Amicus Brief — Baltimore Gas & Electric Co. v. NRDC

OcTOBER TERM, 1982

BALTIMORE GAS AND ELECTRIC Co., et al., Petitioners

V.

NATURAL RESOURCES DrrENSE CounciL, Ixc., Respondent.

Unrrep STaTes NUCLEAR REGULATORY COMMISSION

and UNITED StaTes oF AMERICA, Petitioners,

V.

NATURAL Resources Derense Counci., INc., et al.,

Respondents.

COMMONWEALTH Epison Company, et al., Petitioners

V.

NATURAL Resources Derense CouncIiL, INc., et al.,

Respondents.

On Petitions For Writs Of Certiorari To The United States

Court Of Appeals For The District Of Columbia Circuit

BRIEF OF THE ATOMIC INDUSTRIAL

FORUM AS AMICUS CURIAE IN SUPPORT

OF PETITIONS FOR WRITS OF CERTIORARI

TABLE OF CONTENTS

, x

A. The Decision Of The Court Of Is An Unwar-

ranted Incursion Into ecisi ing In

B. The Court Of Appeals Ruling Is Con To The

Intent Of Congress And To National Interest

r . nen Eagan Opes

TABLE OF AUTHORITIES

CASEs: Page

Minnesota v. NRC, 602 F. 2d 412 (D.C. Cir. 19799 5

Natural Resources Defense Council, Inc. v. NRC, 582

1 ä 5

Northern Indiana Public Service Co. v. lzaak Walton

League, 423 U.S. 12 (975) 6 ccc cece eees

People inst Nuclear Energy v. NRC, 678 F.2d 222

4.1...

r 2 4. 6

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

— ͤ é! 4. 6. 8

STATUTES:

— — Act of 1954, 42 U.S.C. § 2011 et seg.

100 7

e ů⸗ / esse 00 7

ee ! ee 000 06 7

e e000 7

rere es ess 7

4 —K,,„,„ 7

Kw 7

FEDERAL REGISTER:

39 Fed. Reg. 14,188 et seq. (1974) ...........60005 4

42 Fed. Reg. 13,803 et seg. (1977) )) 4

43 Fed. Reg. 15,613 et seg. (1978)))))) 4

44 Fed. Reg. 45,362 et seq. (1979 ꝗ 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Nos. 82-524, 82-545 and 82-551

BALTIMORE Gas AND ELEctTRrIc Co., et al., Petitioners

V.

NATURAL Resources DEFENSE Council, INc., Respondent.

UNITED STATES NUCLEAR REGULATORY COMMISSION

and UNITED STATES OF AMERICA, Petitioners,

V.

NATURAL RESOURCES DEFENSE CoUNCIL, INC., et al.,

Respondents.

COMMONWEALTH EpIson ComMPANY, et al., Petitioners

v.

NATURAL Resources DEFENSE CoUNCIL, INc., et al.,

Respondents.

On Petitions For Writs Of Certiorari To The United States

Court Of Appeals For The District Of Columbia Circuit

BRIEF OF THE ATOMIC INDUSTRIAL

FORUM AS AMICUS CURIAE IN SUPPORT

OF PETITIONS FOR WRITS OF CERTIORARI

In accordance with Rule 36 of this Court, the Atomic

Industrial Forum (“the Forum”) has received and filed

2

with this Court the written consents of counsel for each of

the parties to appear as amicus curiae in this proceeding.

This brief is submitted by the Forum in support of the

petitions for certiorari filed by Baltimore Gas and Elec-

tric Co., et al. (No. 82-524), Commonwealth Edison Com-

pany, et al. (No. 82-551), and the Nuclear Regulatory

Commission and United States of America (No. 82 545)

seeking review of the Court of Appeals’ decision in Natu-

ral Resources Defense Council, Inc., et al. v. Nuclear

Regulatory Commission, et al., Nos. 74-1586, 77-1448,

79-2110, 79-2131 (D.C. Cir. April 27, 1982). The opinion of

the Court of Appeals appears in Petitioners’ Appendix at

la-18la (hereafter “Pet. App. —__”).

