Petition — Public Service Co. of New Hampshire v. Nuclear Regulatory Commission

PB tan "1

FILED

| SEP_19 1973

In THE {MICHA RODAK, JR, a

Supreme Court of the United States

Ocroser T'rerRM, 1978

No. 78- 7537468

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,

* Petitioner,

UNITED STATES NUCLEAR REGULATORY

COMMISSION

and

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Tuomas G. Dianan, JR

G. MarsHaut Moriarty

R. K. Gap ui

Wriuiam S. Ecceiine

225 Franklin Street

Boston, Massachusetts 02110

(617)423-6100

Of Counsel: Attorneys for Petitioner

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

TABLE OF CONTENTS

PaGE(s)

ae We OD 9 oJ) ak os cc hd gwen cw dadbad ii

NRE gn cy a aL SF ge 1

I Se pe Oe ee ed ee be 2

QUESTION PRESENTED FOR REVIEW ............ 2

STATUTES AND REGULATIONS INVOLVED . 2

SEAT eee Ge Teme CABS. oi cc. ee cece ne ss 3

STATE APPROVAL OF PETITIONER’S TRANSMISSION LINES . 3

PROCEEDINGS BEFORE THE COMMISSION ................ 4

Tue DECISION OF THE CourRT OF APPEALS ............. 6

REASONS FOR GRANTING THE WRIT ............ 8

I. THe Sweeprinc CHANGE IN FEDERAL-STATE RELATION-

SHIPS WHICH THIS DECISION ANNOUNCES PRESENTS

AN IMPORTANT QUESTION OF FEDERAL Law WHICH

SHouLp Br Setritep By THis Court .............

II. TwHere 1s A CONFLICT IN THE CIRCUITS WITH RESPECT

TO THE INTERPRETATION OF THE ATOMIC ENERGY ACT

Ill. Tue Reapinc Accorpep NEPA By tHe Court or

AppEALs Is IN CONFLICT WITH APPLICABLE DECISIONS

i 0 eta eae ee ee re

IIE Sos dda ls Soc ce 20 ba enue Tawa Kae ake

14

15

17

ii

TABLE OF CITATIONS

CASES

PaGE(s)

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289 (1974) 15, 16

The Detroit Edison Company, Nos. 78-3187 & -3196 (6th

Ce MNO, WOE C's vs poss ie tie ene wee be cons 9n.10

The Detroit Edison Company, Dkt. No. PRM-50-15 (Com-

Se, PE SUED fe ck oie ela ig kee ge deve 9n.10

The Detroit Edison Company (Greenwood Energy Center,

Units 2 and 3), ALAB-247, 8 AEC 936 (1974) ... 5, 8,10n.12

Flint Ridge Dev. Co. v. Scenic Rivers Ass’%, 426 U.S, 776

SE as hoa Ge tie Pale wok wiasede. « bard den dee RAR Ss 16

Kleppe v. Sierra Club, 427 U.S. 390 (1976)............. 16

Maun v. United States, 347 F.2d 970 (9th Cir. 1965) ... 12, 14-15

Public Service Company of New Hampshire (Seabrook

Station, Units 1 & 2), LBP-76-26, 3 NRC 857 (1976),

aff’d, ALAB-422, 6 NRC 33 (July 26, 1977), review de-

nied, CLI-77-22, 6 NRC 451 (September 15, 1977) ..... 6

United States v. SCRAP, 412 U.S. 669 (1973) .......... 15, 16

United States ex rel. TVA v. Welch, 327 U.S. 546 (1946) 13

Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc, 435 U.S. 519 (1978) ........... 15

