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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — June 1978

Comment(s)

Vermont Yankee: Supreme Court Sets New Limits on Judicial Review of Agency Rulemaking

In an opinion of widely disputed but potentially substantial impact on the law governing judicial review of administrative decision making, the United States Supreme Court on April 3 reversed two opinions of the Court of Appeals for the District of Columbia Circuit which had remanded to the Nuclear Regulatory Commission (NRC) separate decisions to license two nuclear power plants. Amid stern criticism of the appeals court for overzealous activism amounting to "judicial intervention run riot," the High Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council1 unanimously held that where parties to the NRC's licensing proceedings have been afforded the minimum procedural privileges guaranteed by §553 of the Administrative Procedure Act (APA),2 reviewing courts must find those procedures adequate in the absence of "extremely compelling circumstances."3 The effect of this ruling is to call into question the D.C. Circuit's long-standing practice of requiring agencies to augment basic notice and comment rule making with more sophisticated procedural devices, such as cross-examination and discovery, to form what is known as "hybrid" rule making.4

The decision also marks the Supreme Court's first notable venture into agency consideration of alternatives under the National Environmental Policy Act (NEPA).5 In upholding the Commission's decision not to analyze energy conservation measures as an alternative to the construction of two nuclear reactors, the opinion essentially retraces existing standards as to federal agencies' affirmative duty to consider project alternatives proposed by an outside party.

Beyond Insular Zoning: Washington Supreme Court Requires "Regional Welfare" Analysis for Local Land Use Decisions

In a decision which promises to add momentum to a significant recent trend in zoning law, the Washington Supreme Court has invalidated a city's rezoning of farmland because the zoning body failed to consider or attempt to mitigate the adverse environmental and fiscal impacts of the action on the surrounding region. The court's ruling in Save a Valuable Environment v. City of Bothell1 represents the first explicit application of the "regional welfare" test recently articulated by several state courts2 to zoning measures that threaten generalized adverse environmental effects and are not directly related to questions of housing supply.

Considering the importance of the ruling, the court's analysis was relatively brief. Moreover, the decision was at least partially based on a state statutory provision explicitly recognizing every citizen's right to a healthful environment. The opinion's precedential impact can therefore not be assessed with certainty. If followed by courts in other states, however, this broad requirement that localities fully consider and mitigate the adverse regional impacts of all zoning decisions could greatly improve the caliber of local land use decision making across the nation and may also serve as a strong impetus for increased regional land use planning.

Forthcoming CEQ Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited to Foreign Countries

The extent to which the environmental impact statement (EIS) requirements of the National Environmental Policy Act (NEPA)1 apply to federal actions abroad has become one of the most controversial NEPA questions now concerning the federal courts and agencies. On one hand, the Council on Environmental Quality (CEQ), which has been directed by President Carter to promulgate regulations governing compliance with NEPA by all federal agencies, favors comprehensive application.2 On the other, several federal agencies whose activities involve foreign countries argue that NEPA does not apply to all foreign activities of federal agencies.3 Finally, the American business community warns that the ability of the United States to compete in overseas markets will be drastically eroded if governmentally sponsored or approved exports are subject to NEPA.4

The geographic scope of the controversy has been carefully drawn. There is little disagreement that if a federal activity abroad also affects the United States or the "global commons" (that area such as outer space or the oceans not within another nation's sovereignty), then preparation of an EIS under §102(2)(C) of NEPA is required. The essence of the controversy is NEPA's applicability if a federal action's environmental effects are limited to areas within the sovereign jurisdiction of one or more foreign countries. A corollary to this question is whether an agency with a program of similar activities in many countries must prepare a site-specific EIS for each individual project as well as a broad generic impact statement for the entire program.