Petition — Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc. (Nos. 76-774, 76-653, 762, 769)

Supreme Court, U. $, |

FILED «

pec 7 1976

rE

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Ocroser TzRM, 1976

No.76- 7 G&- 774 i

Battimmore Gas AND ELEZcTRIC COMPANY, ET AL., AND

Tue Bascock & Wir.cox Company, Petitioners

v.

NATURAL Resources Derense Oounoi, LNC., BT AL,

and

Tue Strate or New York, Respondents

PETITION OF BALTIMORE GAS AND ELECTRIC

COMPANY, ET AL. AND THE BABCOCK & WILCOX

COMPANY FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Gerorae C. Freeman, JR.

Dowap P. Inwin

Saran FE. Hart

Hunton & WILLIAMS

707 East Main Street

Richmond, Virginia 23219

Micuaz. B. Barr

Hunton & WiLL1AMs

1730 Pennsylvania Avenue, N.W.

Washington, D. 0. 20006

Attorneys for Pctitioners

Of Counsel:

Atvin G. KALMANSON

Tue Bascocx & W1Lcox CoMPANY

161 E. 42d Street

New York, New York 10017

Puees of Brecon 8S. Ananes Paorrovc, lec., Wasumweron, D. C.

. Page

PR EY ccodcenesnseceewennccsncnceesbesens 2

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Reasons for Granting the Writ .................... 10

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CITATIONS

CasEs:

Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289

ke bik elec a ak ca eae 12, 14

American Commercial Lines, Inc. v. Louisville & Nash-

ville R.R. Co., 392 U.S. 581 (1968) .............. 14

Coleman v. Conservation Society of Southern Vermont,

he OF §. Bee eee a eres 16

F.C.C. v. Schreiber, 381 U.S. 294 (1964) .......... a-

F.C.C. v. WJR, The Goodwill Station, Inc., 337 U.S.

Dt St cadéndddntwakeddebnadaddemenianada 14

Kleppe v. Sierra Club, 96 S.Ct. 2718 (June 28, 1976). . 3, 9,

11, 12, 13, 14, 15, 16

Natural Resources Defense Council, et al. v. Nuclear

Regulatory Commission, 539 F.2d 824 (2d Cir.

SE, bbdddvscenedinabecisbunaenctéssbndduaedte 2,3

Natural Resources Defense Council, et al. v. Nuclear

Regulatory Commission, 9 E.R.C. 1414 (2d Cir.

September 8, 1976) (supplemental opinion deny-

By CEE cocececedccestececodéécccasseuces 3

ii Citations Continued

Page

Nader v. Nuclear Regulatory Commission, 513 F.2d

Ge 14

Northern Indiana Public Service Co. v. Porter County

Chapter of the Izaak Walton League, 423 U.S. 12

St. did ataineth cis ine died eile csGadsbetews 16

Pikes Peak Broadcasting Company v. F.C.C., 422 F.2d

671 (1969), certiorari denied, 395 U.S. 979 (1969) 14

Toilet Goods Association v. Gardner, 387 U.S. 158

tt Siiludebsaueddagede66h00690060606sa00e0 15

Union of Concerned Scientists v. Atomic Energy Com-

mission, 499 F.2d 1069 (D.C, Cir. 1974) ......... 14

STaTUTEs:

BS iin os ie eke eauasaeneseeess i)

re ne ee cnc cen desea iceabennes 9

ED, «66 one ca ncenceeen seses 3

es oc cnc cndeecnecececsces 8

I eee 3

ee cca gneesseeceese 4

ee 4

ee es OF ED GD ccc coccccccccsccocsceces 3,8

ae 4

42 U.S.C. § 5801-5891 (Supp. V, 1976) .............. 5

ReGuatTions :

es ED bc oc cncnceedbcocsccetecs 5

MISCELLANEOUS:

39 Fed. Reg. 5356 (February 12, 1974) ............. 5

39 Fed. Reg. 30186 (August 21, 1974) .............. 5

40 Fed. Reg. 20142 (May 8, 1975) .................. 6

40 Fed. Reg. 53056 (November 14, 1975) as corrected

in 40 Fed. Reg. 59497 (December 24, 1975) ...... 2

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-

Battrmore Gas AND ELectric COMPANY, ET AL., AND

Tue Bascock & Witcox Company, Petitioners

v.

