Westinghouse Electric Corporation v. United States Nuclear Regulatory CommissionWestinghouse Electric Corporation v. United States Nuclear Regulatory Commission
Anthony C. Liotta, Acting Asst. Atty. Gen., James L. Kelley, Acting Gen. Counsel, Stephen F. Eilperin, Sol., Dirk D. Snel, John J. Zimmerman, Land & Natural Resources Div., Dept. of Justice, Richard S. Mallory (argued), Irwin B. Rothschild, III, Mark E. Chopko, Nuclear Regulatory Commission, Washington, D. C., for respondent.
Anthony Z. Roisman, Washington, D. C., argued, for intervenor, Natural Resources Defense Council, Inc.
Myrna P. Field, Mid-Atlantic Legal Foundation, Philadelphia, Pa., L. Manning Muntzing (argued), Perry B. Seiffert, Doub, Purcell, Muntzing & Hansen, Washington, D. C., for petitioners in Nos. 78-1204 and 78-1892; James R. Richards, Capital Legal Foundation, Washington, D. C., of counsel.
Bennett Boskey, Thomas S. Moore, Volpe, Boskey & Lyons, Washington, D. C., for petitioners in Nos. 78-1993 and 78-1994.
George C. Freeman, Jr., Donald P. Irwin, Hunton & Williams, Richmond, Va., for amici curiae, Baltimore Gas & Electric Co., et al.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. of the State of New York, John G. Proudfit, Asst. Atty. Gen. of the State of New York, New York City, John L. Hill, Atty. Gen. of the State of Texas, Austin, Tex., Bronson C. La Follette, Atty. Gen. of the State of Wisconsin, Madison, Wis., for intervenor States of New York, Texas and Wisconsin; John F. Shea, III, Asst. Atty. Gen. of the State of New York, and Charles E. Tennant, Legal Assistant, New York City, Richard Lowerre, Asst. Atty. Gen. of the State of Texas, of counsel.
Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
On December 23, 1977, the United States Nuclear Regulatory Commission (NRC) suspended for approximately two years its decisionmaking process regarding proposals for the recycling of spent nuclear fuel and the use in nuclear reactors of plutonium recovered from that fuel. This suspension was announced in an order terminating informal rulemaking and related licensing proceedings concerning this subject. In part, the decision to place a moratorium upon these deliberations was taken in deference to President Carter‘s stated objective of deferring domestic plutonium recycling while the United States initiated a multinational evaluation of alternative fuel cycles that would pose a lesser risk of international proliferation of nuclear weapons. Petitions for review were filed requesting us to set aside and enjoin the NRC‘s order on the grounds that, in terminating these proceedings, the NRC violated the Atomic Energy Act (AEA)1 and the National Environmental Policy Act (NEPA).2 Because we conclude that the NRC acted within the scope of its authority and that there is no requirement to have a NEPA statement at this time, the petitions for review will be denied.
I.
For over two decades, the federal government, initially through the Atomic Energy Commission (AEC) and later through the NRC, a successor agency to the AEC,3 has been exploring, together with the private sector, the feasibility of reprocessing spent nuclear fuel and employing the plutonium recovered from such fuel in nuclear reactors utilized to generate electricity.4 Commercial implementation of the plutonium recycling process would have the advantages of conserving uranium resources and of alleviating the problem of disposing of radioactive wastes, but might also pose the dangers of a proliferation of nuclear weapons and the possible sabotage of reprocessing facilities. This is so because, unlike the slightly “enriched” uranium currently used in nuclear reactors, plutonium can be employed in the production of nuclear explosives and might be diverted to that end by foreign governments or by terrorists.5
Recognizing that a decision to implement a wide-scale program for the commercial recycling of plutonium constitutes a major federal action significantly affecting the environment, and thereby necessitating an environmental impact statement (EIS) in order to comply with
8 See 39 Fed.Reg. 30186 (1974)
9 See NRDC v. NRC, supra, 539 F.2d at 832-33
10 In November, 1975, after an earlier announcement and the receipt of comments, the NRC published a policy statement declaring that a study of safeguard alternatives would be included in GESMO and weighed in NRC‘s final decision on the subject of wide-scale commercial recycling of plutonium. That statement also specified the procedures and schedule to be followed for GESMO hearings and set forth criteria under which interim licensing of non-experimental, recycle-related activities would be considered. See 40 Fed.Reg. 53056 (1975), Corrected, 40 Fed.Reg. 59497 (1975). Various environmental groups sought review of this policy statement in the Court of Appeals for the Second Circuit. That court affirmed the NRC‘s hearing procedures but held that the interim licensing of recycle-related activities on a commercial basis violated NEPA. The Supreme Court vacated and remanded that judgment for consideration of mootness after the NRC‘s order of December 23, 1977. See NRDC v. NRC, supra
11 Statement by the President on Nuclear Power Policy, Reprinted in 12 Weekly Comp. of Pres. Doc. 1624, 1626 (1976)
