Amicus Curiae Brief — Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

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State of Minnesota

Warren R. Spannaus

Attorney General

Jocelyn F. Olson

Assistant Attorney General

Minnesota Pollution Control Agency

1935 W. County Road, B-2

Roseville, Minnesota 55101

State of Missouri

John Asheroft

Attorney General

Robert H. Lindholm

Assistant Attorney General

Office of Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

State of New Mexico

Toney Anaya

Attorney General

James Huber

Assistant Attorney General

Environmental Improvement Agency

P.O. Box 2348

P.E.R.A. Building, Room 515

Santa Fe, New Mexico 87503

State of North Carolina

Rufus L. Edmisten

Attorney General

Dan Oakley

Assistant Attorney General

Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

State of Ohio

William J. Brown

Attorney General

David Northrup

Assistant Attorney General

Environmental Law Section

Office of the Attorney General

30 East Broad Street

Columbus, Ohio 43215

State of Oregon

James A. Redden

Attorney General

Richard M. Sandvik

Assistant Attorney General

500 Pacifie Building

Department of Justice

Portland, Oregon 97204

State of Pennsylvania

Robert P. Kane

Attorney General

Douglas Blazey

Assistant Attorney Genera!

Department of Environmental

Resources

P.O. Box 2357

Harrisburg, Pennsylvania 17105

State of Texas

John L. Hill

Attorney General

Troy C. Webb

Paul G. Gosselink

Assistant Attorneys General

Environmental Protection Division

Office of the Attorney General

Supreme Court Building

Austin, Texas 78711

State of Utah

Robert B. Hansen

Attorney General

William C. Quigley

Office of the Attorney General

236 State Capitol Building

Salt Lake City, Utah 84114

State of Vermont

M. Jerome Diamond

Attorney General

Benson D. Scotch

Asst. Attorney General

Office of Attorney General

109 State Street

Montpelier, Vermont 05602

State of Wisconsin

Bronson C. LaFollette

Attorney General

John E. Kofron

Assistant Attorney General

Department of Justice

Madison, Wisconsin 53702

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TABLE OF CONTENTS

PAGE

Statement of Interest of Amici Curiae ............ 1

ENS GE GD GID onc cece cs dcossccecvcsvesss 4

EE... nodnds ones dena tescheessssusseascesecs 10

I. The Court of Appeals’ holding that the Com-

mission failed to explain adequately on the ree-

ord its decision that the environmental effects

of nuclear waste disposal are “relatively in-

significant” is required by both the Adminis-

trative Procedure Act and the National En-

Cy UE GD 6 cn do suenccedcnsdcs<e. 10

A. The Administrative Procedure Act requires

that agencies engage in reasoned decision-

making in informal rulemaking ............ 12

B. The National Environmental Policy Act

requires that, in undertaking informal rule-

making, agencies engage in reasoned con-

sideration of environmental consequences .. 14

C. The Court of Appeals held that the Com-

mission’s action was unlawful because the

Commission failed to provide a reasoned

explanation on the record of its conclusion 16

Ii. NEPA requires that the licensing of nuclear

power generating plants proceed only upon

a record which contains thorough consideration

of the environmental impacts of nuclear waste

GEE 2ds wéd dc cds eheenesch dadbdaldavbans 20

RES 65 - cunaauedadntadedsetecscsnbbeneines 28

ii TABLE OF CONTENTS

Cases Crrep

PAGE

American Meat Institute v. Environmental Protection

Agency, 526 F. 2d 442 (7th Cir. 1975) ........ 13

American Petroleum Institute v. Environmental Pro-

tection Agency, 540 F. 2d 1023 (10th Cir. 1976) 13

Appalachian Power Co. v. Environmental Protection

Agency, 477 F. 2d 495 (4th Cir. 1973) ........ 13, 15

Appalachian Power Co. vy. Train, 545 F. 2d 1351 (4th

CUE euarcugewabeGuadeseasdudi<eheesesoes 13

Bowman Transportation, Inc. v. Arkansas-Best

Freight System, 419 U.S. 281 .................. 13

Burlington Truck Lines vy. United States, 371 U.S.

DE 1db65606Gns deacndéncdauedbdthevacteteeees 13

Calvert Cliffs Coordinating Committee v. United

States Atomic Energy Commission, 449 F. 2d

Bee Gita GE BGR) ccceccevccvccecccuees 15, 25, 26

Camp ¥. Pilie, GHA TG. GOB... 5 occ cccccccccces 13

Citizens to Preserve Overton Park vy. Volpe, 401 U.S.

Ge cacenontcthsanndseekessedcccévesmnddwacde 12

City of Rochester v. United States Postal Service,

561 F. 3d O67 (2d Cir. 1976) ............cc000. 15

Ely v. Velde, 451 F. 2d 1130 (4th Cir. 1971) ...... 14

Environmental Defense Fund v. Corp. of Engineers,

470 F. 8d 289 (8th Cir. 1972), cert. den., 412

ME Pawnee ee ede oes eek 15

Environmental Defense Fund v. Froehlke, 473 F. 2d

Se ee ED, 6s ceuicdauiécducaiecebdmices 14

Environmental Defense Fund v. Tennessee Valley

Authority, 339 F. Supp. 806 (E.D. Tenn., 1972) 14

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TABLE OF CONTENTS iii

PAGE

Ethyl Corporation yv. Environmental Protection

Agency, 541 F. 2d 1 (D.C. Cir. 1976) ........-- 13

Federal Power Commission vy. Transcontinental Gas

Pipe Line Corp., 423 U.S. 326 .......-6 600 ees 17

Kleppe v. Sierra Club, 427 U.S. 390 ........-. 14, 15, 24, 27

Minnesota Public Interest Research Group v. Butz,

541 F. 2d 1292 (Sth Cir. 1976) ............00-- 15

National Nutritional Foods Ass'n v. Weinberger, 512

BP. OB GHB (O8 Cle. BOGE) 2c ccscccrcvcccsccces 13

Natural Resources Defense Council v. Grant, 355

F. Supp. 280 (E.D.N.C. 1973) ........0---0ee 14

Yatural Resources Defense Council v. Morton, 458

me | gf ces errr rie 14

Portland Cement Association v. Ruckelshaus, 486

PF. O8. SIG CIA. Cie. 19FB) . nc ccccccccccccccess 14

Rhode Island Committee on Energy v. General Serv-

ice Administration, 397 F. Supp. 41 (D.R.L.,

Perr TTT TTTTT TTT TTT Ct 15

Scenic Hudson Preservation Conference v. Federal

Power Commission, 354 F. 2d 608 (2d Cir. 1965),

Gut, Gam, TE Cas GEE ccc cc cecsevsocccsescoes 13

Scientists’ Institute for Public Information, Inc. v.

