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Natural Resources Defense Council v. NRC

Citation: 6 ELR 20513
No. Nos. 75-4276, -4278, 539 F.2d 824/8 ERC 2065/(2d Cir., 05/26/1976)

The Second Circuit refuses to allow interim licensing of mixed uranium and plutonium fuel for commercial use prior to completion of a generic environmental impact statement (GESMO) pursuant to NEPA. The Commission's November 11, 1975, decision to allow such licensing is judicially reviewable, since it applies to all licensing proceedings. Judicial review at this stage will not disrupt the administrative process. Furthermore, legal consequences flow from the agency decision, since the order sets forth how the agency will comply with environmental laws. Also, the controversy is ripe for adjudication, in view of the substantive NEPA questions at issue. Relying on Natural Resources Defense Council v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975), the court upholds the Commission's proposals to bifurcate the GESMO and individual licensing hearings and separate local from generic issues, declaring them to be consonant with NEPA's demand for a systematic, interdisciplinary approach to environmental decisionmaking. An agency has wide discretion to decide the manner in which it will approach a complex subject matter. Where general policy is the procedural focus, the Commission's proposed legislative-type hearings are appropriate. The Commission's interim licensing decision, however, requires completion of a generic impact statement. Congress fully intended that new technologies, as well as individual licensing decisions, be subject to NEPA. Having conceded that the draft GESMO is legally insufficient for failure to discuss plutonium safeguards, the Commission cannot now allow use of mixed oxide fuel in an unrestricted commercial market. Nor can the Commission claim that its "interim" licensing is not a major federal action, where the activity licensed would be equivalent to activities taken pursuant to final agency action. NEPA applies to "interim" actions when, as here, irretrievable commitments of resources would prejudice the final agency decision. The Supreme Court's decision in SCRAP II, 422 U.S. 289, 5 ELR 20418 (1975), is therefore distinguishable, since the interim railroad freight increases at issue there were environmentally neutral. In the case of nuclear technologies, NEPA requires a full environmental review prior to the commitment of necessarily massive amounts of capital and manpower. The Commission must refrain from unlimited commercial licensing of plutonium-related facilities until after it finally decides the questions presented by GESMO.

Counsel for Petitioner Natural Resources Defense Council
Anthony Z. Roisman
Roisman, Kessler & Cashdan
1712 N Street NW
Washington DC 20036
(202) 833-9070

J. Gustave Speth
Natural Resources Defense Council, Inc.
917 15th Street NW
Washington DC 20005
(202) 737-5000

Counsel for Petitioner State of New York
Louis J. Lefkowitz, Attorney General
Samuel A. Hirshowitz, First Asst. Attorney General
Philip Weinberg
John F. Shea, III
Richard G. Berger Asst. Attorneys General
State Capitol
Albany NY 12224
(518) 474-7330

Counsel for Respondent Nuclear Regulatory Commission
Peter L. Strauss, General Counsel
Stephen F. Eilpern, Asst. General Counsel
Steven P. Goldberg
Nuclear Regulatory Commission
Washington DC 20555
(202) 492-7000

Pierce, J. for himself, Clark & Owen, JJ.*