STATUTES

Atomic Energy Act,

SD SBCU), Oe Cie BD PURUTD ioc diva becetenveee es 2

SUR), Oe Ue. SBORMIGE) o.oo eet ia eine 2,10 n.12

SUPT Oe, Oe UMA, SREMOUR) Cowie cnc ceune cote ‘ 16

RG Oe RE SOOO cy cbse team ecs ses 2, 7, 10-12, 14-15

United States Code,

Title 16,

ie GE RE |) el en 13

Title 28,

EEE EE RIES sO re Wee Ee Pans ar NT ea 2

a eee Sos arated «gts isk edliw aA Wid whe ok oa ane 6

PR Peete i ys aa cee et bern Cio Ck aaa Gand 2

iii

Title 42, oe

2 REPS ARY MnP ie Sear pai Gh ot ee Coe ae BP LA ie Pry 13

Eo. 4 eS e AR IAA eked ieee 6

URES Petes raked i eal Bo aera t LF ee

ee a ee i ea sk nc a ee els 2, 5, 15-16

IRE TAS SY AED ot oe am Ait aya arg WTS CR 4n4

New Hampshire Revised Statutes, Annotated,

MEE ct ta re cet cite ek wines eh bases call ek bel: 3

gt Sek OE PMC eR en 6 2 El Ne Sr Mate ete ae 4n.2

ME. ees fos eiicts cs eee ke aR ae ae 3

INE! seid che ve Sede ae ads Meee a ee 3

SI te ag Farr Shar, ame Pe eh Som le 3

i ecto beciine Palais Choc ediea ua tied a tL 8 3

NON See ary cele eee ile GAME Fok Con eee eee 3

REGULATIONS

10 C.F.R.,

DUE RS, nis Fo AG oike SOE N SOT Und eee 5 n.5

RE i diisia ks ¢ Dak ee nee la cee Cok eee, 5n.5

OE Ss <b iat arsine Ba 4 Oca bie Waaeeetd oe corns cin §n.5

ESR RAR A i Ree Homann sneer” sean Sens Ge aL ar eae 5n.5

RL Direc, rkar eaten Vu eds stein s chatcs Bet whine 2

Ra xg ere ay a a ee ot 7n.7

Fart Oe, Bow. A, Cotterion 37. o.oo ee ok nace 9n.11

36 Fed. Reg.,

RG Cuneo lh cee tel Ay ae eh eda of a 7n.7

PE Gis Fle eek Goa Sale ONE Tale WAN RIES Coe eus 7n.7

Oa Facial SEAT arias ob SUES EES eo bin PENG 7n.7

LEGISLATIVE MATERIALS

Congressional Record,

100 Cong. Ree. 11567 (July 26, 1954) ................ 11

100 Cong. Rec. 11709-10 (July 27, 1954) ............. 1l

H. R. Rep. No. 567, 89th Cong., 1st Sess., 1965 U.S. Code

Come. @ Agu. ewe BITO «oc aici ek ec hae. 12

S. Rep. No. 1699, 83d Cong., 2d Sess., 2 U.S. Code Cong.

& 6amin. Mw S000 (E008) oc ee cca. 13

In THE

Supreme Court of the Gnited States

OctTosErR Term, 1978

No. 78-

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,

Petitioner,

v.

UNITED STATES NUCLEAR REGULATORY

COMMISSION

and

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner, Public Service Company of New Hamp-

shire, respectfully prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the First Circuit entered in this proceeding on June

21, 1978.

OPINIONS BELOW

In the separately bound appendix submitted herewith are

set forth the opinion (App. 2-18) and the judgment (App.

1) of the United States Court of Appeals for the First

Cireuit in Public Service Company of New Hampshire v.

United States Nuclear Regulatory Commission et al., No.

77-1419 (June 21, 1978). The decision is not yet officially

reported. The portions of decisions of the Atomic Safety

2

and Licensing Board (Licensing Board) (App. 19-36) and

Atomic Safety and Licensing Appeal Board (Appeal

Board) (App. 37-51) of the United States Nuclear Regula-

tory Commission (NRC) which were on review in the Court

of Appeals are also set out in the separately bound appen-

dix. The Licensing Board decision is officially reported at

3 NRC 857. The Appeal Board decision is officially reported

at 6 NRC 33.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 21, 1978. The jurisdiction of this Court is invoked

under 28 U.S.C. §§ 1254, 2350.

QUESTION PRESENTED FOR REVIEW

Whether the National Environmental Pelicy Act is to

be construed as requiring or permitting the United States

Nuclear Regulatory Commission to order a change in the

routing of a transmission line associated with a privately-

owned, and Commission licensed, nuclear electric generating

plant, which routing was previously approved by competent

state authority, because, in the Commission’s judgment,

such a change would mitigate the environmental impact

of the line.

STATUTES AND REGULATIONS INVOLVED

The ease involves the statutes and regulations listed be-

low, and which are reproduced in the separately bound

appendix submitted herewith. App. 117-120.