A.E.C., 481 F. 2d 1079 (1973) ................ 25

Sierra Club v. Morton, 510 F. 2d 813 (5th Cir. 1975) 15

Silva v. Lynn, 482 F. 2d 1282 (1st Cir. 1973) ...... 15

Srarutes Crrep

Administrative Procedure Act

Se EE, Kec cuveneccossnsesssicesene 12

5B U.S.C. $70G(2)(A) ...cccccccccccccvccveces 12, 19

iv TABLE OF CONTENTS

PAGE

National Environmental Policy Act of 1969, 83 Stat.

852, as amended,

er I hos cvuvaveedeiccssdéccaucs 15

42 U.S.C. § 4332(2)(C) ............. 14, 15, 16, 18, 20

42 U.S.C. § 4332(2)(C)(ii) ......... cece eee 22, 24

43 UBC. $4882(2)(C)(v) ... 2... cccccccccces 23

Energy Reorganization Act of 1974, 88 Stat. 1233,

Te Wire Gee OF OOM, occ cewcccccccteccocces 9, 28

TE WEE, GORD vo ckicckcccccvcccccccscs 26

MISCELLANEOUS AUTHORITIES

Hearings Before the Joint Committee on Atomic

Energy on Nuclear Power Plant Siting and

Licensing, 94th Cong., Ist Sess. (June 25, 1975) 3

The Causes of Nuclear Power Plant Delays: An

Atomic Industrial Forum Survey (April, 1974) 3

Grainey, Nuclear Reactor Regulation: Practice and

Procedure Before the Nuclear Regulatory Com-

mission, 11 Gonzaga L.R. 809 (1976) .......... 3

Shapar & Malsch, Proposed Changes in a Nuclear

Power Plant Licensing Process: The Choice of

Putting a Finger In The Dike or Building a New

Dike, 15 William & Mary L.R. 539 (1974) ...... 3

General Accounting Office, Cleaning Up the Remains

of Nuclear Facilities—A Multibillon Dollar

Problem, June 16, 1977 (EMD-77-46) .......... 4

Ford Foundation, Report of the Nuclear Energy

Policy Study Group, Nuclear Power Issues and

Choices, Ballinger Pub. Co. (1977) ............ 4,6

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TABLE OF CONTENTS v

| PAGE

10 CFR Part 50, App. F, subsec. 2 (1977) .......... 5)

Hearings on Nuclear Waste Disposal Costs (West

Valley, New York) Before the Subcommittee on

the Environment, Energy and Natural Resources

of the House Committee on Government Opera-

tions (March 8 and 10, 1977) ............+.54-- 6,7,8

‘* Alternative Process for Managing Existing Commer-

cial High Level Radioactive Wastes’? NUREG-

GOES (Apell BOTS) ...ncvcccccccsccsccccccsvces 7

The National Energy Plan, Executive Office of the

President, Energy Policy and Planning (1977) .. 8

12 Weekly Comp. of Pres. Doe. 1625 (November 1,

BED ancdaCewecnedadsusddendebnensnneusceseus 9

13 Weekly Comp. of Pres. Doe. 505 ( April 11, 1977) .. 8

13 Weekly Comp. of Pres. Doe. 581 (April 25, 1977) .. 8

39 Fed. Reg. 14188 (April 22, 1974) .............. 5

41 Fed. Reg. 45849 (October 18, 1976) ............ 11

42 Fed. Reg. 22964 (May 5, 1977) ...........---205- 9

42 Fed. Reg. 26987 (May 26, 1977) ................ 11

S. Rep. N. 93.980, U.S. Code & Cong. News, 5470

rR le cee AUG ac eanenaeden 26

Note: The Energy Reorganization Act of 1974: More

Power To The People? 7 Loy. Chi. L.J. 410

CORTES x cincdcnccncccsccccacescsccecescessvaes 26

Davis, Citizen’s Guide To Intervention in Nuclear

Power Plant Siting: A Blueprint for Alice In

Nuclear Wonderland, 6 Env. Law 619 (1976) .... 26

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-419

Vermont YANKEE NucLEAR Power CorPorRATION,

Petitioner,

against

Natura Resources Derense Counct, Inc., et al.,

Respondents.

No. 76-528

Consumers Power Company,

Petitioner,

against

NELSON AESCHLIMAN, et al.,

Respondents.

Ow Writs or Certiorari TO THE Unrrep States Court

oF APPEALS FOR THE District or CotumBia CircvitT

+.

4

BRIEF FOR 24 NAMED STATES AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Statement of Interest of Amici Curiae

The States earnestly support the thorough and effective

implementation of the National Environmental Policy Act

(“NEPA”’’), particularly in the course of licensing the con-

2

struction and operation of nuclear power reactors. NEPA

is the only Act of Congress which compels federal agencies

to consider the broad range of impacts on health, safety

and the environment which may be suffered by the States

as a result of federal licensing of nuclear facilities. Though

NEPA has been in effect for only eight years, Amici

believe the benefits derived from the Act have far out-

weighed the costs which have been attributed to it so

often by federally regulated industries.

The States, which traditionally have borne a responsi-

bility to proteet the health and safety of their citizens,

have on numerous occasions invoked the protection of the

substantive and procedural mandates of NEPA and, as

a result, averted serious environmental degradation or

the gross waste of fiscal and natural resources. Many of

Amici have appeared as intervenors on behalf of their

citizens before Atomie Safety and Licensing Boards of the

Nuclear Regulatory Commission (“NRC”) and have par-

ticipated in rulemaking proceedings conducted by that

agency. The reviews and information gathering conducted

pursuant to NEPA have, in the view of Amici, only served

to better protect our environment and to bring about more

rational decisionmaking on the need for, proper design,

and true costs of proposed nuclear facilities.

Arguments that NEPA is the principal culprit causing

regulatory delays in the nuclear licensing process are

somewhat suspect; at best such arguments, if sincere, are

misdirected. Many organizations and individuals are up-

set with what they view as inordinate regulatory delay,

but it is wrong to urge the judicial dismantling of NEPA

to achieve their goals and thereby frustrate the Congres-

sional intent in the Act.

As noted in petitioner Vermont Yankee’s own brief (pp.

11-12), NRC staff examination of utility applications and

safety assessments by the Advisory Committee on Re-

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3

actor Safeguards consume large amounts of time. The

public hearings on construction permit applications, which

would have to be held even if NEPA had never been enacted,

take up relatively little time when compared to these safety

reviews and actual construction periods.’ In fact, in-

dustry’s study of the problem has revealed that 49 percent

of delay months are due to non-licensing causes.’ Indeed,

it has heen conceded that while it takes staff only 10

months on the average to conduct the requisite environ-

mental review for a facility, it takes approximately 19

months to complete safety reviews.’ In the past, Commis-

sion personnel have argued for the need to modify certain

reactor licensing procedures, but not the NEPA review

process.‘ The amount of time attributable to NEPA review

is de mimimis.

Amici submit that even if NEPA were in part respon-

sible for the purported delay, such delay, when viewed in

the context of the magnitude of the decisions to be made,

is minor in nature. The type of facilities under discussion

in these cases do on occasion take as many as 4 years and

even longer to license (Petitioner’s Brief (“Pet. Br.”], No.

