• 1 See: Vernon Benjamin, The History of the Hudson River Valley, Volume One: From Wilderness to the C (...)

1Storm King Mountain is located about 70 kilometers north of New York City on the west bank of the Hudson River at the point where the Appalachian Mountains cross the water before joining up with the Poconos in Eastern Pennsylvania. The site is steeped in local legend and history. For the early Dutch settlers, who had a taste for the supernatural, the dramatic scenery of the Hudson Highlands naturally lent itself to stories of ghosts and goblins who were supposed to live on Storm King. Forty kilometers to the south, the river flows past the village of Sleepy Hollow, where Washington Irving set his famous tale of the headless horseman. And the factual history of the area is no less interesting. From the summit of Storm King, you can look down onto the campus of the U.S. Military Academy of West Point and the original battlements designed by Polish revolutionary Tadeusz Kosciuszko during the American Revolutionary War (1775-1783). The strategic importance of the site was obvious: the Hudson River, which is over 2.5 kilometers wide only 5 kilometers to the north at the city of Beacon, New York, and nearly 5 kilometers wide 20 kilometers to the south at Croton-on-Hudson, narrows to a mere 400 meters at West Point, and twists while passing below the rocky outcroppings of Anthony’s Nose, Bear Mountain, Breakneck Ridge, Sugarloaf Mountain and Storm King. It was called the key to the continent because if ever the British managed to get past this region known as the Hudson Highlands, they would control the entire Hudson River valley and effectively cut off New England from the rest of the colonies. After that, eliminating resistance in the colonies one by one would be a much easier task. It was also here that George Washington was betrayed by Benedict Arnold, who escaped to the appropriately-named British ship, Vulture, lurking in the water below the fort. Later, in the nineteenth century, when the Hudson River School of painters, inspired by the writings of Ralph Waldo Emerson and the transcendentalists, sought to convey the sublimity of the American wilderness, Storm King Mountain figured prominently on the canvasses of Thomas Cole, Samuel Coleman and Thomas Benjamin Pope.1

• 2 Robert D. Lifset, Power on the Hudson: Storm King and the emergence of modern American environment (...)
• 3 “About Us,” scenichudson.org, accessed September 30, 2022, https://www.scenichudson.org/about-us/A(...)
• 4 The other two cases were: Scenic Hudson Preservation Conference et al., Petitioners, v. Federal Po (...)
• 5 The parties signed what the New York Times dubbed “A Peace Treaty for the Hudson” in 1980.

2Then, in 1963, the Consolidated Edison energy company (Con Ed) applied to the Federal Power Commission (FPC) for a license to build a pumped water storage electrical plant on Storm King, including a reservoir containing more than 30 billion liters of water on the summit and a 244-meter-wide base facility carved into the rock at the base that would house the immense generators in plain view from the river and the opposite shore. Electrical cables suspended over the river would link the site to the grid, thereby supplying electricity to New York City, whose aging infrastructure resulted in frequent black- and brown-outs. Clearly, if the power station were to be built, the beauty of the site would be marred permanently, a point that did not go unnoticed by such entities as the Palisades Interstate Park Commission and Harvard University, both of which owned land that would have to be appropriated for the project to go ahead.2 But most importantly, a local organization called Scenic Hudson Preservation Conference was created the same year by local citizens determined to protect the beauty of the site.3 Thus, the stage was set for a legal battle that would drag on for nearly two decades. Numerous actors and interests would be drawn into the conflict, but for the general public it would be seen as a David and Goliath confrontation: Scenic Hudson against Con Ed. Indeed, the two parties feature in three prominent federal court cases, the first decision being handed down in 1965: Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965).4 And, as in the biblical story, the underdog won, the conservationists prevailed and Con Ed was ultimately prevented from building the hydro station on Storm King Mountain.5

• 6 David Schuyler and Paul Gallay, “The Battle for Storm King: In celebration of the mountain and riv (...)
• 7 William M. Goodman, “Scenic Hudson revisited: the substantial evidence test and judicial review of (...)
• 8 Scenic Hudson Preservation v. Fed. Power, 354 F.2d 608 (2d Cir. 1965), § 30.
• 9 The expansiveness of the court’s ruling can be measured by comparing it with contemporaneous decis (...)
• 10 Ned Sullivan, “The Spirit of the Scenic Hudson Decision Lives on in 50^th Year of Citizen Action,” (...)