1. Atomie Energy Act § 11(v), 42 U.S.C. § 2014(v).

2. Atomic Energy Act § 11(ec), 42 U.S.C. § 2014(ee).

3. Atomic Energy Act § 271, 42 U.S.C. § 2018.

10 C.F.R. § 50.2(b).

National Environmental Poliey Act § 102,

42 U.S.C. § 4332.

ee ae

C2

STATEMENT OF THE CASE

STATE APPROVAL OF PETITIONER’S TRANSMISSION LINES

Under New Hampshire law any electric utility desiring

to construct a transmission line in that state must obtain

permission to do so from two state agencies: The New

Hampshire Site Evaluation Committee (NHSEC) and the

New Hampshire Public Utilities Commission (NHPUC).

This permission is granted only after a full adjudicatory

hearing conducted jointly by both agencies. NHRSA 162-F.

The process culminates in the issuance by NHPUC of a

“Certificate of Site and Facility,” NHRSA 162-F:6, which,

inter alia, lays out the route to be used for the transmission

line. The issuance of the certificate is preceded by findings

with respect to the environmental impact of the route, the

effects on system stability and reliability, and on regional

development, aesthetics and historic sites. NHRSA 162-

F':8(I). In addition, the utility must obtain approval of

specific water crossings from NHPUC, NHRSA 371 :17-20,

and specific highway crossings from the New Hampshire

Department of Public Works and Highways (NHRSA

254 :2-3) ; it also must obtain necessary dredge and fill per-

mits from the New Hampshire Special Board, NHRSA

483-A.

On February 1, 1972, the petitioner, Public Service Com-

pany of New Hampshire (PSCO), applied to NHSEC and

NHPUC for a Certificate of Site and Facility for, inter alia,

transmission lines for the proposed Seabrook Nuclear

Power Station.’ Thirty-two days of hearings were held

*PSCO also sought approval of the station itself.

4

before NHSEC? and NHPUC sitting jointly during the

period June 19, 1972 - May 25, 1973. The requisite findings

having been made by all other state agencies,’ the NHPUC,

on January 29, 1974 issued a Certificate of Site and Facility

for Seabrook Station and its three associated transmission

lines, App. 73-74, designating particular routes therefor.

As of January 29, 1974, PSCO also had an application

for Construction Permits for Seabrook Nuclear Power

Station pending before the United States Atomic Energy

Commission (AEC), the predecessor to the United States

Nuclear Regulatory Commission (NRC). (Both AEC and

NRC will hereinafter be referred to as “the Commission.” )*

PROCEEDINGS BEFORE THE COMMISSION

When the State of New Hampshire issued the Certificate

of Site and Facility with respect to the Seabrook transmis-

sion lines and routes, the Commission had never asserted

2The NHSEC consists of the following: (1) the Executive

Director of the New Hampshire Water Supply and Pollution

Control Commission (NHWSPCC) who is the Chairman of the

NHSEC, (2) the Chief Aquatic Biologist of NHWSPCC, (3)

the Commissioner of the Department of Resources and Economic

Development, (4) the Director of Fish and Game, (5) the Direc-

tor of the Office of Planning, (6) the Chairman of the Water

Resources Board, (7) the Director of the Radiation Control Com-

mission, (8) the Executive Secretary of the Air Pollution Con-

trol Commission, (9) the Commissioner of the Department of

Health and Welfare, (10) the Director of the Division of Parks,

(11) the Director of the Division of Resources, (12) the Chair-

man of the NHPUC and (13) the Chief Engineer of the NHPUC.

NHRSA 162-F:3.

®NHPUC approved necessary water crossings, App. 63-65; the

Department of Public Works and Highways approved highway

crossings, App. 81-84; and the Special Board gave necessary

dredge and fill permissions, App. 85.

*The functions of the AEC were transferred to NRC in July

of 1975 by the Energy Reorganization Act of 1974, 42 U.S.C.

§ 5801 et seq. (Supp. V.)

5

any authority to direct the routing of transmission lines

associated with a nuclear power station. Eleven months

later, however, on December 20, 1974, a Commission Ap-

peal Board’ issued a split decision in which it held that the

passage of the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321 et seq., had had the effect of

conferring upon the Commission the power to reroute

transmission lines associated with nuclear power plants if,

in the Commission’s judgment, such rerouting would miti-

gate the environmental impact of the lines. The Detroit

Edison Co. (Greenwood Energy Center, Units 2 and 3),

ALAB-247, 8 AEC 936 (1974) (hereafter “Greenwood” and

reproduced at App. 86-116). The Appeal Board rejected

the argument of the utility in that case (made also by PSCO

herein) to the effect that NEPA consideration of transmis-

sion lines is confined to assessing their environmental im-

pact and factoring the costs determined from the assess-

ments into the NEPA “cost/benefit ratio” for the plant

as a whole. 8 AEC 944, App. 98. But see 8 AEC 954-56,

App. 113-16 (Dr. Buck dissenting).

