Petition — Baltimore Gas & Electric Co. v. Natural Resources Depense Council, Inc.

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Supreme Court, U.

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AEY

PADAK,

In THE MR. CLERK

Supreme Court of the United States

Octoser TERM, 1976

“76-5438

BALTIMORE GAS AND ELECTRIC CO., et ALt.,

Petitioners

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

and CONSOLIDATED NATIONAL INTERVENORS,

INC.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Georce C. FREEMAN, JR.

W. Taytor Reve ey, III

Dona_p P. Irwin

Hunton & Williams

707 East Main Street

Richmond, Virginia 23219

Henry V. NickeL |

Hunton & Williams

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioners

—

TABLE OF CONTENTS Page

IIIT EE ELE Me ne RE EE l

DD occcnccssexsvseceremnnttnmesnnannatnerneseanteananeansnncnaneunctatness Snienalionitaticin 2

ID III cnccccnneccccnnsscecsssseencensvecqsncrnnmnccensssomemesessennssiensees 2

STATUTES AND REGULATIONS INVOLVED ©...........:cccccsceccscceeeeeeseennneeees 2

Se ee 3

A. Administrative Proceedings ................-.-:0ssssssesesesseseesneeneees 4

B. The Opinion of the Court of Appeals ...................csesee 7

Reasons For Grantinc THe Writ:

I. Special Procedures Demand Special Circumstances ............ 9

BE SIE TID CRIIID ccccctceccsccneccersesnsesscentcccnsesnsescnsnes 15

III. The Decision Below Has Pervasive Impact ........................ 16

CIID aceceninsirnesintcceniensnnctnstinninnestentnnnestnassntetnnenainnemmnenianiagnsns 19

TABLE OF AUTHORITIES

Cases

American Airlines, Inc. v. CAB, 359 F.2d 624 (D.C. Cir, 1966),

cert. denied, 385 U.S. 843 (1966) .........ccccccccccceeeceseseeseeereneees 11, 18

Carnevale v. Gardner, 393 F.2d 889 (2d Cir. 1968) 000000000... 16

EDF v, Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) 2000000000... 16

FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940) 20000000... 16

FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326

Se Ge CD cecenenennsernmemenianntnmennemetmmmes 14

International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.

Gs CERIO cetenetendietetaitientteeniseenserieetnneescmnntinmnennnnnmeninss 11, 12, 14

Page

Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972) .. 16

Mefford v, Gardner, 383 F.2d 748 (6th Cir. 1967) .. 16

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.

1973), cert. denied, 417 U.S. 921 (1974) .........ccecccccsccessssesceseees 16

Siegel v. AEC, 400 F.2d 778 (D.C. Cir, 1968) ..... 10

South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir, 1974) ....14, 15

United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742

GREEN cevenccscescrsnsstnssicsasintaninnsnsctenenssemeaisenitimmeidaleinimmaninins 10

United States v, Florida East Coast Ry., 410 U.S, 224 (1973) ..10, 11

Western Air Lines, Inc. v. CAB, 351 F.2d 778 (D.C, Cir. 1965) .... 16

Administrative Procedure Act §4, 5 U.S.C. § 553 (1970), as

amended (Supp. V, 1975) ........-csssssssseseesseseees 6, 8, 10, 11, 15, 17

Atomic Energy Act of 1954 § 189, 42 U.S.C. § 2239 (1970)

8, 9, 10, 11

Clean Air Act § 307(b) (1), 42 U.S.C, § 1857h-5(b) (1) (1970), |

as amended (Supp. V, 1975) ..........--seserereseenees 17

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

(Supp. V, 1975)

§ 104 (a), 42 U.S.C, § 5814 (a) .ncceccccssssesssennecceeeee 3

§ 201 (an), 42 U.S.C. § SOON (a) eeeencecncaccerrnncecevennoreceeneernneneseeeore 3