12 Statement by the President on Nuclear Power Policy, Reprinted in 13 Weekly Comp. of Pres. Doc. 502, 503 (1977). It was also announced that “(t)he plant at Barnwell, South Carolina, will receive neither federal encouragement nor funding for its completion as a reprocessing facility.” Id. The Administration‘s policy was subsequently discussed at length by Dr. Nye, Deputy to the Undersecretary of State, in Nonproliferation: A Long-Term Strategy, 56 Foreign Affairs 601 (April, 1978)
13 On April 12, 1977, the Hearing Board ordered that hearings be postponed until further notice. That same day, the Public Interest Research Group (PIRG) submitted a motion to terminate GESMO, upon which the NRC staff deferred action pending receipt of guidance from the Hearing Board or the NRC. See App. 44a-47a. On May 3, 1977, the NRC directed the Hearing Board to certify the PIRG motion to the NRC. See 42 Fed.Reg. 22964 (1977)
14 See 42 Fed.Reg. 22964 (1977)
15 Mr. Eizenstat‘s letter stated in pertinent part:
16 See 42 Fed.Reg. 57185 (1977). The notice described four possible courses of action: (1) terminating GESMO and denying the related license applications; (2) continuing as before; (3) taking an intermediate course of action, such as deferring further consideration of GESMO and the related proceedings pending completion of ongoing national and international studies; or (4) continuing GESMO to some convenient stopping point, such as completion of the health, safety, and environmental hearings
17 See 42 Fed.Reg. 65334 (1977)
18 See 43 Fed.Reg. 20575 (1978)
19 See
20 See note 33 and accompanying text Infra
21 Our jurisdiction under
22 Moreover, in this Court, a “premature appeal taken from an order which is Not final but which is followed by an order that Is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.” Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (emphasis in original)
23 See American Public Gas Ass‘n v. FPC, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976); NLRB v. Bayside Enterprises, Inc., 514 F.2d 475 (1st Cir. 1975); Eastern Air Lines, Inc. v. CAB, 122 U.S.App.D.C. 375, 354 F.2d 507 (1965). See generally 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3944 (1977) (hereinafter Wright & Miller)
24 See Public Service Commission for the State of New York v. FPC, 153 U.S.App.D.C. 195, 472 F.2d 1270 (1972); Wright & Miller, Supra note 23, at 339
25 NLRB v. Bayside Enterprises, Inc., supra, 514 F.2d at 476
26 American Civil Liberties Union v. FCC, 158 U.S.App.D.C. 344, 346, 486 F.2d 411, 413 (1973). See Wright & Miller, Supra note 23, at 332
27 See Abourezk v. FPC, 168 U.S.App.D.C. 246, 247, 513 F.2d 504, 505 (1975) (statement of Bazelon, C. J., on denial of petition for rehearing en banc)
28 Id
29 See, e. g., id
30 See, e. g., United Steelworkers of America v. Marshall, 592 F.2d 693 (3d Cir. 1979); American Public Gas Ass‘n, supra
31 American Public Gas Ass‘n, supra, 180 U.S.App.D.C. at 385, 555 F.2d at 857
32 See, e. g., BASF Wyandotte Corp. v. Costle, 582 F.2d 108 (1st Cir. 1978). See also Wright & Miller, Supra note 23, at 332-34
33 Allied-General Nuclear Services v. NRC, Nos. 78-1144 & 78-1422, typed opinion at 3 (D.C.Cir. July 26, 1978) (per curiam)
34 See Abourezk, supra, 168 U.S.App.D.C. at 247, 513 F.2d at 505
35 We note, however, that it is at least fairly plausible to conclude that the December 23 Order was the NRC‘s “final order,” because that pronouncement contains essential attributes of finality. See Port of Boston Marine Terminal Ass‘n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970) (judicial review possible when it “will not disrupt the orderly process of adjudication“); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948) (administrative orders are reviewable when “they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process“); Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 297, 211 F.2d 51, 55, Cert. denied, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954) (“a final order need not necessarily be the very last order in an agency proceeding,” so long as it meets the conditions of finality); Wright & Miller, supra note 23, at 315-16. Cf. Baltimore & Ohio R. Co. v. United States, 201 F.2d 795 (3d Cir. 1953) (this Court entertained petition for review, but vacated and remanded order to agency so that it may develop a record capable of review). Indeed, in contrast to the December 23 decision, the May 8 Memorandum had no practical consequence. On the other hand, there is something to be said in favor of the position that when the agency promises to provide in a short time a statement of reasons, its order is not “final” until the statement is published, particularly since the practice of separating the order and its underlying reasons has received judicial sanction, See Baltimore & Ohio Chicago Terminal Railroad Co. v. United States, 583 F.2d 678, 688 (3d Cir. 1978). That way, parties will not feel compelled to file unnecessary “protective” orders out of uncertainty, See Outland v. CAB, 109 U.S.App.D.C. 90, 93-94, 284 F.2d 224, 227-28 (1960), and those parties that delayed in filing petitions for review in reliance upon the agency‘s promise to issue a statement of reasons in due course will not be penalized for so relying
36 This is demonstrated by Allied-General‘s Response to NRDC‘s motion to dismiss its petition for review of the December 23 Order, filed in docket number 78-1993 in the District of Columbia Court. There, Allied-General stated, on pages 2-3:
