The Application of NEPA to Agency Actions Affecting Human Health

James B. Dougherty

Editors' summary: An important but rarely litigated issue under NEPA concerns the consideration that agencies must give to the human health consequences of federal projects. Although human health effects have understandably been characterized as the "most important issue to be covered in an EIS," on many occasions such effects have been neglected out of concern for the more traditional subjects of environmental analyses. In this article Mr. Dougherty shows that the legislative history and case law assign the highest priority to health issues, and thus do not permit the treatment of such effects under NEPA to be overshadowed by the treatment of the air or water quality implications of federal decisions. In addition, he reviews the recent decision of the U.S. Supreme Court in Metropolitan Edison Co. v. People Against Nuclear Energy, which concerned the adequacy of the Nuclear Regulatory Commission's consideration of the human health effects stemming from the 1979 accident at the Three Mile Island nuclear power plant. In the view of the author, the Court's opinion cannot be seriously faulted with respect to the result, although the opinion itself leaves a number of loose ends that may do little to clarify the law in an already turbid area.

J.D., Georgetown University Law Center, 1977; B.S., Syracuse University, 1974. Mr. Dougherty, formerly Editor of the ENVIRONMENTAL LAW REPORTER, is now in private practice in Washington, D.C., specializing in nuclear licensing and other environmental litigation.

[13 ELR 10179]

The National Environmental Policy Act (NEPA),¹ that fountain of legal conundra, has given rise to yet another tough question of interpretation that will undoubtedly titillate law review staffers while continuing to trouble federal judges. The issue: the extent to which NEPA requires federal agencies to evaluate the effects of their actions upon human health. Though it has been asserted, in the heat of litigation, that NEPA has no application to people since it applies expressly to their environment, this simplistic approach can readily be shown to conflict with the intent of NEPA's drafters. The real debate proceeds upon the premise that certain federal actions, by changing the environment, will adversely affect human health in ways that must be analyzed within environmental impact statements (EISs), and moves on to thornier questions such as:

what kinds of human health effects constitute "environmental" effects? and

when do the indirect health effects of a given action become so attenuated that they may be disregarded within a NEPA analysis?

The extreme examples of federal agency actions which are generally conceded to fall either within or without NEPA's purview give a clue as to the dimensions ofthe gray area in between. Where an agency supports or undertakes a program of aerial spraying of herbicides or pesticides, the likely effects upon the health of those who are exposed to the stuff must be addressed within any EIS prepared for the project, and may, in and of themselves, necessitate the preparation of an EIS. Where, on the other hand, the Food and Drug Administration approves a new drug for commercial distribution, the potentially substantial human health risks need not be considered within an EIS. But lest it be inferred from such authoritative statements that NEPA's requirements in these two instances can be ascertained by reference to established rules, it should be pointed out that neither the cases nor the legislative history offer more than stray dicta concerning the cognizability of human health effects under NEPA. Indeed, it often seems as if there are no articulated rules concerning NEPA's application to human health. Thus, except for the "obvious" cases where the application of NEPA would be either absurd or intuitively compulsory, the law's requirements are all but indiscernible.

As discussed below, there is a line of cases dealing with federal actions that influence social and economic conditions, i.e., the funding of a highway that precipitates regional development. The large number of cases in which this kind of human impact has been considered is responsible for a fairly well-developed set of rules concerning NEPA's application to these so-called "socioeconomic effects." The relevance of these cases to those involving health, however, is debatable, no doubt in part because threats to health simply seem more important than threats to the socioeconomic status quo, and thus would seem to deserve special recognition.

Against this backdrop the U.S. Supreme Court recently decided a NEPA case involving health effects stemming from the 1979 accident at the Three Mile Island nuclear power plant. In Metropolitan Edison Co. v. People Against Nuclear Energy² the Court reversed a D.C. Circuit decision which threatened to block the reopening of the undamaged No. 1 reactor at Three Mile Island. While it chose neither to utter a broad statement of NEPA's requirements in this respect nor even to conduct a full review of the few decisions on point, the Court did reject the argument that health claims are not cognizable under NEPA. On the contrary, the Court concluded, human health effects may fall within the scope of the Act under [13 ELR 10180] certain circumstances. In the case before it, however, such circumstances were not present since the psychological injuries alleged by the neighbors of Three Mile Island were not proximately related to the effects of the action upon the physical environment.

