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Natural Resources Defense Council v. NRC

Citation: 11 ELR 20266
No. No. 80-1477, 647 F.2d 1345/15 ERC 1857/(D.C. Cir., 03/30/1981)

The D.C. Circuit Court of Appeals upholds the Nuclear Regulatory Commission's (NRC's) issuance of a license permitting the Westinghouse Corp. to export a nuclear reactor to the Philippines. Petitioners alleged that the NRC, by refusing to examine the health, safety, and environmental impacts of the reactor upon the Philippine environment and upon the interests of 32,000 American military personnel located in the area, had violated its obligations under the Atomic Energy Act (AEA), the Nuclear Non-Proliferation Act (NNPA), and the National Environmental Policy Act (NEPA). Judge Wilkey, in an opinion in which no other member of the court joins, emphasizes the foreign policy concerns which arise when a regulatory agency in one nation undertakes to evaluate impacts in an importing nation. In light of these considerations as well as the "extraterritorial principle" of statutory construction, he concludes that the NRC is not required to examine site-specific impacts in making the two determinations called for under the AEA and the NNPA: that the export will not be inimical to either the common defense and security of the United States or the public health and safety. The NRC has discretion to consider localized impacts in reaching these determinations and may properly, as it did below, defer to the judgment of the executive branch in these respects. Under NEPA, foreign policy considerations also militate against a stringent application of the statute's requirements. Finding both the legislative history and the case law inconclusive as to NEPA's international reach, and taking special note of § 102(2)(F), which calls for international cooperation in environmental matters, Judge Wilkey concludes that, at least in the context of nuclear reactor exports, NEPA does not require the preparation of environmental impact statements on actions having effects in other countries.

Judge Robinson, in a sole concurrence, votes to uphold the export license because of the deference to agency judgments which must be exercised by courts, and not because he shares Judge Wilkey's or the NRC's interpretation of the relevant statutes. In his view, the "extraterritorial principle" is not applicable to the AEA, NNPA, or NEPA. Thus, under the AEA and the NNPA, the NRC should conduct a review of the foreign impacts of exported reactors. Regarding NEPA, Judge Robinson concludes that the time frame for export licensing established in the NNPA may preclude the preparation of an adequate impact statement, and for this reason he defers to the agency's judgment that no such statement was required in this case.

Counsel for Petitioners
Clifton P. Curtis, James N. Barnes, Leonard C. Meeker
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

S. Jacob Scherr, Thomas B. Stoel Jr.
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

James B. Dougherty
4107 W St. NW #202, Washington DC 20007
(202) 965-3035

Ellyn Weiss
Harmon & Weiss
1725 I St. NW, Washington DC 20006
(202) 833-9070

Counsel for Respondents
Carlton Stoiber, Leonard Bickwit Jr., Stephen F. Eilperin, Irwin B. Rothschild
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 623-1634

Peter R. Steenland, David C. Shilton, Sanford Sagalkin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Intervenor Westinghouse Electric Corp.
Barton Z. Cowan, John R. Kenrick, John J. Myers
Eckert, Seamans, Cherin & Mellott
42d Floor, 600 Grant St., Pittsburgh PA 15219
(412) 566-6000

Counsel for Amicus Curiae Republic of the Philippines
Brice M.Clagett, Peter D. Trooboff, Paul G. Gaston
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Before: ROBINSON, WILKEY, and GINSBURG*, Circuit Judges.