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Mid-America Coalition for Energy Alternatives v. NRC

Citation: 9 ELR 20146
No. No. 78-1294, 590 F.2d 356/(D.C. Cir., 01/15/1979)

The court denies a petition for review of the granting by the Nuclear Regulatory Commission (NRC) of a permit for construction of a nuclear power plant. Petitioner's argument that the Atomic Safety and Licensing Appeal Board violated the National Environmental Policy Act (NEPA) by failing to consider an alternative to the proposed plant, namely the conversion of existing gas-fired power plants to coal operation, is rejected by the court on procedural grounds. Because petitioner first raised this issue before the Appeal Board and not the Atomic Safety and Licensing Board, it was faced with a very heavy burden of reopening the hearing record and the Appeal Board did not abuse its discretion in declining to do so. This burden did not relieve the agency of its obligation to consider alternatives under NEPA, but it did have a bearing on whether the coal-conversion proposal was a readily identifiable alternative. While the court finds that the petitioners failed to raise this alternative with sufficient force to trigger an agency obligation to subject it to full-scale NEPA analysis, it concludes that the Appeal Board did evaluate this proposal in sufficient depth to satisfy the requirements of NEPA and to support its conclusion that no different result would have been reached had the Licensing Board considered this alternative.

This memorandum opinion is designated "not to be published." Rule 8(f) of the Rules of the United States Court of Appeals for the District of Columbia provides in relevant part:

Unpublished orders including explanatory memoranda of this Court are not to be cited in briefs or memoranda of counsel as precedents. However, counsel may refer to such orders, and memoranda, for such purposes as application of doctrines of res judicata, collateral estoppel, and law of the case, which turn on the binding effect of the judgment, and not on its quality as precedent.

Counsel for Petitioners
William H. Ward
5130 Mission Road, Shawnee Mission KS 66205
(913) 232-3871

Counsel for Respondents
James L. Kelley, Acting General Counsel; Stephen F. Eilperin, Solicitor; Marjorie S. Nordlinger
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Peter R. Steenland, Larry A. Boggs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before McGowan and Wilkey,* C.J., and Flannery,** J.