37 43 Fed.Reg. at 20576-78. As examples of provisions referring to the common defense and security as an element to be considered in domestic licensing decisions, the memorandum cited §§ 53(b), 57(c)(2), 103(b)(3), (d), 104(d), 161(b), (i)(2) and 182(a) of the AEA
38 Congress explicitly supported the alternative fuel cycle studies proposed by the President in § 105 of the Nuclear Non-Proliferation Act of 1978, Pub.L.No.95-242, 92 Stat. 120, which was pending in the Senate at the time of the December 23 decision (having already passed the House of Representatives) and was enacted before the May 8 Memorandum was released. Section 105 states:
39 See 43 Fed.Reg. at 20577
40 The NRC recognized that the United States’ initiatives to discourage other nations from reprocessing spent fuel would be undermined if at the same time it continued to pursue domestic commercial reprocessing, since American arguments that the marginal economic benefits are outweighed by the grave security dangers would lose their credibility. See Id
41 43 Fed.Reg. at 20578
42 See 43 Fed.Reg. at 20579. The NRC dismissed the argument that the proceedings ought to be continued in order that a much-needed energy source may timely be developed. It did so on the grounds that the overriding risk of proliferation justifies some delay, that a two-year delay to deal with this risk outweighs the economic costs entailed, and that in any event significant progress probably could not be made in the proceedings while the other studies were still underway. As to the contention that the resources already invested in the proceedings would be wasted if they were terminated, the NRC responded that if the proceedings were ultimately resumed, appropriate portions of the record could be reintroduced, and that it would be even less productive to continue the proceedings and then to be required to revise the record in a substantial fashion. Finally, the NRC rejected suggestions that the GESMO proceedings be continued to develop information for purposes of comparison to other fuel cycles on the ground that it is not within its province to perform general energy studies. In addition to treating these policy-based arguments, the NRC Memorandum also dealt with contentions that it is legally required to continue the proceedings
43 See 43 Fed.Reg. at 20578-79
44 See id. The Memorandum continued: “At the present time it is not possible to determine whether our proceedings will then be reinstituted or whether some other course will be adopted.”
45 43 Fed.Reg. at 20579
46 The scope of our review, which is delimited in
47 Siegel v. AEC, 130 U.S.App.D.C. 307, 312, 400 F.2d 778, 783 (1968). See also Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 82 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978); North Anna Environmental Coalition v. NRC, 174 U.S.App.D.C. 428, 431-432, 533 F.2d 655, 658-59 (1976)
48 Section 1 of the AEA,
49
50
51
52
53 390 U.S. at 776, 88 S.Ct. at 1364
54
55 390 U.S. at 776, 88 S.Ct. at 1365
56 Id. at 780, 88 S.Ct. at 1367
57 Indeed, as petitioners point out, this reading of § 103 is supported by the section‘s legislative history. The Joint Committee on Atomic Energy made it clear that with respect to license applications under § 103, the “Commission is required to issue licenses to all qualified applicants without other discretion on its part.” S.Rep.No.1699, 83d Cong. 2d Sess. 19 (1954), U.S.Code Cong. & Admin.News 1954, pp. 3456, 3475
58
59 Section 309 of the Communications Act of 1934,
60 See note 59 Supra
62 Commissioner Kennedy concurred in the December 23 Order, but preferred the use of the term “defer” for “terminate” to describe the NRC‘s action. In a concurring statement to the May 8 Memorandum he explained his position:
63 43 Fed.Reg. at 20579
64 See
65 Expressions of congressional intent that the Commission be independent of the Executive Branch may be found throughout the debates surrounding the passage of the AEA, which took place against the backdrop of the Dixon-Yates controversy. That controversy arose when the President attempted to instruct the Commission to enter into a contract with particular utilities for the provision of electricity to certain Commission facilities. On legislative sentiment, See, e. g. 100 Cong.Rec. 9743 (1954) (remarks of Senator Hill); Id. at 10297-98 (colloquy of Congressmen Murray and Holifield); Id. at 11532 (remarks of Senator Magnuson); Id. at 11536 (remarks of Senator Gore). Aside from resting on the legislative history of the AEA, petitioners insist that Congress made its intent evident in the provisions of the AEA by narrowing the circumstances under which the AEA may decline to grant a license. This argument, which focuses on § 103, is treated in section III. B. Supra. Petitioners also rely on two cases involving presidential removal of commissioners of independent agencies, Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958); Humphrey‘s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). These cases are factually distinguishable, and, moreover, their approach has been questioned in the light of more recent Supreme Court decisions. See Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 475-85 (1979)