The issue presented by the Metropolitan Edison case was intellectually challenging, and Justice Rehnquist obviously had some difficulty with it. The result was an opinion which may prove devilishly difficult to follow in the future. For example, the Court's proximate cause standard, though not in conflict with rules that have been followed in past NEPA cases, is subject to all and perhaps more of the sponginess for which the classic proximate cause test is notorious. Since the opinion falls short of a roadmap assuring simple passage through human health cases that may arise in the future and, indeed, may create a few pitfalls of its own, some clarification is in order. The purpose of this note is to fit the Court's opinion into the context of the preexisting law, to criticize those aspects of it that appear analytically shaky, and to speculate as to how it will be treated in future cases.

The Statutory Language and Legislative History

In this context, as in most others, the text of NEPA sits like a Sphinx, while hordes scrutinize its face for clues as to its meaning. Though the language of the Act offers many clues, it contains no provision clearly directing federal agencies to evaluate the public health risks associated with proposed federal actions. To divine the intent of Congress one must rely upon the Act's statements of policy and its legislative history.

Though signed into law in the same year in which Congress crafted landmark legislation in the areas of air and water pollution,³ NEPA was deemed inappropriately targeted at such specific environmental threats. Indeed, the Act contains not a single reference to air or water pollution, hazardous waste, radiation, noise, or the like. Its mandate, or course, covers all these things, but its dominant theme is conceptually broader. The quintessential purpose of NEPA is the protection of human health.

Prominent among the stated purposes of the Act is the enhancement of the "health and welfare of man."⁴ To achieve this goal, agencies are directed to strive to

assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings [and]

attain the widest range of beneficial uses of the environment without degradation, [or] risk to health or safety ….⁵

The health-oriented nature of the law's mandate is reem-phasized in § 101(c) of NEPA:

The Congress recognizes that each person should enjoy a healthful environment ….⁶

That NEPA is aimed at mankind, particularly the environmental threat to human health, is confirmed by the legislative history. A "Congressional White Paper," published by the Senate Committee on Interior and Insular Affairs and entitled "A National Policy for the Environment," was seminal to the legislation that ultimately became NEPA.⁷ It points out that there is an environmental basis for many human ills, such as

increasing disability and death from diseases induced by environmental factors (for example, cancer, emphysema, mental disorders)….⁸

The report goes on to suggest that, pursuant to the proposed "national environmental policy," the nation should

be sure than environmental factors causing or acompanying these conditions are properly identified and remedied.⁹

Accordingly,

What is needed therefore is a systematic and verifiable method for periodically assessing the state of the environment and the degree and effect of man's stress upon it, as well as the effect ofthe environment and environmental change on man.¹⁰

In addition, statements made on the floor of the Senate as well as in the committee report accompanying S. 1075,¹¹ from which the final enactment was refined, confirm that an essential purpose of NEPA was to compel examination of the human health effects of environmental degradation.¹² It is also notable, particularly in the context of the Metropolitan Edison litigation, that mental health impairment stands out most prominently among those health effects associated by Congress with environmental deterioration.¹³

[13 ELR 10181]

Despite this oft and clearly manifested legislative concern with human health, it would be wrong to suggest that the statute was misnamed; NEPA was not intended to be a national health policyact. The fact is that while health issues were at the forefront of its consciousness, Congress was concerned centrally with environmentally induced health impairment. After some of the well-publicized environmental tragedies of the 1960s, as well as hearings held prior to NEPA's enactment, Congress had become aware of the bond between human health and the environment. NEPA was aimed at the interface between the two. Senator Jackson articulated the focus of the statute in this way:

What is involved is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of markind. That we will not intentionally initiate actions which will do irreparable damage to the air, land, and water which support life on earth.

An environmental policy is a policy for people. Its primary concern is with man and his welfare.¹⁴

It thus appears that NEPA was not intended to remedy health problems such as malnutrition, which is attributable (domestically, at least) more to social failure than to ecological decline. Rather, the legislative intent seems to have been to improve the human lot by preventing environmental despoilation. And to the extent that given human ills were neither traceable to environmental despoilation nor remediable through environmental improvement, such problems were left to be addressed in other ways.