76-419, at 14); they also require, however, 6 years to con-

struct. Of crucial importance though is the fact that each

*NRC officials have testified before Congress that significant de-

lays have not been caused by public involvement in licensing hear-

ings. Hearings Before the Joint Committee on Atomic Energy

on Nuclear Power Plant Siting and Licensing, 94th Cong., Ist Sess.

(June 25, 1975) at 12-16, 78-79 (Lee Gossick, USNRC).

* The Causes of Nuclear Power Plant Delays: An Atomic In-

dustrial Forum Survey 3 (April, 1974).

* Grainey, Nuclear Reactor Regulation: Practice and Procedure

Before the Nuclear Regulatory Commission, 11 Gonzaga L.R. 809,

817 (1976).

*Shapar & Malsch, Proposed Changes in a Nuclear Power Plant

Licensing Process: The Choice of Putting a Finger In The Dike

or Building a New Dike, 15 William & Mary L.R. 539, 552-553

(1974).

4

facility will represent the capital investment of roughly

one billion dollars,’ will operate for approximately 40

years and will generate waste products which must be

isolated from man and managed for as long as 250,000

years. To take four years to make a decision involving

such an enormous commitment is completely justifiable.

The States do not believe NEPA or the decisions below

threaten technological progress in this country or will

undermine our Nation’s efforts to simultaneously conserve

and produce energy. The Act and the decisions only pose &

threat to hesty or otherwise irrational decisions based on

incomplete assessments of al] the true costs of and alterna-

tives to proposed licensing actions.

The continued integrity of NEPA is vital to the States

and the Nation.

Statement of the Case

We subscribe to the statement of facts set forth in the

brief for respondents Natural Resources Defense Council,

Inc., et al. in No. 76-419, but wish to emphasize several

points.

The operation of any nuclear power reactor entails 4

number of activities which have the potential for adversely

affecting the public’s health and safety and the environ-

ment. One aspect of operation is that reactors, as do many

other industrial facilities, discharge waste products.

Reactors do so in the form of spent fuel. Upon removal

from the reactor core, spent fuel must be contained so 88

to shield persons and the environment from the highly

* Costs approaching $1 Billion are projected for new 1100MW®

facilities. General Accounting Office, Cleaning Up the Remains of

Nuclear Facilities—A Multibillion Dollar Problem, June 16, 1977

(EMD-77-46) at 17. See also Ford Foundation, Report of the

Nuclear Energy Policy Study Group, Nuclear Power Issues and

Choices, Ballinger Pub. Co. (1977) (hereinafter ‘‘Nuclear Power

Issues’’) at 115-118.

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penetrating radiation emitted by certain fission products.

The fuel is typically stored in special pools of water which

keep the temperature of the rods to safe levels and act as

the necessary shield against radiation. It had been as-

sumed by the then United States Atomic Energy Commis-

sion (AEC)* when it issued the rulemaking order reviewed

by the Court of Appeals below,’ that spent fuel would

ultimately be subjected to a chemical extraction process,

known as fuel reprocessing, to separate the unfissioned

uranium and plutonium generated within the reactor core

from other fission products, referred to as the “high level

wastes.”’ These wastes, which must be stored for many

hundreds of years before levels of radioactivity fall off to

safe levels, were to be surrendered to the AEC for long

term management.’ To date, no facilities or sites for the

long term management of these wastes have been officially

designated by either the AEC or its successor, the NRC.

Petitioner places great emphasis on the fact that most

of the existing high level wastes in this country were

produced as a result of the federal government’s weapons

program (Pet. Br., 10), but misleads the Court by failing

to tell all of the facts regarding spent fuel and commercial

high level liquid wastes.

“While the volume of military wastes is large, the

concentration of radioactive material in it is small

compared with that in commercial waste even if the

latter is reprocessed. This has frequently led to mis-

leading comparisons between the amounts of military

*Now the United States Nuclear Regulatory Commission

(NRC). The AEC was abolished by the Energy Reorganization

Act of 1974, 42 U.S.C. § 5801 et seg. and its regulatory functions

were assumed by the NRC.

* Environmental Effects of the Uranium Fuel Cycle, 39 Fed.

Reg. 14188 (April 22, 1974). App. 385-400.

*10 CFR Part 50, App. F, subsee. 2 (1977).

6

and commercial wastes. The amount of radioactivity

in present commercial spent fuel waste is comparable

to that in military waste and is increasing much more

rapidly.” Nuclear Power Issues, supra note 5, at 244,

n.b. (Emphasis supplied).

In addition, the fiscal costs of waste management are

significant. One commercial reprocessing facility operated

in the United States for approximately 514 years, closing

in 1972. That plant, owned by Nuclear Fuel Services, Inc.

(NFS), was located in West Valley, New York, outside of

the city of Buffalo. It operated at extremely low capacity,

but was nevertheless studded with controversy concerning

excessive employee exposure to radiation and abnormal

releases of radioactive effluents. NFS generated 600,000

gallons of high level wastes which are stil] stored in

“temporary” tanks on site. Last spring the company an-

nounced that it was abandoning the reprocessing field and

would attempt to surrender the plant and all wastes to

State government.

It has been projected in studies prepared for the NRC

that the cost of decontaminating and decommissioning the

Nuclear Fuel Services complex and disposing of the exist-

ing high level wastes may be in excess of $600,000,000.

Monte Canfield, Director of the Energy and Minerals Di-

vision of the General Accounting Office, testified before

Congress on waste disposal costs in part as follows:

“. . . an ERDA contractor estimates that the cost of

waste disposal at NFS would range from $58 million to

$567 million. The contractor's study did not cover the

* Hearings on Nuclear Waste Disposal Costs (West Valley, New

York) Before the Subcommittee on the Environment, Energy and

Natural Resources of the House Committee on Government Opera-

tions (March 8 and 10, 1977) (hereinafter ‘‘Hearings on Nuclear

Waste Disposal Costs’’) at 5.

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7

cost of decommissioning the plant. However, the con-

tractor estimated that it would cost from $10.7 million

to $65.7 million to decommission the Barnwell re-

processing plant, a plant which would be used to proc-

ess spent commercial fuel.” Hearings on Nuclear

Waste Disposal Costs, supra note 9, at 12.”

Mr. Canfield went on to note that these figures could

prove to be gross underestimates of actual costs. /d.

Thus, while the volume of waste generated by commercial

fuel reprocessing has been small to date when compared

to the volume of waste from the federal nuclear weapons

program, the fiscal costs are indeed substantial.

