Weighing Human Impacts Under NEPA: NRC to Study Psychological Fallout of Three Mile Island

J. B. Dougherty

One of the recurring questions under the National Environmental Policy Act (NEPA)¹ is the extent to which it requires federal agencies to consider the effects of their actions on people. It is undisputed that the impacts which must be addressed within an environmental impact statement (EIS) include effects on natural resources and ecosystems. Certainly where a proposed federal action will induce direct biological impacts in humans they must be explored with an EIS. But how about effects on social conditions, such as those that might be created by the construction of a low-income housing project? Or, perhaps, the fear and psychological stress that might be suffered by those living near a nuclear missile launching site? Historically, impacts of this kind have been accorded second-class status. A recent court of appeals decision, however, stands out as a noteworthy though carefully circumscribed rejoinder.

People Against Nuclear Energy v. Nuclear Regulatory Commission² grew out of a Nuclear Regulatory Commission (NRC) proceeding concerning the proposed resumption of power generation at the undamaged Unit #1 at the Three Mile Island nuclear power plant. The issue before the United States Court of Appeals for the District of Columbia Circuit was whether the NRC, before permitting the restart of the reactor, is required by NEPA to evaluate the extent, if any, to which such a decision might induce "phychological stress" among those living near the plant. Two members of the three-judge panel concluded that it is, and ordered the agency to conduct an assessment of such effects before authorizing resumption of power production. Yet the third panel member condemned this result as unsupported by the statute and contrary to the case law, adding bitterly that the decision is another step in the D.C. Circuit's successful campaign to "[take] over control of the nuclear industry."³

For the owners of the Three Mile Island plant, the PANE decision will likely be only a minor annoyance in constrast to their other headaches, particularly since corrosion of Unit #1's steam generators threatens to keep that reactor out of service until 1983 regardless of its legal problems. But for the owners of other, as yet unlicensed reactors, the decision raises the troublesome prospect of injecting psychological considerations into the licensing process. This is because the majority's earnest attempts to tie its interpretation of NEPA to the unique circumstances stemming from the celebrated Three Mile Island accident are ultimately unconvincing. The decision appears to bring within the purview of NEPA any federal or federally licensed action that can be shown to have a significant impact on psychological health, although such a showing will be far from easy. Moreover, by suggesting that the NRC may be required to prepare a supplement to the EIS prepared for Three Mile Island years ago, notwithstanding that the restart of the reactor does not constitute a "major Federal action," the PANE decision may extend NEPA's reach considerably beyond the point at which the Act's requirements are generally thought to lapse.

Human Impacts Under NEPA

In this context the starting point for determining the scope of NEPA is the environmental impact statement (EIS) requirement of § 102(2)(C). Congress' directive that EISs be prepared on actions "significantly affecting the quality of the human environment" would seem to embrace actions significantly affecting humans as well. This interpretation of the Act is reinforced by its statements of findings and policy. Among the findings enumerated in § 101(a) of NEPA are the "profound influences of population growth … [and] high density urbanization" and "the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man…."⁴ The Act enunciates a national environmental policy which, among other things, is to "fulfill the social, economic, and other requirements"⁵ of Americans. Congress also expressed its desire to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings," and "to achieve a balance between population and resource use which will permit high standards of living…."⁶ The text of the Act thus confirms what is indicated by segments of the legislative history: the nation's environmental policy "is a policy for people. Its primary concern is with man and his future."⁷ Accordingly, more than one court has emphasized that the most important function of an EIS is to assess the effect of a proposed action on human health.⁸

However, the vast majority of courts to have considered this issue were not presented with federal actions posing direct and concrete threats to human health. In the typical "human impacts" case under NEPA the plaintiffs' concerns are with effects such as unemployment or community disruption caused by the construction of housing projects or the closing of military bases. While these "socioeconomic impacts" cases are in one sense only a subset of all "human impacts" cases, they constitute the bulk of the case law in this area.