PSCO’s Seabrook application was governed by the Ap-

peal Board’s decision in ALAB-247. 3 NRC 935, App. 34.

After a lengthy hearing before the Licensing Board, which

included eleven days devoted to the subject of transmission

routes, the Licensing Board issued a decision wherein it

5 [nitial hearings on nuclear license applications are conducted

before Atomic Safety and Licensing Boards which are three-man

tribunals made up usually of a lawyer chairman and two techni-

cal members. 42 U.S.C. § 2241, 10 CFR §2.721. An appeal

from a Licensing Board decision may be taken as a right to the

Atomie Safety and Licensing Appeal Board. 10 CFR §6§ 2.762,

2.785. After that a disappointed party may petition the Com-

mission for review, which review is granted only as a matter of

discretion. 10 CFR § 2.786.

6

directed two changes in the transmission routes’ which had

been previously approved by the New Hampshire agencies.

Public Service Company of New Hampshire (Seabrook Sta-

tion, Units 1 & 2), LBP-76-26, 3 NRC 857 (1976). App.

21-35. These findings, rulings and orders were appealed by

PSCO to the Appeal Board which upheld the decision of

the Licensing Board. Public Service Company of New

Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6

NRC 33 (July 26, 1977). See App. 37-50.

After Commission review was denied, Public Service

Company of New Hampshire (Seabrook Station, Units 1

& 2), CLI-77-22, 6 NRC 451 (September 15, 1977), PSCO

petitioned the United States Court of Appeals for the First

Cireuit for review pursuant to 28 U.S.C. § 2342 and 42

U.S.C. § 2239.

THE DECISION OF THE COURT OF APPEALS

The Court of Appeals, acknowledging that the question

presented was “important” and “one of first impression,”

upheld the Commission’s assertion of the right to reroute

transmission lines associated with a privately-owned nu-

clear power plant. Reasoning from the proposition that

®One of the changes was a rerouting of the line through an

area known as Packer Bog rather than skirting it. By the time

the matter came before the Commission’s Licensing Board, it was

apparent to everyone, including state officials, that this was a better

route; consequently, PSCO sought “authorization” of that route

change from the Licensing Board (to the extent such “authoriza-

tion” was required, see App. 34), and indicated that it believed

that the state authorities would allow such a change, see App. 6, 17.

PSCO specifically sought from NRC “authorization” for the change,

not an “order” for it. This was to avoid a Catch-22 situation when

the state did direct the change in the future. Thus, it is not

“surprising” as the Court found, App. at 17, that PSCO viewed

state-approved routes as “final and binding” despite its declaration

that it believed the state would subsequently direct the change in

the Packer Bog area.

-

NEPA requires all “agencies to minimize all unnecessary

adverse environmental impact ... except when specifically

excluded by statute or when existing law makes compliance...

impossible,” the Court of Appeals divined in the administra-

tive history of the Commission a “long-standing” interpre-

tation of the statutory term “utilization facility” as inelud-

ing equipment associated with the reactor. App. 7, 9-11.

The Court of Appeals further found that, based upon this

interpretation, the Commission “at least since 1971 (when

regulations relating to transmission lines were first pro-

posed), has claimed the specific right to oversee the siting

of transmission lines.”’ App. 11. Characterizing PSCO’s

effort as an improper “collateral attack,” App. 10-11, on

the Commission’s interpretation of its statute, the Court of

Appeals held that the Commission was empowered under

the Atomic Energy Act (“AKA”), as modified by NEPA,*

to require the specific changes at issue here.

The Court of Appeals also rejected the petitioner’s argu-

ment that Section 271 of the AEA, 42 U.S.C. 2018, App.

