The opinion
BURGER, Circuit Judge
(dissenting).
I dissent because I think there is no occasion at this time for the court to reach the issue of the ultimate safety of the plant’s operations. The Commission has issued only a provisional permit to build a plant, not to operate it. The plant cannot go into operation until and unless the intervenor PRDC meets the safety provisions of the Act.
The sole basis of challenge to the provisional construction permit is that the future possibility that an operating permit will be unlawfully and improperly issued by the Commission creates a “present,” “immediate” and “unavoidable threat” of injury. I do not think we have any occasion to consider what is not now before us. The Commission expressly deferred action on that issue. This does not appear to me a “final order” which gives us jurisdiction to pass on the ultimate issue of safety; nor does it empower us to tell the Commission that it must pass on the ultimate safety of the operation before the plant is constructed. Orders are not final as to a person “unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 1948, 333 U.S. 103, 113 , 68 S.Ct. 431, 437 , 92 L.Ed. 568 .
In an area involving as much scientific uncertainty as development of nuclear energy for peaceful purposes, the Commission must be permitted to proceed step by step, i. e., make its preliminary finding of probable safety when the construction permit issues and reserve final approval of operations until a later date.
I respectfully suggest that my colleagues are undertaking to assume responsibilities which Congress vested in the Commission. This is illustrated in the majority’s statement
“No reactor should, without compelling reasons, be located where it will expose so large a population *653 to the possibility of a nuclear disaster.”
On what evidence does the majority make a finding of “nuclear disaster” directly opposed to the finding which the Atomic Energy Commission made? The majority is, in effect, telling the Atomic Energy Commission that it has made an unwise decision on the location of the plant.
The majority also goes beyond the established limits of judicial review when it states:
“The economy cannot afford to invest enormous sums in the construction of an atomic reactor that will not be operated. If enormous sums are invested without assurance that the reactor can be operated with reasonable safety, pressure to permit operation without adequate assurance will be great and may be irresistible.”
From an erroneous premise drawn out of thin air, the majority proceeds to draw an unwarranted conclusion. On what evidence can we as judges say our “economy cannot afford,” or even that these appellees cannot afford, this large investment for peaceful uses of nuclear energy? I suggest our entire history is to the contrary. We invested not mere millions but billions in the original development of nuclear fission on a totally unproven theory of physics. It was an act of faith in the views of scientists. Surely it cannot be seriously suggested that these giants of American industry which formed PRDC are not well able— and willing — to risk the loss of millions in experiments and research. Forty or fifty million dollars to the sponsors of PRDC is a small investment to risk for the world’s first known experiment of this kind into peaceful uses of nuclear -energy.
If we were dealing with a radio or TV license or some other purely commercial enterprise in a developed and mature industry I would agree that there is a risk that large investment in machines might conceivably exert a subtle influence on the ultimate grant of an operations permit. Cf. Community Broadcasting Co. v. Federal Communications Commission, 107 U.S.App.D.C. 95 , 274 F.2d 753 . But I cannot join in the suggestion that members of the Atomic Energy Commission who have assumed obligations under oaths as binding as ours would permit an operation dangerous to the public because 40 or 50 million dollars is invested in brick, mortar and steel by men who knew from the outset they were engaged in a scientific gamble. And if any administrative agency should so abdicate its responsibilities in a matter as grave as this — -which I cannot believe is likely — the courts are always in a position to exercise a final and stringent scrutiny on the issue of public safety.
Development in an area like this must, of necessity, proceed step by step. The Commission has found that the issuance of the construction permit on a provisional and restricted basis “does not in any manner adversely affect the health and safety of the public or that of the [petitioners].” The appellants do not attack this finding.
At this stage how can anyone know what the result will be ? This court considered a challenge not unlike that of appellants’ challenge in Associated-Banning Co. v. United States, 1957, 101 U.S.App.D.C. 151 , 247 F.2d 557 , 561: “We cannot assume that the Board will not conduct its hearing within the intendment of the Act, so far as it may apply. It may well be, for all we are shown, that the Board’s ultimate action will completely dispel every prospective fear voiced by the protest and the complaint. It is clear that the Board has not as yet entered an order ‘final’ as to these petitioners.”
The essence of the majority action is found in its acceptance of the idea that once the Commission has permitted PRDC to invest its millions in the plant they are “bound” or “likely” to relax their notion of what is safe' or dangerous in order to bail out the investors. ■
*654 I emphasize that I cannot for a moment believe the sponsors of PRDC are so naive that they would think their investment of these millions is not speculative just as is most research. Nor can I believe they think that any amount of invested capital will persuade the Atomic Energy Commission to make a finding of safety which is not supported by substantial scientific evidence. It is entirely possible that PRDC might find itself the owner of a 50 million dollar scientific “white elephant” if, after completion of construction, it cannot satisfy the safety standards of the statute. Should that be the case it will be simply one of the unproductive steps in what promises to be a program to open to mankind sources of power undreamed of only a few years ago.