Challenging the environmental impact of a major long-range agency program: Scientists' Institute for Public Information v. Atomic Energy Commission

A new direction in litigation concerning environmental impact statements required under section 102(2)(C) of the National environmental Policy Act was recently initiated by a group of scientists seeking to compel the Atomic Energy Commission to file such a statement assessing alternatives for an entire long-range legislative program, instead of just for routine action taken under the agency's existing statutory authority. Scientists' Institute for Public Information v. AEC, 1 ELR Dig. 182 [1 ELR 10091] (D.D.C., filed May 25, 1971). In its complaint, the Scientists' Institute for Public Information (SIPI) asks only that the necessary environmental impact statement be filed for the development program for liquid metal fast breeder reactors (LMFBR). Present AEC guidelines setting out procedures for the filing of impact statements, however, deal solely with the construction and licensing of individual reactor projects. Guidelines for the preparation of impact statements for long-range comprehensive programs requiring extensive federal legislation and large appropriations have not been written.

The AEC program would develop liquid metal fast breeder reactors (LMFBR) for commercial use through a two-prong emphasis on technological development and demonstration plants, so that by the year 2000 a quarter of the electrical energy in the United States will be produced by LMFBR power plants. The AEC requested $100 million, primarily for LMFBR technological development, for fiscal year 1972 without filing a 102 environmental impact statement. President Nixon's Energy Resources message to Congress on June 4, 1971, set the LMFBR program as a high-priority national goal and requested an additional $27 million for fiscal year 1972 for technological development. He also requested $50 million for a demonstration plant which would prove the commercial feasibility of LMFBR power plants by 1980, but he side-stepped the issue brought on by SIPI v. AEC by promising environmental impact studies for the demonstration plant only. Energy Resources, President's Message to Congress, June 4, 1971.

By using an extremely radioactive substance, plutonium, as fuel, LMFBR nuclear power plants not only produce electrical energy, but because they are "breeder" reactors, produce more fuel than they consume. This economic benefit makes the LMFBR method highly attractive, assuming that the country's electric power needs continue to double every decade. The AEC has made this assumption, as did President Nixon when he called the LMFBR the "best hope today for meeting the Nation's growing demand for economical clean energy." On the other hand, the environmental dangers of the LMFBR, as specified by SIPI in its suit, are accidental explosion and pollution caused by the tremendous amount of highly toxic radioactive wastes from the ractor.

Present AEC procedural compliance guidelines, 1 ELR 46012, deal only with the stage at which an applicant requests a permit to construct or operate a nuclear power plant. One problem is that the present guidelines do not specifically provide for an independent agency-oriented assessment of the environmental impact. See discussion in Summary and Comments at 1 ELR 10027. The adequacy of the specific guidelines is being challenged on other grounds in Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 1 ELR Dig. 38. In SIPI v. AEC plaintiffs allege that the AEC has not provided for proper environmental consideration of this comprehensive legislative program to develop a commercially feasible LMFBR and bring about its widespread use in the nation's energy system. This is contrary to the intent of the National Environmental Policy Act, 1 ELR 41009; Bulletin no. 71-3 from the Office of Management and Budget, 1 ELR 46005; and the final guidelines from the Council on Environmental Quality, 1 ELR 46049.

Section 102(2)(C) of NEPA requires an environmental impact statement to be included "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." The AEC has recognized a difference between legislative programs, such as this one for LMFBR technological development, and an on-line project, such as the proposal to build the demonstration plant. The Commission apparently requires 102 statements only for the latter. The Office of Management and Budget directs, however, that for "those agencies having major program actions with significant impact on the human environment, annual budget estimates shall be accompanied by a special summary statement explaining generally the environmental impact expected to result from these activities and programs." Section 2(b), OMB Bulletin No. 71-3, Aug. 31, 1971.

Section 5(a)(i) of the final CEQ guidelines for 102 statements on proposed federal actions affecting the environment of April 23, 1971, defines federal actions to include "recommendations or favorable reports relating to legislation including that for appropriations." This is "to be construed by agencies with a view to the overall, cumulative impact of the action proposed." Section 5(b). The CEQ guidelines require each agency to describe the point in a series of actions at which the 102 statement procedures must be followed. "It will often be necessary to use the procedures both in the development of a national program and in the review of proposed projects within the national program . … The principle to be applied is to obtain views of other agencies at the earliest feasible time in the development of program and project proposals." Section 10(a). Furthermore, the draft environmental statements should be circulated for comment as early as possible before an agency action is taken "to permit meaningful consideration of the environmental issues involved." Section 10(b).

SIPI alleges that any statement filed must include, among other things, the probable impact on the environment of the activity, probable adverse environmental effects which cannot be avoided, the alternatives to the proposed action, and an assessment of the proposed action and the alternatives in light of [1 ELR 10092] the intent of NEPA. CEQ Final Guidelines Section 6. The scientists challenge the tremendous commitment of time and money to the LMFBR program without an adequate consideration of alternatives such as more efficient use of existing fossil fuels, other types of nuclear reactors, or solar and geothermal energy, and allege that they should be studied for their potential to supply the required energy without the threat to the environment that the LMFBR poses.

Though claiming that the LMFBR power plants would have "far less impact on the environment than the power plants which are operating today," the President asked for environmental impact studies only for the single demonstration plant. Since the AEC and the President have recognized that individual reactors, including the demonstration plant, could affect the environment, it appears illogical that they would not consider an entire program, the component parts of which include building individual power plants, as a major federal action subject to the 102 statement-filing requirement of NEPA. This situation is similar to the conflict over the supersonic transport aircraft which recently lost its development funding. Had the potential environmental impact been considered at an earlier stage, the controversy might have been less heated, and time and money might not have been spent on an uncompleted project. With the SST, a strong momentum was stopped, but there is no assurance that this would happen again if the situation arose where Congress had committed large sums of money on a project which later presented tremendous environmental dangers.

SIPI v. AEC suggests a very important but neglected aspect of the thorough implementation of NEPA, not only with respect to the AEC, but with respect to all federal agencies. A review of agency procedural compliance guidelines under NEPA (1 ELR 46000-46048) shows that almost no attention has been given to the preparation of impact statements to accompany legislative proposals. Such statements understandably pose difficulties for the drafters of a President's overall legislative program, which normally is prepared with agency participation, but in confidence and without public fanfare. Legislative programs are not written in the fishbowl of public scrutiny which NEPA, and guidelines under NEPA, require for routine agency decision-making where statutory mandates and appropriations have already been approved by Congress. Yet NEPA does require that environmental impacts be taken into account at this critical juncture and implements this intent through the impact statement procedure. The CEQ's guidelines now require the "earliest feasible" consideration of environmental impacts and call upon the agencies to identify the points at which early consideration can take place. The burden nowis on the agencies to spell out how they will prepare impact statements for major federal legislative programs.