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Natural Resources Defense Council v. NRC

Citation: 6 ELR 20615
No. Nos. 74-1385, -1586, 547 F.2d 633/9 ERC 1149/(D.C. Cir., 07/21/1976)

The D.C. Circuit remands the Nuclear Regulatory Commission's (NRC) grant of an operating license for the Vermont Yankee nuclear power plant, concluding that the defendants violated NEPA by not discussing the environmental effects of radioactive waste disposal in the environmental impact statement (EIS). Technology currently exists to reprocess spent fuel from nuclear reactors, but substantial radioactive wastes for which an ultimate method of disposal has not yet been found are admittedly generated in the process. Thus, the irretrievable commitment of resources involved in the construction of new reactors demands that the agency predict in an impact statement the environmental consequences in the form of reprocessing plant operation and waste disposal of this reactor before granting it an operating license. To delay such prediction until the construction of reprocessing plants misconstrues the fundamental mandate of NEPA, which was intended to prevent this incremental style of decision making. The legislative-type rulemaking called by the Commission on the environmental effects of the nuclear fuel cycle arbitrarily and capriciously limited the petitioners' ability to ventilate the issues. Although courts may not normally dictate the type of administrative proceeding that an agency must use to gather data, they are able to scrutinize the record to insure that the agency has taken a hard look at the issues. NEPA requires an agency to consider the full range of scientific opinion. To the extent that an agency ignores such opinion properly proferred, rulemaking under the Administrative Procedure Act cannot hide an abuse of agency discretion in refusing to consider such matters under NEPA.

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

Patrick M. Raher
815 Connecticut Ave., NW
Washington DC 20005
(202) 331-4682

Counsel for Respondents
James A. Glasgow
Raymond M. Zimmet, Acting Solicitor
Nuclear Regulatory Commission
Bethesda MD 20014
(202) 492-7000

Wallace H. Johnson, Asst Attorney General
Edmund B. Clark
John J. Zimmerman
Department of Justice
Washington DC 20530
(202) 737-8200

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

Before: BAZELON, Chief Judge, EDWARDS,* Circuit Judge for the Sixth Circuit and TAMM, Circuit Judge.