117, specifically precluded the Comiission’s assertion of

authority to route transmission lines. App. 13-15. The

Court of Appeals dismissed that section as a “garden-

variety non preemption clause,” App. 14, and then com-

pounded its error by ruling that the Commission’s actions

7 What the court omits to note is that the reference to “trans-

mission lines” contained in the “first proposed” regulations, 36

Fed. Reg. 3255, 3258 (Feb. 20, 1971), was deliberately removed

almost immediately, 36 Fed. Reg. 12733 (July 7, 1971). Later

in its decision, App. 12 at n.12, the court refers to certain regu-

lations published in 1971 (36 Fed. Reg. 22,848 (Dee. 1, 1971)),

effective in March of 1972, 37 Fed. Reg. 5745 (March 21, 1972)

and now codified as 10 CFR § 50.10(e) (1) (iv). However, that

regulation lists the things that may be done prior to grant of a

license and characterizes “transmission lines” as “service facili-

ties”.

* See App. 7 n.6.

8

had not in this case preempted the transmission line rout-

ing authority of the State of New Hampshire.’

REsSONS FOR GRANTING THE WRIT

I. THe Sweepinc CHANGE IN FEDERAL-STATE RELATION-

sHips Wuicu Tuis Decision ANNOUNCES PRESENTS AN

IMPORTANT QUESTION OF FEDERAL Law WuicH SHOULD

Be SetTLep By Tuis Courr.

In Greenwood, a Commission Appeal Board agreed to

consider — at an interlocutory stage —the same question

which is presented herein because it recognized that: “(it]

present[s] a legal issue of first impression and, perhaps

more importantly, beeause [its] prompt resolution is signi-

ficeant for proceedings involving all facilities needing new

power lines for their commercial operations.” 8 AEC 937,

App. 88. The Court of Appeals for the First Circuit, the

®°In rejecting the “preemption” claim the court pointed to (1)

PSCO’s assessment of the likelihood that the New Hampshire

authorities would agree that subsequent developments made one

of the changes preferable and (2) to the fact that:

“lA]t oral argument the Commission stated that, should PSCO

be unable to obtain approval of the new routing from the New

Hampshire Public Utilities Commission, it could come back to

the Commission. We, therefore, find no ineluctable conflict

between New Hampshire and the Commission on this question.”

App. 17.

As to the first argument (the PSCO position on one of the routes),

see note 6, supra. In addition, note that PSCO did not argue

that NRC “authorized” changes created a conflict, rather that

NRC “ordered” changes created the conflict. As to the sec-

ond argument, created out of an oral and last minute concession

before the Court of Appeals, it is to be noted that NRC has yet

to amend the construction permits to say NRC will acquiesce in a

state adherence to its previously approved routes. PSCO thus

must apparently remain the tennis ball between New Hampshire

and NRC until some court decides who actually has the authority.

9

first judicial body to confront this issue,'® similarly recog-

nized that this issue, “one of first impression,” was “an

important one.” App. 3. These perceptions were not ex-

aggerated. The issue, which the petitioner now asks this

Court to consider, is of vital importance both to the nuclear

power industry and to the nation as a whole.

To understand the full import of the question, it is

important to note that, prior to Greenwood, the Commis-

sion had never asserted authority to reroute transmission

lines for any reason. Prior to the instant case, moreover,

it had never purported to order changes in transmission

routes previously approved by competent state authority.

In fact, prior to this case the Commission had never act-

ually ordered any applicant before it to alter a transmis-

sion route. That the Commission has now attempted to

exercise such authority —in the face of contrary route

approval by the State of New Hampshire and based upon

an evaluation of environmental” significance — is plainly

a step of some gravity.

©The Greenwood interlocutory ruling has not, for reasons un-

related to the transmission line issue, reached a posture where

judicial review is possible. Recently, the applicants in the Green-

wood proceeding sought a rulemaking on the issue, which was

denied. The Detroit Edison Co., Inc., Dkt. No. PRM-50-15 (Com-

mission, February 22, 1978). Review of this denial is now pend-

ing in the United States Court of Appeals for the Sixth Circuit.

The Detroit Edison Company v. NRC, and related case, Nos. 78-

3187 & -3196 (filed April 26, 1978). However, unlike the in-

stant case, the issue of a prior state approval is not presented in

the Greenwood matter. See 8 AEC 946 & n.20, App. 100 & n.20.

‘tThe Commission has never claimed that the changes ordered

here are required for safety reasons. Indeed, the Commission’s

only safety regulations governing offsite power sources makes

clear that the route of “circuits” to and from the plant is irrele-

vant. They may all be on a single right-of-way; they need only

be “separate”. In short, two circuits, one above and one below

ground, or both below ground, on the same narrow route — and

on any route — would fully satisfy the regulation. 10 CFR Part

50, App. A, Criterior +7.

