Jump to Navigation
Jump to Content

Massachusetts Pub. Interest Research Group v. NRC

ELR Citation: 18 ELR 21437
Nos. No. 87-1865, 852 F.2d 9/(1st Cir., 07/15/1988)

The court holds that the Nuclear Regulatory Commission's (NRC's) decisions not to undertake enforcement actions are not judicially reviewable, because neither the Atomic Energy Act nor the NRC's regulations provide a meaningful standard of judicial review. The plaintiffs had requested the NRC to begin enforcement action against a utility operating a nuclear power station. The court first holds that the NRC's action denying the plaintiffs' request on two grounds and postponing a decision on a third ground is final agency action for purposes of judicial review. The NRC's action establishes legal rights and obligations, and the NRC's postponement of a decision on one ground is the same as a denial of enforcement action at this time, since the NRC continually monitors compliance in this area anyway. Judicial review now would not disrupt ongoing adjudication at the NRC.

The court next holds that the NRC's enforcement decisions are not subject to judicial review. An agency decision not to take requested action is presumptively unreviewable, and this presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. In this case, the Atomic Energy Act does not provide such statutory enforcement standards. The court rules that an agency's own regulations governing enforcement may provide the standard for judicial review, but holds that in this case the NRC's regulations do not do so. The formal regulations are entirely permissive, and the policy statements, even if they could provide standards for judicial review, underline the NRC's vast discretion. Similarly, previous NRC enforcement decisions do not create a meaningful standard. Moreover, Congress' failure to amend the Atomic Energy Act to restrict judicial review of NRC enforcement decisions is irrelevant; there is no currently valid court ruling that NRC enforcement decisions are necessarily reviewable, so there has been no need for Congress to address the issue. In this case, the NRC has taken some enforcement action against the utility by deferring restart of the nuclear power station until the NRC is satisfied that the plant's deficiencies are corrected.

Counsel for Petitioners
William Abbott
Simonds, Winslow, Willis & Abbott
50 Congress St., Boston MA 02109
(617) 367-4747

Counsel for Intervenor
George B. Dean, Ass't Attorney General; James M. Shannon, Attorney General
One Ashburn Pl., 20th Fl., Boston MA 02108
(617) 727-2200

Counsel for Respondent
Steven F. Crockett, Laura E. Frossard
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before COFFIN and BOWNES, Circuit Judges, and FUSTE,* District Judge.