# Petition — Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc. (Nos. 76-774, 76-653, 762, 769) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1686%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 ## Text 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 PN dott edesnnoembognveesesonssetostesepes 3 Py PUT ceccdcccedceosscoscestsonautce 3 EES a ee + ee OC 166. esc dcdebusnenenenesenete + Reasons for Granting the Writ .................... 10 GET soncéudseds sdnensesécededsbhaeubedecwes 16 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1686%3A1. Public record. Not legal advice.