§ 201(f), 42 U.S.C. § 5841(f) ...... - 3

§ SOL, 42 U.S.C. § SC7 2 naaascceeenererescccsesee 3

Federal Energy Administration Act of 1974 §7, 15 U.S.C. § 766

(Supp. V, 1975) svcecsoccesee 17

Federal Power Act § 313, 16 U.S.C. § 8251 (1970) .. 17

Noise Control Act of 1972 § 16, 42 U.S.C, §4915(a) (Supp. V,

CC —= 17

28 U.S.C, § 1391 (€) (1970) ..cccccecssseeenenesee a 17

28 U.S.C. § 2342 (1970) 17

28 U.S.C. § 2343°(1970) ......... icaiies : 17

Be Ie CE . GED. cictesiinernieremsssseusetntcstntieninneteteemaieetadies 7

Miscellaneous

EF Ue Ey CREE CUIIEED cinseneniorittacsinninanshthintntindensatincessinmena 4, 5

ee TEE ‘sriciunthsiainsniituihisiiinciatnntiiabddidaeeiriaiiiiteeeaaticel 4,5

FF Se Sy DTD GIT OED cineiticiccnsiissnstnsctiuiiantatiteiinenaaiianemesieadl 4, 7, 12

In THE

Supreme Court of the United States

Ocroser Term, 1976

No. 76-

BALTIMORE GAS AND ELECTRIC CO., er At.,

Petitioners

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

and CONSOLIDATED NATIONAL INTERVENORS,

INC,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Baltimore Gas & Electric Company, ef al., respectfully

petition for a writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the Dis-

trict of Columbia Circuit entered in this proceeding on

July 21, 1976.

OPINION BELOW

The opinion of the Court of Appeals in Natural Resources

Defense Council v. Nuclear Regulatory Commission, No.

2

74-1586 (D.C. Cir. July 21, 1976) (App. 1-44) is not yet

officially reported."

JURISDICTION

ed on

The judgment of the Court of Appeals was enter

July 21, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1) (1970).

QUESTIONS PRESENTED

1. On remanding a regulation for inadequate basis in

the record, may a court of appeals create special procedural

rights for rulemaking participants which exceed those _—

given them by statute, even though these participants fa

to show the agency below that special circumstances justified

special. procedures? |

2. On remanding a regulation for inadequate basis in

the record, may a court of appeals fail to identify the ills

that it wishes cured?

STATUTES AND REGULATIONS INVOLVED

The following statutes and regulation are set forth in

the Appendix:

1. Administrative Procedure Act §4, 5 U.S.C. §553

(1970) (App. 90-91)

ae . —

1 Thi was decided jointly with No. 74-1385, also styled Natur

coun tae onl < Nuclear Regulatory Commission, in-

volving a challenge to the treatment of fuel cycle issues in the oper-

ating license p ing of the Vermont Yankee nuclear power qn

Vermont Yankee N Power Corporation, Intervenors in hws

74-1385, filed on September 21, 1976 a petition for certioran w

was assigned Supreme Court Docket No. 76-419.

- ———_ -++-. —-—-—- -—

3

2. Atomic Energy Act of 1954 § 189, 42 U.S.C. § 2239

(1970) (App. 92-93)

3. 10C.F.R. § 51.20(e) (1976) (App. 94-95)

STATEMENT OF THE CASE

The uranium fuel for nuclear power plants in the United

States is produced, used, and reclaimed in a multistep “fuel

cycle” ending with the disposal or management of residual

wastes.* In November 1972 the Atomic Energy Commission®

began a rulemaking to collect and summarize information on

those environmental effects resulting from each step in the

uranium fuel cycle which might be attributable to the

annual operation of a nuclear power plant. The rulemaking’s

conclusions, as crystallized in a so-called Table S-3, were

ordered by the Commission to be included thereafter in the

environmental statement prepared as part of the agency’s

review of every proposed nuclear power plant. The Court of

Appeals in the decision below upheld most aspects of Table

S-3, but set aside the parts of it relating to the reprocessing

and waste management steps of the fuel cycle.

* The steps in the uranium fuel cycle include mini and milling

of uranium ore, its chemical conversion to . can

*The Atomic Energy Commission (AEC) was abolished by the

4

A. Administrative Proceedings

The Commission commenced its rulemaking on the En-

vironmental Effects of the Uranium Fuel Cycle with a

Fedcral Register notice published on November 15, 1972.