The Court of Appeals has recognized below" that NEPA

requires the NRC to consider the costs and impacts of

managing a nuclear reactor’s wastes prior to an irreversi-

ble commitment of resources to the construction of the

reactor and the generation of high level wastes. The

wisdom of this decision is underscored by recent Con-

gressional observations. In speaking of the problem of

disposing of existing commercial high level liquid wastes,

Subcommittee Chairman Leo J. Ryan stated,

“Since the United States entered the so-called atomic

age in the mid-1950's, the champions of nuclear power

_ appear to have addressed their efforts primarily to

the development of nuclear fuels and the production

of power. But the management of the radioactive

wastes generated seems to have been dismissed with

an attitude of: ‘We can solve that problem later;

let’s get on with the important work: namely getting

the power plants on line.’ But ‘later,’ as far as we

* These estimates were set forth in ‘‘ Alternative Process for

Managing Ex.sting Commercial High Level Radioactive Wastes”’

NUREG-0043 (April 1976).

"In the decision being reviewed in Vermont Yankee Nuclear

Power Corporation vy. Natural Resources Defense Council, Inc.,

No. 76-419.

are concerned in this subcommittee, is today.” Re-

marks of the Subcommittee Chairman, Hearings on

Nuclear Waste Disposal Costs, supra note 9, at 1.

Amici will demonstrate below that NEPA requires a con-

sideration of the costs and impacts of fuel reprocessing

and waste from any reactor prior to licensing by the fed-

eral government. To ignore these wastes and to license

a facility without their inclusion in the cost-benefit analy-

sis of the facility distorts that analysis and invalidates

the final judgment as to whether licensing an individual

facility is the appropriate choice among alternative fed-

eral actions.” Amici believe the impacts of a reactor’s

waste cannot be considered later, but must be considered

prior to licensing. The fragmented approach to environ-

mental review urged by petitioner is proscribed by NEPA.”

“It is significant that the conservation alternative urged by

respondents in Consumers Power Company v. Nelson Aeschliman,

wR 76-523, is now a major component of the National Energy

**The sixth principle, and the cornerstone of National Energy

Policy, is that the growth of energy demand must be restrained

through conservation and improved energy efficiency.’’ The

National Energy Plan, Executive Office of the President,

a Policy and Planning, p. 28 (1977). (Emphasis sup-

plied).

The States submit that energy conservation is an alternative to

licensing which must be actively considered by responsible federal

officials prior to final decisions on proposed energy related actions.

** As noted, the Table S-3 Rule was developed with a view to

the eventual reprocessing of nuclear fuel, however, National policy

has developed in another direction. On April 7, 1977 President

Carter announced that the United States would “defer indefinitely

the commercial reprocessing and recycling of the plutonium pro-

duced in the U.S. nuclear power programs.’ 13 Weekly Comp.

of Pres. Doe. 503 (April 11, 1977) and 581 (April 25,1977). This

policy was foreshadowed on October 28, 1976 by the publicly-

announced conclusion of President Ford that reprocessing

(footnote continued on following page)

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The Court of Appeals decision on the Table S-3 Rule is

well founded. Contrary to the characterizations of the fed-

eral respondents and petitioner, the Court did not reject

the Table S-3 Rule devised by the Commission on the basis

of the rulemaking procedures utilized, but rather because of

the glaring inadequacy of the record. Though the day

and one-half hearing on the impacts of the entire nuclear

fuel cycle would have been suspect to any objective on-

looker, it was not the brevity of the proceedings which

compelled the Court below to reverse the AEC. It was

the AEC’s complete acceptance of the unreferenced, naked

assertions by its own staff witness in charge of the

agency’s nuclear waste program which rendered the rule

fatally defective.

(footnote continued from preceding page )

could no longer be regarded as a necessary step in the nuclear

fuel cycle. 12 Weekly Comp. of Pres. Doc. 1625 (November 1,

1976). On May 3, 1977 the NRC announced that it would re-

assess its position on fuel reprocessing in response to the Admin-

istration’s policy. 42 Fed. Reg. 22964 (May 5, 1977). The

period for public comment on the NRC announcement closed on

June 3, 1977 and a Commission decision in forthcoming. Hence,

whether or not the substance of the Table S-3 Rule will be ger-

mane to future reactor licensing is problematical. Indeed, the

question placed before the court as to whether the overall totals

in Table S-3 are supported by the administrative record on the

issues of fuel reprocessing and high level waste management may

be rendered unworthy of review by the pending NRC policy

reassessment.

10

ARGUMENT

I.

The Court of Appeals’ holding that the Com-

mission failed to explain adequately on the

record its decision that the environmental

effects of nuclear waste disposal are “rela-

tively insignificant” is required by both the

Administrative Procedure Act and _ the

National Environmental Policy Act.

In its brief, petitioner Vermont Yankee seeks to char-

acterize the holding of the Court of Appeals as based on

the premise that the Commission employed inadequate

procedures in reaching its conclusion that environmental

effects of the nuclear fuel eyele, including waste disposal,

are ‘‘relatively insignificant’’ (Pet. Br., 30-31). The fed-

eral respondents, in their brief, regard it as “open to dis-

pute” as to whether the Court of Appeals’ decision should

be read as petitioners read it, or should be read as holding

that the Commission’s decision was not based on an ade-

quate record (Federal Respondents’ Brief [‘‘ Federal

Br.”) at 36-38). The federal respondents concede that if

the Court of Appeals’ ruling is read in the latter fashion,

“no significant question for review by this Court would be

presented.” /d.

The States can only view with skepticism the uncertainty

of the federal respondents as to whether the Court of Ap-

peals’ decision was based on the inadequacy of the Table

S-3 record or rulemaking procedures. In subsequent no-

tices regarding the new hearings on the rule in which the

Commission has refused to increase significantly the scope

of procedures and public participation in the hearings, the

Commission has consistently taken the position that the

Court of Appeals did not find the Commission’s prior proce-

dures to be inadequate, but rather merely determined the

record to be incomplete (41 Fed. Reg. 45849, 45850 [Oc-

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11

tober 18, 1976]):

“(T]he court fownd that the rule was inadequately

supported by the record insofar as it treated two par-

ticular aspects of the fuel cycle—the impacts from re-

| processing of spent fuel and the impacts from radio-

active waste management.’’

In a more recent notice the Commission stated that:

“The original procedures proved adequate for develop-

ment and illumination of a wide range of fuel cycle

impact issues . . . . True, the record was held inade-

quate on the two matters at issue here, but these

issues are of the same character as the other issues

regarding which the record did prove adequate... .

“. . . The court here indicated that the procedures

previously employed could suffice, and indeed did for

other issues... .

. * *

“Accordingly, notice is hereby given that the rules

for the conduct of the reopened hearing and the au-

thorities and responsibilities of the Hearing Board

will be the same as originally applied in this matter

(38 FR 49, January 3, 1973) except that specific pro-

vision is hereby made for the Hearing Board to enter-

tain suggestions from participants as to questions

which the Board should ask of witnesses for other par-

ticipants.” 42 Fed. Reg. 26987, at 26988-89 (May 26,

1977).**

Nevertheless the federal respondents have gone on to urge

that if the Court is to be taken as having required addi-

tional procedures, it exceeded the authority given it by

Congress to review informal rulemaking proceedings (/d.,

at 46-51). Petitioner Vermont Yankee takes the identical

| position (Pet. Br., 35-38).