NATURAL Resources DEFENSE CouNCcIL, INC., ET AL.,

and

Tue State or New York, Respondents

PETITION OF BALTIMORE GAS AND ELECTRIC

COMPANY. ET AL. AND THE BABCOCK & WILCOX

COMPANY FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Baltimore Gas and Electric Company, et al.’ and

The Babeock & Wilcox Company respectfully petition

1 Boston Edison Company, Consumers Power Company, Duke

Power Company, Long Island Lighting Company, Northeast Nu-

clear Energy Company, Pacific Gas & Electric Company, Phila-

delphia Electric Company, Public Service Electric & Gas Com-

pany, Southern California Edison Company, The Connecticut

Light & Power Company, The Hartford Electric Light Company,

Virginia Electric and Power Company, Western Massachusetts

Electric Company, and Yankee Atomic Electric Company.

2

for a writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the

Second Cireuit entered in this proceeding on May 26,

1976, as amended on August 12, 1976 and supplemented

on September 8, 1976.

OPINIONS BELOW

The subject of this proceeding is an interim licens-

ing policy of the Nuclear Regulatory Commission (the

Commission), under which it decided to consider, in

individual cases after full radiological health and

safety and environmental reviews, whether to grant

licenses relating to the use of mixed (uranium-plu-

tonium) oxide fuel during the period prior to comple-

tion of its generic rulemaking proceeding on use of

such fuel, the GESMO proceeding.*? This policy was

announced on November 11, 1975, published in the

Federal Register on November 14, 1975 (40 Fed. Reg.

53056), and corrected in minor detail on December 19,

1975 (40 Fed. Reg. 59497, December 24, 1975). The

notice and correction are set forth as Appendix A to

the petition for certiorari filed in this proceeding by

Allied-General Nuclear Services, et al., on November

9, 1976, Supreme Court Docket No. 76-653.°

The Second Cireuit’s opinion reversing the Commis-

sion’s interim licensing policy, Natural Resources De-

fense Council, et al. v. Nuclear Regulatory Commission,

2 See pages 4-10 infra for discussion of the subject of mixed

oxide fuel and the NRC proceedings relating to it.

* That Appendix, as well as Appendices B, C, D and E to

the petition filed by Allied-General Nuclear Services, et al., is in-

corporated herein by reference. Appendices to the Allied-General

Nuclear Services, et al., petition will hereinafter be cited as ‘‘AGNS

Appendix —.’’

as issued May 26, 1976 and amended August 12, 1976,

is reported at 539 F.2d 824 and set forth as AGNS Ap-

pendix B. The Second Cireuit’s per curiam supple-

mental opinion denying rehearing, issued September 8,

1976, is not yet officially reported.‘ It is unofficially

reported at 9 E.R.C. 1414 and set forth as AGNS Ap-

pendix ©.

This petition for a writ of certiorari is being filed

within the prescribed period of 90 days after Septem-

ber 8, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1) and § 2350(a), and 42 U.S.C.

§ 2239(b).

1. Whether the National Environmental Policy

Act (NEPA), as construed by this Court in Kleppe v.

Sierra Club, 96 S.Ct. 2718 (June 28, 1976), prohibits

the Commission from granting any licenses relating to

the commercial use of mixed oxide fuel in nuclear

power reactors during the period prior to completion

of the GESMO rulemaking proceeding, which has been

pending since 1974 and may well take several addi-

tional years to complete.

2. Whether the Second Cireuit erred in holding,

in the absence of a record and despite the fact that any

action under the Commission’s interim licensing policy

granting a license relating to the commercial use of

mixed oxide fuel would be subject to judicial review

on a full record, that issuance of such a license would,

under every circumstance, violate NEPA.

