The opinion
J. SKELLY WRIGHT, Circuit Judge,
dissenting on the Atomic Energy Act issue:
The Nuclear Regulatory Commission has abdicated a significant part of its statutory responsibility to protect the health and safety of the American people. It has taken the position that, even though the Atomic Energy Act prohibits the grant of a license if the public health will be endangered, licensing proceedings may ignore potential effects on psychological health. 1 Today the court, giving undue deference to the agency’s views, endorses this erroneous interpretation of the statute. I therefore dissent.
In my view, the plain meaning of the statute compels the Commission to consider psychological health contentions in licensing proceedings. The Commission may not grant a license if, in its opinion, “the issuance of a license to [the applicant] would be inimical to * * * the health and safety of the public.” 42 U.S.C. § 2133 (d) (1976). Not all fears and worries, of course, are psychological health effects within the definitions of medical science. The adverse psychological impact of restarting TMI-1 may or may not rise to the level of a health problem; even if it does, the same might not be true of the fears and anxieties of neighbors of other power plants. Drawing these lines, on the basis of the facts, is the task of the Commission. If operation of a nuclear facility would be inimical to the psychological health of the public, the Commission must not approve operation. On the other hand, if investigation shows that allegations of psychological health effects are unfounded or that the effects are de minimis, the Act does not prohibit grant of a license. In short, the statute requires the Commission to make its decisions in light of full information.
Unfortunately, the Commission’s position short-circuits this process of scientific assessment and informed decisionmaking. The court affirms the Commission, taking a “deferential posture” and asserting that “[t]here simply is no basis for this court to overrule the agency’s interpretation.” Wilkey opinion (AEA) at 250,253. I respectfully submit that this is a case in which such deference is inappropriate. As the Supreme Court recently reiterated,
The interpretation put on the statute by the agency charged with administering it is entitled to deference, * * * but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement. * * *
FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31-32 , 102 S.Ct. *391 38, 42 , 70 L.Ed.2d 23 (1981). In my view, the legislative background shows that the Commission’s constricted interpretation of “health” must be rejected.
Congress did not restrict the Commission’s mandate to “physical health” or to “special hazards of radioactivity.” 2 Instead it used the broad, open-ended term “health” in the Atomic Energy Act. Aware that relatively little was known about the health dangers of atomic energy at the time the Act was passed in 1946 and revised in 1954, Congress acted wisely for the future. The language of the statute goes beyond the specific health hazards then known to the scientific community. It assures that the statute will continue to provide full protection to the public as knowledge about the potential health effects of atomic energy expands.
In 1946, for example, many of the long-term health effects of large-scale radiation exposure were as yet unknown. Studies of the survivors of Hiroshima and Nagasaki, which began to be published in the mid-1950’s and which continue to the present day, have provided the largest set of data on the effects of ionizing radiation on production of leukemia, other cancers, and genetic effects in human beings. See MEDICAL Research Council, The Hazards to Man of Nuclear and Allied Radiations (1956), reprinted in The Nature of Radioactive Fallout and Its Effects on Man, Hearings Before the Special Committee on Radiation of the Joint Committee on Atomic Energy, 85th Cong., 1st Sess. 1539, 1554, 1562, 1581, 1624-1626 (1957); CASARETT & Doull’s Toxicology 511 (J. Doull, C. Klaassen & M. Amdur eds., 2d ed. 1980). Yet it would be absurd to suggest that leukemia and genetic defects fall outside the scope of the Atomic Energy Act. Similarly, even though Congress did not refer explicitly to psychological health and even though Three Mile Island has given the scientific community its first opportunity to study the possible psychological health effects of a nuclear power plant accident, the Atomic Energy Act requires the Commission to consider these effects.
The Atomic Energy Act of 1946 created the Atomic Energy Commission, predecessor of the Nuclear Regulatory Commission, and entrusted it with broad responsibility for protecting the public health and safety. The statute reflects Congress’ acute awareness that nuclear energy could be extremely dangerous, and that scientific knowledge of the potential hazards was completely inadequate. Congress established an absolute government monopoly over production of fissionable material, recognizing that this activity was “attended by serious hazards to public health and safety” and that the responsibility for minimizing these hazards is “clearly a governmental function.” S.Rep. No.79-1211, 79th Cong., 2d Sess., reprinted in [1946] U.S.Code Cong.Serv. 1327, 1330. It also imposed strict controls over licensing of devices utilizing atomic energy, because it believed that such devices, “if widely used, would so multiply potential hazards' to national health and safety that even careful Government regulation would fail to provide adequate safeguards.” Id. at 1333. At the same time Congress realized that the scope and extent of potential hazards were unknown. Recognizing the imperative need for “an ever-expanding fund of theoretical and practical knowledge,” the bill encouraged both government and private research in several fields, including “protection of health during research and production activities.” Id. at 1330; H.R.Rep.No.79-2478, 79th Cong., 2d Sess. 8 (1946).