[12 ELR 10066]

Though the outcomes in these cases have been all over the map. the prevailing view is that socioeconomic impacts are irrelevant to the question of whether a proposed federal action requires the preparation of an EIS.⁹ An EIS will only be required where the action will entail significant effects on the natural environment as well. These cases reveal a recurring rationale for disregarding socioeconomic impacts. First, the courts consistently ask how agency officials can be expected to measure and give objective treatment to environmental effects that are intangible and subject to the frailities of human perception, the vicissitudes of human emotion, and the complexities of cultural values.¹⁰ Given these difficulties, the courts have concluded, Congress could not have intended such impacts to be cognizable under NEPA.

It should be noted that minority positions have been taken by a significant number of courts. Several district as well as circuit courts have held the socioeconomic impacts, even when unaccompanied by direct impacts on the natural environment, are sufficient to trigger an agency's duty to prepare an impact statement.¹¹ Others have weighed both kinds of effects to conclude that § 102(2)(C)'s threshold of significance has been crossed.¹² One court has gone so far as to rule that NEPA's goals encompass racial integration.¹³ In addition, the prevailing rule seems to be that even if socioeconomic effects do not trigger the EIS requirement, they nevertheless must be fully addressed in any EIS that is prepared due to an action's natural environmental effects.¹⁴ Thus, the crux of the debate is not whether human impacts are cognizable under NEPA, but how.

PANE v. NRC

The widely publicized March 28, 1979 accident at Three Mile Island devastated the reactor in Unit #2, resulted in sizable airborne and waterborne releases of radioactive effluents, but apparently caused no measurable human health effects as a result of radiation exposure. However, the crisis had a jarring effect on local residents. The President's "Kemeny Commission" found psychological stress to constitute the "major health effect" resulting from the accident.¹⁵ The "Rogovin Commission" provided more graphic detail on the "shattering" turn of events which followed the reassurances of safety given the public on Thursday, March 29:

Friday [brought] back the accident like the back half of a hurricane after the eye has passed. On Friday, schools [were] closed, and parents and parents-to-be were scared half out of their wits; thousands of families [scurried] to throw belongings into their cars, unwilling to face the risk entailed in staying in their houses another night.¹⁶

By coincidence, at the time of the accident Unit #1 was shut down for refueling. It has not produced power since. In the summer of 1979 the NRC ordered it shut down indefinitely and announced a hearing at which the restart would be considered. In the hearing notice, the Commission stated that it had yet to decide whether it had authority under NEPA or the Atomic Energy Act (AEA) to consider issues relating to psychological stress. It assigned the decision to the Atomic Safety and Licensing Board which, after receiving briefs on the issue from the parties, agreed with intervenor PANE that contentions regarding psychological stress and community disruption fell within its jurisdiction under NEPA. However, the full Commission chose to review this ruling on an interlocutory basis. It decided, on a split vote, to exclude these issues from the hearing. Among the rationales offered was that (1) in the AEA Congress expressed its commitment to go forward with nuclear power notwithstanding local concerns, and (2) the best way to assuage such concerns is to assure the safe design and operation of the plant. PANE petitioned the D.C. Circuit for review.

PANE v. NRC fractured the panel along the lines of the two questions presented — whether either NEPA or the AEA mandates consideration of the psychological [12 ELR 10067] impacts of the TMI #1 restart. Judge Wright, joined by Judge McGowan, wrote a majority opinion answering the NEPA question in the affirmative. Judge Wilkey, also joined by Judge McGowan, wrote a majority opinion answering the AEA question in the negative, to which was added his lone dissent on the NEPA issue.¹⁷ Judge Wright wrote still another opinion to disagree with the others' reading of the AEA.¹⁸

On the NEPA issue, Judge Wright employed the most simple of syllogisms. The Act, he stated, clearly applies to federal actions that affect public health. This is evident from the language of § 101 as well as the regulations of the Council on Environmental Quality (CEQ).¹⁹ In short, "no subject to be covered by an EIS can be more important than the potential effects of a federal program upon the health of human beings."²⁰ Further, he asserted, "health" encompasses psychological health. Therefore, psychological health effects are fully cognizable under NEPA and cannot be excluded from environmental analysis conducted pursuant to the Act.