*The Second Circuit also issued on September 8, 1976 orders

denying timely suggestions for rehearing en bane. Those orders

are set forth as AGNS Appendix D.

4

STATUTES INVOLVED

1. Section 102 of the National Environmental

Policy Act of 1969, 42 U.S.C. § 4332 (1970);

2. Section 103 and section 161b of the Atomic En-

ergy Act of 1954, as amended, 42 U.S.C. § 2133

and § 2201(b) (1970).

The statutes cited above are set forth in AGNS Ap-

pendix E.

STATEMENT OF THE CASE

All but one of the commercial nuclear power reactors

operating or under construction in the United States

are cooled by ordinary, or “‘light,’’ water and presently

use uranium fuel which has been enriched in a fissile, or

energy-producing, isotope, uranium-235, to about 3 per-

cent of the total fuel content. Plutonium, which is

also fissile, is a natural and inevitable by-product of the

operation of these reactors.” The concept of “‘pluton-

ium recyele’’ with mixed (uranium-plutonium) oxide

fuel in light water reactors embraces the series of steps

needed to permit substitution of plutonium for a por-

tion of the uranium-235 that would otherwise be used

in reactor fuel." Plutonium recycle permits conserva-

*Plutoniu. is ‘“‘bred’’ over the course of the normal reactor

marily uranium-238, which represent about 99% of naturally

occurring (unenriched) uranium and about 97% of the uranium

used in present light water reactor fuel. This ‘‘bred’’ plutonium

in turn fissions, producing a significant proportion of the total

power developed over a uranium fuel core’s life and approximately

50% of the power being generated at the end of core life.

*The production and use of mixed oxide fuel involve several

steps, which are described in detail in the Commission's Notice,

AGNS Appendix A, pp. A-12-A-13. _In essence, they are: re

processing spent reactor fuel to separate out plutonium from other

tion of uranium-235, as well as efficient disposition of

spent reactor fuel.

The Atomic Energy “ommission’ first announced

its intent to publish a generic environmental statement

dealing with the wide-scale use of mixed oxide fuel on

February 12, 1974 (39 Fed. Reg. 5356). The announce-

ment indicated that the AEC was preparing a Generic

Environmental Statement on the Use of Mixed Oxide

Fuel in Light Water Reactors (GESMO) pursuant to

the requirements of NEPA and the Council on En-

vironmental Quality’s Guidelines (40 C. F. R. Part

1500), and that if the GESMO warranted, the AEC

would propose amendments to its regulations to deal

with the wide-scale use of such fuel. A draft of the

GESMO was completed and made publicly available

on August 21, 1974 (39 Fed. Reg. 30186).

In May 1975, the Commission announced that before

to perform certain additional analyses, including a

cost-benefit assessment of alternative safeguards pro-

constituents; converting the plutonium into a chemically

(oxide) form; fabricating new fuel rods using plutonium in place

of a portion of the uranium-235 would otherwise be ;

water

:

i reactor, exactly like

pure uranium fuel. These steps are carried out at a series of co-

ordinated facilities, each of which must be licensed, along with

any necessary transportation links, pursuant to the Atomie Energy

Act of 1954, as amended, and NEPA. Each of these steps, in-

cluding reactor operation with mixed oxide fuel, has already been

demonstrated on a small seale.

*The Atomie Energy Commission (AEC) was abolished, and

the Nuclear Regulatory Commission was created and succeeded

January 19, 1975 to the regulatory functions of the

the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-589

(Supp. V, 1975).

—

grams, which would be reflected in both draft and final

environmental statements (40 Fed. Reg. 20142, May 8,

1975). At the same time, the Commission announced its

provisional views on the issuance of licenses for activi-

ties related to the production or use of mixed oxide fuel

pending the outcome of its decision on wide-scale use.

The November 1975 notice detailing the Commission’s

interim licensing policy was issued in response to

comments received on its May 1975 provisional views.