INTEREST OF THE ATOMIC INDUSTRIAL FORUM

The Forum is an association of about six hundred

domestic and overseas organizations involved in the

peaceful uses of nuclear energy. The membership in-

cludes electric utilities, manufacturers, architect/

engineer/construction firms, service organizations, con-

sultants, uranium producers, radionuclide and radio-

pharmaceutical suppliers, financial institutions, universi-

ties, labor unions, government agencies and research

laboratories. Forum members are involved in all phases

of construction and operation of nuclear facilities includ-

ing each stage of the uranium fuel cycle.

One hundred and five of the Forum’s 122 domestic

electric operating utility members rely on, or plan in the

future to rely on, nuclear power generation for at least a

portion of their power needs. The Court of Appeals’ deci-

sion adversely affects the interests of the Forum’s mem-

bers by casting a cloud over all construction permits and

operating licenses issued since publication of the original

Table S-3 rule on April 22, 1974. In addition, all applica-

3

tions under review by the Nuclear Regulatory Commis-

sion (“NRC” or Commission“) and all future planning

with respect to the choice of nuclear power as a source of

electricity fall under the same cloud of re-rulatory uncer-

tainty.

The lower court’s decision creates another in a series of

significant impediments to the continued private develop-

ment of nuclear power. The Forum has an exceptional

interest in seeking to remove unwarranted obstructions

to this development so that its members may have the

broadest possible range of energy sources available as

each plans for the future energy needs of our nation.

SUMMARY OF ARGUMENT

The majority decision of the Court of Appeals in-

validates for the second time the Commission’s carefully

considered “Table S-3 rule” which quantifies the environ-

mental effects of the uranium fuel cycle. The petitions for

writs of certiorari should be granted because the lower

court decision is clearly wrong under precedents of this

Court. The decision is also inconsistent with Con-

gressional objectives in the field of nuclear energy and

contrary to the national interest of securing reliable alter-

native energy sources.

ARGUMENT

A. The Decision Of The Court Of Appeals Is An Unwarranted

Incursion Into Agency Decisionmaking In Violation Of

The Decisions Of This Court.

We agree with Judge Wilkey’s conclusion that “the

analysis and resolution of the central issues are

comparatively simple“ the Commission complied fully

with all relevant statutes and engaged in “reasoned

decisionmaking” on the policy and technical issues in the

4

Table S-3 generic rulemaking.' The Court of Appeals has

usurped the policy and technical decisionmaking func-

tions of the NRC and Congress and has imposed procedu-

ral constraints on the Commission’s actions beyond those

required by law in violation of the decisions of this Court

in Vermont Yankee Nucleu Power Corp. v. NRDC, 435

U.S. 519 (1978) (hereafter Vermont Yankee II”), and

Strycker’s Bay Neighborhood Council v. Karlen, 444

U.S. 223 (1980).

The nearly ten years of generic rulemaking conducted

by the NRC and its predecessor agency, the Atomic

Energy Commission, is described ably in the parties’

Petitions in this case. This comprehensive rulemaking

resulted in (1) an initial Table S-3 rule promulgated on

April 22, 1974,’ (2) an interim fuel cycle rule promulgated

in 1977 in response to the decision of the Court of Appeals

vacating the initial rule,’ (3) a clarifying amendment to

the interim rule, and (4) a final fuel cycle rule published

on August 2, 1979. There can be no disagreement with

the conclusion that in this lengthy process the NRC took a

hard look at ali of the relevant factors in its consideration

of the environmental effects of the uranium fuel cycle,

including extensive analyses of the uncertainites which

are the focus of the majority opinion. The NRC technical

Pet. App. 119a, 121a (Wilkey, J. dissenting).