* Reprinted in Supplemental Appendix to the Petition for

Certiorari in No, 76-419 at SA-20 to SA-24.

I I ne Aas I a ER a ee et

12

Amici curiae have no quarrel in general terms with this

view of the scope of judicial review of informal rule-

making. Indeed, amici agree that, except where strong jus-

tification is shown, a court ought not to be able to require

additional procedures in such proceedings, since the result

of the existence of such a power would be to cause agencies

to adopt more and more elaborate procedures and thus

defeat the purpose of informal rulemaking. But amici do

not feel that the Court of Appeals violated this rule in this

ease; the Court did not invalidate the Commission’s rule

because of some failure to employ certain particular pro-

cedures. The rule was invalidated because the Commission

completely failed to explain the reasoning it employed in

reaching its conclusion, and thus presented the Court of

Appeals with an inadequate record.

A. The Administrative Procedure Act Requires

That Agencies Engage in Reasoned Decision-

making in Informal Rulemaking.

Under §706(2)(A) of the Administrative Procedure

Act, 5 U.S.C. § 706(2)(A), a Court is empowered to “hold

unlawful and set aside agency action, findings and conclu-

sions found to be . . . arbitrary, capricious, an abuse of

diseretion . . .”"* This Court has interpreted this stand-

ard to mear ‘hat, in reviewing agency action, “the court

must consider whether the decision was based on a con-

sideration of the relevant factors and whether there has

been a clear error in judgment,” which may “require some

explanation in order to determine if the . . . [agency’s]

action was justifiable.” Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 416, 420. “The agency must articu-

** This standard applies regardless of whether the agency is

engaged in its adjudicatory capacity, or in its formal or informal

rulemaking capacity, ‘‘agency action’’ being defined by the APA

to include any agency ‘‘rule, order, license, sanction, relief or the

equivalent or denial thereof, or failure to act.”’ 5 U.S.C. § 551(13).

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13

late a ‘rational connection between the facts found and the

choice made.’” Bowman Transportation, Inc. v. Arkansas-

Best Freight System, 419 U.S. 281, 285, citing Burlington

Truck Lines v. United States, 371 U.S. 156, 168. See also

Camp v. Pitts, 411 U.S. 138, 142.

While none of these statements were made in the con-

text of review of informal rulemaking, the principles ex-

pounded therein have been applied by numerous Courts of

Appeals in reviewing such administrative action. “Courts

require that administrative agencies ‘articulate the cri-

teria’ employed in reaching their result and are no longer

content with bare administrative ipse dixits based on sup-

posed administrative expertise.” Appalachian Power Co.

v. Train, 545 F. 2d 1351 (4th Cir. 1976), quoting from

Appalachian Power Co. v. Environmental Protection

Agency, 477 F. 2d 495, 507 (4th Cir. 1973). “The grounds

upon which an agency bases its decision must be clearly

disclosed in, and sustained by, the record. The agency

must make plain its course of inquiry, its analysis and its

reasoning.” American Petroleum Institute v. Environ-

mental Protection Agency, 540 F. 2d 1023, 1029 (10th Cir.

1976). In the absence of a detailed record, it is “advisable

for the agency, in lieu thereof, to provide a thorough and

comprehensible statement of the reasons for its deci-

sion.” National Nutritional Foods Ass'n v. Weinberger,

512 F. 2d 688, 701 (2d Cir. 1975). See generally, Ethyl

Corporation v. Environmental Protection Agency, 541

F. 2d 1, 33-37 (D.C. Cir. 1976); American Meat Institute v.

Environmental Protection Agency, 526 F. 2d 442, 453 (7th

Cir. 1975). General principles of administrative law have

long imposed an affirmative duty upon administrative

agencies to compile a complete record. See Scenic Hudson

Preservation Conference v. Federal Power Commission,

354 F. 2d 608, 620-621 (2d Cir. 1965), cert. den. 384 U.S.

941, and the cases cited therein.

14

B. The National Environmental Policy Act Re-

Section 102(2)(c) of the National Environmental Policy

Act requires that before undertaking any ‘‘major Federal

action,’’ an agency of the federal government shall pre-

pare a statement describing in detail the environmental

consequences of the action. 42 U.S.C. §4332(2)(C). In

Kleppe v. Sierra Club, 427 U.S. 390, this. Court observed

that in reviewing the adequacy of such statements the

‘role for a court is to insure that the agency has taken a

‘hard look’ at the environmental consequences.’’ /d. at

410, n. 21, citing Natural Resources Defense Council v.

Morton, 458 F. 2d 827, 838 (D.C. Cir. 1972) (Leventnat,

J.); New York v. Kleppe, 429 U.S. 1307, 1310-11 (cireuit

opinion of MarsHat, J.). In other words, the court’s obli-

gation is to ‘‘scrutinize the analysis of environmental con-

sideration, {to assure] that a reasoned decision has been

reached.’’ Portland Cement Association vy. Ruckelshaus,

486 F. 2d 375, 386 (D.C. Cir. 1973) (Leventnat, J.).

In order to facilitate such review, the obligation of the

agency in preparing its statement is to ‘‘explicate fully

its course of inquiry, its analysis and its reasoning.’’ Ely

v. Velde, 451 F. 2d 1130, 1139 (4th Cir. 1971). The state-

ment cannot be ‘‘too vague, too general and too conclu-

sory,’’ Environmental Defense Fund v. Froehlke, 473 F. 2d

346, 348 (Sth Cir. 1972), and cannot be ‘‘unsupported by

empirical or experimental data, scientific authorities, or

explanatory information of any kind.’’ Natural Resources

Defense Council v. Grant, 355 F. Supp. 280, 287 (E.D.N.C.

1973). Moreover, scientific conclusions appearing in an

impact statement without reference to the relevant litera-

ture or the field studies from which the conclusions were

drawn do not constitute an adequate ‘‘detailed statement.’’

Environmental Defense Fund v. Tennessee Valley Author-

ity, 339 F. Supp. 806, 809 (E.D. Tenn., 1972). When com-

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15

ments from outside the agency ‘‘disclose new or conflicting

data or opinions that cause concern that the agency may

not have fully evaluated the project and its alternatives,

these comments may not simply be ignored. There must

be good faith, reasoned analysis in response.’’ Silva v.

Lynn, 482 F. 2d 1282, 1285 (1st Cir. 1973). See also City

of Rochester v. United States Postal Service, 541 F. 2d 967,

973 (2d Cir. 1976); Appalachian Power Co. v. Environ-

mental Protection Agency, supra, 477 F. 2d 507; Sierra

Club v. Morton, 510 F. 2d 813, 820 (5th Cir. 1975) ; Minne-

sota Public Interest Research Group v. Butz, 541 F. 2d

1292, 1299-1300 (8th Cir. 1976).

It is true that in the present case, the Commission’s rule-

making »roceeding itself is not a ‘‘major Federal action’’

within the meaning of Section 102(2)(C) of NEPA (App.