In the November 1975 notice, the Commission an-

alyzed the differing relationships of the various types

of facility licensing proceedings to wide-scale use of

mixed oxide fuel. It found that interim licensings, in-

dividually or collectively, would not necessarily result

in the foreclosure of significant health and safety or

environmental alternatives.

The Commission made clear that any facilities so

licensed must, of course, meet all applicable health,

safety, and environmental requirements, and that any

licenses issued would be expressly subject to amend-

ment, suspension or revocation in light of its ultimate

decision on wide-scale use of mixed oxide fuel. Like

all licenses issued by the Commission, any such license

would be reviewable in the Court of Appeals. Further,

the Commission stressed that such individual deter-

minations, for all facilities other than power reactors,

would be made only after balancing three additional

eligibility criteria : *

(1) Whether the activity can be justified, from a

NEPA cost-benefit standpoint, without placing

* The Commission found that use of mixed oxide fuel by power

reactors would in no way tend to predetermine the outcome of

its generic decision and involved no other special limiting con-

siderations. AGNS Appendix A, pp. A-21- A-22, A-26.

7

primary reliance on an anticipated favorable Com-

—— decision on wide-scale use of mixed oxide

uel;

(2) Whether the activity would give rise to an

irreversible and irretrievable commitment of re-

sources that would unjustifiably foreclose for the

activity substantial safeguards alternatives that

may result from the decision on wide-scale use ; and

(3)The effect of delay in the conduct of the ac-

tivity on the overall public interest.

AGNS Appendix A, pp. A-25 - A-26.

The November 1975 notice and the extensive record

on which it was based demonstrate that the Commis-

sion, in establishing its interim licensing policy, con-

sidered and balanced a broad range of factors. These

include protection of the public health and safety, the

need to avoid foreclosure of safeguards alternatives,

protection of the environment and retention of environ-

mental alternatives, conservation of scarce natural re-

sources, impact on the nation’s energy development

program, and the need for a flexible regulatory process.

As the notice itself states :

In reaching its general conclusion that individ-

ual interim licenses may be issued where warrant-

ed, and under the specific conditions discussed in

this notice, the Commission assessed the likely ben-

efits of allowing such interim licensing as well as

the possible adverse im Here, as in other deci-

sional areas, the need for careful balance was evi-

dent. While the Commission is properly mindful

that certain licensing actions have the

for foreclosing subsequent alternatives, it cannot

disregard the equally hard reality that inaction or a

blanket prohibition on fuel recycle related licens-

ing actions could also foreclose or substantially

impede realization of energy alternatives which

may contribute significantly to meeting national

needs.

Broad public interest considerations must be

weighed in determining the appropriateness of

interim licensing. Whether the Commission de-

cision on wide-scale use of mixed oxide fuel is

favorable or unfavorable, an absolute prohibition

on the conduct of any related activities in the in-

terim could result in the disruption or cessation

of planning as well as the production of useful

data. Such a prohibition onl result in potential-

ly serious delays in exploring alternatives which

could contribute to meeting the nation’s energy

needs. This could impose future economic penal-

ties on the American public through increased

eosts to electric utilities caused by delaying the use

of resources available in spent fuel and requiring

additional spent fuel storage facilities that other-

wise would not be needed.

AGNS Appendix A, pp. A-22, A-23 - A-24,

Dissatisfied with the Commission’s considered de-

termination that a complete moratorium on the licens-

ing of commercial mixed oxide activities would be in-

consistent with the public interest, Natural Resources

Defense Council (NRDC)* and the Attorney General

of the State of New York filed similar petitions for

review in the Second Circuit, asserting jurisdiction in

the Court of Appeals pursuant to 28 U.S.C. § 2342(4)

(Supp. V, 1975) and 42 U.S.C. § 2239 (1970). Both

petitions contested the legality, under NEPA, of the

Commission's decision not to impose a licensing mora-

* Five other groups—Sierra Club, Ine., Environmentalists, Inc.,

West Michigan Environmental Action Council, Ine., National In-

tervenors, Inc and Businessmen for the Public Interest, Inc.—

joined in the petition for review tiled by NRDC.

torium on commercial mixed oxide fuel activities

pending completion of the GESMO proceeding.” The

Commission and various intervenors before the Second

Cireuit, including Baltimore Gas and Electric Com-

pany, et al., and The Babeock & Wilcox Company, op-

posed this argument and raised, with respect to review

of the Commission’s interim licensing policy, ques-

tions of finality and ripeness.