37 Fed. Reg. 24191, App. 62. The notice proposed amend-

ments to the agency’s environmental review regulations and

announced the availability of a report underlying the pro-

rule. The report, compiled by the Commission’s

Regulatory Staff, was entitled Environmental Survey of the

Nuclear Fuel Cycle (November 1972) [hereinafter cited as

“Environmental Survey”]. The Environmental Survey de-

scribed the annual fuel cycle effects attributable to a typical

nuclear power plant and presented the methodology and

assumptions used by the Regulatory Staff in arriving at its

conclusions. The Notice also published Table S-3, the En-

vironmental Survey’s tabular summation of its findings.

The Commission solicited public comment on the Environ-

mental Survey and Table S-3 and stated that it would sub-

sequently consider the matter in a legislative-type hearing.

On January 3, 1973, the Commission set the rulemaking

in motion, establishing a three-member Hearing Board and

providing that participants could make oral statements as

well as written submissions. 38 Fed. Reg. 49, App. 71.

Several weeks prior to the hearings, the Commission

made available in its Public Document Room the back-

ground studies for the Environmental Survey, internal

Regulatory Staff calculations for it, and other supporting

materials as well as prior drafts of the report as marked up

by the’ Regulatory Staff. 39 Fed. Reg. 14188, 14190-91

(1974), App. 85-86. Only one party to the rulemaking

asked for additional documents and that request was

promptly honored. See 39 Fed. Reg. 14189 n.2 (1974),

App.79n.2. |

5

All interested persons had an opportunity to become

parties to the rulemaking. 37 Fed. Reg. 24193 (1972), App.

69; 38 Fed. Reg. 50 (1973), App. 72. A Procedure Planning

Session was held on January 17, 1973 to schedule the ap-

pearance of witnesses and to define further the rulemaking’s

procedures. The Hearing Board indicated that it would

question the Regulatory Staff and other participants. Tran-

script 4, 5 [hereinafter cited as “Tr.” ] ; see 38 Fed. Reg. 50

(1973), App. 72. The Hearing Board also asked that the

Pparticipauits bring with them to the hearings expert witnesses

able to answer technical questions, so as to aid the Board’s

development of a complete, informative record for the

Commission. Tr. 20. All participants were allowed to submit

pre- and post-hearing written material, including rebuttal

to the written and oral statements made by the Regulatory

Staff and other participants.

At the hearings, held February 1-2, 1973, r dent

Natural Resources Defense Council (NRDC) adie

sented by respondent Consolidated National Intervenors

(CN I) . Testimony was presented by the Staff, respondents,

and nine other participants including petitioners. Written

comments were received from 46 individuals and groups.

N 0 testimony was excluded or limited for irrelevancy, dupli-

cation, or any other reason. Throughout the proceeding, the -

Board voiced its desire for a complete record and encour-

aged the participants—particularly CNI—to submit their

views fully. E.g., Tr. 20, 43, 338-40, 395, 452-53, 517-18.

Respondent CNI, at the Procedure Planning Session, did

not make any request that the rulemaking employ adver-

sarial procedures beyond those set forth in the Notice of

Hearing. At the hearings themselves, however, CNI sug-

gested that the Commission “convene a full generic hearing

on the question of the nuclear fuel cycle, which is subject to

6

full adjudicatory rights,” including discovery and cross-

examination on all issues. Tr. 217-18. CNI further con-

tended that, as a matter of law, the proposed rule must “at

some stage in the procedure be subjected to the full

adjudicatory rights under the Administrative Procedure

Act.” Tr. 338.

In response, petitioners and other participants stated that,

in order to establish any right to such special procedures,

respondents first had a duty to specify questions of sub-

stantial importance that could not be resolved by existing

procedures.* Respondents, while expressing general misgiv-

ings 0» various technical issues,” never attempted to make

such a showing.°

*E.g., Tr. 52, 436-38, 444, 468-71, 475-76, 478-80; Reply of 14-

Member Utility Group to CNI-UCS “Statement with Respect to

Legal Considerations” of March 2, 1973, at 8-13 (March 16, 1973).

5 Respondents’ technical presentations took two forms: the oral

testimony at the hearings of Drs. Edward P. Radford, Jr. and Henry

W. Kendall, and the submission on March 19, 1973 of written “Sup-

plementary Comments.” Dr. Radford made general comments and

responded to questions from the Board on occupational radiological

exposure in mines, at power plants and at reprocessing facilities. Tr.