66, n. 58). However, there are two independent reasons

which justify .the Court of Appeals’ application of the

‘*hard look’’ test of Kleppe v. Sierra Club, supra, 427 U.S.

410, n. 21, in its review of the Commission’s rule-making.

First, the mandate of NEPA—that Federal agencies give

‘substantial and consistent consideration to environmental

factors in their decisionmaking”—is not limited to ‘‘major

Federal actions”; only the procedural requirement to

prepare an EIS is. Rhode Island Committee on Energy v.

General Services Administration, 397 F. Supp. 41, 58

(D.R.I., 1975); cf. Environmental Defense Fund v. Corp.

of Engineers, 470 F. 8d 289, 298 (8th Cir. 1972), cert. den.,

412 U.S. 931. Section 102(1) of NEPA, 42 U.S.C. § 4332(1),

is a specific directive to the agency that it give full,

good faith consideration to the relevant environmental

issues implicated in any of its actions, including rule-

making. Calvert Cliffs Coordinating Committee v. United

States Atomic Energy Commission, 449 F. 2d 1109, 1112-13,

n. 5 (D.C. Cir. 1971).

Secondly, and more importantly, the obligation of the

reviewing court under NEPA to insure that the agency in

16

this case has taken a “good, hard look” at the problem of

waste disposal prior to issuing a permit can only be ful-

filled in its review of the Commission’s rulemaking pro-

ceeding. By providing that “[n]o further discussion of the

environmental effects [of nuclear waste produced by the

applicant’s facility] shall be required [in an EIS)” other

than the reprinting of Table S-3 (App. 398), the rule in

effect declares that the Commission has, as a matter of law,

satisfied the requirement of 42 U.S.C. § 4332(2)(C) for

every subsequent proceeding involving the issuance of a

permit for a nuclear power facility. Restated in its simplest

terms, the rule says that the Commission has already taken

the ‘‘good, hard look’’ at the problem of nuclear waste

control as required by NEPA. Because the rule forecloses

any further inquiry as to the sufficiency of Table S-3 for

NEPA purposes in all subsequent licensing proceedings,

the only opportunity for determining whether the Commis-

sion has accomplished what its rule says it has accom-

plished—the NEP A-mandated ‘‘ good, hard look’’ at nuclear

waste control—is in the Court of Appeals’ review of the

rule itself.

C. The Court of Appeals Held that the Commis-

sion’s Action was Unlawful Because the

Commission Failed to Provide a Reasoned

Explanation on the Record of its Conclusion.

Analysis of the Court of Appeals’ opinion shows that its

basis for overturning the Commission’s action was not that

the Commission failed to employ certain procedures, but

that it failed to explain its reasoning on the record as re-

quired by both the APA and NEPA. At the outset, the

Court stated the question as follows:

“The problems posed in both these cases relate to the

manner and extent to which information concerning the

environmental effects of radioactive wastes must be

considered on the public record in decisions to license

nuclear reactors.” (App. 30) (Emphasis supplied).

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17

After reviewing the history of the proceedings before the

Commission, and stating the contentions of the parties as

to their adequacy, the Court carefully outlined the narrow

scope of review under which it was operating. Citing the

mandate of this Court in Federal Power Commission v

Transcontinental Gas Pipe Line Corp., 423 U.S. 326, that it

is “not proper” for a court to prescribe specific procedures

for an agency in informal rulemaking the Court stated its

duty to be only to

“. . . serutinize the record as a whole to insure that

genuine opportunities to participate in a meaningful

way were provided, and that the agency has taken a

good, hard look at the major questions before it.’’

(App. 46)

The Court finally concluded that in determining whether

such a “hard look” has been taken, it is far less concerned

with the devices by which the agency proceeded than

with the rigor with which it explained its results.

“. . . [What is required is a reasoned response,

in which the agency points to particulars in the record

which, when coupled with its reservoir of expertise,

support its resolution o” the controversy. An agency

may abuse its discretion by proceeding to a decision

which the record before it will not sustain, in the

sense that it raises fundamental questions for which

the agency has adduced no reasoned answers.” (App.

50) (Emphasis supplied).

With these principles in mind, the Court then under-

took an exhaustive examination of the record before it

in this case, probing for any discussion of the reasoning

or judgments on which the Commission based its decision

on the problem of nuclear waste disposal (App. 50-65).

It found the record completely devoid of such explana-

tions. It noted that the Enviromnental Survey prepared

by the Commission staff and later incorporated into its

18

rule failed to provide a “detailed explanation” of its co-

clusion that the problem was insignificant, relying ef-

tirely on the mere statement of a Commission officer that

a “permanent repository” will be established and mail!-

tained by the federal government (App. 53). The Court

observed that this statement represented a radical shift

in Commission policy away from an earlier plan to store

the wastes in abandoned salt mines, but found that tie

reasons for such a shift were “not discussed” (App. 54).

As for the repository plan itself, the Court found tle

description of it in the survey utterly “conclusory.” It

found no discussion as to its method of construction aad

operation, or of its cost or location; no explanation 45

to why a “meltdown” would not occur, or what would

be done if it did; no plan for protecting the facility from

terrorists (App. 53-63). The Court then observed:

“We do not dispute [the Commission's] conclusions.

We may not uphold them, however, lackirg @ thorough

explanation and a meaningful opportunity to chal-

lenge the judgments underlying them. Our duty is to

insure that the reasoning on wich such judgments

depend, and the data supporting them, are spread

out in detail on the public record.” (App. 61).

It then concluded:

“In @ubstantial part. the materials uncritically relied

on by the Commission in promulgating this rule con-

sist of extremely Vague assurances by agency per-

sonne! that problems as vet unsolved will be solved.

That is ar insufficient record to sustain [the rule]. ...

Withovt a thorough exploration of the problems in-

volved in waste disposal, . . . this type of agency

acuion cannot pass muster as reasoned decision-

making.’* (App. 65-66).

The Commission's action, therefore, violated the require-

ments of Section 102(2)(C) of the National Environmental

Policy Act, 42 U.S.C. § 4332(2)(C), that the Commission

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19

“articulate its reasoning and . . . specify the evidence

on which it relies,” as well as the requirement of Section

706(2)(A) of the Administrative Procedure Act that an

agency action not be “capricious and arbitrary.” (App.

69, 71).

In the face of all this, petitioner Vermont Yankee and

federal respondents incredibly suggest that the holding

of the Court of Appeals has something to do with requir-

ing that the Commission adopt additional procedures

before it may validly promulgate the rule at issue. In

fact, of course, the opposite is true. The Court was

quite explicit that it was not particularly concerned about

how the Commission went about “fleshing out” the record.

Even the procedures actually adopted “if administered

in a more sensitive, deliberate manner, might suffice” (App.