The Second Circuit, rejecting the objections concern-

ing lack of finality and ripeness, concluded that the in-

terim licensing policy inherently violated NEPA in

that it would ‘circumvent the mandates of NEPA by

granting interim licenses on the basis of records which

exclude the generic aspects.’’ AGNS Appendix B, p.

A-71. In short, the court below held that the Com-

mission must refrain from issuing any licenses related

to use of mixed oxide fuel on a commercial scale ‘until

the GESMO and the GESMO supplement have been

issued in final form and until the Commission has made

its final decision on wide-scale use of mixed oxide

fuel.”” AGNS Appendix B, p. A-72. Petitions for re-

hearing were denied with a supplemental opinion pri-

marily seeking to distinguish this Court’s intervening

decision in Kleppe v. Sierra Club, 96 S.Ct. 2718 (June

1 NRL. and New York also contended that the full panoply of

adjudicatory procedures normally associated with ‘‘on the record’

hearings conducted pursuant to sections 7 and 8 of the Adminis-

trative Procedure Act, 5 U.S.C. §§ 556, 557 (1970), should be re-

quired in the Commission’s rulemaking hearing, and complained

of various other aspects of the rulemaking’s structure and conduct.

The Second Cireuit rejected these arguments and Petitioners do

not seek review of these aspects of the court’s decision.

Se

10

28, 1976. AGNS Appendix ©. Suggestions for re-

hearing en bane were also denied. AGNS Appendix

Dp"

REASONS FOR GRANTING THE WRIT

The Second Cireuit’s opinion presents this Court

with a clear example of a case worthy of certiorari.”

First, in rejecting the Commission’s interim licens-

ing policy for a potentially major energy source the

Second Circuit has departed from established princi-

ples of law in an area of paramount importance to the

national welfare.

The close historic correlation between economic pro-

duction and energy use shows no sign of breaking

down ; nor does the crucial role of electricity in provid-

ing energy to all sectors of this nation’s economy. As

'' The Commission’s public hearings connected with the GESMO

rulemaking began on November 30, 1976, with the start of ques-

tioning by the Hearing Board of the first witness panel, the Com-

mission's Staff, on iis direct testimony. Filing of direct testimony

by other full participants, of which there are over seventy, and

subsequent questioning thereon will not begin until early next

year. The present quasi-legislative phase of the proceeding may

eventually be succeeded in some areas by adjudicatory proce-

dures upon a proper showing of need. Although the duration

of such proceedings is virtually impossible to predict, it seems not

unlikely that compilation of the hearing record alone will] take at

least one to two more years. At that time, it will be certified to

the Commission for a decision, which, in view of the complexity

of the matter, will certainly not be rendered overnight.

'? Allied-General Nuclear Services, et al., in their petition in

Supreme Court Docket No. 76-653, have aptly set forth the reasons

why this Court should issue a writ of certiorari to review the judg-

ment and opinion of the Second Circuit in this proceeding. We

subseribe to and incorporate by reference the statement of rea-

sons set forth by Allied-General Nuclear Services, et al., and merely

summarize here certain aspects which deserve especially close

attention.

11

the events of the past few years have clearly illustrated,

economic sources of energy at present are either limit-

ed in their available supply or beset by use-re-

lated problems. Whatever their problems, however,

domestically. available sources of energy possess im-

portant advantages over ones which must be imported.

