Assistant Professor of American history
University of Grenoble
On January 20, 2021, the day of his inauguration, president Biden signed a flurry of executive orders intended to roll back Trump era environmental policies and set the United States on a path towards carbon neutrality. The new measures included re-joining the Paris Accord, cancelling the Keystone Pipeline Project and revoking a previous order that limited the federal government’s ability to regulate private sector activity. A week later, on January 27th, three more orders were signed directing agencies to make decisions based on the best science available. One of them declares, “the United States will pursue green recovery efforts, initiatives to advance the clean energy transition, sectoral decarbonization, and alignment of financial flows with the objectives of the Paris Agreement, including with respect to coal financing, nature-based solutions, and solutions to other climate-related challenges.” The next day, General Motors announced that it would be going all electric by 2035. So, the energy transition appears to be back on track in America. But beyond the easy-to-understand aspects of this ambitious project, like electric cars, what does it really entail?
One part of the renewable energy mix that doesn’t get a lot of attention is hydropower, although it now accounts for nearly half of America’s renewable energy sources and about 6.5% of the country’s total electricity production. But harnessing the power of flowing water to generate electricity means building dams, one of the most environmentally disruptive actions undertaken by humans: dams not only flood vast amounts of land and block the free circulation of aquatic animals, they also constitute serious risks for communities living downstream, not to mention those living in the areas that are flooded. Only a few weeks before this writing, on February 8th 2021, two hydroelectric dams were wiped out in India when glacial flood waters roared down the Himalayas, killing 36 people. (“It’s too bad, authorities never listen to hydrologists until it’s too late!” a colleague from the Norwegian University of Life Sciences in Olso told me.) Nor was this the first time that such disasters struck the region. Another accident at an Indian dam killed 13 people in 1955, while in 1981 110 were killed and 54 lost their lives in 2005 in a similar incident. So, while dams often create lovely vistas of peaceful water and cascades, the potential energy they store up is dangerous and requires careful management.
The risks inherent in dams may be better handled in developed countries, but the potential for disaster is the same everywhere. I was visiting family in Scotland in July 2019 when a dam in Whaley, England began to buckle under the pressure of accumulated rainwater. The BBC reported live as military helicopters rushed
in to shore up the crumbling structure with sandbags. Meanwhile residents of the town below were evacuated from their homes. Suddenly the country became aware of the potential for massive destruction that lurked beneath the surface of an apparently serene body of water. Reporters began to draw parallels to the Johnstown, Pennsylvania disaster of 1889, when over 2,000 people died in a similar situation.
In fact, dams are one of the world’s oldest forms of energy. Some have used the power of water to run machinery to grind wheat or cut wood, thereby saving time and effort for people and raising their standard of living. Others have used dams to store water for irrigation, flood control or human consumption. But the impact of a decision to build a dam nearly always outlives the people who made it and thus when we undertake the construction of a dam, we are actually engaging not only our own responsibility but also that of future generations. From an historical perspective, this means that dams are not only a vestige of past human activity but they are also a real, physical link between ourselves and those who first undertook to change the natural course of rivers and their heirs who maintained and modified the water diversion systems put in place. Think, for example, of all the “Mill Streets” in towns across America or names of towns that end in “mill”—where I grew up, in New York State, Millbrook, Red Oaks Mill and Mills Mansion were all within biking distance. These places are testimonies to past interaction with streams and rivers through water diversion and dam construction, and the birthplace of many past energy transitions. Nor is it a static process: as a dam becomes obsolete it is either removed or transformed for a different use, both of which have major impacts on the environment.
Some of the most influential environmental controversies of the 20th century took place in New York State, giving rise not only to the modern ecological movement but also significant innovations in environmental law.
New York is an excellent starting point for trying to understand what dams have to tell us about past and present energy transitions. Unfortunately, many of the stories about the watershed events of environmentalism suffer from a kind of optimistic progressivism; they are tales of victories won, catastrophes avoided and things set right for all time. But studying and telling the stories from the point of view of dams, rather than law or the ecology movement, is a good antidote to such naïve narratives. I’d like to share a few of these stories over my next few entries.