3More than half a century after the ruling, David Schuyler and Paul Gallay writing in Scientific American described the events surrounding the decision as a “bellwether for protecting the environment and preserving the natural beauty of the river”.6 Indeed, along with the publication of Rachel Carson’s Silent Spring in 1962, the case has been credited with launching the modern environmental movement. In legal histories, the Scenic Hudson Case was hailed as “the grandfather” of all subsequent environmental litigation in the United States, becoming inextricably linked with the doctrine of “standing” in the minds of those studying both law and environmental issues, essentially redefining our understanding of who should be considered as having a legitimate interest in the outcome of environmental law cases.7 What the Storm King decision is claimed to have done is to expand the scope of standing so that people who did not actually live within the immediate vicinity of the mountain were nonetheless considered to be affected by the proposed changes to the appearance of the landscape. Henceforth, not only those who lived in the nearby village of Cornwall – literally under the shadow of the mountain – but indeed all persons “who by their activities and conduct have exhibited a special interest in such areas” were to be “included in the class of ‘aggrieved’ parties.”8 Chiding the FPC for interpreting the law too narrowly, the United States Court of Appeals, Second Circuit widened its application to include anyone who might at some time wish to benefit from the geological configuration that so inspired Thomas Cole: fisherman who intended to fish in the river below, owners of sailboats wishing to navigate on the river and any person who might benefit from what Storm King is and represents had a right to enjoy the site in its present state, that is, without an electric power station attached to it.9 So influential was the symbolic importance of the ruling, that subsequent cases would be hailed as proof that “the spirit of Storm King is alive and well.”10

• 11 “K-12 Education: Student Population Has Significantly Diversified, but Many Schools Remain Divided (...)
• 12 Virginia E. Sloan, Cait Clarke, and Daniel Engelberg. “Gideon’s Unfulfilled Mandate: Time for a Ne (...)

4But as with many landmark decisions, there is a danger of believing that by establishing the legitimacy of a principle, an actual problem has been solved. Perhaps it is the desire for closure that leads us peremptorily to conclude that the right ‘guaranteed’ by the court’s decision has actually been removed from all danger of future encroachment by other, as yet unforeseen interests. Sometimes, while the rights themselves are simple enough to understand and identify, translating them into practice turns out to be trickier than what one might expect from the grandiose language of judicial decisions. Thus, while Brown v. Board was rightfully hailed as a landmark decision for racial segregation illegal, sixty-eight years later “[s]chools remain divided along racial, ethnic, and economic lines throughout the U.S.” today, according to the U.S. Government Accountability Office.11 And the same could be said of the principles of Gideon v. Wainwright, which was intended to guarantee counsel to defendants who could not afford their own attorney, but has not in fact been fully respected.12 But environmental issues are particularly complex insofar as natural phenomena respect neither political nor jurisdictional boundaries; and they do not become simpler when legal doctrines are put into practice through public policy. Thus, while it is relatively clear that the policy of segregated schools was based on racist assumptions that were prejudicial to African-American children, no such clarity could be discerned in the controversy over Storm King. Indeed, local politics, regional rivalries, class conflict and overlapping legal frameworks combined to create an exceptionally complex web of parties and interests, all of which had at least some degree of legitimacy. The very concept of ‘standing’ is indicative of this phenomenon insofar as it addresses the question of who should be taken into account when making decisions about the use of natural resources and in 1965 the court’s answer was that the group of concerned parties was larger than what the Federal Power Commission originally thought, thus rendering an inherently complicated process even more so.