67). Significantly, petitioner and federal respondents pro-

vide no relevant citation to the Court’s actual words;

their briefs are more interested in talking about how

the Court has no power to require specific procedures in

informal rulemaking proceedings.** Amici do not dis-

pute this point; in fact, as indicated above, they agree

with it. The point is that the Court of Appeals imposed

no additional requirements, invaded no discretion, but

merely returned to an agency a decision so utterly con-

clusory as to be incapable of review.

20

Il.

NEPA requires that the licensing of nuclear

power generating plants proceed only upon

a record which contains thorough considera-

tion of the environmental impacts of nuclear

waste disposal.

The pertinent provisions of the National Environmental

Policy Act direct all agencies of the federal government,

in connection with all ‘‘major Federal actions significantly

affecting the quality of the human environment,”’’ to pre-

pare a ‘‘detailed statement”’’ on

**(i) the environmental impact of the proposed ac-

tion,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented.

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented.’’ (42 U.S.C. § 4332

{2}(C]).

It is undisputed that the licensing of a nuclear power

plant is a ‘‘major Federal action’’ within the meaning of

NEPA (App. 33-34). It is also undisputed that the li-

censing and consequent operation of nuclear power gen-

erating plants, as an absolute certainty, and without the

intervention of any other event, produces long-lived and

highly toxic radioactive wastes. Jd.

From the outset of the proceedings before the Atomic

Safety and Licensing Board to license the operation of the

Vermont Yankee nuclear plant, the intervenors, Natural

Resources Defense Council, Inc., et al., attempted to have

that Board consider, within its NEPA mandate, the en-

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21

vironmental impact of reprocessing and nuclear waste dis-

posal. Their attempts were unavailing, as both the Li-

censing and Appeal Boards ruled that evidence on the

environmental impact of radioactive waste disposal could

not be admitted in the proceedings to license Vermont

Yankee (App. 112, 113, 129). The ruling of the Appeals

Board was based fundamentally on its perception that the

Commission’s responsibilities under NEPA with respect to

waste disposal issues could be fulfilled at some future point

when proposals to license reprocessing and waste facilities

came before it to be licensed (App. 123-124). Further, the

Appeals Board stated in June of 1972:

“Evaluation of the environmental aspects of the

ultimate depository of the high level wastes resulting

from reprocessing is at this time speculative, because

it has not yet been determined what the nature or the

location of the ultimate depository may be. That

project will also of course be subject to independent

analysis and procedures in compliance with the En-

vironmental Protection Act, (sic) and it cannot be the

subject of appropriate evaluation in this proceeding.”’

(App. 126-127).

Six months after the Appeal Board’s ruling that the

environmental impacts of radioactive waste disposal were

too remote and speculative in the context of reactor li-

censing proceedings to be susceptible of meaningful analy-

sis under NEPA, the Commission announced the commence-

ment of a rulemaking proceeding to do precisely that

which it had maintained in the Vermont Yankee proceed-

ings was impossible ( App. 352-360). It also announced that

the Staff of the Commission had already prepared an

“Environmental Survey of the Nuclear Fuel Cycle” which

included Table S-3, designed to quantify the annual con-

tribution of each reactor to the total fuel-cycle environ-

mental costs, including reprocessing and waste disposal

impacts (App. 356-360).

22

These rulemaking proceedings will be discussed at

somewhat greater length below. It is sufficient to note at

this point that the rulemaking, which was conducted with-

out adjudicatory procedures, dealt in pertinent part with

precisely the same issues that the intervenors had at-

tempted to raise in Vermont Yankee and culminated in the

promulgation of a regulation adopting a slightly modified

version of Table S-3, providing that it should be inserted

in each environmental impact statement prepared pur-

suant to NEPA for individual reactor licensing proceed-

ings, and further providing that, in each licensing case

“Cnlo further discussion of such environmental effects

shall be required’? (App. 398). The Commission ruled:

“Insofar as this rule differs from the Appeal Board deci-

sions in ‘Vermont Yankee’ supra, those decisions have no

further precedential significance.” (App. 386).

What the Commission had done then, was to rule first

that reprocessing and waste disposal impacts were too

speculative to be considered in reactor licensing proceed-

ings and then to reverse itself by promulgating a rule

which purported not only to fully consider these impacts,

but to resolve them beyond the possibility of argument for

all licensing proceedings for the indefinite future. The

door was closed shut after the promulgation of Table S-3

(App. 398; see also, Federal Br., 16, n. 13).

Both Vermont Yankee and the federal respondents pro-

fess confusion about the meaning of the decision of the

Court of Appeals. The amici suggest that the holding is

quite clear. The Court held that the generation of nuclear

waste is an “adverse environmental effect which cannot be

avoided” if a nuclear power plant is licensed, within the

meaning of NEPA, 42 U.S.C. § 4332(2)(C) (ii), (App. 33).

The generation of such wastes and the facilities and re-

sources necessarily required to protect and contain them

constitute an “irreversible and irretrievable commitment of

resources” which necessarily will follow upon the licensing

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of a nuclear power plant, within the meaning of 42 U.S.C.

§ 4332(2)(C)(v), (App. 33). The Court found that NEPA

requires such impacts to be considered in the licensing of

power reactors, and agreed with the Commission that the

requisite analysis could be performed in the context of a

rulemaking proceeding (App. 39, 67-68). Finally, the

Court held that the cursory record on waste disposal

issues compiled by the Commission in the rulemaking pro-

ceeding for Table S-3 was insufficient to show whether

reasoned decisionmaking had in fact taken place, and

“frustrate(d) oversight by anyone.” (App. 61-62). The

Court directed the agency, in the rulemaking forum, to

“identify and address information contrary to its own po-

sition, to articulate its reasoning and to specify the evi-

dence on which its relies.” (App. 69).

Whatever the merits of the rule itself, or of the record

compiled before the agency, it is clear that, in promulgat-

ing Table S-3, the Nuclear Regulatory Commission recog-

nized that the environmental impact of reprocessing and

waste disposal were relevant issues under NEPA to be

included in the Environmental Impact Statement for each

reactor and considered by the Atomic Safety and Licensing

Board in each licensing proceeding. Indeed, the federal

respondents do not contest this point, but rest their entire

argument on the sufficiency of the procedures used in

promulgating Table S-3.

The petitioner Vermont Yankee takes a different view.

It stands by the Appeal Board’s ruling in the Vermont

Yankee licensing proceeding to the effect that the “pro-

posal” before the Commission in any individual licensing

case is simply to authorize construction or operation of a

power reactor and that the environmental impact of the

wastes generated by the reactor can be fully considered

when reprocessing and waste disposal facilities are licensed

(Pet. Br., 40-41). The position is curious given that the

Commission expressly rejected this reasoning when it

promulgated Table S-3 and invalidated the “precedential

24

significance” of the Appeal Board’s ruling in Vermont

Yankee (App. 386).