10

It is not surprising that the Commission’s “discovery”

of this remarkable power comes so late in its history. The

Atomic Energy Act certainly contains no provision pur-

porting to confer upon the Commission a power to route,

much less to reroute, electric transmission lines. Indeed,

the Commission’s interpretation of “utilization facility”

— upon whieh it relies for the newfound authority to route

transmission lines — is at best distended.'* Not only is the

AEA devoid of any affirmative grant of such power, it con-

tains an explicit disavowal by Congress of any intent thus

to disrupt the States’ traditional authority in the area of

the transmission of electric power.

As originally enacted, section 271 of the Atomie Energy

Act of 1954 read as follows:

“See, 271. Agency Jurisdiction. — Nothing in this Act

shall be construed to affect the authority or regulations

of any Federal, State, or local agency with respect to

the generation, sale, or transmission of eleetrie power.”

68 Stat. 960 (1954).

12The Commission claims authority over transmission lines on

the basis that they may properly be treated as “utilization facili-

ties” within the meaning of the Act. That construction of the

statutory term is hardly a non-coutroversia] one.

As defined in the Act:

“The term “utilization facility” means (1) any equipment or

device, except an atomie weapon, determined by rule of the

Commission to be capable of making use of special nuclear

material in such quantity as to be of significance to the com-

mon defense and security, or in such manner as to affect the

health and safety of the public, or peculiarly adapted for mak-

ing use of atomic energy in such quantity as to be of signifi-

eance to the common defense and security, or in such manner

as to affect the health and safety of the public; or (2) any im-

portant component part especially designed for such equipment

or device as determined by the Commission.” AEA §11(ee).

Including electric transmission lines within this statutory defini-

tion involves a significant expansion of its apparent meaning.

See Greenwood, 8 AEC 936, 947-56, App. 102-16 (Dr. Buck, dis-

senting).

11

During Senate debate on the Atomic Energy Act of 1954,

the Senate sponsor of the Act described section 271, inter

alia, as:

“a safeguard and as an assurance that the existing

authority of the Federal Power Commission on the Fed-

eral law or agency and the ezisting authority of the

State agencies and the existing authority of local

agencies, whatever they may be in connection with the

transmission of electric energy, would not be disturbed

or interfered with in any way.” 100 Cong. Ree. 11710

(remarks of Sen. Hickenlooper) (July 27, 1954) (em-

phasis added).

Referring to the relationship of section 271 to the Atomic

Energy Act as a whole, he observed:

“We say that nothing in this act shall interfere with or

affect the authority or regulations of any ... State or

local agency with respect to the generation, sale or

transmission of electric power. We say that this act

does not interfere with the rights and the power and the

authority of any ... State or local regulatory body

whatever; and the power and the authority which may

be there now for the transmission of electricity or the

generation of electricity or whatever the authority may

be is not changed.” 7d.

Section 271 was further described as follows:

“It is not an authority given in a negative way. It is a

positive negation of any intent by this statute to inter-

fere with the existing laws and the existing authorities,

State and Federal, that have to do with electricity.” Jd.

at 11709 (emphasis supplied).

Section 271 was “designed to keep the regulatory author-

ity exactly as it is now, traditionally and under the law.”

100 Cong. Ree. at 11567 (remarks of Senator Hicken-

looper) (July 26, 1954). It cannot be doubted that, tradi-

tionally, the question of where transmission lines will go

—ute., who gets a transmission tower in his backyard —

has been reserved to state and local authorities, rather

than to a federal bureaucracy.

12

In 1965, section 271 was amended to its present form by

the addition of the italicized language:

“Agency Jurisdiction. — Nothing in this Act shall be

construed to affect the authority or regulations of any

Federal, State, or local agency with respect to the gen-

eration, sale, or transmission of electric power produced

through the use of nuclear facilities licensed by the

Commission: Provided, That this section shall not be

deemed to confer upon any Federal, State, or local

agency any authority to reguwate, control, or restrict

any activities of the Commission.” P.L. 89-135 (1965)

(emphasis supplied).

This amendment was in direct response to a then recent

court decision holding that section 271 precluded the Com-

mission from overriding local zoning ordinances in the

construction of a transmission line to a Commiission-

owned facility. Maun v. United States, 347 F.2d 970 (9th

Cir. 1965). The sole purpose of the amendment was to

make section 271 inoperative when the facility involved

was one that the Commission itself owned or operated.