In most histories of American environmental law, the “Storm King Case” (Scenic Hudson v. Federal Power Commission) figures prominently as the case that re-defined the idea of ‘standing,’ allowing ecological groups to sue big companies even if the groups’ members did not suffer direct economic damage from the company’s actions. The case revolved around the planned construction of a pumped storage plant on the summit of Storm King Mountain, a peak of the Hudson Highlands region of New York within sight of West Point U.S. Military Academy. The idea was to pump water from the river to a storage basin be constructed on the summit where a system of 7 dams constructed in the early 20th century already existed. The potential danger this posed to the town of Cornwall, situated at the level of the river, some 1340 feet below, was not the main concern of the project’s opponents, nor was the impact on the fish population—striped bass in particular— though in a later case this issue would take center stage. The initial problem for the petitioner, the NGO, Scenic Hudson Preservation Society, was the fact that an ugly base facility would be carved into the face of the mountain thereby destroying the beauty of the view from the East side of the river.
Initially, the Federal Power Commission, the body in charge of giving a license to the power company, Continental Edison, decided that Scenic Hudson had no standing because, unlike the residents of the town of Cornwall, they had no economic interest in the project. So, when the Second Circuit Court of Appeals overturned the FPC’s decision in 1965, it was greeted with elation. It opened the door, so the story goes, to aesthetic considerations in cases involving the use of geographical features of the land: as the Second Circuit Court put it, “The Storm King project is to be located in an area of unique beauty and major historical significance. The highlands and gorge of the Hudson offer one of the finest pieces of river scenery in the world. […] Petitioners’ contention that the Commission must take these factors into consideration in evaluating the Storm King project is justified…” Indeed some of America’s most famous artists had immortalized the mountain in numerous paintings. But to defend such aesthetic interests, groups like Scenic Hudson must have
legal standing: “In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of ‘aggrieved’ parties.” It was a victory insofar as the notion of beauty gained legitimacy, but really all that happened was that Scenic Hudson was not chucked out of court. In fact, after the NGO was allowed to make its case before the Commission, the commissioners decided that, having now taken the aesthetic and historical considerations into account, the benefits outweighed the costs and a license for construction was granted. So, how was it that the project was ultimately abandoned?
As it turns out, all the work of Scenic Hudson, along with that of the Hudson River Fishermen’s Association (later to become Riverkeeper), amounted to nothing more than a delaying action. The hard truth is that New York City needed—or at least thought it needed—the electricity to be generated from the new power station and in Albany, the seat of the New York State government, the balance of political power tips heavily in favor of the biggest city, New York. Moreover, in the 1960s, power outages—blackouts and “brownouts”—were relatively common in New York. The old, coal-powered generators in the city were not keeping up with demand and the Storm King project seemed like a good way to both reduce pollution and provide extra electricity during peak hours. For many, the proposal was nothing less than a green energy transition. In theory, water would be pumped to the top of Storm King during hours of low power consumption, then, when demand increased, the water could be released and fed through giant turbines in the base station to produce surplus electricity. Too bad for the striped bass that would be sucked up through the pipes and then shot back down into the turbines. In another rearguard action, the Fishermen’s Association demonstrated that not only would the bass population be decimated, but Con Ed’s scientific expert on the topic had lied about the adverse effect on the fish. Still, after accommodations for fish were proposed, the plan went forward. Con Ed even agreed to hide the base station within the mountain so it would be out of view.
Nevertheless, the NGOs would not relent ,and to their credit public opposition was mounting, thanks in large part to their publicity actions. At the same time, Con Ed showed no signs of backing down. Then something happened which scared New York City politicians and made them change sides. Ironically, it was a dam that brought the whole thing screeching to a halt, not the ones needed to make the reservoir on top of Storm King, but one built in 1915 in the Catskill Mountain region of upstate New York. About 40 miles North of Storm King Mountain, the Ashokan Reservoir stores up water from the Esopus Creek to fulfill the drinking needs of New York City. The conduit pipe that brings the water to New Yorkers passes under Storm King at the exact spot where the base station was to be carved into the rock. Once the opponents of the project pointed out that New York’s water supply would be put in danger by the blasting and tunneling, the balance tipped in favor of stopping the project—even though all the legal hurdles had been overcome by then. Con Ed, however, still managed to transform this setback into an asset by using it as a bargaining chip to negotiate favorable conditions in the running of their nuclear power station at Indian Point, also right on the Hudson River, 10 miles south of Storm King. In the end, all parties signed the Hudson River Peace Treaty of 1980, which settled the 20-year dispute.