• 13 Lifset, Robert D. Power on the Hudson: Storm King and the emergence of modern American environment (...)

5Issues related to rivers are inherently wide-reaching, extending through space both horizontally, along the path of the flowing surface water, and vertically, down into the groundwater system and back up through tributaries. They also go back through time, as we live with the consequences of decisions made about water use hundreds of years ago or more, as well as forward, affecting those who will live with the results of contemporary decisions. In addition, issues relating to rivers acquire symbolic, cultural meaning through the accumulation of historical events which both affected and were influenced by rivers, rippling through social classes and determining who acquires political power and how it is wielded. The law, of necessity, attempts to simplify these vast networks so as to allow conflicting interests to coexist peacefully; but if we are to learn how to interact justly and sustainably with the environment of rivers, the story of rivers’ relation to humanity needs to retain a sense of the complex and contradictory nature of that relation, which it is not the law’s vocation to preserve. Thus, this paper proposes a critique of the legal reasoning adopted by the Court of Appeals as well as some analysis of the literature pertaining to the Storm King Mountain jurisprudence. The external history of the Storm King case has already been written by Robert Lifset (Power on the Hudson: Storm King Mountain and the emergence of the modern American environmentalism, 2014) and David Schuyler (Embattled river: the Hudson and modern American environmentalism, 2020).13 The focal point of this article is not so much the details of the case as how they are situated within a historical continuum with a view of better understanding the complexity of the environmental issues in question. We will argue that the legal innovations developed throughout Storm King’s 20-year litigation process were less groundbreaking than commonly asserted and more a reflection of just how much catching up needed to be done by legal institutions in order to take into account progress already made in environmental thinking and public opinion at that time. The Court of Appeals’ 1965 decision was a necessary acknowledgement of a new awareness of the effects of water use policy, not a trailblazing decision that pointed actors towards a better future; if anything, the federal court system was being forcibly dragged out of the past by a popular movement that had been building up for decades.

• 14 See for example, Peter Kihss, “Power Failure Snarls Northeast; 800,000 Are Caught in Subways Here; (...)
• 15 According to Lifset (2014, 18), Con Ed’s average rate in 1962 was 4 cents/hour whereas the nationa (...)
• 16 Lifset, Power on the Hudson, 14.

6Before attempting to evaluate the outcome of the conflict over the proposal to build a hydro station, it is first necessary to understand the need which the project was intended to fulfill and whether it would have actually fulfilled it. As mentioned above, New York City was indeed suffering from the effects of its ailing electrical power supply system.14 Con Ed claimed that a pumped water storage system of the size envisaged for Storm King would not only help provide electricity during peak periods of consumption, but it would also lower costs for consumers, though their claims were somewhat undercut by the fact that their rates were consistently among the highest in the entire country.15 Nevertheless, opponents of the plan didn’t deny that the city was facing an energy shortage problem. Moreover, New York’s aging coal-powered network was a major contributor to air pollution in the city and a serious health risk for over seven million people.16 Thus, a plan to harness the power of the river to relieve some of the pressure to which the current electrical grid was subject would appear, on the surface of it, to be a reasonable proposition.

• 17 “Water Hearing Adjourned: City Gets Time to Analyze Beck Plan for Hudson Dam,” The New York Times, (...)

