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Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council

ELR Citation: 8 ELR 20288
Nos. Nos. 76-419, -528, 435 U.S. 519/11 ERC 1439/(U.S., 04/03/1978) rev'd

On review of two cases in which plaintiffs challenged the Nuclear Regulatory Commission's (NRC's) licensing of two nuclear power plants, the Supreme Court unanimously reverses the court of appeals' invalidation of the licenses, announcing that the role of the judiciary in the nuclear licensing process must be carefully limited to avoid unauthorized intrusions into the domain of the administrative agency. In the first case (No. 419), the Court of Appeals for the District of Columbia Circuit had sustained respondent's contention that NRC provided for an inadequate ventilation of the issues under the National Environmental Policy Act (NEPA) when it decided to consider the issue of nuclear waste disposal in a separate, non-adjudicatory hearing, the results of which would be applied retroactively to petitioner's license, rather than in the licensing proceeding itself. Disagreeing with that holding, the Supreme Court held the case law and the legislative history of the Administrative Procedure Act (APA) to support the proposition that as long as an agency complies with the APA's minimum requirements, as had NRC in this case, it is free to adopt or to decline to adopt additional, more complex procedures. The lower court's invalidation, for procedural inadequacy, of the spent fuel cycle rule which emerged from the separate hearing is also rejected by the Court. Because of the absence from this case of circumstances compelling judicial imposition of more exacting procedural safeguards, the court of appeals erred in not judging the procedural adequacy of that proceeding by the rulemaking standards set out in §553 of the APA. This issue is remanded, not for a reassessment of procedures, but for a determination whether, under the APA, the adopted rule is supported by substantial evidence produced at the hearing. With respect to the second case (No. 528) the Court holds that the court of appeals was again wrong in reversing the issuance of the construction license because of NRC's refusal to explore the question of energy conservation as an alternative to construction of the plant. Where, as in this case, the adoption of a project alternative is merely suggested by a party without at least a minimal showing as to the advantages or wisdom of adopting it, the agency is not required to research and analyze exhaustively the issue; the agency was justified in requiring a showing of sufficient force to require reasonable minds to inquire further. The Court also reverses the appellate court's holding that the Atomic Safety and Licensing Appeals Board should have returned the safety report submitted by the Advisory Committee on Reactor Safeguards for analysis of other issues in terms understandable to a layman. This ruling misinterpreted the Committee's purpose and function and demonstrates an inadequate regard for the resources and time that have been invested in this project. In conclusion, the Court notes that the nation's experiment with nuclear power represents a legislative policy decision which cannot be second-guessed by the judiciary, and that NEPA does not authorize the courts to substitute their judgment for that of Congress or the executive branch.

Counsel for Petitioner Vermont Yankee Nuclear Power Corp.
Thomas G. Dignan Jr.
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Counsel for Petitioner Consumers Power Co.
Charles Horsky
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondent Natural Resources Defense Council, Inc.
Richard E. Ayres
917 15th St. NW, Washington DC 20005
(202) 737-5000

Counsel for Respondent Aeschliman et al.
Myron M. Cherry
One IBM Plaza, Chicago IL 60611
(312) 565-1177

Counsel for Respondent United States
Lawrence G. Wallace
Office of the Solicitor General
Department of Justice, Washington DC 20530
(202) 737-8200

MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL took no part in the consideration or decision of these cases.