Judge Wright distinguished the psychological health impacts alleged in PANE from the "socioeconomic anxieties" involved in the long line of cases holding socioeconomic impacts to be outside NEPA's scope. These cases, he noted, which involved the construction of housing projects, prisons, post offices and the like, involve "people pollution" of the environment, i.e., they add or remove people from a community in a manner which threatens the social or cultural status quo. The "people pollution" cases are different, he asserted, since "[n]one of these cases, of course, presents the holocaust potential of an errant nuclear reactor."²¹ More important is that the restart of TMI Unit #1 allegedly involves impacts on health. The court concluded that while NEPA does not apply to "social opinions" or "economic concerns," it does apply to "post-traumatic anxieties, accompanied by physical effects."²²

With this language the court both addressed the traditional judicial reluctance to apply NEPA to unmeasurable impacts and attempted to head off concerns that the decision would suddenly commit federal agencies to engage in perhaps endless investigations of nebulous psychological issues. First, Judge Wright simply took exception with the view that intangible environmental effects are exempt from NEPA review. As the Atomic Safety and Licensing Board had observed, § 102(2)(B) of the Act commands that agencies develop techniques for injecting unquantifiable environmental values into their decisionmaking. Second, he used the term "post-traumatic" effects to emphasize the uniqueness of the facts surrounding the TMI incident, "the only event of its kind in the American experience," and to limit the applicability of the ruling to run-of-the-mill licensing decisions.The court explicitly declined, however, to draw a "bright line" dividing those psychological impacts which are within NEPA's purview from those which are not.²³

Given this interpretation of NEPA, there remained the question of how the NRC should accommodate its responsibilities under the Act in the context of the Unit 1 restart decision. The agency contended that since it had prepared an adequate EIS when in initially licensed Three Mile Island, its responsibilities under NEPA had been satisfied once and for all. PANE countered that the NRC's ongoing regulation of the plant constituted, in effect, a continuous "major Federal action" that preserved the agency's NEPA duties. The court sided with PANE. It noted that CEQ's NEPA regulations define the term "Federal action" to include "continuing … projects … entirely or partly … regulated, or approved by federal agencies,"²⁴ In addition, a number of cases support the notion that an agency remains subject to NEPA's requirements as long as it continues to exercise discretionary control over a specific project.²⁵ Therefore, quite aside from the "happenstance" that Unit #1 was shut down at the time of the accident and had to be restarted, the NRC's close supervisory role over the operation of the plant represents a continuing federal action under NEPA. Yet while the court was unwilling to relieve the NRC from its NEPA duties, it was not ready to rule that a supplemental EIS must be prepared. Recognizing that such threshold determinations fall within the exclusive province of the agencies, the court contented itself to issue a thinly-veiled threat that injunctive relief will be forthcoming if NEPA's requirements are not satisfied before the reactor is restarted.

Judge Wilkey's dissent²⁶ from the majority's interpretation of NEPA consisted of a frontal attack on its logic combined with a contrary reading of the case law. Previous cases, he asserted, had been wrongly characterized by the majority as inapposite due to their concern with social dislocation rather than health impacts. In Judge Wilkey's view the critical focus in all these cases was the same: the "fears and anxieties" of the public, whether from increased crime, unemployment, or nuclear accidents. NEPA, he claimed, was intended and has been interpreted not to apply to such impacts. He added that the majority's nimble but ultimately unpersuasive distinction of contrary precedent was mirrored by its strained efforts to rationalize its holding. What is it about "post-traumatic" psychological stress, he asked, that entitles it to protection not accorded the more routine types of stress that can be expected to stem from living below a dam or near a prison? Why is it that psychological stress is cognizable under NEPA only if it is accompanied by physical manifestations?