Judicial Interpretations

In the typical NEPA case human health risks are not at issue.When such claims are made, it is usually as an incident to more serious and more easily established environmental pollution. Yet in the relatively few cases where plaintiffs have shown their health to be threatened by an impending federal action, the courts have construed the Act broadly and enforced it with a vigor. The judiciary has been protecting the public health much longer than it has been protecting the environment, and judges are understandably more alert to claims of imminent personal harm than to allegations of environmental mismanagement. Thus, where injunctive remedies have been sought in health cases arising under NEPA the courts have shown themselves less likely to balance the equities than to freeze the status quo pending the preparation of an EIS or the holding of a full hearing on the merits.

The health cases resemble other NEPA cases in that they are likely to turn on one of two issues: (1) whether the agency defendant wrongly determined that an EIS was not required for the particular action at issue, or (2) if an EIS was prepared, whether it meets the prevailing standards of adequacy. In the health context these issues can be refined, respectively, even further: (1) whether the alleged health impacts of the proposed action are cognizable as "environmental" impacts under NEPA, and if so, whether they are sufficiently "significant" to trigger the agency's EIS obligation, and (2) if an EIS is under attack, does it give short shrift to the human impacts of the action?

The outcome of most cases falling in the former category has favored the plaintiffs. In National Pork Producers Council v. Bergland,¹⁵ an industry trade association challenged a Department of Agriculture rule easing restrictions on the sale of uncured (i.e., nitrite-free) meats. Apparently unconcerned over the lack of any environmental aspect to the case other than a potential public health threat, the district court nevertheless enjoined implementation of the new rule, stating that

the possible occurrence of botulism as a result of consumer mishandling of uncured products is an "environmental effect" because significant public health concerns are implicated ….¹⁶

National Pork Producers appears to be the only reported decision applying NEPA to an action having no discernible nexus with the natural environment. Nevertheless, a similar sensitivity to the special status of human health effects is evident in the opinion of the district court in Southern Oregon Citizens Against Toxic Sprays v. Watt:

Any potential harmful effect upon human health caused by herbicide spraying must be considered a significant adverse effect on the human environment.¹⁷

There the district court enjoined the aerial spraying of herbicides in a national forest because the Forest Service had failed to examine the health risks posed by the herbicides within an impact statement.

Indeed, herbicide spraying programs have engendered a large portion of the litigation in this area. In at least four additional instances district courts have enjoined such activities pending the preparation of an EIS.¹⁸

NEPA's requirements were stretched to new limits in a 1982 decision by the Southern District of New York. In City of New York v. Department of Transportation¹⁹ the city had challenged federal rules governing the shipment of irradiated ("spent") nuclear reactor fuel. The effect of the rules would be to preempt local spent fuel transit restrictions and thereby to permit such shipments through areas, such as New York City, where they had been previously prohibited. The department prepared only an environmental assessment, claiming that the environmental impact of the rules would be insignificant. The court found otherwise. Because the new rules would not only [13 ELR 10182] expose those living near the shipping routes to a risk of injury from transportation accidents but also increase the public's fear of such accidents, they created significant adverse environmental effects. The court dismissed as irrelevant defendants' claim that because spent fuel shipments are reasonably safe, any anxiety induced among the public was unjustified.

[E]ven if public fear were based purely on faith (or the lack of it), fear has real consequences, which are costs that must be analyzed and included in determining whether the proposed action will have a significant impact on the environment.²⁰

In cases where impact statements have been alleged to provide insufficient analysis of the health risks allegedly resulting from the agency action at issue, a common outcome is for the court to reject the plaintiffs' claims broadly. Typically the court will mention health risks as one of a number of topics that were discussed in the EIS, thereby endorsing the manner in which it was treated.²¹ But in Chelsea Neighborhood Association v. United States Postal Service²² the Second Circuit invalidated the EIS for a proposal to construct a housing complex atop an eight-story garage. The court, noting that an EIS must evaluate "human factors," faulted the EIS for failing to assess how a building of this kind might cause adverse psychological effects ("emotional … isolation") among its residents.²³

Citizens Against Toxic Sprays v. Bergland²⁴ stands out as probably the strongest statement of the need to give full consideration to human health impacts within EISs. At issue was the validity of an impact statement concerning a Forest Service plan to spray several types of herbicides on brush vegetation. According to the EIS such spraying programs had not harmed humans in the past. But according to plaintiffs, in proof accepted by the court, these herbicides, some of which contained dioxin, created substantial risks to the health of those who might come into contact with the chemicals. Since the EIS contained no discussion of the substantial controvery within the scientific community over the health risks posed by many herbicides, the court declared the EIS inadequate and enjoined the spraying pending its revision. According to the court,

[n]o subject to be covered by an EIS can be more important than the potential effects of a proposed federal program upon the health of human beings.²⁵

The "Socioeconomic Effects" Cases

More common than NEPA cases involving human health risks are those in which it is alleged that a proposed federal action will have deleterious effects on social or economic conditions, such as crime rates, local levels of unemployment, and the like. Such effects may flow, for example, from the construction of a prison in an urban area or the closure of a military base. The "socioeconomic effects" cases resemble the "health effects" cases in that (1) both involve effects on people in the absence of or in addition to effects on the natural environment, and (2) because NEPA's applicability to such effects is made quite clear by the Act and its legislative history.

The many references in NEPA and its legislative history to "man's" social and economic welfare provide overwhelming evidence that Congress intended federal agencies to take account of their impacts on these conditions. Section 101(a) directs the agencies to "fulfill the social, economic, and other requirements of … Americans."²⁶ The legislative history decries the human toll of environmental degradation.²⁷ More directly, the Act itself requires the agencies to

utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment.²⁸

It is not surprising, therefore, that the courts have held, with apparent unanimity, that impact statements must give full treatment to social and economic effects.²⁹

Nevertheless, the rule that has emerged from the socioeconomics effects cases is that social and economic effects need not be taken into account by an agency when determining whether the impacts of a proposed action are sufficiently significant to trigger NEPA's EIS requirement. In other words, if the primary effects of an action are solely upon social and economic conditions, an EIS is not required.³⁰ Some courts, without explanation, have stretched this rule to hold that an EIS is required only where an action will affect the natural or physical environment.³¹ But the NEPA regulations promulgated by [13 ELR 10183] the Council on Environmental Quality (CEQ) demonstrate that the "socioeconomic effects" exception from the Act's EIS requirement is a narrow one, and that EISs must be prepared on actions which affect people in other ways.³²

This includes health risks. None of the cases discussed above are true "health" cases, and it appears that no court has even suggested that the "socioeconomic effects" rule is even arguably applicable to health effects. Indeed, in Hanly v. Kleindienst,³³ the Second Circuit stated that while the socioeconomic effects of a proposed jail did not trigger NEPA's EIS requirement, if the agency were to adopt an alternative proposal involving the establishment of an outpatient drug treatment center, the threat to the health and safety of local residents from the predictable increase in street crime would be cognizable for purposes of the threshold EIS determination and would be sufficient, in and of itself, to render the environmental effects of the action "significant" and trigger the EIS requirement.³⁴ This dictum notwithstanding, there can be no justification for assigning second-class status to health impacts. To do so would be to repudiate Congress' special concern with the human health effects of environmental degradation.

Agency Practices

The fact that litigation arises over NEPA's application to health effects should not be seen to suggest that agencies have generally sought to shirk their obligation to weigh health effects fully. True, a declaratory judgment was needed to persuade the Food and Drug Administration to attach full weight to environmental considerations when carrying out its regulatory functions.³⁵ Yet for the most part the agencies have prepared impact statements on actions with potentially significant impacts upon human health.³⁶

In addition, the NEPA regulations promulgated by CEQ³⁷ confirm that health impacts fall within the purview of the Act. In particular, the regulations specify that the term "environmental effects" includes "aesthetic, historic, cultural, economic, social, or health [effects], whether direct, indirect, or cumulative,."³⁸ The term "human environment" has also been interpreted by the Council to encompass the effects of federal actions on people. The regulations provide that the term must be "interpreted comprehensively to include … the relationship of people with [the natural environment],"³⁹ and the Council has explained that this means all effects other than socioeconomic effects.⁴⁰