The nation’s present energy posture is a precarious one

and no potential source of energy, however exotic, can

be overlooked for development. It is all the more vital,

therefore, that the opportunity for commercial harnes-

sing of known, readily available energy supplies in the

near-term future should not be pre-emptively stifled by

mechanical misapplication of NEPA doctrine.

The Second Cireuit’s bar on the issuance of indi-

vidual commercial licenses pending the completion of

what is expected to be a lengthy generic proceeding

could greatly exacerbate the spent fuel storage prob-

lems already being experienced by some utilities and in-

erease the demand for scarce uranium. More impor-

tant, however, because of the advance planning and

long lead times involved in the construction of fuel

eyele facilities, the Second Cireuit’s ban on interim

licensing could also result in the unavailability of the

mixed oxide fuel option at a critical juncture.

Second, the Second Cireuit’s opinion is clearly con-

trary to this Court’s decision in Kleppe v. Sierra Club,

96 S.Ct. 2718 (June 28, 1976). In Kleppe, this Court,

reversing the United States Court of Appeals for the

District of Columbia Circuit, found no requirement

for a general impact statement covering coal develop-

ment plans in the Northern Great Plains region and

held that, even assuming the need for such a regional

impact statement, an injunction against interim min-

ing activities in the region was improper. 96 8.Ct. at

12

2733 n. 26. Accord, Aberdeen & Rockfish R.R. Co. v.

SCRAP, 422 U.S. 289 (1975). An impact statement

had been prepared on four mining plans in one basin

within the Northern Great Plains region, and the ade-

quacy of that statement ‘“‘had not been challenged

either before the District Court or the Court of Ap-

peals, in this case, or anywhere else.’’ 96 S.Ct. at 2729.

Thus, this Court held that so long as the individual

impact statement covering those specific projects was

adequate, there was no reason to enjoin the projects’

approval pending completion of a regional impact

statement. 96 S.Ct. at 2729 n. 16. This would have been

true, the Court held, even if a regional impact state-

ment would ultimately have been required, so long as

the individual statement adequately ‘‘analyzed the

environmental impact of, and the alternatives to, the

proposal’’ within its embit. Jd.

This Court in Kleppe also considered a contention

that a regional impact statement was needed because

coal projects in the area were intimately related to

each other, an argument similar to the Second Cir-

cuit’s apparent belief that activities which might be

undertaken prior to the completion of the GESMO

proceeding would automatically be tied to the wide-

scale use of mixed oxide fuel. The Court noted that

this argument could be viewed as an attack on the suffi-

ciency of impact statements for individual projects,

and that ‘‘[a]s such we cannot consider it in this pro-

ceeding, for the case was not brought as a challenge to

a particular impact statement and there is no impact

statement in the record.’’ 96 S.Ct. at 2730. Addi-

tionally, even where a comprehensive statement would

ultimately be necessary, interim approvals of individ-

ual projects may be allowed on the basis of adequate

13

individual statements where ‘‘approval of one [proj-

ect] does not commit the Secretary to approval of any

others....”’ 96 S.Ct. at 2733 n.26.

The opinion below predated Kleppe. Nonetheless,

when apprised in petitions for rehearing of this Court’s

decision in that case, the Second Circuit denied the

petitions on the ground that Kleppe was distinguish-

able and therefore not controlling. AGNS Appendix C,

pp. A-75 - A-76.

The Second Circuit attempted to distinguish Kleppe

by asserting that any individual impact statements

‘‘drafted in accordance with presently existing Com-

mission rules and precedent would necessarily result

in impact analyses inadequate under NEPA.”’” AGNS

Appendix ©, p. A-76. Yet this preclusive judgment

was rendered in the absence of any Commission impact

statement relating to a particular facility, and thus is

directly contrary to the views set forth by the Court in

Kleppe. 96 8.Ct. at 2730.

