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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — August 1983

Comment(s)

Vermont Yankee Revisited: High Court Upholds NRC's S-3 Table for Second Time

by Frances L. McChesney

Editors' Summary: In June, the Supreme Court handed down the third nuclear energy ruling of the Term. Justice O'Connor, writing or a unanimous court in Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. (Vermont Yankee IV), upheld the NRC's Table S-3 Rule—a generic rule dictating how licensing boards are to consider the environmental impacts associated with the nuclear fuel cycle. This was the second time the Supreme Court had reversed a D.C. Circuit decision invalidating the rule. Judge Bazelon of the D.C. Circuit faulted the NRC for failing to allow for the consideration of uncertainties surrounding long-term storage as required by NEPA. But Justice O'Connor ruled that the NRC had disclosed these uncertainties and reasonably concluded that they were insignificant given the limited purposes of the table. The decision is troubling because it appears to leave the NRC free to give only summary treatment of environmental uncertainties of admittedly substantial magnitude in licensing decisions. However, the Supreme Court, in deferring to the agency's expertise probably had no other choice without interfering with the substance of the agency's decision.

The Supreme Court Limits Fee Awards in Unsuccessful Environmental Suits

by Kenneth L. Rosenbaum

Editors' Summary: A string of recent cases, mostly out of the D.C. Circuit, have held that under many environmental statutes, a court could grant attorneys fees to a losing party whose participation substantially furthered the purposes of the statute. The Supreme Court, reversing the D.C. Circuit in Ruckelshaus v. Sierra Club, put an end to grants to non-prevailing parties. The five-member majority hewed closely to traditional notions of fee shifting. The four-member dissent found an intent in the statutes to abandon the traditional rules. The author argues that in suits involving policy decisions, success on the merits is a poor measure of the public benefit a party's participation confers. Congress should consider revising the fee provisions to encourage participation in the public interest.

Dialogue

Hazardous Waste Victim Compensation: The Report of the §301(e) Superfund Study Group—A Response to Theodore L. Garrett

by Frank P. Grad

The report of the §301(e) Superfund study groupwas completed in June 1982, and was published in August of that year. As reporter for the study group, I have been involved in many discussions, roundtables and debates during the past 15 months. I have concluded that my first task, invariably, is to rescue the report from the rewrite it has experienced at the hands of its critics.

The report, Injuries and Damages From Hazardous Wastes—Analysis and Improvement of Legal Remedies,1 was not the work of a small group of anti-industry lawyers. The study group was established under federal law, which directed that the American Bar Association, the American Law Institute, the Association of American Trial Lawyers, and the National Association of State Attorneys General should each have its president select three members from the organization to conduct the study. An examination of the list of members of the study group and their appointing organizations,2 shows that the study group was diverse, with several plaintiffs' lawyers, several defendants' lawyers, several government lawyers, and some academicians making up the roster. In fact, one truly amazing outcome of the study was that a group as diverse as this achieved agreement on the report and on virtually all if its major recommendations. There were some few additional views, but they did not undercut the essential findings and recommendations. I shall comment on this at the appropriate time, but suffice it to say that it is a disservice to pretend that the report is a minority report unsupported by the study group as a whole. A simple reading and consideration of the additional views clearly substantiates this point.3