7Politically, however, the Storm King project brought to the fore a tension that had been festering under the surface for years, namely, the perceived assumption that “upstate” New York was expected to sacrifice its resources to fulfill the needs of the great metropolis. Indeed, the proposed hydro facility was only the latest in a long series of public work projects whose goal was to support the needs of New York City’s ever-growing population, and many of these projects involved the Hudson River watershed. The Croton reservoir, for example, located about 50 kilometers upstream from Manhattan involved the damming of the Croton river, a tributary flowing into the East bank of the Hudson, in order to supply drinking water to the city. But even before the project was completed in 1906, the city’s level of drinking water consumption had out-grown the new source, rising to almost 1.9 billion liters a day. As a result, a second project was undertaken, this time 130 kilometers up-river on the west bank, involving the damming of the Esopus Creek to create a 21 square kilometer reservoir. The water flows through a massive conduit system, which – importantly – includes a tunnel that passes under Storm King Mountain on its way to the big city. The villages of West Shokan and Brown’s Station were wiped off the map and their inhabitants displaced, their local culture and way of life destroyed. In 1950 a proposition to actually construct a dam across the Hudson River itself was under consideration17. The dam would have been anywhere from 1.5 to 4.5 kilometers long. The idea was to prevent the brackish water from flowing up as far as it does naturally – about 160 kilometers north of New York City – so that fresh drinking water could be brought closer to the city. In other words, the estuary would be turned into a lake and the ‘river that flows two ways at once,’ as the Native Americans called the Hudson, would hardly flow at all.

• 18 “Water Board Bars Hudson Dam Plan,” The New York Times, July 28, 1950.
• 19 The city is divided into five boroughs, which are coextensive with five counties: the Bronx-Bronx (...)

8Though ultimately the Hudson River dam was abandoned, these projects illustrate just how preponderant New York City’s role in state politics has been and how the drive to fulfills its needs are nearly irresistible for lawmakers.18 A quick glance at population density makes it clear that neither state legislators nor national politicians could afford to neglect the city’s needs: taking the year 1974 as an example, since it lies approximately at the half-way point of the 20-year conflict over Storm King, we observe that the five constituent counties of New York City (Bronx, Richmond, New York, Kings and Queens) accounted for a little over 42% of the population of the entire state of New York – some 7.6 million people out of a total of 18 million; if the three adjacent counties (Suffolk, Nassau and Westchester) are added to those of the city proper, the New York City metropolitan area constitutes a clear majority of the population, thus ensuring that people living on about 3% of the state’s landmass have the political power to determine how the state’s natural resources are used. 19

• 20 60th Congress, 1st Session, December 2, 1907 – May 30, 1908, House Reports (Public), Volume 2., (W (...)

10As it turns out, New York State has in many ways led the nation in just this sort of policy making. Beginning with New York Governor and later U.S. President Theodore Roosevelt, the state has sought to enact what he called a “comprehensive plan” that “should consider and include all the uses to which streams may be put, and should bring together and coordinate the points of view of all users of waters.”20 This quotation is taken from Roosevelt’s presidential veto of a bill to fund a hydroelectric project, in Minnesota, but it sums up the philosophy he and contemporary conservationists were pushing at the time. Indeed, in the spirit of Rooseveltian conservationism, the expression, “comprehensive plan” appears throughout section 10 of the 1920 Federal Power Act, which established the Federal Power Commission that would ultimately have to approve the Storm King hydro proposal, so it is worth considering some of its language in detail here:

• 22 For discussion on federal dam-building policy, see: McFarland, Charles K. "The Federal Government (...)

11This act was amended in 1930 and again 1939, during a period of massive dam construction (roughly 40% of existing dams in New York were built between 1901 and 1950 according to data from the New York State Department of Environmental Conservation).22 The language of the Act evinces the federal government’s understanding of the larger implications of dam construction and its desire that the totality of interests involved in such projects be taken into account. Moreover, the expression, “other purposes” clearly indicates Congress’s intention that the law should be interpreted in a broad, rather than narrow, manner. And while no mention is made of standing in case of litigation, the spirit of the law is undeniably inclusive, explicitly enumerating a variety of parties and interests, so that the Court of Appeal’s granting of standing to those not directly affected by the Storm King project can hardly be considered as groundbreaking, but rather merely conforming to the original intent of those who wrote the law.