Given this context of acknowledged uncertainty, the Commission is simply wrong when it asserts that the 1946 Act limited health hazards to nonpsychological “special hazards of radioactivity.” Brief for respondents at 31. Neither the statute nor the *392 legislative history gives any indication that Congress rejected the ordinary meaning of the word “health” — psychological as well as physical health. The Act gave the Commission authority to establish regulations that it might deem “necessary or desirable to protect health or to minimize danger from explosions and other hazards to life or property.” Atomic Energy Act of 1946, Pub.L.No. 79-585, § 12(a)(2), 60 Stat. 755 , 770. The Senate report paraphrased the language of the statute: regulations were “to minimize the danger from explosion, radioactivity, and other harmful or toxic effects incident to the presence of such materials.” [1946] U.S.Code Cong.Serv., supra, at 1335. Thus, as new types of health hazards were scientifically established, the range of Commission regulation would expand.
In 1954 Congress amended the Atomic Energy Act to establish a role for private industry in the development of atomic energy. The Commission was authorized to grant licenses to private enterprises to operate nuclear facilities. Comparing the situation in 1954 with that in 1946, the House and Senate committees optimistically reported, “It is now evident that greater private participation in power development need not bring with it attendant hazards to the health and safety of the American people.” S.Rep.No.83-1699, 83d Cong., 2d Sess. 3 (1954); H.R.Rep.No.83-2181, 83d Cong., 2d Sess. 3 (1954), U.S.Code Cong. & Admin. News, pp. 3456, 3458. This reassuring statement must be read in conjunction with Section 103 of the 1954 Act, which imposed a heavy responsibility on the Commission: no license could lawfully be issued “if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public.” Pub. L.No.83-703, § 103, 68 Stat. 919 , codified at 42 U.S.C. § 2133 (d) (1976). The 1954 Act may have been adopted to promote development of nuclear energy, but it did not authorize the Commission to proceed at the expense of health and safety. Id. §§ 2(a), (b), (d), (e), 3(d). Again the statute did not define or limit the term “health” in any manner.
The 1946 and 1954 Acts established the Commission’s mandate to protect health in plain language which encompasses psychological health. No subsequent action by Congress has limited the scope of the Commission’s responsibilities. The Commission quotes from a 1957 study report by the staff of the Joint Committee on Atomic Energy, Statement of Reasons at 8-9, but the quoted language does not support the Commission’s position. Even if hazards created by potentially harmful radiation are “[t]he special problem of safety in the atomic field,” it does not follow that they are the only problem of health and safety that the Commission must take into account. In addition, the Commission rests on the legislative history of amendments to the Atomic Energy Act adopted in 1956 and 1965. Id. at 9-10. But neither amending statute dealt with the Commission’s licensing responsibilities over nuclear power plants. Tangential, imprecise descriptions of the Commission’s health responsibilities are entitled to no weight.
In short, the Commission has failed to offer any convincing evidence that the Atomic Energy Act excludes mandatory consideration of one of the important components of health — psychological health. An examination of the original sources shows that the Commission lifts scattered passages out of context from committee studies and committee reports. Given the plain meaning of the statutory language, I cannot agree that the Commission’s resulting interpretation of the Act is within the bounds of reasonableness.
As a fallback position the Commission urges that, even if psychological health is “health” under the Atomic Energy Act, consideration of psychological health is purely discretionary. This contention is without merit. The Act unequivocally bans issuance of a license to any facility whose operation would be inimical to the public health and safety. The Commission has *393 broad procedural discretion, but it may not avoid its substantive responsibilities by pleading lack of expertise or by pointing to the difficulty of the task. If the Commission is not currently equipped to assess psychological health effects, it must add qualified experts to its staff to fulfill its statutory duties. No other government agency, state or federal, has the power to grant or deny nuclear power plant licenses; therefore it is disingenuous for the Commission to defer to “agencies with expertise in the area of mental health.” Statement of Reasons at 17. In addition, the Commission exaggerates the problem of quantification. Its own Atomic Safety and Licensing Board concluded that, at least for purposes of NEPA, “psychological stress is sufficiently quantifiable.” 11 NRC 297, 301 (1980), Joint Appendix at 67.
The importance of today’s interpretation of the Atomic Energy Act should not be underestimated. Bearing the imprimatur of this court, it will be applied not only in the TMI-1 restart proceeding but in all future Commission licensing proceedings. 3 It permits the Commission to license a nuclear plant even if studies have shown beyond the shadow of a doubt that its operation would seriously damage the psychological health of large numbers of Americans. This result is inconsistent with the plain language and ordinary meaning of the Atomic Energy Act. I respectfully dissent.
. The present appeal arises out of the Commission’s proceedings on whether to restart Three Mile Island Unit 1 (TMI-1), but the Commission’s interpretation of the Atomic Energy Act applies to licensing proceedings as well.
. This test was adopted by the First Circuit in New Hampshire v. Atomic Energy Comm’n, 406 F.2d 170 (1st Cir.), cert. denied, 395 U.S. 962 , 89 S.Ct. 2100 , 23 L.Ed.2d 748 (1969). The Commission relies heavily on the court’s analysis of legislative history.
. In the narrow circumstances of the present case, which addressed only the scope of the Commission’s investigation, the court’s holding under NEPA has given PANE the relief it seeks. Indeed, for this reason I am not convinced that it was necessary for the court to reach the Atomic Energy Act question.