Metropolitan Edison Co. v. People Against Nuclear Energy

When the No. 2 reactor at Three Mile Island self-destructed in March of 1979, Unit No. 1 was, by coincidence, out of service for routine refueling. The Nuclear Regulatory Commission (NRC) ordered the plant's owner, Metorpolitan Edison, to maintain Unit 1 in a "safe shutdown" condition until a hearing could be held on whether the reactor could be restarted and operated safety.⁴¹ An organization of local residents, People Against Nuclear Energy (PANE), intervened in the proceeding. It contended, among other things, that as a result of the accident its members had suffered severe psychological trauma. These mental health effects were accompanied by physical manifestations, such as skin rashes, aggravated ulcers, and skeletal and muscular problems. PANE contended further that the restart of Unit 1 would rekindle the trauma that was suffered in the aftermath of the 1979 accident. Thus, the claim was not that PANE's members would harbor the same fears of catastrophe that might be felt by the neighbors of any nuclear plant. Instead, they claimed that they had been sensitized by the Unit 2 accident, and thus would be retraumatized merely by the restart of Unit 1, quite asidefrom the propensity of the plant to suffer near meltdowns. Psychological distress of this nature, they claimed, was well documented in the medical literature as a syndrome [13 ELR 10184] which arises commonly in the wake of disasters. Moreover, they argued, as a human health effect arising from an environmentally significant major federal action, it must be evaluated by the NRC in an EIS prepared for the restart.

The NRC licensing board presiding over the proceeding, realizing that this was a difficult and important legal question, referred the matter to the full Commission for decision.⁴² The board, however, recommended that the Commission vote to entertain the contention, adding that dealing with the psychological evidence proferred by PANE would present few substantive or procedural difficulties. The Commission, on the other hand, undoubtedly concerned less with the manageability of the proceeding than with the implications of taking a step of this kind, ordered the board to dismiss PANE's contention.⁴³ The Commission's rationale is difficult to characterize because each of the four members of the Commission (at the time there was a vacancy) issued a separate opinion.⁴⁴

On review, the D.C. Circuit remanded.⁴⁵ In the court's view the simple issue presented was whether NEPA applies to psychological health injuries. The simple answer was yes. Health threats are health threats, according to Judge Wright, regardless of whether they involve mental health or physical health. And since the Act applies to health effects, it applies to the same extent to mental health effects. Yet the court was not unaware of the potential implications of such a ruling, and went to some lengths to emphasize that this case, like the accident at Three Mile Island, is unique in history. Further, since the injuries allegedly suffered by PANE's members constituted "post-traumatic anxieties, accompanied by physical effects,"⁴⁶ the court's ruling could not be extrapolated to cases involving less serious kinds of mental health injuries.

Justice Rehnquist, writing for a unanimous Supreme Court, described the D.C. Circuit's reasoning as appealing, but only at first glance. The lower court's misstep, he explained, was in failing to consider the relationship between the psychological health effects allegedly suffered by PANE's members and the change in the physical environment induced by the restart of Unit 1. This and any other attempt to discern the scope of NEPA's requirements must begin, according to Justice Rehnquist, by keying on an effect on the physical environment. The reason is that Congress did not intend NEPA to apply to every adverse influence on mankind, nor even every adverse effect on human health. Rather, Congress' primary concern was with the degradation of the physical environment, and the effects that flow therefrom.In this case, however, PANE's psychological health contentions were not based on a change in the physical environment.Instead, the Court observed, its members' psychological health problems were triggered by a risk of an accident at the plant. And since the risk of an accident does not represent an actual environmental effect, the effects that it may induce in people are not cognizable under NEPA.

Justice Rehnquist explained, moreover, that there was yet another reason why PANE's claims must fail. In order for a particular environmental effect to fall within NEPA's ambit, there must be "a reasonably close causal relationship between a change in the physical environment and the environmental effect at issue."⁴⁷ This requirement of a "reasonably close" causal relationship, Justice Rehnquist explained, is analogous to the tort law concept of promixate cause. And under the circumstances presented, the connection between the psychological health injuries sustained by PANE's members and the Unit 1 restart were deemed not proximate.

Justice Rehnquist delineated a causal chain consisting of

(1) the NRC's licensing of the restart;

(2) the risk of an accident at the plant;

(3) the perception of that risk by PANE's members; and

(4) the health effects ultimately caused by that perception.