• 23 New York State Constitution, Article XIV, Conservation, Section 1, § 1. The text of the 1894 const (...)
• 24 New York State Constitution, Article XIV, Section 1, § 5, “Derived from former § 7 of Art. 7. Adop (...)

12But New York State’s penchant for an inclusive approach to environmental law was just as pronounced as that of its famous son and his conservationist allies in Congress. In its constitution of 1894, the state declared that 27,000 square kilometers of land in two state parks “shall be forever kept as wild forest lands.”23 What’s more, in a paragraph added in 1938 and approved in a statewide referendum, New Yorkers were granted the right to sue to enforce violations of the state’s constitutional conservation policy: “A violation of any of the provisions of this article may be restrained at the suit of the people or, with the consent of the supreme court in appellate division, on notice to the attorney-general at the suit of any citizen.”24 In other words, by 1938 the question of standing to sue had been resolved in New York State at the highest level of legal authority and with the greatest possible transparency. But as if this were not a clear enough expression of the will of the people of New York, in 1969, with the fate of the Storm King project still uncertain, another amendment to the constitution was again proposed and approved by popular ballot, this time re-affirming not only the formerly established policy of conservationism, but demanding the further acquisition of land to be protected, defining types of pollution to be defended against, affirming the validity of aesthetic and historical considerations when developing policy, and most radically, requiring the approval of two successive legislatures to modify the status of protected land, thus putting them beyond the reach of short term political pressure. This initiative was partly a response to the on-going controversy over Storm King and deserves to be cited in its entirety:

• 26 Clauses 23 and 33. See: https://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_33 and https (...)
• 27 Gibbons v. Ogden, 22 U.S. 1 (1824)

14The idea that rivers involve competing interests and overlapping uses has long been recognized by the common law tradition. Magna Carta (1215) itself attempts to reconcile divergent interests involved in river use both for fishing and transportation26. In the United States, the question of the public use of bodies of water was taken up in such cases as Arnold V. Mundy (1821), in which the New Jersey Supreme Court debated the application of Magna Carta’s principles to an oyster farm to which the plaintiff claimed exclusive ownership. In Gibbons v Ogden (1824) – again concerning the use of the Hudson River – the United States Supreme Court rejected the idea that New York could grant a monopoly to a transportation company because the state lacked the authority to regulate interstate commerce: this claim rests upon both the constitution’s commerce clause and on the underlying assumption that the “waters between Elizabethtown and the City of New York” are a common resource available for transportation use to all American citizens. Hence the court’s use of the term, “our bays and rivers” (my emphasis), meaning ‘belonging to us all’ was yet another re-assertion of the notion of a community of beneficiaries whose rights and responsibilities were shared.27

• 28 Scott W. Stern, "Standing for Everyone: Sierra Club v. Morton, Supreme Court Deliberations, And A (...)

15Questions of eminent domain and the public use doctrine are put to the test in a variety of different settings, but that of standing is only rarely at issue. Indeed, as Scott W. Stern argues in “Standing for Everyone: Sierra Club v. Morton, Supreme Court Deliberations, and a Solution to the Problem of Environmental Standing,” “the modern environmental standing doctrine is an aberration. For most of American history, there were no standing requirements.”28 The ‘modern doctrine’ to which he refers is that which emerged from the Storm King case and the Sierra Club case of 1972 when Disney Corporation threatened to build a theme park in the California wilderness: the Supreme Court denied the Sierra Club’s right to sue because it had not claimed that any of its members were directly affected by the proposed project, though the justices did state that the environmental organization could re-file the same suit if it did so in the name of a specific member who claimed some direct attachment to the land in question. While these decisions are now hailed as advances in environmental law, Stern claims that they are actually steps backward insofar as they allow standing to be called into question at all. Concerning Scenic Hudson v. FPC, he writes,

• 30 “HRVC was Rockefeller’s strategy for deflecting the possibility of federal intervention to clean u (...)
• 31 Lifset, Power on the Hudson, 167.
• 32 For insight into the ambiguity of environmental law at the time see: Sive, David. "Some Thoughts o (...)