While the tireless efforts of the Hudson River Fishermen’s Association and Scenic Hudson Preservation Society were certainly indispensable in building up public pressure against Con Ed, and while the Second Circuit’s clarification of what ‘standing’ means in environmental law is undeniably important, one key factor of the case is almost always overlooked: the urban-rural divide. Indeed, it is hard to imagine the same successful outcome if New York City had not thrown its support behind the cause. The real victory, therefore, was the “upstate” region’s success in convincing the city to see things their way—or more accurately, to see that they had a shared interested in preventing the station from being constructed. But the outcome can hardly be considered to bode well for future controversies. In fact, the same political prioritization of the metropolis over rural communities was also the determining factor in the construction of the Ashokan Reservoir, which ended up sealing the fate of the Storm King project.
In the second decade of the 20th century, while New Yorkers were swinging to jazz music and immigrants were streaming in through Ellis Island, some 2,000 people living in this isolated part of the Catskill Mountains were told them must pack up and leave because their homes would soon be 190 feet under water. Four entire villages with names like Brown’s Station and Broadhead Bridge, hundreds of individual homesteads, barns, storehouses and dozens of graveyards were submerged. (New York City offered $15 to compensate for the cost of moving the remains of those buried in what would be the bottom of the lake; about 2,700 bodies were finally displaced.) The region’s economy had been based on tanning hides, quarries and small farms. The people in the photographs taken of the Esopus Valley prior to the reservoir are hard to distinguish from other East Coast mountain communities from the mining towns of Pennsylvania to the Great Smokey Mountains. Their music sounded similar as well.
But fresh water was scarce in the big city and dam construction was required in the name of modernity and progress. A gigantic reservoir had already been created by damming the Croton River on the east bank of the Hudson, but the water demand of the city had swiftly outpaced its supply, so the inhabitants of the Esopus Valley would have to be displaced. Of course, as was the case with the Storm King project 50 years later, the locals were the happy beneficiaries of due process: hearings would be held and objections heard and considered. The local upstate newspaper in Kingston, New York thought the city’s lawyer looked “like an Englishman,” whereas the New York City papers spoke of the opposition’s “mountain lawyers.” Ultimately, the gigantic dam was approved and built and more than 13 square miles of inhabited land was permanently flooded. Still, more dams would have to be built later elsewhere to feed the insatiable city.
The rural community that was sacrificed to build the Ashokan Dam and Reservoir was soon forgotten, although a half century later, they unknowingly contributed to saving Storm King Mountain from being permanently defaced and the striped bass population of the Hudson estuary from being devastated. Still, this part of the story is hard fit into the narrative taught to aspiring environmental activists and future lawyers: the specialization of our contemporary fields of study means that there is little place left for history – especially non-legal history – in law studies, for instance, and the same goes for other domains. But in order to act effectively and efficiently in the context of today’s energy transitions, they need to be understood in all their complexity, including stories like that of the Esopus Valley and its people’s doomed attempt to resist the big city.
 Section 102 (b) Executive Order on Tackling the Climate Crisis at Home and Abroad, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/
 “Electricity Explained,” U.S. Energy Information Administration, https://www.eia.gov/energyexplained/electricity/electricity-in-the-us.php
 “Before Himalayan Flood, India Ignored Warnings of Development Risks,” The New York Times, February 8, 2021, https://www.nytimes.com/2021/02/08/world/asia/india-flood-ignored-warnings.html.
 Not only are the cases well documented thanks to coverage by major media like the New York Times and educational establishments like the Hudson River Valley Institute at Marist College, but the state government has made its data on dam maintenance available to the public, thus providing a treasure trove of information on the history of water use in the state.
 Scenic Hudson Preservation v. Fed. Power 354 F.2d 608 (2d Cir. 1965), Section I, 613.
 Scenic Hudson Preservation v. Fed. Power 354 F.2d 608 (2d Cir. 1965), Section II, 616.
 Steuding, Bob, The Last of the Handmade Dams: The Story of the Ashokan Reservoir, New York, Purple Mountain Press, 1989, p.30.