239 Fed. Reg. 14,188, Pet. App. 224a et seq.

42 Fed. Reg. 13,803, Pet. App. 240a et seq.

43 Fed. Reg. 15,613, Pet. App. 259a et seq.

44 Fed. Reg. 45,362, Pet. App. 34 la et seq.

References in the Court’s opinions to full disclosure by the NRC

of the uncertainties, methodology and assumptions implicit in the

Table S-3 rules are numerous. Pet. App. 27a, 35a, Ala, 46a and 48a

5

staff's assumptions underlying the rules invalidated by

the Court of Appeals were ultraconservative, thus allow-

ing the Commission to conclude in its final Table S-3 rule,

inter alia, “that taking post-sealing releases as zero does

not significantly reduce the overall conservatism of the

table.

Nevertheless, a majority of the Court of Appeals in-

validated all iterations of the Table S- 3 rule because the

Court disagreed with both the final result of and the

methodology underlying the rules, and with the generie

rulemaking procedures employed to arrive at the rules.

The majority opinion characterized the Commission’s

rules as constituting “either a failure to consider a rele-

vant factor or a clear error in judgment.” The result is

(Bazelon, J.); see also Pet. App. 165a-166a (Wilkey, J. dissenting). To

the extent that the majority opinion is concerned about whether a

long term waste disposal facility will ever be built (Pet. App. 45a,

Bazelon, J.), we believe that issue (and its related uncertainties) is a

matter for the attention of the Congress. NRDC v. NRC, 582 F.2d

166 (2d Cir. 1978); but see State of Minnesota v. NRC, 602 F. 2d 412

(D.C. Cir. 1979).

Pet. App. 370a. Descriptions of the conservatism in the agency’s

analyses are described in some detail in the Petition of Baltimore Gas

and Electric Co., et al., pps. 8-10; Petition of the Nuclear Regulatory

Commission and United States of America, pps. 11-13; and Petition

of Commonwealth Edison Company, et al., pps. 22-24.

»Pet. App. 49a (Bazelon, J.) The majority opinion also character-

ized the original and interim versions of the Table S-3 rule as prevent-

ing licensing boards in individual power plant proceedings from con-

sidering the health, socioeconomic and cumulative impacts of fuel

cycle activities. (Pet. App. 57a, Bazelon, J.). This characterization is

completely erroneous, as noted by the government in its Petition.

6

succinctly described by Judge Wilkey in his dissent as

follows:

Notwithstanding the ~~ Court’s clear guide-

lines, however, Jud azelon has again strayed

beyond judicial province to register his dissatisfac-

tion with the methodology underlying the Table S-3

Rule and to prescribe “procedural” mandates which,

however promotive of an ideal that environmental

concerns play a vital role in government

decisionmaking, simply are not among those re-

quired by Congress under NEPA.’

As in 1978 in the landmark Vermont Yankee II deci-

sion, this Court should review the Court of Appeals’,

decision and correct the excesses therein. It was not

appropriate for a majority of the Court of Appeals in this

case to “stray beyond the judicial province to explore the

procedural format or to impose upon the agency its own

notion of which procedures are ‘best’ or most likely to

further some vague, undefined public good.” Vermont

Yankee II, supra, 435 U.S. at 549 (1978). Nor is it appro-

priate for the court to eliminate essential agency discre-

tion in a case where the agency has fully complied with the

National Environmental Policy Act (“NEPA”) on the

basis of an adequate technical record. See Strycker’s Bay

Neighborhood Council v. Karlen, 444 U.S. 223, 227-228

(1980). The decision of the Court of Appeals, if not re-

versed, would change the role of NEPA in the agency

Petition of the Nuclear Regulatory Commission and United States of

America, pps. 19-20. This judicial construction of the NRC’s rules is

not only wrong but also is in clear violation of the well-established

principle that an agency’s interpretation of its own regulations is

entitled to great weight. See Northern Indiana Public Service Co. v.

