# Petition — Baltimore Gas & Electric Co. v. Natural Resources Depense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1664%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 964 ## Text y wee, Supreme Court, U. | FILE >. Yl 19 ye 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1664%3A1. Public record. Not legal advice.