H. R. Rep. No. 567, 89th Cong. Ist Sess., 1965 U.S. Code

Cong. & Admin. News 2775, 2779-81, 2783-84. The amend-

ment made no change with respect to Commission author-

ity over transmission lines or routes associated with Com-

mission-licensed facilities, such as petitioner’s. To the

contrary, the amendment ratifies the Maun result as ap-

plied to licensed facilities. As amended, section 271

operates in this case as a positive bar to the Commission’s

assertion of authority to route transmission lines in the

State of New Hampshire differently than has the State of

New Hampshire.

That Congress intended to keep the Commission out

of the transmission routing business is further manifested

by its decision not to give it any authority to condemn

transmission rights-of-way for licensees. The assertion

of a power to route a transmission line without the power

to condemn the land for the route is, by definition, a use-

less exercise. Congress was aware of this. For example,

13

the Tennessee Valley Authority was specifically granted

the power of eminent domain to acquire its transmission

routes. Tennessee Valley Authority Act, §4(i), 48 Stat.

60 (1933), as last amended, 49 Stat. 1075, (1935), 16

U.S.C.A. §831e(i). See United States ex rel. TVA v.

Welch, 327 U.S. 546, 554 (1946).

Indeed, NRC was given the power of eminent domain

in order to acquire land in connection with an NRC-

owned facility. 42 U.S.C. § 2063. See also S. Rep. No.

1699, 83rd -Cong., 2d Sess. (1954), 2 U.S. Code Cong. &

Admin. News 3456, 3470 (1954). The conspicuous ab-

sence of any such power with respect to the nuclear power

plants which the Commission licenses is forceful evidence

of congressional intent regarding the limits of that licens-

ing authority.

Despite all the foregoing manifestations of congres-

sional intent, the Commission has, incrementally, reached

the point of asserting not only that it is empowered to

route transmission lines, but that it can reroute them

based upon its perceptions of environmental impact. The

Court of Appeals for the First Circuit has now upheld

this aggrandizement of power, reasoning that the AEA, as

modified by NEPA, confers such authority upon the Com-

mission. Consequently, decisions that can have disastrous

effects on local landowners are now to be made by a fed-

eral agency in Washington, D.C. rather than by — and

indeed contrary to those of — locally elected or appointed

officials. In this case, where the NRC has ordered a route

change to avoid a “natural area”, the result is lines in

the backyards of three private homes. 6 NRC at 87, 90,

App. 45, 50. In addition, certain other adverse effects

along the NRC-ordered routes would oceur. 3 NRC at 890,

App. 28. These are not decisions which Congress intended

the NRC to make. If these statutes are now to be con-

strued as working such a sweeping change in federal-state

relations, that construction should be examined by this

Court.

14

ll. Tere Is A Conruct IN THE Circuits WitH RESPECT

To THE INTERPRETATION OF THE ATomic ENERGY ACT.

The decision of the Court of Appeals is in conflict with

the decision of the Ninth Cireuit in Maun v. United States,

347 F.2d 970 (1965). There the issue was whether the

Commission could obtain, by eminent domain, certain prop-

erty for construction and operation of electric transmission

lines associated with a Commission nuclear research proj-

ect. The defendant property owners contended that the

Government’s condemnation action was improper because

the Commission could not construct or operate the lines

without violating local ordinances. The district court re-

jected these contentions, and the property owners appealed.

On appeal, the Ninth Circuit stated the question pre-

sented to it as:

“whether [the Commission] may construct and operate

an overhead electric transmission line in disregard of

local authority and regulations governing the character

and location of such lines.” 347 I'.2d at 973.

After reviewing the legislative history of AEA § 271, sum-

marized in section I, supra, the Court of Appeals rejected

the Commission’s position and held that the Government

was precluded from attempting to locate its transmission

lines contrary to the requirements of the responsible Cali-

fornia authorities. 347 F.2d at 978.

As discussed previously, section 271 was amended fol-

lowing Maun to alter the result reached therein with re-

spect to Commission-owned facilities. But in thus amend-

ing the section, Congress also reaffirmed the Ninth Circuit’s

interpretation of section 271 with regard to private, com-

mission-licensed, activities. See supra at 10-12.