219-63. Dr. Kendall spoke generally to and was questioned on catas-

trophic accidents at power plants, the diversion of fissionable material

for illegal purposes, and the management of radioactive wastes. Tr.

263-304. The “Supplementary Comments” outlined certain high-

level waste storage techniques and addressed the radiological effects of

a fuel reprocessing plant in New York which ceased operation in 1971.

® Respondents’ only tangible attempt to show the need for cross-

examination is found at page 26 of their “Statement with Respect

to Legal Considerations,” filed with the Board on March 2, 1973.

There, two brief portions of hearing dialogue were cited as evidence

that “pervasive cross-examination” is a prerequisite to building an ade-

quate record. Both colloquies involved questions put by Board mem-

bers to the Regulatory Staff which, respondents contended, were not

completely answered. The first concerned standards applied by the

Bureau of Mines and state governments, matters extraneous to the

rulemaking. Tr. 308-12. The second related to calculations in the

Environmental Survey. One Board member, Dr. John C. Geyer, had

requested data underlying certain statements made in the Environ-

~~.» —-— —_-_

7

After reviewing the fuel cycle rulemaki

other related data available na it, the SS

the Environmental Survey,’ including Table S-3, and issued

its Uranium Fuel Cycle Rule, which required that the

values set forth in revised Table S-3 be factored into the

cost-benefit analyses for all proposed nuclear power plants

after June 6, 1974. 39 Fed. Reg. 14188 (1974), App. 74.8

Following issuance of the final rule, respondents N RDC

and CNI, petitioned for its review in the U.S. Court of

Appeals for the District of Columbia Circuit.

B. The Opinion of the Court of Appeals

On July 21, 1976, the Court of Appeals, in an opinion by

Chief Judge Bazelon with Judge Tamm concurring in the

result, held that the waste disposal and reprocessing portions

of the rulemaking :ecord did not contain sufficient “explana-

mental Survey (Tr. 121-28); the Regulatory Staff wi ’ inabili

fully to respond prompted another Beard somaiben, Dr. MT Steindler

4 comment later that there might well have been no need for Dr.

ya questions had these portions of the Survey been more fully

umented. Tr. 139. In the “Statement with Respect to Legal fo.

a respondents asserted that cross-examination was caadiiony

~s tain the data sought by Dr. ~ r. In fact, these data were

ully supplied by the Regulatory Staff in its post-hearing “Supple-

mentary Comments.” Since respondents never commented substantivel

2 this issue, refusing to avail themselves of the Hearing Board’s

rection to use supplementary comments “to highlight and point u

the problems, and the questions . . . raised in the written and on

pein of the other participants” (Tr. 6), and since respondents

id not comment on the data supplied in the Regulatory Staff’s “Su

plementary Comments” (as petitioners and other participants did =

respondents Supplementary Comments”), the episode stands not as

S nh ap 7 spn pen but rather as a paradigm both of the

me os : - yl procedures and of respondents’ failure even

T Envj :

Apel ee Survey of the Uranium Fuel Cycle ( WASH-1248),

® The Uranium Fuel Cycle Rule h

§ 51.20(e) (1976), App. 9795, e has been codified at 10 C.F.R.

8

tion and support” for the Staff's conclusions in the Environ-

mental Survey. App. 24-25. The court indicated in some

detail why it believed that there was “an insufficient record

to sustain the . . , numerical values in Table S-3” relating to

nuclear waste disposal. App. 25-39. The court, however,

never explained why it thought the considerable record on

reprocessing (see note 14 infra and accompanying text) was

deficient. The majority’s entire treatment of the matter —

consists of three repetitions of the term “reprocessing” (App.

24-25, 40-41, 44), with absolutely no discussion, much less

analysis, of the relevant record or of any weaknesses per-

ceived in it.

So far as rulemaking procedures were concerned, the ma-

jority observed that respondents’ “primary argument” below

was that the Commission’s decision to preclude “ ‘discovery

or cross-examination’ denied them . . . due process.” App.

16. Later the majority somewhat inconsistently concluded

that, “as we understand it, [respondents’ argument] is not

that cross-examination was required per se, but that the

procedures utilized by the Commission were in the aggre-

gate inadequate sufficiently to ventilate the issues.” App.