17In the end, two environmental groups, Scenic Hudson and the Hudson River Fisherman’s Association did get over that hurdle. And yet, despite the fact that the Federal Appeals Court granted them standing in 1965, they lost the case – they failed to prevent the FPC from granting Con Ed a license to construct the power station. After Scenic Hudson proved that irreparable aesthetic damage would be done by blasting away the base of the mountain to make room for the generators and by stringing power lines across the river, Con Ed agreed to put the generators inside the mountain and send the cables under the river. And when the Hudson River Fisherman’s Association – thanks to the tenacity of its leader, Sports Illustrated journalist, Bob Boyle – proved that Con Ed’s estimation of the impact of the station on the striped bass population was vastly below the actual levels as determined by unaffiliated scientists, proposals to filter the water or pump at different times of the year were put forward by Con Ed and accepted by the Commission. Meanwhile New York Governor Nelson Rockefeller created yet another institution, the Hudson River Valley Commission, as a demonstration of his interest in the novel issue of ecology now being so fiercely debated.30 Even the U.S. Department of the Interior weighed in in 1965, recommending that the power station not be built.31 Nevertheless, in 1970 the FPC again licensed Con Ed to build. Litigation continued while numerous environmental groups appealed the decision, but four years later, construction began. Thus, while the Scenic Hudson decision made it possible for environmentalists to sue, it did nothing to increase their possibility of doing so successfully.32

• 33 Robert H. Boyle, The Hudon River: A natural and unnatural history (New York: W. W. Norton & Company (...)
• 34 John Cronin and Robert F. Kennedy, Jr., The Riverkeepers: Two Activists Fight to Reclaim Our Envir (...)

18While the lofty language of the 1965 decision made overtures about beauty and history, the issue that really managed to keep opposition to the Storm King project alive was that of the fisheries. Bob Boyle had demonstrated not only that Con Ed’s expert scientific witness was incorrect, but also that his testimony was deliberately deceptive.33 Boyle’s personal expeditions to Con Ed sites along the river, gathering evidence and taking photographs, in addition to his writing skills, connections and knowledge of how the legal system worked contributed more than anything else to damaging Con Ed’s reputation as a responsible economic actor. The result was that, with the help of Scenic Hudson’s lawyers, he forced the FPC to hold public hearings in 1976 about the effect the new power station would have on the striped bass population of the Hudson.34 Little by little, Storm King was turning into a public relations disaster for Con Ed.

• 35 Lifset, Power on the Hudson, 123.

19Meanwhile, New York City switched sides. During one hearing, it was pointed out that the massive conduits that brought drinking water from the Ashokan reservoir passed through Storm King Mountain and the blasting and drilling that would be necessary to install the generators could possibly damage them.35 The political balance was beginning to shift. The case had always been riddled with contradictions: the genteel inhabitants of the east bank of the river who talked about the aesthetic beauty of the site against the working class people of Cornwall on the west bank who stood to benefit from better employment opportunities, the Prometheans, whose slogan was “Dig we must,” against the conservationists who wanted to preserve the natural status quo, the federal government against the state government, the State Department against the Department of Energy, the pre-60s generations against the hippies… But now the opposition of the city against upstate was disappearing. And environmentalism was obviously on the rise. After the publication of Rachel Carson’s Silent Spring in 1962, Hudson Valley native, political activist and musician, Pete Seeger launched his Clearwater Hudson River sloop (a functional reproduction of an historical sailboat that doubled as an educational institution) in 1969 and lent its name to a yearly environmental folk music festival. The same year the greatest musical event of the decade also took place in the Hudson Valley, the Woodstock music festival in Bethel Woods, New York. Earth Day happened the following year. The times they were indeed a-changing.

• 36 Robert H. Boyle, The Hudson River: A Natural and Unnatural History (New York, W. W. Norton & Compa (...)
• 37 The signatories were: (a) The United States Environmental Protection Agency ("EPA"); (b) The Depar (...)