The Court of Appeais for the First Circuit has neverthe-

less held that the Commission may require, as a condition

for obtaining a license, that private transmission lines be

rerouted from the paths previously ordered by competent

15

New Hampshire authorities. This holding is thus in con-

flict with the Ninth Circuit’s interpretation of section 271

in Maun, as well as with the Congress’ ratification of that

decision.'* This conflict is, without more, sufficient reason

for granting the instant petition.

Il. Tue Reaping Accorpvep NEPA By tHE Court oF Ap-

PEALS Is IN CoNFLICcT WitH APPLICABLE DECISIONS OF

Tuts Court.

On numerous occasions this Court has made clear that

NEPA is not to be read as amending or repealing any other

statute. Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519, __, 55 L. Ed.

2d 460, 482, 98 S. Ct. 1197, 1214 (1978); Aberdeen & Rock-

fish R. Co. v. SCRAP, 422 U.S. 289, 319 (1975); United

States v. SCRAP, 412 U.S. 669, 694 (1973). And yet the

Court of Appeals has construed NEPA in a fashion that

effects a repeal of section 271 of the AEA. The section was

included in the act to insure that the Commission would

not even “disturb” New Hampshire’s existing authority

over transmission lines. Rerouting petitioner’s transmis-

sion lines, contrary to the routes selected by state agencies

established to regulate such matters, produces more than

a disturbance.

'® The First Cireuit effectively disregarded this confliet by virtue

of its conclusion that there had been no “preemption” of the New

Hampshire authorities involved here. As discussed elsewhere, see

note 9, supra, however, this analysis is based upon the Court of

Appeals’ perception that — despite the Commission and the State

having each ordered different routes for the same transmission line

—one of those agencies will at some point acquiesce in the other’s

choice. Whether such a voluntary withdrawal from one of the

outstanding positions will occur (a proposition substantially more

dubious than the First Cireuit’s opinion suggests), that possibility

does not obviate the present conflict between the regulatory authori-

ties. It is therefore not an adequate basis for concluding that

section 271, as interpreted by the Maun court, has not been abro-

gated. The prospect of some future solution to this conflict is,

moreover, of obvious inutility to petitioner.

16

The decision of the Court of Appeals is in conflict with

prior decisions of this Court in two other respects, First,

section 103(b) of the AKA, 42 U.S.C. § 2153(b), commands

that any applicant who satisfies the Commission’s safety

regulations “shall” be given a license. The effect of the

Court of Appeals’ decision is to elipower, perhaps to re-

quire, the Commission to withhold a license in a case where

all of the Commission’s safety regulations have been com-

plied with, notwithstanding the statutory limit on the Com-

mission’s power." This ruling is in conflict with the re-

peated holding of this Court that “NIHPA was not intended

to repeal by implication any other statute.” lint Ridge

Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788 (1976) ;

United States v. SCRAP, 412 U.S. 669, 694 (1973). Second,

the Court of Appeals holds that the Commission has the

power, not only to deny a license application where the over-

all cost-benefit balance is negative, but also to modify col-

lateral, minor, and non-radiolozical features of a project

in the absence of a finding that, but for the modifications,

the balance would be negative; that is to say, that the

Commission may tinker with the non-radiological details of

the proposal as if it were the proprietor. In so holding,

the Court of Appeals has ignored the distinction between

NEPA’s application to federal projects and NEPA’s appli-

cation to federal licensing of private projects that this

Court has previously recognized. Aberdeen & Rockfish R.

Co. v. SCRAP, 422 U.S. 289, 3820 (1974). See also Kleppe

v. Sierra Club, 427 U.S. 390, 419 (1976) (Marshall, J., con-

eurring). The Court of Appeals’ determinations, that

NEPA effectively amends the AEA and that there is no

distinction, for NEPA purposes, between private activity

and federal projects, are in conflict with the decisions of

this Court.

The opinion of the Court of Appeals makes it clear that it was

NEPA which was thought to confer this additional authority. See

App. 7 n.6.

17

CONCLUSION

This decision has put a federal bureaucracy in the busi-

ness of deciding whose backyard gets a transmission tower.

It further has construed NEPA as amending every licensing

statute in the federal code. The petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

THomas G. Dianan, Jr.

G. Marsuaiut Moriarty

R. K. Gap ur

Wii S. Eacetine

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorneys for Petitioner

Of Counsel:

Ropers & Gray

225 Franklin Street

Boston, Massachusetts 02110