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Aeschliman v. NRC

Citation: 6 ELR 20599
No. Nos. 73-1776, -1867, 547 F.2d 622/9 ERC 1289/(D.C. Cir., 07/21/1976)

The court reverses and remands a decision of the Nuclear Regulatory Commission granting construction permits for a proposed nuclear power plant in Midland, Michigan, because the NEPA environmental impact statement (EIS) for the project failed to consider explicitly the alternative of energy conservation. The Commission misconstrued the basic mandate of NEPA by requiring the petitioners to meet a "threshold test" through an affirmative evidentiary showing that an alternative merits detailed consideration in an EIS. Intervenors must merely bring sufficient attention to the issue to stimulate the Commission's consideration of it. The Commission's subsequent explicit consideration of such an alternative is essential for purposes of judicial review. Energy conservation is a "colorable" alternative to the proposed plant, and the petitioners' comments were adequate to stimulate the Commission's interest in it. The Commission properly denied petitioners' request for discovery directed toward the Advisory Committee on Reactor Safeguards for explication of the Committee's report that noted "other problems" with the proposed reactor. Nevertheless, the Committee's report is remanded for clarification of this ambiguity.

Counsel for Petitioners
Myron M. Cherry
1 IBM Plaza
Chicago IL 60611
(312) 565-1177

Counsel for Respondents
James L. Kelley
Nuclear Regulatory Commission
Bethesda MD 20014
(202) 492-7398

Before: BAZELON, Chief Judge, FAHY, Senior Circuit Judge and JUSTICE,* United States District Judge for the Eastern District of Texas.