In one of the first direct judicial responses to the Supreme Court's discussion last term in Kleppe v. Sierra Club¹ of NEPA's programmatic impact statement requirements, the Second Circuit Court of Appeals has denied² a motion for rehearing of its earlier decision in Natural Resources Defense Council v. Nuclear Regulatory Commission.³ Instead, the court reaffirmed its conclusion that the Nuclear Regulatory Commission (NRC) cannot license any commercial activities related to spent-fuel reprocessing and mixed-oxide fuel use by nuclear power plants until NRC has completed its supplemental NEPA inquiry into the safeguards aspect of the generic issue of plutonium recycling. This ruling, in combination with a recently-issued Council on Environmental Quality Memorandum to executive agencies, clarifies, at least to some extent, Kleppe's impact on one of the gray areas in NEPA law, the question of what interim action may be taken prior to completion of a programmatic impact statement.

The rehearing petition in Natural Resources Defense Council, Inc. v. NRC had argued that under Kleppe, individual NRC licensing actions could go forward if accompanied by adequate impact statements, despite the fact that the generic impact statement is as yet incomplete. This contention was based on footnotes 16⁴ and 26,⁵ in Kleppe which apparently approve of such action in certain circumstances. Justice Powell suggested in footnote 16 that so long as the impact statement covering an individual action is adequate, there is no basis for enjoining that action pending preparation of a broader program statement. Footnote 26 followed this up by apparently disapproving the notion that completion of a program statement must preceed approval of individual projects. Noting that approval of one coal lease or mining plan does not foreordain the approval of others, the Supreme Court stated that "an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals."⁶