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Izaak Walton League of Am. v. Schlesinger

Citation: 2 ELR 20040
No. Nos. 2207-71, 2208-71, 337 F. Supp. 287/3 ERC 1453/(D.D.C., 12/17/1971)

In a suit brought by an environmental organization and the State of Illinois, the AEC's issuance of an interim operating license for the Quad Cities Nuclear Power Station, which would allow both plants to operate up to 50% of their total capacity, is preliminarily enjoined for failure to file an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (NEPA). The AEC does not have the discretion to postpone an evaluation of the Environmental Impact of the operation of nuclear plants until the operating license stage of project approval while permitting interim operation of the plant which may cause environmental harm and may preclude plant modifications necessary to project environmental values. Jurisdiction to review the AEC's refusal to comply with a nondiscretionary statutory mandate exists because plaintiffs ability to obtain review of AEC rulemaking in the Court of Appeals does not adequately protect their right to adjudication of whether the issuance of an interim operating permit will violate NEPA. This claim is ripe for review because it is undisputed that the AEC will, if it grants the permit, grant it without first preparing an environmental impact statement. Plaintiffs' showing of the likelihood of success on the merits, together with the irreparable injury to their rights under NEPA which will result from AEC issuance of the interim operating license, justifies an injunction. Plaintiffs' claim that AEC promulgation of rules implementing NEPA was invalid because that action was not preceded by the filing of an environmental impact statement is not subject to review by a district court because review of AEC rulemaking is granted exclusively to the court of appeals.

Counsel for Plaintiffs
Joseph Karaganis Special Assistant Attorney General
189 W. Madison Street
Chicago, Illinois 60602

Harold A. Katz
Irving M. Friedman
7 S. Dearborn Street
Chicago, Illinois 60603

William J. Scott Attorney General
State of Illinois
160 North LaSalle Street
Chicago, Illinois 60601

David C. Landgraf
Chief, Northern Region
Environmental Control Division
Suite 2315
188 West Randolph Street
Chicago, Illinois 60601

Wallace L. Duncan
Jon T. Brown
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

Counsel for Defendants
Irwin L. Schroeder
Department of Justice
Washington, D.C. 20530

Marcus Rowden Solicitor
Atomic Energy Commission
Germantown, Maryland 20767

Charles Bechhoefer
Atomic Energy Commission
Germantown, Maryland 20767

Counsel for Defendant-Intervenors
Lester S. Hyman
Richard P. Shlakman
Lois J. Shiffer
815 Connecticut Avenue, N.W.
Washington, D.C. 20006

Michael I. Miller
Mark H. Virshbo
Suite 4200
One First National Plaza
Chicago, Illinois 60670