66 See, e. g.
67 See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)
68 100 Cong.Rec. 11532 (1954)
69 100 Cong.Rec. 9743 (1954) (Senator Hill)
70 Youngstown, supra, 343 U.S. at 635, 72 S.Ct. at 870
71 See, e. g., Youngstown, supra; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918); United States v. American Telephone & Telegraph Co., 185 U.S.App.D.C. 254, 260-261, 567 F.2d 121, 127-28 (1977). See generally, L. Henkin, Foreign Affairs and the Constitution (1972); Comment, United States v. AT & T: Judicially Supervised Negotiation and Political Questions. 77 Colum.L.Rev. 466, 473-76 (1977)
72 Section 556(e) provides:
73
74 156 U.S.App.D.C. at 404, 481 F.2d at 1088 (footnotes omitted)
75 See, e. g., Cady v. Morton, 527 F.2d 786, 794 (9th Cir. 1975)
76
77 See Shiffler v. Schlesinger, 548 F.2d 96, 100-101 (3d Cir. 1977) (preparation of EIS is part of decisionmaking structure through which substantive objectives of NEPA may be realized)
78 See, e. g., Final GESMO-I, vol. 1, Summary at i (NRC, 1976); Draft GESMO, vol. 2 at I-2 (AEC, 1974); 39 Fed.Reg. at 5356 (1974). That an EIS was required before a decision could be reached on plutonium recycling was confirmed in NRDC v. NRC supra
79 See text accompany notes 6-7 Supra
80 427 U.S. at 406, 96 S.Ct. at 2728
81 Id. at 406, 96 S.Ct. at 2728
82 Id. (emphasis in original). In a later footnote, the Court elaborated:
83 Because of our disposition of petitioners’ contentions, and our holding that as a matter of law no EIS is required at this stage of the administrative process, we need not decide at this time the standard of review this Court might apply when it reviews an agency determination that a proposed action had only an insignificant impact on the environment and that accordingly an EIS is unnecessary. See NAACP v. Medical Center, Inc., 584 F.2d 619, 635 n.19 (3d Cir. 1978); Shiffler v. Schlesinger, supra, 548 F.2d at 104-05 n.5
Notes
The importance of the technology involved in this research, as well as the problems created, can be appreciated with a rudimentary understanding of the nuclear fuel cycle. Currently, the vast majority of nuclear power plants in this country, which now generate about 12 percent of the nation‘s electricity, are fueled by slightly “enriched” uranium dioxide fuel. As it enters a reactor, the uranium in the fuel consists of about 3 percent uranium-235 and 97 percent uranium-238. A controlled nuclear chain reaction is then initiated, causing uranium-235 atoms to fission into lighter atoms and releasing heat that generates steam to drive the plant‘s electric generators. The chain reaction also transmutes some uranium-238 atoms into plutonium, and some of the plutonium also fissions. The fission products tend to impede the chain reaction, and before the uranium and plutonium are entirely expended, the spent fuel must be removed from the reactor and replaced with fresh fuel. The spent fuel, however, contains elements of uranium and plutonium which, if separated from the waste, reprocessed, and fabricated into new, mixed oxide nuclear fuel, would constitute a significant new source of energy. Besides alleviating the problem of safely disposing of radioactive waste, the recycling of plutonium would help conserve the world‘s limited uranium resources. For these reasons, the Commission and private industry have been exploring the commercial feasibility of constructing and operating the facilities necessary to implement this conversion process. However, the recycling of plutonium also presents a danger. As part of that process, plutonium must be isolated from the radioactive waste before being recombined into mixed oxide fuel. This plutonium may be used to produce nuclear weapons, and consequently it is feared that the widespread development of plutonium recycling facilities in this country and abroad may lead to nuclear proliferation as foreign governments and subversive groups divert plutonium to non-peaceful uses. The plutonium recycling operation is described in greater detail in Natural Resources Defense Council v. United States Nuclear Regulatory Commission (NRDC v. NRC), 539 F.2d 824, 830-832 (2d Cir. 1976), Vacated and remanded to determine mootness sub nom., Allied-General Nuclear Services v. NRDC, 434 U.S. 1030, 98 S.Ct. 759, 54 L.Ed.2d 777 (1978); Mixed Oxide Fuel, 40 Fed.Reg. 53056 (1975).