20Ultimately, Continental Edison gave up. Or at least they appeared to do so. In fact, the company agreed to abandon the Storm King project in exchange for less regulation of its nearby Indian Point nuclear power station, also located directly on the Hudson River. Bob Boyle – again – had published a damning article in Sport Illustrated magazine entitled, “A Stink of Dead Stripers” that featured photographs of thousands of dead fish which had been sucked through the plant’s water intake system used to cool the reactors down.36 Not only had the article been instrumental in revealing to the public the effect of the nuclear power station on the river’s ecosystem, but it proved that the company’s assertions of how little its activities impacted the fish population was a blatant lie. And if they had lied about past activity at Indian Point, how could they be trusted to tell the truth about future activity at Storm King? In any case, Con Ed deftly used one case as leverage against the other. Drawing water directly from the river was the cheapest was to cool the nuclear reactors, but it had a devastating effect on the fish population. To avoid this, it would be necessary to build water storage towers on land, a much more expensive proposition. The company thus proposed to abandon the Storm King project altogether in exchange for not being required to build the water storage towers. In the end, after nearly two decades of litigation, protest, propaganda, espionage and bureaucratic warfare, a version of this proposal was accepted by eleven interested parties – including the Environmental Protection Agency which had come into existence in December 1970, eight years after the Storm King project was first proposed – in what became known as the Hudson River Treaty, signed in 1980.37

• 38 John, Wargo “Principles & Strategies in Environmental Law,” yalecourses (Mar 11, 2011): https://ww (...)

21Environmental law professor, John Wargo of Yale University has pointed out the insufficiency of legal instruments to deal with ecological problems. Due to the essentially piecemeal structure of the common law system, he argues, what we now think of as ‘environmental law’ is really an accumulation of state and federal statutes and jurisprudence from cases dealing with environmental issues, often in response to immanent threats or actual damage. “The result,” says Wargo, “is what I think of as a fragmented patchwork quilt – that is quite frayed – of various statutes that are pieced together that have embedded within them various decision standards as well as different levels of funding, administered by a variety of different agencies.”38 The Storm King Case illustrates this assessment perfectly. Not only were the federal courts constantly called upon to interpret data sets for which judges have no training, but they were asked to do so even as the situation on the ground was evolving politically, economically and ecologically. Moreover, the very rules according to which they were to make their decisions were evolving throughout the period during which the dispute occurred.

• 40 Juliet Eilperin and Brady Dennis, “Trump EPA finalizes rollback making it harder to enact new publ (...)

26The real significance of the Storm King case lies in its management of what was in effect a proto-environmental impact assessment (EIA), now required by EPA before projects such as the building of a power station can be approved: it revealed the legal landscape of concerned parties whose divergent interests need to be reconciled. But the ambiguities mentioned above did not escape the notice of presidential administrations that were reticent to incur the anger of corporations whose goals were in conflict with principles of environmental protection. During the Trump administration, for instance, rather than taking its cue from the court’s purportedly expansive vision of standing to go beyond social, cultural, health-related or purely environmental considerations, the EPA decided instead to balance those factors against potentially adverse economic effects of plans when deciding whether or not approve them.40 In this view, the possible negative consequences on the job market could be considered to outweigh the positive health benefits of, for instance, proposed restrictions on coal fire emissions. Thus, the agency that was created to achieve the lofty goals of the National Environmental Policy Act of 1969 became the instrument of those who oppose its foundational ambitions. The beauty of the law has indeed proven to be in the eyes of the administration that beholds it. Instead of touting the Scenic Hudson v FPC as a great advance of the law, a landmark case that permanently established the principle of standing, it should be read as a cautionary tale: it was a close call, the story of how failing to consider the Hudson River watershed comprehensively nearly resulted in irreparable damage being done to the landscape and the ecosystem.