Even more disturbing to Judge Wilkey were the implications of the decision. Because of the flaws in the majority's reasoning, he concluded, its rationale is arguably [12 ELR 10068] applicable to a wide if not limitless range of federal actions. Henceforth, NEPA arguably requires in-depth analysis of the extent to which federal actions trigger "fears and anxieties."²⁷ This analysis, moreover, must address "the views of the population itself on the very desirability of the activity."²⁸ The judge saw no basis for limiting the influence of the decision to post-traumatic fears, thus opening the door to a duty to weigh the public's feelings about any major federal action, particularly the licensing of new nuclear plants. And even if the majority's holding can be limited to post-traumatic impacts, he noted, it will still cause havoc. As the majority conceives the duty to prepare supplemental EISs, they will be required following any "traumatic" event at a federally supported or regulated facility, such as a prison breakout or a coal mine cave-in. Judge Wilkey concluded that the majority opinion encourages the use of NEPA to paralyze risky federal actions in general, and nuclear power in particular.

Discussion

The opinion in PANE v. NRC was popularly reported as a "landmark" interpretation of NEPA. This characterization was strongly reinforced by not only Judge Wilkey in dissent, but also by Judge Wright, whose majority opinion, by distinguishing rather than disagreeing with the contrary case law, held the PANE case out as one of first impression. While this is accurate to an extent, the decision is not an aberration and does not merit the label "landmark." Granted, the dramatic backdrop of the accident at Three Mile Island and the alleged severity of its psychological impact on local residents make the case stand out among most NEPA cases. But when reduced to the essentials, the decision is best viewed as another in a long line of cases concerning NEPA's applicability to federal actions affecting people.

From the cases one can discern a continuum of human impacts which receive varying degrees of respect under NEPA. At one extreme are those involving federal actions which physically and directly create human health risks, e.g., herbicide spraying.²⁹ Such activities and their environmental fallout were certainly prominent among the concerns of Congress when enacting the statute, and no court has ever suggested that NEPA is not fully applicable to them because they affect humans rather than the natural environment. At the other extreme of the continuum are impacts on socioeconomic values, e.g., the drop in home prices attendant to the construction of a federal facility in the neighborhood,³⁰ increased unemployment from the closing of a military base,³¹ or the deterioration of a neighborhood due to the construction of a federal facility.³² Although these effects seem quite clearly to fall within the areas of concern articulated in NEPA's statements of policy,³³ the courts have deemed them something less than true environmental impacts and have generally declined to require EISs for federal projects that create socioeconomic impacts alone.³⁴

On this continuum the "psychological stress" involved in PANE seems to lie somewhere between classic socioeconomic effects and direct physical health risks. To the extent that psychological stress constitutes psychological health damage, it seems analogous to health risks from herbicide spraying as an effect that was intended to be covered by NEPA. Yet psychological impacts resemble socioeconomic impacts in that they are manifested only through human responses and thus seem indirect and subjective.

The question is where to draw the line distinguishing those impacts that are fully cognizable under NEPA from those that are not. No court has ever attempted to do so. The case law predating PANE establishes that the line falls somewhere above socioeconomic effects, i.e., they do not affect the determination of whether an EIS must be prepared. PANE holds that the line falls somewhere below "post-traumatic," "medically recognized impairment of psychological health," "accompanied by physical effects…," i.e., these effects can represent significant environmental effects necessitating preparation of an EIS.

In this light, Judge Wright's opinion represents a reasonable interpretation of NEPA.There is undeniable merit in the conclusion that NEPA applies to all health effects, whether physiological or psychological. Moreover, the practical reasons that have led courts to deny the cognizability of socioeconomic effects under NEPA do not apply with equal weight to impacts on psychological health. Although psychological stress may not lend itself readily to measurement, it is, as Judge Wright emphasized so strongly, a medical problem. If the analysis of these impacts within EISs can be kept within a scientific framework, such analysis seems no more subject to uncertainty than any of the other scientific judgments reflected in impact statements.

In an effort to confine its ruling to serious issues of mental health, the court emphasized that it was concerned with "post-traumatic" health impacts combined with "physical manifestations." It was saying, in other words, that the effects with which it was concerned in PANE were real and serious, and that it was expressing no views on the cognizability of other, less severe impacts situated [12 ELR 10069] somewhat lower on the continuum of human impacts. There is thus little merit to Judge Wilkey's criticism that the majority had engaged in irrational line drawing.³⁵ However, Judge Wilkey was no doubt correct in predicting a surge in psychological stress cases in the wake of PANE. Undoubtedly some will be frivolous and most will not succeed, but they are inevitable. Perhaps they will at least produce a clearer expression of NEPA's requirements in this area.