Mr. Eizenstat‘s letter stated in pertinent part:
The President believes that our goal of stopping the spread of nuclear weapons capability among non-weapons states can be significantly improved by a halt in purex reprocessing. Last April 7, he stated that the U.S. should “defer indefinitely the commercial reprocessing and recycling of the plutonium produced in U.S. nuclear power programs“. The Administration has proposed an accelerated research and development program to examine alternative fuel cycles not involving direct access to plutonium. The President has also asked other countries to join us in an International Nuclear Fuel Cycle Evaluation to examine alternative approaches to advanced nuclear technologies.
The GESMO proceedings and related licensing requests may impact these non-proliferation initiatives. While the studies and analyses done by the Commission staff, if available in published form, may be of value to the International Nuclear Fuel Cycle Evaluation, the President believes that his non-proliferation initiatives would be assisted both domestically and internationally if the Commission were to terminate the GESMO proceedings.
Specifically, the President believes that the following actions would be helpful in achieving the Administration‘s goals:
- Publication of the Commission‘s assessment of safeguards issues
- Termination of staff reviews and hearings relating to recycle activities. (Continuation of these activities could lead other nations to question the United States commitment to deter commercial reprocessing and plutonium recycle.)
- Denial of interim licensing of fuel cycle facilities
- Denial of interim licensing for use of mixed oxide fuel in reactors, except in small quantities for experimental purposes
The letter is reprinted at 42 Fed.Reg. 57186 (1977).
This is demonstrated by Allied-General‘s Response to NRDC‘s motion to dismiss its petition for review of the December 23 Order, filed in docket number 78-1993 in the District of Columbia Court. There, Allied-General stated, on pages 2-3:
From our standpoint the jurisdictional issue is not a point of consequence; we filed the two successive Petitions for Review precisely to avoid the jurisdictional question which the Commission‘s method of proceeding had given rise to. We hope the jurisdictional matter is decided promptly by this Court, along with the Commission‘s Motion to Transfer, so that all parties soon will know in what circuit the judicial review is to be had. We also hope that the jurisdictional issue will not give rise to conflicting decisions in different circuits that might introduce further complications unrelated to the merits.
Congress explicitly supported the alternative fuel cycle studies proposed by the President in
The President shall take immediate initiatives to invite all nuclear supplier and recipient nations to reevaluate all aspects of the nuclear fuel cycle, with emphasis on alternatives to an economy based on the separation of pure plutonium or the presence of high enriched uranium, methods to deal with spent fuel storage, and methods to improve the safeguards for existing nuclear technology. . . .
Commissioner Kennedy concurred in the December 23 Order, but preferred the use of the term “defer” for “terminate” to describe the NRC‘s action. In a concurring statement to the May 8 Memorandum he explained his position:
Deferral of these proceedings would have avoided the unfortunate appearance that the Commission has made a final decision not to act upon license applications which are properly before it. Additionally, deferral would have left the Commission less susceptible to the argument that the Commission is improperly deferring to a Presidential request affecting not only a rulemaking hearing but also specific licenses which are being treated in an adjudicatory context.
43 Fed.Reg. at 20582. Although the majority of the NRC did not specify its reasons for “terminating” rather than “deferring” the pending proceedings, it may be assumed that the majority was swayed by comments from the Executive Branch and the interested parties arguing that anything less than complete termination may lead foreign countries to question the sincerity of United States overtures to deter commercial reprocessing. See, e. g., app. at 76a (PIRG), 110a (NRDC), 172a (New York), 178a (Eizenstat letter)
The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with
section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.
Id. (emphasis in original). In a later footnote, the Court elaborated:
(Section 102(2)(C)) contemplates a consideration of environmental factors by agencies during the evolution of a report or recommendation on a proposal. But the time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency‘s action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption.