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Baltimore Gas & Elec. Co. v. Natural Resources Defense Council

ELR Citation: 13 ELR 20544
Nos. Nos. 82-524 et al., 462 U.S. 87/19 ERC 1057/(U.S., 06/06/1983) Rev'd

The Supreme Court, reversing the D.C. Circuit's decision, 12 ELR 20465, rules that the Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act (NEPA) and was not arbitrary and capricious in adopting generic rules—the "S-3 Table"—dictating how nuclear reactor licensing decisions take into account the environmental impacts of the nuclear fuel cycle. The D.C. Circuit had ruled that the NRC violated NEPA by determining, in spite of substantial uncertainty, that licensing boards should assume that the long-term storage of nuclear wastes has no significant environmental impact and thus should not be considered in individual licensing decisions. The Court rules that the NRC reasonably evaluated the environmental impacts of the fuel cycle. It is clear from the record that the NRC considered all the data on long-term storage and disclosed the substantial uncertainty concerning its safety. Furthermore, the NRC reasonably chose to prepare a generic rather than a plant-specific EIS of long-term storage, since the environmental impacts of much of the fuel cycle are not plant-specific but are common to all nuclear power plants. The NRC also did not act arbitrarily or capriciously in generically deciding that the uncertainties surrounding fuel storage were insufficient to affect individual licensing decisions. The Court points out that the S-3 Table and the "zero-release assumption" were developed for the limited purpose of considering the risks of the most likely long-term waste disposal method as they affect individual licensing decisions. Furthermore, the uncertainties concerning the zero-release assumption, a single figure in the entire table, are offset by conservative assumptions reflected in other values in the table. Finally, the Court notes that it must generally defer to agency expertise at the frontiers of science. The Court rules that the NRC's zero-release assumption was not arbitrary and capricious under the Administrative Procedure Act. The NRC considered and revealed the uncertainties of long-term storage and even those commissioners dissatisfied with the zero-release assumption were convinced that the environmental impacts should be considered in other proceedings.

In addition, the Court rules that the S-3 Table does not preclude consideration in individual licensing decisions of the human health, socioeconomic, or cumulative impacts of fuel cycle activities. Although ambiguities existed in earlier regulations, the Court finds no basis for the D.C. Circuit's conclusion that the NRC ever precluded a licensing board from considering these effects.

Counsel for Petitioners
David A. Strauss; Rex E. Lee, Solicitor General
Department of Justice, Washington DC 20530
(202) 633-4283

Michael I. Miller, Philip P. Steptoe III
Isham, Lincoln & Beale
Three First Nat'l Plaza, Chicago IL 60602
(312) 558-7500

James P. McGranery Jr., Keith R. Anderson
Le Boeuf, Lamb, Lieby & MacRae
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 457-7500

George C. Freeman Jr., Donald P. Irwin, Lee B. Zeugin, Henry V. Nickel, F. William Brownell
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Counsel for Respondents
Timothy B. Atkeson, Steven Reed, Edward J. Krauland, Marco Adelfio, Lindsey B. Lang
Steptoe & Johnson
1250 Connecticut Ave. NW, Washington DC 20530
(202) 862-2000

S. Jacob Scherr, Barbara A. Finamore
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Ronald A. Zumbrun, Robert K. Best, Sam Kazman
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Peter H. Schiff, Ezra I. Bialik; Robert Abrams, Attorney General
Dep't of Law, Two World Trade Ctr., New York NY 10047
(212) 488-5123

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