It is important to not that the PANE ruling does not disturb the prevailing rule concerning socioeconomic impacts. Indeed, the petitioners had raised claims concerning "community deterioration" and the court labelled them classic "secondary impacts" which must be addressed if a supplemental EIS is prepared but which do not bear on the decision to supplement. Therefore, in future cases litigants concerned with impacts on unemployment or property values will find that PANE does not support an argument that such impacts are now fully cognizable under NEPA.

What may prove to be the more significant ruling in PANE v. NRC is the court's decision that the NRC is under a continuing obligation to comply with NEPA even though it has licensed the Three Mile Island plant and has not proposed to take further "major Federal actions" in connection with it. The agency's "continuing regulatory authority" over the operation of the plant is sufficient to saddle it with NEPA responsibilities for an apparently indefinite period.

It is well established that agencies must prepare supplemental EISs in two situations: (1) where the plan for a proposed action has been altered such that significantly different environmental impacts are expected, and (2) where the circumstances surrounding a project have changed significantly.³⁶ The first prong of the test is fairly easy to apply since the threshold question is derivative of the threshold question for preparing initial EISs: are the environmental impacts "significant"? The second prong, on the other hand, requires an exercise of judgment as to when a change in circumstances becomes significant. In this context the cases concerning supplemental EISs are notable mostly for a shared characteristic which was lacking in PANE: each involved a project which was still in the planning stage.³⁷ Once an action has been taken, agencies generally assume that their EIS obligations are at an end.³⁸ In PANE v. NRC, however, despite the fact that the initial licensing of the reactor had been contemplated years earlier, the court concluded that since the NRC shares decisionmaking powers with the plant owners, its NEPA duties remain in force. The court relied heavily on CEQ regulations defining in term "major Federal action" to encompass ongoing regulatory activities. But NEPA does not require EISs for major federal actions; it requires them for proposals for major federal action.³⁹ The thrust of § 102(2)(C) is anticipatory. Sincethe court was concerned not with the proposal to restart Unit #1 but with the ongoing regulation of the entire plant, there was no "proposal" at issue.In this respect the PANE ruling seems to stretch NEPA's requirements considerably.

In any event, this ruling undoubtedly sent shock waves throughout the nuclear industry. It implies that a supplemental EIS will be required whenever a litigant can show that circumstances have changed "significantly" since the plant was first licensed. It is difficult to predict what circumstantial changes would be significant in the court's eyes, but candidates, would be the discovery of geologic faults near a plant or a dramatic increase in the local population.

The more important question is how this new reading of NEPA might bear upon other regulatory programs.Under some programs, such as the Department of the Interior's regulation of outer continental shelf oil and gas development, the agency has broad supervisory powers, including explicit authority to terminate a licensee's activities.⁴⁰ Perhaps this is sufficient to create a "continuing" regulatory activity that remains subject to NEPA indefinitely. If so, a major oil spill might mandate the supplementation of an EIS. Most EISs, on the other hand, concern discrete projects which, once they are built, are generally deemed completed even though they continue to operate. It is hard to imagine that PANE v. NRC would require a supplemental EIS for, e.g., a long-completed federally-assisted housing project at which a riot had occurred.

Conclusion

The D.C. Circuit's extension of NEPA to encompass the psychological health impacts of federal actions is no less a reasonable reading of the Act than earlier decisions reaching a contrary result concerning socioeconomic impacts. The court's emphasis that it was concerned with real health damage rather than social concerns provides agencies with a hedge against arguments, like Judge Wilkey's, that they must conduct public opinion surveys when they propose major federal actions. The number of federal actions that can be shown to cause significant damage to psychological health will probably be zero, or very close to it.