The petitioner relies heavily on Kleppe v. Sierra Club,

supra, 427 U.S. 390, as support for the proposition that the

Commission should completely exclude consideration of the

environmental! impacts of waste disposal from proceedings

to license nuclear reactors. This reliance is misplaced. The

ruling in Kleppe was that, as a factual matter, the federal

government was not engaged in or proposing a Northern

Great Plains regional coal development program, and that

such a region-wide intent could not be inferred from the

government’s decision to undertake coal development ac-

tivities in several discreet locales. Jd. at 400. Therefore,

there was no ‘‘proposal” for the region and no requirement

for a regional Environmental Impact Statement under

NEPA. It is worth noting that the Court reaffirmed the

proposition in Kleppe that NEPA is action-forcing, in that

it requires ‘‘all agencies to assure consideration of the

environmental impact of their actions in deeisionmaking.”’

Id. at 409.

The situation presented by the cases at bar is entirely

different and there is nothing in Kleppe imconsistent with

the decision below. No party contends that the “ proposal”’

is anything other than a proposal to license a nuclear power

generating plant. Amici argue simply that irrefutab.y in-

herent in this proposal is the creation of radioactive waste ;

it is an “adverse environmental effect which cannot be

avoided.” 42 U.S.C. §4332(C)(ii). The Court of Appeals

was clearly correct in ruling:

“The plain meaning of this lamguage encompasses

radioactive wastes generated by the operations of a

nuclear power station, just as it does the stack gases

produced by a coal-burning power plant.” (App. 33).

If the position of the petitioner were adopted, it would

mean that those given the authority and the public trust

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25

to license nuclear power plants could do so while in-

definitely deferring the consideration of the most diuturnal

environmental impact of their actions in decisionmaking—

the creation of long-lived toxic wastes. Meanwhile, those

wastes would be created and stored at nuclear plant sites

never originally intended as long or medium-term waste

repositories. By the time the ramifications of radioactive

waste came to be considered, our options as a society would

be substantially curtailed. Scientists’ Institute for Public

Information, Inc. vy. A.E.C., 48 F. 2d 1079, 1090 (1973).”

We can imagine no clearer case for application of the

principle that, pursuant to NEPA, the federal agency must

consider the natural consequences of its decisions before it

makes them. Calvert Cliffs Coordinating Committee v.

A.E.C., supra 449 F. 2d 1112; Kleppe v. Sierra Club, supra

427 U.S. 409.

Petitioners maintain that to construe NEPA so as to

require consideration of radioactive waste disposal impacts

would involve what amounts to an unwarranted amend-

ment to the Atomic Energy Act. The argument, stripped

of its hyperbole, is that Congress has authorized the opera-

tion of commercial nuclear reactors through passage of the

Atomic Energy Act and could not have intended any ap-

plication of NEPA which might complicate or alter the li-

censing process. In short, petitioners are here attempting

to reopen issues resolved by the Calvert Cliffs case. In

answer to the argument, propounded at that time by the

Atomic Energy Commission, that its statutory mission to

license power plants conflicted with the requirements of

NEPA, the Court held:

‘‘NEPA, first of all, makes environmental protec-

tion a part of the mandate of every federal agency and

* See also, Calvert Cliffs Coordinating Committee v. A.EC.,

supra _¥ F. 2d ~ ‘. ae and ay mt on commit-

ments of resources’ have already made, licensing hearing

(and any public intervention therein) may become a hollow ex-

ercise.’’

26

department . . . Perhaps the greatest importance of

NEPA is to require the Atomic Energy Commission

and other agencies to consider environmental issues

just as they consider other matters within their man-

dates.

. . .

‘*But the very purpose of NEPA is to tell federal

agencies that environmental protection is as much a

part of their responsibility as is protection and pro-

motion of the industries they regulate.’’ 449 F, 2d

1112,

In any case, it is not at all clear that Congress is as

sanguine about the nuclear power industry, and the Com-

mission’s regulation of it, as the petitioner suggests. The

Energy Reorganization Act of 1974, 42 U.S.C, 5801 et seq.,

effected an extremely significant change in the historical

pattern of regulation and promotion of the nuclear indus-

try in this country, separating the A‘omie Enerey Com-

mission into two agencies and vesting the Nuclear Regula-

tory Commission with regulatory and licensing functions

only. 42 U.S.C, §§ 5841-5849. In substantial part, this

legislative action was in response to the Congressional per-

ception that promotional and regulatory goals could not

appropriately continue to be exercised jointly by the

Atomic Energy Commission in a field so sensitive as

nuclear power,"

““*The reorganization established by this legislation has the

additional purpose of separating the regulatory functions of the

A.E.C, from its developmental and promotional functions—a re-

sponse to growing criticism that there is a basic conflict between

the AEC’s regulation of the nuclear power industry and its de-

velopment and ore, of new technology for the industry."’

S. r> N. 93.980, U.S. Code & Cong, News, 5470, 5471 (1974).

See Note: The Energy Reorganization Act of 1974: More

Power To The People? 7 Loy. Chi. Lud, 410 (1976) ; Davis, Citizen's

Guide To Intervention In Nuclear Power Plant Siting: A Blue-

" ol Alice In Nuclear Wonderland, 6 Env, Law 619, 628, n.

).

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27

The petitioner’s final argument, a derivative of the pre-

ceding one, is that full consideration of the environmental

impact of radioactive wastes wil! bring the nuclear power

program to a halt. It bears mentioning that this case has

not even brought the Vermont Yankee plant to a halt. It

is still operating and generating electricity. Two points

should be made in response to these dire predictions, First,

the Court below specifically approved the use of generic

rulemaking proceedings to treat these issues so long as

the record generated would truly justify the conclusions

made by the agency (App. 68-69). What the Court held is

that, absent fair and thorough generic proceedings, the

issues cannot be ignored in individual licensing cases (App.

39).

Second, NEPA does not dictate a particular substantive

result on these or any other issues, Rather, it mandates a

‘‘hard look’? at environmental costs, based on the premise

that decisionmakers will best exereise their authority

when they are fully cognizant of the whole range of con-

sequences of their acts. Aleppe v. Sierra Club, supra, 427

U.S, 410, n, 21. If the benefits of proceeding with nuclear

plants outweigh the costs, including the costs inherent in

the ereation of radioactive wastes, then nuclear plants will

be licensed, If they do not, or if special measures need to

he taken to mitigate environmental damage in the future,

it is far better that we discover that now rather than after

the problem has thrown the Nation into another energy-

related “crisis,”

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Dated: New York, New York, September 8, 1977.

Respectfully submitted,

Lovis J. Lerxowrrz

Attorney General of the State of

New York

Samvuen A, Hinsnowrrz

First Assistant Attorney General

© Punipe Weinpera

Assistant Attorney General

Office & P.O, Address

Two World Trade Center

New York, New York 10047

Tel. No, (212) 488-7562

Attorneys for Amici Curiae

Jonn F. Suea, III

Assistant Attorney General

of the State of New York

CaBanne Howanp

Assistant Attorney General

of the State of Maine

Eutyn Weiss

Assistant Attorney General

of the State of Massachusetts

of Counsel

(Gerard Stagnato and Valerie Lee, Student Interns,

assisted in the preparation of this brief.)

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