18 n.25,

Relying on this latter characterization of respondents’ pro-

cedural challenge, the majority found it necessary to deter-

mine “whether the procedures provided by the agency were

sufficient to ventilate the issues.” App. 17. Since the majority

believed that assessment of “agency procedures requires that

the reviewing court immerse itself in the record,” App. 20,

it resolved the procedural challenge only after first finding

deficiencies in the record. App. 38. At that point, the

majority ordered “procedural devices” on remand in excess

of the notice and comment requirements of the Atomic

Energy Act and the Administrative Procedure Act. App.

40-41; see note 10 infra. The court stated that perhaps a

9

“more sensitive, deliberate” application of procedures used

in the original rulemaking proceeding would suffice (App.

40) ; or perhaps a special combination of adversarial pro-

cedures described by the majority might be necessary to

produce proper “ventilation.” Jd. But the majority also

concluded that possibly “no combination of the procedures

mentioned above will prove adequate, and the agency will

be required to develop new procedures... .” Id.°

Judge Tamm found no merit in the majority’s conclusions

regarding rulemaking procedures. App. 52-59.

REASONS FOR GRANTING THE WRIT

Petitioners come to this Court because the decision below

threatens to disrupt agency rulemaking, both by confusing

its procedures and by vacating its results without explaining

why. Such obstruction of the regulatory process is particu-

larly telling when it comes, as here, from the Court of Ap-

peals for the District of Columbia Circuit—a court which

is uniquely positioned to shape agency practice in this coun-

try. Thus, the opinion below may affect the future rule-

makings of all federal administrative agencies.

I. Special Procedures Demand Special Circumstances

Having found the rulemaking record deficient, the court

below held that the Commission could cure those deficiencies

only through use of special adversarial procedures in excess

of the rulemaking rights provided by the Atomic Energy

*In response to an NRC motion to correct the opinion, the court

re-immersed itself in the rulemaking record and, per curiam, deleted

on October 8 each of the majority opinion’s three emphatic but er-

roneous assertions that the Hearing Board, in its failure to ensure a

fully “ventilated” record, had not conducted any examination of the

NRC Staff’s expert witness on waste man nt, Dr, Frank Pitt-

man. App. 60-61, correcting App. 34 (lines 3-5) , 34 n.53, 41 0.59.

10

Act and the Administrative Procedure Act (APA). App.

40-41. Moreover, having entered the procedural realm, the

court declined to specify which combination of special pro-

cedures would suffice, thus heightening the hobbling effect

of its intervention. Such judicial “oversight” of agency rule-

making has no place in law or policy.

In recent years, agencies have increasingly turned to

rulemaking to resolve complex factual as well as policy

issues. In recognition of the complexity of the issues before

them, agencies have found a need for greater involveinent

in rulemaking by participants who may be able to assist

in the optimum resolution of pending questions. The Nuclear

Regulatory Commission has been among those agencies

which on occasion have adopted procedures beyond those

required by their organic statutes and the APA so as to foster

unusually well developed records.

Until the disruptive decision below, there has been rela-

tively little need for this Court to involve itself with the

mechanics of such complex rulemaking. Prior decisions here

have focused on the more traditional rulemaking situations

and, thus, on the procedures required by an agency’s organic

statute or the APA. United States v. Florida East Coast Ry.

410 U.S. 224 (1973) ; United States v. Allegheny-Ludluma

Steel Corp., 406 U.S. 742 (1972). These cases have also

Section 189(a) of the Atomic Energy Act, 42 U.S.C

(1970) (App. 92-93) provides that oe Coautides shall aye

making, grant a “hearing” upon the request of any person whose

interest may be affected. In Siegel v. AEC, 400 F.2d 778 (D.C

Cir, 1968), the court held that a rulemaking “hearing” in the con-

text of this statute requires only the notice and comment procedures

set out in §4 of the APA, 5 U.S.C. §553 (Supp. V, 1975) (A

90-91). This interpretation is consistent with this Court's later holding

in United States v. Allegheny-Ludlum Steel Corp., 406 U.S, 742 756.

57 (1972), that full adjudicatory rights obtain in rulemaking only

me

— § e organic statute contains the talismanic phrase “on the

— =

11

recognized that, when an agency is called upon to make a

“quasi-judicial” determination in rulemaking, additional

procedures may be required by “due process” considerations.