Thecourt's decision on the supplemental EIS issue is questionable.Supplemental impact statements are mentioned nowhere in the text of NEPA. The concept was developed by CEQ and the courts as a necessary and minimally burdensome adjunct to the EIS process that prevents last-minute changes in project plans from escaping environmental review. But Judge Wright's "continuing regulatory activity" theory subtly threatens to open Pandora's box.

1. 42 U.S.C. §§ 4321-61, ELR STAT. & REG. 41009.

2. __ F.2d __, 12 ELR 20546 (D.C. Cir. May 14, 1982.

3. 12 ELR at 20555 n.9 and accompanying text (dissenting opinion of Wilkey, J.).

4. 42 U.S.C. § 4331(a), ELR STAT. & REG. 41009.

5. Id.

6. 42 U.S.C. § 4331(b), ELR STAT. & REG. 41009. See also NEPA § 2, 42 U.S.C. § 4321, ELR STAT. & REG. 41009 (declaring statutory goals of achieving "enjoyable harmony between man and his environment," and the promotion of activities which "stimulate the health and welfare of man").

7. 115 CONG. REC. 40416 (1969). See also S. REP. NO. 297, 91st Cong., 1st Sess. 4 (1969), at which the following environmental problems were identified as targets of the nation's new environmental policy: "[h]aphazard urban and suburban growth; crowding, congestion, and conditions within our central cities; … all of which result in civil unrest and detract from man's social and psychological well-being…."

8. Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908, 927, 7 ELR 20325, 20333 (D. Or. 1977), quoted in PANE, 12 ELR at 20549.

9. See, e.g., Como-Falcon Community Coalition, Inc. v. Dep't of Labor, 609 F.2d 342, 9 ELR 20755 (8th Cir. 1979), aff'g 465 F. Supp. 850, 9 ELR 20383 (D. Minn. 1978), cert. denied, 446 U.S. 936 (1980); Image of Greater San Antonio v. Brown, 570 F.2d 517, 8 ELR 20324 (5th Cir. 1978); Breckinridge v. Rumsfeld, 537 F.2d 864, 6 ELR 20597 (6th Cir. 1976), rev'g sub nom. Breckinridge v. Schlesinger, 6 ELR 20111 (E.D. Ky. 1975), cert. denied, 429 U.S. 1061 (1977); Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225, 5 ELR 20698 (7th Cir. 1975), aff'g 372 F. Supp. 147, 4 ELR 20106 (N.D. Ill. 1973), cert. denied, 424 U.S. 967 (1977); Maryland-National Capital Park and Planning Comm'n v. United States Postal Serv., 487 F.2d 1029, 3 ELR 20702 (D.C. Cir. 1973); First Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369, 3 ELR 20771 (7th Cir. 1973); City of Battle Creek v. Federal Trade Comm's, 481 F. Supp. 538, 10 ELR 20272 (W.D. Mich. 1979); Metlakatla Indian Community v. Andrus, 427 F. Supp. 871, 7 ELR 20407 (D.D.C. 1977); National Ass'n of Government Employees v. Rumsfeld, 418 F. Supp. 1302 (E.D. Pa. 1976); National Ass'n of Government Employees v. Rumsfeld, 413 F. Supp. 1224 (D.D.C. 1976).

10. See, e.g., Maryland-National Capital Park and Planning Comm'n, 487 F.2d 1029, 3 ELR 20702 (D.C. Cir. 1973); Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972); Trinity Episcopal School Corp. v. Romney, 387 F. Supp. 1044 (S.D.N.Y. 1974).

11. See Jackson County v. Jones, 571 F.2d 1004, 8 ELR 20300 (8th Cir. 1978); Hanly v. Mitchell, 460 F.2d 640, 2 ELR 20216 (S.D.N.Y. 1972); Jones v. Dep't of Housing and Urban Development, 390 F. Supp. 579 (E.D. La. 1974); Tierrasanta Community Council v. Richardson, 4 ELR 20309 (S.D. Cal. 1973); Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 1 ELR 20492 (D. Or. 1971).