The Second Circuit attempted to distinguish Kleppe

on a second, equally invalid basis. It asserted that un-

like the individual leases at issue in Kleppe, the indi-

vidual interim licensing to which the Commission’s

procedures would give rise would be ‘‘clearly tied”’ to

the anticipated wide-scale use of mixed oxide fuel and

thus ‘‘would commit substantial resources to the mixed

oxide fuel technology."” AGNS Appendix C, p. A-76.

In fact, however, as the Commission and other parties

explained to the Second Circuit in briefs below, the

operation of certain facilities would not necessarily be

dependent upon wide-scale use of mixed oxide fuel.

Indeed, the Commission’s eligibility criteria would

sharply limit, if not eliminate, the interim licensability

of any activities not possessing such independent util-

14

ity. Thus, the Second Circuit simply was wrong in

holding that Kleppe is not controlling in this case.

Third, the decision of the court below is at odds with

other appellate decisions which affirm the right of an

agency to proceed with adjudications while related

rulemakings are in progress. American Commercial

Lines, Inc. v. Louisville & Nashville R.R. Co., 392 U.S.

571, 590-593 (1968); F.C.C. v. WJR, The Goodwill

Station, Inc., 337 U.S. 265, 272 (1949); Pikes Peak

Broadcasting Co. v. FCC, 422 F.2d 671, 680 (D.C. Cir.

1969), cert. denied, 395 U.S. 979 (1969). This prin-

ciple has been affirmed in cases in which the rulemak-

ing is, as in this case, undertaken pursuant to NEPA

and public interest concerns dictate that some adjudi-

cations go forward. Aberdeen & Rockfish R.R. Co. v.

SCRAP, 422 U.S. 289 (1975); Nader v. NRC, 513 F.2d

1045 (D.C. Cir. 1975); Union of Concerned Scientists

v. AEC, 499 F.2d 1069 (D.C. Cir. 1974).

Finally, the decision below is erroneous in that it

was made prematurely and without an adequate basis

in fact. The Second Cireuit, describing the Commis-

sion’s interim licensing criteria as ‘‘at best vague and

at worst dising: uous,” AGNS Appendix B, p. A-66,

apparently assti.med that the criteria would be improp-

erly applied and that, consequently, any interim li-

censes which might be granted would inevitably ‘‘tip

the scale towards a favorable final decision on wide-

seale use [of mixed oxide fuel].’”” AGNS Appendix B,

pp. A-69 - A-70. The Second Circuit’s holding that the

Commission would misapply its own interim licensing

standards is directly contrary to the presumption of

regularity which this Court has recognized as attaching

15

to agency action. F.C.C. v. Schreiber, 381 U.S. 279, 296

(1965).

The Second Circuit’s holding was both speculative

in the extreme and particularly inappropriate in the

context of this case. Not only did the court not stay

its hand until it could have before it a Commission

decision in which the interim licensing criteria had

actually been applied, but the record before it con-

tained no environmental impact statement prepared

with regard to any individual interim license applica-

tion. In these circumstances the Second Circuit’s de-

cision to presume the outcome of future individual li-

censing requests violated the standards for judicial

restraint set forth by this Court in Toilet Goods Ass’n

v. Gardner, 387 U.S. 158 (1967).

16

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted.”

Respectfully submitted,

Gerorce C. FREEMAN, JR.

Donap P. InwIn

Saran FE. Hatt

Hunton & WILLIAMS

707 East Main Street

Richmond, Virginia 23219

Mice4kgt B. Barr

Hunton & WILLIAMS

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioners

Of Counsel:

Atvin G. KALMANSON

Tue Bascock & W1Lcox CoMPANY

161 E. 42d Street

New York, New York 10017

18 Indeed in view of the fundamental inconsistency of the Second

Cireuit’s holding with the decision of this Court in Kleppe, the

opinion below strongly merits summary reversal. See, e.g., Cole-

man v. Conservation Society of Southern Vermont, 423 U.S. 809

(1975); Northern Indiana Public Service Co. v. Porter County

Chapter of the Izaak Walton League, 423 U.S. 12 (1975).