Oppenheimer lost his security clearance.

Perhaps it was his sense of having failed Oppenheimer that led Mr. Garrison to take on another seemingly hopeless case – the appeal of the FPC decision that granted Con Edison a license for what it had named the “Cornwall Project,” the largest pumped storage hydroelectric project in the world. Up to that point, no FPC license for a hydroelectric plant had been successfully challenged on the merits, and there was little reason to be optimistic about a case where the central c was that the project would damage scenic beauty. But for Lloyd, the representation was as much personal as professional.

There was no such thing as environmentalism at the time, but there was a long history of conservation – a good deal of which emanated from New York and the Hudson River. It should, then, be no surprise that Lloyd Garrison, great-grandson of the abolitionist William Lloyd Garrison, himself a New Yorker by heritage, cared about the land and believed in conservation. So when he was asked to take an appeal to the Second Circuit, there was no way he was going to say no.

The problem was that the plant was to be located at one of the most dramatic spots on the Hudson. The Hudson Highlands were, as Life magazine described them in 1964, “one of the grandest passages of River scenery in the world.” And the northern portal to the gorge, with Storm King on the west and Breakneck Ridge on the east, provided the most magnificent of all views.

There was little precedent for citizen opposition in these circumstances, but a small group of individuals organized themselves as the Scenic Hudson Preservation Conference and set out to make a difference. Their first approach was to Gov. Nelson Rockefeller, whose response was that if they did not like the project, they should buy the mountain. Short of the required funds and with Con Edison uninterested in selling, Scenic Hudson was relegated to finding some other way of opposing the plant. The organizers soon learned that the project required a license from the FPC.

There were 4 days of FPC hearings in 1964. Most of Scenic Hudson’s testimony was directed toward the natural beauty and historic importance of Storm King and the Highlands. The FPC staff backed the project with no pretense of objectivity. When the hearings were closed, the future looked grim.

But Scenic Hudson chose to fight on and hired a public relations firm to get the story out. Among other things, the firm organized a flotilla of boats to sail up the Hudson to Storm King and plant signs in response to Con Edison’s then motto – “Dig We Must for a Growing New York.” “Dig You Must Not,” the signs read, and the national media picked up the story.

Scenic Hudson then persuaded a New York State Senator to call legislative hearings on the project in November 1964. Alexander Lurkis, the recently-retired chief engineer for the New York City’s Department of Water Supply, Gas and Electricity, had identified what he said was a superior alternative – a series of jet engine gas turbine generators that were new to the market. He made a presentation of the alternative, including cost comparisons showing his plan to be much less costly.

Also appearing was Bob Boyle, the Outdoors writer for Sports Illustrated and a Hudson River worshipper writ-big. Boyle had discovered a report from 10 years earlier that suggested the center of spawning grounds for the recreationally- and commercially-important Hudson River striped bass was at Storm King Mountain. Since the project would ingest vast amounts of water – some 8,000,000 gallons a minute – in which the eggs and fish larvae would be floating helplessly, the danger to striped bass was obvious.

What made the disclosure all the more dramatic is that the study had been supervised by Con Edison’s fisheries expert, who had testified in the FPC hearings that the plant posed no threat to aquatic life.

Scenic Hudson promptly arranged to have the Lurkis and Boyle testimony submitted to the FPC, with a request that the hearings be reopened. The FPC rejected the submissions as untimely. Then, in February 1965, the state legislative committee issued its report. It found the Lurkis testimony compelling and the Boyle discovery disturbing and urged the FPC to reopen the case. All of this went unheeded. On March 9, 1965, the FPC granted the license application.

Two and a half weeks later, the case came to Mr. Garrison. Actually, it did not come only to Mr. Garrison. Before Lloyd said “yes,” he had recruited his partner to work with him. This was Judge Simon Rifkind, one of the 20th century’s great trial and appellate attorneys, who made invaluable contributions.

The first of these, which he and Mr. Garrison hit on jointly, was to rename the Cornwall Project, which had no sex-appeal. From then on, in our briefs and announcements, this was the Storm King Project.

There is, for me, a certain irony in how central this minor adjustment became as the case progressed. The original Dutch settlers had called the mountain Boterberg, which, translated into English, became Butter Hill. Can anyone doubt that a battle over Butter Hill would have been considerably less impassioned than one over Storm King? Happily, Nathaniel Willis, a romantic writer who lived in the Highlands, felt Butter Hill was an indignity for such a grand geological feature, and he renamed it Storm King. So, if you will, modern environmental law may be indebted to Mr. Willis for its start.

The further wisdom that Judge Rifkind brought to the case was his counsel that it could not be won on the grounds that the FPC had misjudged the impacts on scenic beauty. Instead, both he and Mr. Garrison agreed that we needed to emphasize the gaps in the FPC record, including the limited discussion of alternatives and indifference to fisheries impacts. The Power Act expressly provided that a party to the FPC’s proceedings could apply to the Circuit Court for leave to adduce additional evidence.

This fit nicely with the idea that the focus should be on what the commission had largely ignored rather than directly confronting the project’s damaging impact on the natural beauty of the Hudson Highlands. At the same time, Judge Rifkind urged that scenic beauty be used to set the context. Because the area was so magnificent, we would argue – and did – the FPC should have bent over backwards to find an alternative.

After all the strategizing, Lloyd Garrison went to work, and the papers he produced were exquisite. He had a poetic sense of the English language and used it to extraordinary effect. Several of us – in time narrowed to myself – would prepare drafts. Lloyd would then call his secretary into his office and pacing back and forth would dictate late into the night, translating what he had been given into prose that stirred the soul. It is not surprising that many of the words Judge Paul Hays used in the 1965 Scenic Hudson opinion came directly from our briefs. My contribution was the research, and I do not make light of that. But it was Lloyd Garrison who created the road map that led the Second Circuit to the decision it reached.

Lloyd did not have much confidence the case could be won, but to the extent there was hope, it was because, as Bob Dylan sang, “the times, they were a-changin’.” This was 1965, 3 years after Rachel Carson had published Silent Spring, which in many ways changed Americans’ way of thinking about the environment. Increasing concern was being expressed about the new interstate highways being slashed through cherished landscapes, and more and more Americans found themselves impacted by the web of new transmission wires being woven across the country to meet soaring demand for electricity. The times, in short, were ripe for a case like Storm King. But neither Lloyd nor I nor any of the others who helped write the briefs had any idea that the case would have the broad implications that it did. We were simply trying to save Storm King.

The case was argued in late October 1965. Mr. Garrison was eloquent and persuasive. Con Edison’s counsel ranted, to little effect. And the panel found it incredible when the attorney for the FPC argued that the project would improve the scenery of the Highlands.

Two weeks later, New York City went dark. The Great 1965 Blackout rolled out of Canada and within 10 minutes, Con Edison’s electric system closed down for 13 hours. The next day, the company had ads in every major paper stating that if the Cornwall Project had been on line – and but for the opposition it would be under construction – the city would have been saved. Needless to say, we did not regard the blackout as good news.

The story, however, is that the 3 judges were in the midst of reviewing a first draft of their opinion at the time the blackout hit and when the lights went out, they simply lit candles and continued their work. This is probably apocryphal, but 7 weeks later, on December 29, 1965, the court came down with its landmark Scenic Hudson decision. Enough commentators have suggested that modern environmental law was born out of the decision to make me believe it might be true.

*Condensed from the 16th annual Lloyd K. Garrison Lecture on Environmental Law, hosted by Pace University’s Elizabeth Haub School of Law. Click here for a complete transcript of Butzel’s remarks.