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Natural Resources Defense Council v. NRC

Citation: 9 ELR 20360
No. Nos. 77-1489 et al., 606 F.2d 1261/13 ERC 1561/(D.C. Cir., 04/24/1979) Aff'd in part, rev'd in part

Affirming in part and reversing in part the decision of the district court, 8 ELR 20415, the District of Columbia Circuit Court of Appeals rules that the Energy Research and Development Administration's (ERDA's) construction of 22 nuclear waste storage tanks is not subject to the licensing jurisdiction of the Nuclear Regulatory Commission (NRC) but that it is a major federal action requiring the preparation of a project-specific environmental impact statement (EIS). Contrary to the result below, the court determines that jurisdiction over the case lies exclusively in the court of appeals under § 189 of the Atomic Energy Act and 42 U.S.C. § 2342. Although those provisions confer jurisdiction upon the courts of appeals only in cases reviewing final orders entered in licensing proceedings, because plaintiffs challenged the NRC's determination that it has no licensing jurisdiction in this matter and such a determination is the first step in every licensing proceeding, jurisdiction is limited to this court. The court then upholds the NRC's determination that it lacked jurisdiction over the construction of the waste storage tanks under § 202(4) of the Energy Reorganization Act of 1974 on the ground that § 202(4) gives the NRC jurisdiction over only those ERDA activities relating to the permanent storage of high-level nuclear waste. Defendants properly characterize the tanks in question as designed only for short- to mid-term use. Moving to the National Environmental Policy Act issues, the court rules that the construction of the tanks is a major federal action requiring preparation of an EIS. That the programmatic EISs previously prepared by ERDA concerning its overall waste management programs are inadequate to cover this particular action is shown by the fact that the alternatives discussed in those statements do not approach the specificity of the alternative tank designs which have been proposed by appellants and determined to be reasonable by the district court. There is thus no merit to ERDA's contention that the Natural Resources Defense Council is barred from raising such alternatives at this time because it failed to present them at the programmatic proceeding. In conclusion, the court rules that ERDA must prepare an EIS regarding the tank construction project, but it vacates the district court's directive to examine in detail a specific alternative storage technique as an excessive interference with the agency's functions. Furthermore, in light of the environmental and economic costs attendant to an injunction against continuation of the project, the court permits the project to continue while the EIS is under preparation.

Counsel for Appellants
Ronald J. Wilson, Barbara B. Graham
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Appellees
Jacques B. Gelin, William M. Cohen, Carl Strass, Edmund B. Clark, Larry A. Boggs, Sanford Sagalkin; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Before: TAMM, LEVENTHAL and MacKINNON, Circuit Judges.