Florida East Coast Ry., 410 U.S. at 242-45.

The courts of appeal have focused more explicitly on the

mechanics of fact-policy rulemaking, in which no bright

line separates “quasi-legislative” and “quasi-judicial” de-

terminations. Their decisions have indicated that a rulemak-

ing participant may, in certain situations, challenge pro-

cedures which ‘satisfy statutory requirements but which

nonetheless deny due process or are inadequate to develop

a complete record. E.g., International Harvester Co. V.

Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973) ; American

Airlines, Inc. v. CAB, 359 F.2d 624 (D.C. Cir. 1966), cert.

denied, 385 U.S. 843 (1966).

These decisions have made clear, however, that in order

to sustain a “due process” or “record” challenge to agency

procedures, the petitioner during the rulemaking must make

“circumscribed and justified requests” for additional pro-

cedures and his request must demonstrate that on “critical

points . . . the general procedure . . . [is] inadequate to

probe ‘soft’ and sensitive subjects.” / nternational Harvester,

478 F.2d at 631. In other words, the courts have not enter-

tained demands for special rulemaking procedures unless

the petitioner has previously made to the agency a showing

that its reliance on minimum statutory procedures alone

would be fundamentally unfair, or that the agency would

abuse its discretion by denying certain special procedures

likely to improve significantly the quality of a critical por-

tion of the record.

In this case, as detailed above, the NRC used rulemaking

procedures which went beyond those required under the

Atomic Energy Act or APA. Respondents alleged below

12

that these procedures were flawed because the Comission

had not provided across-the-board rights to formal discovery

and cross-examination." But respondents persistently refused

even to attempt to show specifically why the existing pro-

cedures were unfair or why cross-examination or any other

special adversarial procedure would significantly improve

the record. Rather, as the Commission stated when it pro-

mulgated the Uranium Fuel Cycle Rule:

All parties were fully heard. Nothing offered was ex-

cluded. The record does not indicate that any eviden-

tiary material would have been received under different

procedures. Nor did the proponent of the strict “adjudi-

catory” approach make an offer of proof—or even re-

motely suggest—what substantive matters it would de-

velop under differen[t] procedures.

39 Fed. Reg. 14189 (1974), App. 78.

The ‘Court of Appeals attempted to avoid these findings

by deeming the International Harvester test for demon-

strating the need for special procedures (478 F.2d at 631)

to have been met. App. 17-18 n.25. It was not. The state-

ment by counsel for respondents at the oral hearing, relied

upon by the court, merely recited their demand for a broad

right to cross-examination and commented generally on the

testimony of Dr. Frank Pittman, the Regulatory Staff’s wit-

ness on waste disposal matters, as follows:

we are not satisfied with Mr. Pittman’s well inten-

tioned, but, we think, not at all well explained position

with regard to the ability to handle nuclear wastes for

hundreds of thousands of years... .

App. 17; Tr. 208.

™ The Court transmuted respondents’ sweeping demands for cross-

examination and di to the more diffuse allegation “that the

procedures utilized by the Commission were in the aggregate inade-

quate ....” App. 18 n.25. See p. 8 supra.

eS

13

Respondents, however, made no attempt at the hearing to

identify specific waste disposal issues which, in their view,

required cross-examination for adequate exploration. More-

over, although respondents’ rulemaking submissions identi-

fied two “examples” of subjects which, they asserted, did

require cross-examination (see note 6 supra) , these submis-

sions evinced no concrete effort to identify and develop

whatever inadequacies respondents may have thought to

exist in Dr. Pittrnan’s testimony. Nor did respondents at-

tempt to show how the resolution of any specific factual

issues of critical importance would be cepeneem upon the

use of one special procedure or another.

To the aah as the court recognized, respondents

principal concerns involved “philosophical issues,” not fac-

tual issues.” App. 36. While additional adversarial oppor-

tunities may be required to resolve complex factual matters,

no court has even intimated that such procedures are re-

quired to resolve “philosophical issues.” In short, respondents

showed no special circumstances to justify special pro-

cedures.