Izaak Walton League, 423 U.S. 12, 15 (1975).

*Pet. App. 160a (Wilkey, J. dissenting), footnote omitted.

7

decisionmaking process and would allow substitution of

the Court’s view for the substantive policy determina-

tions of the agency.

B. The Court Of Appeals’ Ruling Is Contrary To The Intent

Of Congress And To The National Interest.

The decision below imposes yet another formidable

barrier to the private development of commercial nuclear

power as an alternative energy source. This result is

contrary to the Congressional objective of providing for

“a program to encourage widespread participation in the

development and utilization of atomic energy for peaceful

purposes to the maximum extent consistent with the

common defense and security and with the health and

safety of the public.

This case, together with the D.C. Circuit’s recent deci-

sion in People Against Nuclear Energy v. NRC, 678 F. 2d

222 (D.C. Cir. 1982), petitions for cert. pending, Nos.

81-2399 and 82-358, may cause all pending licensing cases

to be delayed while the NRC engages in burdensome and

duplicative re-analysis of the fundamental technical and

42 U.S.C. § 2013(d) (1976); see also 42 U.S.C. §§ 2011(b),

2012(a), 2013(a) and 2013(c). Since enactment of the Atomic Energy

Act of 1954, Congress has reaffirmed the importance of nuclear

energy for the national security and economy of the nation by enact-

ing the Price-Anderson Act of 1957, 42 U.S.C. §§ 2012(i), 2210 (1976

& Supp. IV 1980), and by extending that Act in 1965 (Pub. L. No.

89-210, 79 Stat. 855 (1965)) and 1975. (Pub. L. No. 94-197, 89 Stat.

1111 (1975)).

8

policy decisions with which the lower court disagrees."

The resource and dollar costs associated with complying

with the Court’s decision will ultimately be borne by the

utility, its customers and society, and our nation’s efforts

to reduce our dependence on dwindling domestic energy

resources and undependable foreign energy sources will

be hindered severely. Such a result is contrary to the

national interest.

This Court must once again strike down judicially im-

posed obstacles to nuclear power development which are

so clearly violative of its directives. The oft-quoted clos-

ing statement in Vermont Yankee II, supra, 435 U.S. at

557-558 continues to be dispositive:

Nuclear energy may some day be a cheap, safe

source of power or it may not. But Congress has

made a choice to at least try nuclear energy,

establishing a reasonable review process in which

courts are to play only a limited role. The fun-

damental policy questions appropriately resolved in

Congress and in the state legislatures are not subject

to reexamination in the federal courts under the

guise of judicial review of agency action. Time may

— 5 wrong the decision to develop nuclear energy,

ut it is Congress or the States within their appropri-

ate agencies which must eventually make that judg-

ment. (Emphasis in the original.)

Five cases involving challenges to individual licenses issued by

the NRC and based in part on the invalidated Table S-3 rules are now

pending in the Courts of Appeals. These cases are identified in the

Petition filed by Baltimore Gas and Electric Co., et al., p.5, n.7.

Attempts to raise Table S-3 issues in pending NRC administrative

proceedings have also been made, and more attempts to reopen

completed licensing proceedings based on Table S-3 grounds are

expected.

9

CONCLUSION

The decision of the Court of Appeals is so clearly

erroneous as to justify summary reversal. If, however,

this Court believes summary reversal is inappropriate,

the issues involved here are so clearly important to

maintaining the nuclear option that the petitions for writs

of certiorari should be granted.

Respectfully submitted,

LINDA L. HODGE

Staff Counsel

Atomic Industrial Forum, Inc.

7101 Wisconsin Avenue

Bethesda, Maryland 20814

(301) 654-9260

Of Counsel:

BARTON Z. COWAN

Eckert, Seamans, Cherin & Mellott

600 Grant Street, 42nd Floor

Pittsburgh, Pennsylvania 15219