12. See City of Rochester v. United States Postal Serv., 541 F.2d __, 6 ELR 20723 (2d Cir. 1976); First Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369, 3 ELR 20771 (7th Cir. 1973); Lake Erie Alliance for the Protection of the Coastal Corridor v. Army Corps of Engineers, 486 F. Supp. 707, 10 ELR 20577 (W.D. Pa. 1980); Prince Georges County v. Holloway, 404 F. Supp. 1181, 6 ELR 20109 (D.D.C. 1975).

13. Karlen v. Harris, 590 F.2d 39, 43, 9 ELR 20001, 20002 (2d Cir. 1978), rev'd on other grounds sub nom. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 10 ELR 20079 (1980).

14. See Chelsea Neighborhood Ass'n v. United States Postal Serv., 516 F.2d 378, 5 ELR 20373 (2d Cir. 1975); Hovson's, Inc. v. Secretary of the Interior, 519 F. Supp. 434, 12 ELR 20065 (D.N.J. 1981).

15. REPORT OF THE PRESIDENT'S COMMISSION ON THE ACCIDENT AT THREE MILE ISLAND 35 (1979).

16. NUCLEAR REGULATORY COMMISSION, SPECIAL INQUIRY GROUP, THREE MILE ISLAND, A REPORT TO THE COMMISSIONERS AND TO THE PUBLIC 59 (1980).

17. 12 ELR at 20554.

18. 12 ELR at 20565. This comment does discuss the court's interpretation of the AEA.

19. 12 ELR at 20549, citing 40 C.F.R. § 1508.27(b)(2), ELR STAT. & REG. 46034.

20. Quoting from Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908, 927, 7 ELR 20325, 20333 (D. Or. 1977).

21. 12 ELR at 20550.

22. Id.

23. Id.

24. 12 ELR at 20551, citing 40 C.F.R. § 1508.18(a), ELR STAT. & REG. 46033.

25. See 12 ELR at 20552 and authorities cited.

26. 12 ELR at 20554.

27. 12 ELR at 20557.

28. 12 ELR at 20556 (emphasis in original).

29. See Nat'l Organization for Reform of Marijuana Laws v. Dep't of State, 452 F. Supp. 1226, 8 ELR 20572, (D.D.C. 1978); Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908 7 ELR 20325 (D. Or. 1977).

30. See Maryland-Nat'l Capital Park and Planning Comm'n v. United States Postal Serv., 487 F.2d 1029, 3 ELR 20702 (D.C. Cir. 1973).

31. See Image of Greater San Antonio v. Brown, 570 F.2d 517, 8 ELR 20324 (5th Cir. 1978).

32. See Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972).

33. See NEPA §§ 2, 101, 42 U.S.C. §§ 4321, 4331, ELR STAT. & REG. 41009.

34. See discussion at notes 9-13, supra. The roots of the socioeconomic effects rule seem to lie in instinctive judicial reticence to apply NEPA expansively rather than a thoughtful interpretation of the Act. See Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 523 (1974), in which Judge Leventhal explains that his ruling in the seminal Maryland-National Capital Park and Planning Comm'n case was motivated by a desire to prevent a "dilution of resources" which might undermine NEPA's "primary purposes."

35. 12 ELR at 20557-58.

36. See generally Comment, Supplemental EIS Mandated for Tennessee-Tombigbee Waterway, 11 ELR 10213, 10213-14 (1981).

37. See, e.g., National Indian Youth Council v. Watt, __ F.2d __, 12 ELR 20110 (10th Cir. 1981); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980); Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 6 ELR 20577 (1st Cir. 1976); Green Mountain Grange No. One v. Goldschmidt, 11 ELR 20079 (D. Vt. 1980).

38. Cf. Ogunquit Village Corp. v. Davis, 553 F.2d 243, 7 ELR 20381 (1st Cir. 1977) (once a project has been completed, further judicial review of the EIS is precluded). See generally Comment, Enforcing the "Commitments" Made in Impact Statements: A Proposed Passage Through a Thicket of Case Law, 10 ELR 10153 (1980).

39. See NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT & REG. 41010.

40. See generally Comment, First Circuit Lifts Injunction Against OCS Lease Sale, Ushers in 1978 Amendments to OCS Lands Act, 9 ELR 10064 (1979).