Contrary to law and common sense, then, the court below

would relieve a dissatisfied rulemaking participant of his

obligation to attempt to develop an adequate record using

the procedures established by the agency which, at a mini-

mum, satisfy the requirements of applicable statutes. Simi-

larly, under the decision below a rulemaking participant un-

happy with an agency’s procedures has no obligation to

demonstrate that these procedures are per se unfair or are

inadequate with respect to specific issues. Rather, under the

present decision a disgruntled rulemaking participant may

She cout tll recogniend that, with veet 00 dee Poets

not be explored wey cross-examination ; nor did they attempt

14

spurn procedural opportunities to make his case below

whenever those rights are not shaped precisely in his image.

He may systematically decline to specify how other op-

portunities would enhance critical aspects of the record and

then, after the final rule is issued, come to the Court of

Appeals to find procedural succor.

The present holding is not conducive to the integrity of

the administrative process. It encourages malingering during

record-making by rulemaking participants whose procedural

demands are not wholly met. It eliminates reasonable cer-

tainty as to what constitutes acceptable rulemaking pro-

cedures. And it leaves rulemaking results in limbo, pending

inquest by the Court of Appeals into whether the agency has

been sufficiently “sensitive” (App. 40) in its procedural

arrangements.

It follows that the decision below contravenes the holdings

of this‘and other federal courts which recognize that, in

reviewing the adequacy of a record, the court’s function is

to determine whether the agency has adequately set out the

basis for its action. If it has not, the court can remand to

the agency to supply the missing information. In remanding,

however, the court cannot, absent “substantial justification

for doing otherwise,” dictate “the methods, procedures and

time dimension” for remedying the record.“ FPC v. Trans-

court “uncertain” whether the agency had correctly resolved several

complex technical issues which were critical to achieving the substantive

stances here are similar to those in South Termina

F.2d 646 (Ist Cir. 1974). There, the court found eae a

15

continental Gas Pipe Line Corp., 423 U.S. 326, 333 (1976)

(per curiam).

II. Remands Require Reasons

The present rulemaking record contains extensive testi-

mony, comments and other information on the subject of the

environmental effects of reprocessing.’* Nowhere in the deci-

sion below does the court explain the basis for its conclusion

that the reprocessing record is inadequate—or even identify

a single deficiency in that part of the record. It is ironic that,

given the court’s repeated emphasis on the need for agencies

to articulate adequately the bases for their actions (App.

23-24, 34-35, 38-39), it fails to provide any articulation of

its own for this critical holding.

Fairness to the parties below who may wish to request

review by this Court demands more. By not explaining the

grounds for its decision, the Court of Appeals places such

inadequate and remanded for further proceedings even though the

petitioners, in that case, like respondents here, had done little or

nothing to cure the record’s inadequacies, Id. at 665-66. On remand,

the court required only that the agency’s proceedings satisfy the

minimum requirements of its organic statute and § 4 of the APA. Jd.

at 666-67.

14 See, ¢.g., Environmental Survey F-1 to -41; WASH-1248, note

7 supra, F-1 to 40; Tr. 84-86, 130-38, 244-50, 312-20, 412-15,

484-85; General Electric Company, Comments on the Supplementary

Comments by the Union of Concerned Scientists 1-2 (undated) ; State

of New York, Comments on the Environmental Survey 3-8 (January

18, 1973) ; General Electric Company, Supplemental Written Statement

5-7 (March 1, 1973); Staff Summary Comments on Proceeding for

Environmental Effects of the Uranium Fuel Cycle 43-52 (March 19,

1973); CNI-UCS Supplementary Comments 3.1-3.50 (March 19,

1973) ; New York State Atomic Energy Council Comments on the

Su Comments by the Union of Concerned Scientists 1-6

(April 13, 1973); Response of 14-Member Utility Group to “Sup-

a! Comments” of CNI-UCS 6-21 (April 13, 1973) ; Nuclear

uel Services, Inc. Response to Union of Concerned Scientists 1-7

(April 16, 1973).

16

parties in the position of asking this Court to do something

manifestly inappropriate in light of the demands on its time:

conduct a de novo review of a large rulemaking record to

determine whether the Court of Appeals was correct in

holding the record inadequate as to reprocessing. Even

more important, the Court of Appeals as a reviewing court

has failed to fulfill its responsibility to the agency. A blanket

remand without any articulation will lead to unnecessary

delay in completing the rulemaking. Not only will the

agency be unable to narrow its attention to particular areas

of concern but, if the agency guesses wrong, the court may

remand the rule again to correct a deficiency it could have

easily identified at the outset. This Court should make clear

that a reviewing court has the obligation to articulate the

grounds for its decisions so that those affected by them will

be able to respond in an expeditious and efficient manner.”®

As noted already, obstruction of the regulatory process

is particularly telling when it comes at the hands of the

Court of Appeals for the District of Columbia Circuit. This

court has a far greater influence on the evolution of ad-

ministrative law in this country than does any other judicial

circuit.

_ “The fact that an , On remand, must follow the dictates of

its ing court, FCC v. Pottsville Broadcasting Co., 309

145 (1940) ; Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967)

Cement Ass’n v. Ruckelshaus,

Cir. 1973), cert. denied, 417 U.S. 921 (1974); Kennecott Copper

? it. 1972); EDF v, Revel

ee

EE EB

eas ti

17

Venue lies in the United States District Court for the

District of Columbia Circuit to review, under the APA,

virtually every final agency order not otherwise reviewable

by statute." That Circuit Court has exclusive jurisdiction

to review a number of administrative actions of the Environ-

mental Protection Agency and the Federal Energy Ad-

ministration.” Final orders of the Nuclear Regulatory Com-

mission, Federal Communications Commission, Federal

Maritime Commission, and the Federal Power Commission

are subject to review in the District of Columbia Circuit,

regardless of the residence of the petitioner."

Thus, given the reality that the orders of virtually every

federal agency are subject to challenge in the District of

Columbia Circuit, each agency must heed the implications

of every major decision by that Circuit governing agency

practice. The present decision displays all the indicia of

being such a major pronouncement, one whose implications

are ominous for all agencies, not merely the Nuclear Regu-

latory Commission.

If the decision below stands, agencies will be encouraged

to curtail informal rulemaking under the APA in favor

of protracted adversarial proceedings, lest their rulemaking

results be summarily reversed for lack of “sensitivity” to

the procedural demands of participants who failed, or

16 98 U.S.C. § 1391 (e) (1970).

17 42 U.S.C, § 1857h-5(b) (1) (1970), 42 U.S.C. § 4915(a) (Supp.

V, 1975) (Environmental Protection Agency); 15 U.S.C. § 766(1)

(2) (A) (Supp. V, 1975) (Federal Energy Administration) .

1898 U.S.C. §§ 2342(4), 2343 (1970) (NRC); 28 USC.

§§ 2342(1), 2343 (1970) (Federal Communications Commission) ; 28

U.S.C. §§ 2342(3), 2343 (1970) (Federal Maritime Commission) ; 16

U.S.C. § 825/(b) (1970) (Federal Power Commission) .

18

simply refused, to demonstrate to the agency any need for

additional procedures. Such a result would not serve the

public interest.”®

By the same token, the integrity of the administrative

process cannot long survive a willingness on the part of the

District of Columbia Circuit to remand agency rules with-

out explaining why. Inarticulate remands, like rules without

adequate records, will lessen the efficiency of government

and public confidence in it.

[Inhibition of agency flexibility in rulemaking would strip that type

of proceeding of much of its utility:

Rule making has a unique value and importance as an adminis-

trative technique for evolution of general policy, notwithstanding,

or perhaps indeed because of, the freedom from the procedures

carefully prescribed to assure fairness in individual adjudication.

American Airlines, 359 F.2d at 630 (footnote and citation omitted).

19

CONCLUSION

For the reasons stated, the petition for certiorari should

be granted.

Respectfully submitted,

Grorce C. FREEMAN, Jr.

W. Taytor Revecey, III

Donatp P. IRwINn

Hunton & Williams

707 East Main Street

Richmond, Virginia 23219

Henry V. NIcKEL

Hunton & Williams

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioners

Baltimore Gas and Electric Company

Boston Edison Company

Consumers Power Company

Long Island Lighting Company

New England Power Company

Northeast Nuclear Energy Company

Pacific Gas and Electric Company

Philadelphia Electric Company

Public Service Electric and Gas Comfany

Southern California Edison Company

The Connecticut Light & Power Com} -ny

The Hartford Electric Light Company

Virginia Electric and Power Company

Western Massachusetts Electric Company

Yankee Atomic Electric Company

Dated: October 19, 1976