It was item number 3 that rendered this causal chain too tenuous to support the continued application of NEPA. Risk, Justice Rehnquist pointed out, "is a pervasive element of modern life…." People shoulder risks in varying ways, depending on a host of factors that are simply beyond the analytical capabilities of federal agencies. The fact that some people have an extreme reaction to the risk of living near a nuclear power plant is not enough to trigger the NEPA responsibilities of federal agencies. Moreover,

[i]t would be extraordinarily difficult for agencies to differentiate between "genuine" claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy.⁴⁸

Without denying that some of PANE's members may manifest symptoms of illness as a result of the licensing of the restart of Unit 1, the Court concluded that "[t]ime and resources are simply too limited for us to believe that Congress intended [federal agencies to delve into this area under NEPA]."⁴⁹

Analysis

The opinion of the Supreme Court in Metropolitan Edison is, like many of its recent NEPA decisions, essentially a quick and dirty resolution of the dispute that leaves a number of loose ends. Yet if the issuance of less-than-fully-thought-out opinions can be tolerated, it can be tolerated in this kind of case, where the Court is not laying down broad rules of social conduct, but simply applying a specific statute to a unique (and undoubtedly never to be repeated) set of facts. Prior to Metropolitan Edison we had seen few, if any, true "mental health" cases in the 13 years since NEPA's enactment, and there is no reason to think thatin the future such cases should [13 ELR 10185] normally arise with any greater frequency. This was, at least to the Court, a relatively unimportant case.

One of the most important aspects of the ruling is that the Court did not, as some observers had worried that it might, declare NEPA's scope to encompass the natural environment and therefore to exclude humans. The remark that "all parties agree"⁵⁰ that NEPA can apply to human health effects leaves the Court some wiggle room to reach a different decision in the future, but the opinion as a whole as well as Justice Brennan's concurring opinion make it clear that the Court does not harbor a narrow view of the reach of the Act. Further, Metropolitan Edison makes it just as clear that psychological stress and probably a wide range of other human ills are encompassed within the concept of health.

Metropolitan Edison teaches that the starting point for identifying those health effects that may be attributed to a particular federal action is to identify the action's direct effects on the "physical environment." In the case of the Three Mile Island Unit 1 restart these effects include discharges of low-level radiaiton, fogging as a result of cooling tower operation, and the like. From there one must trace the human impacts that will result from those impacts. For example, the cancers and deaths that will probably be caused by the radiation discharges over the next several decades must be taken into account fully. However, although the Court acknowledged that the risk of a major accident at the plant is also an "effect" of its operation, it declared this risk not to be an effect on the physical environment. Indeed, according to Justice Rehnquist, "[a] risk is, by definition, unrealized in the physical world."⁵¹ Therefore, human reactions that stem exclusively from this risk are not encompassed by NEPA.

In a footnote Justice Rehnquist pointed out that this does not mean that an agency need not analyze either the risk of a catastrophe or the consequences of a catastrophe.⁵² Apparently the Court has no quarrel with the existing rule requiring agencies to analyze high consequence/low probability events such as oil tanker collisions, spent fuel handling accidents, etc. The difference between those cases and Metropolitan Edison, according to the Court, is that here the neighbors of Three Mile Island are reacting to risk rather than radiation.⁵³ Thus, agencies must analyze the radiation hazards associated with reactor accidents, even if the probability of such an event is low. But they need not consider the public's reaction to that risk, even if it is certain that such a reaction will occur.

What is both interesting and troublesome about the Court's analytical approach is that it is based on a distinction between environmental impacts on one hand and human health effects on the other. According to the Court, though health effects may be caused by changes in the physical environment, they apparently do not constitute environmental effects themselves. But if human health effects are not environmental impacts, what are they? NEPA requires consideration of environmental impacts only, and if human health effects fall outside this category an argument can be made that they need not be evaluated at all. And is it helpful to describe radioactive effluents and cooling tower plumes as environmental effects? Aren't they best thought of as agents, and thus an extension of the action itself, which in turn induce environmental effects, such as cancer, reduced visibility, etc.? The alternative, it seems, is bound to cloud the determination of NEPA's applicability in many cases, particularly where it is a change in human conditions which ultimately causes an environmental change.⁵⁴

The Court also offered a separate ground for rejecting PANE's psychological stress contention: in its view the alleged mental health effects were not "proximately caused" by the restart of Unit 1. In other words, the causal chain connecting the restart — to the risk of an accident, to PANE's members' perception of that risk, and, finally, to their health effects — was too attenuated. NEPA, the Court held, requires a "reasonably" close connection between an action and those of its effects which must be analyzed. While this requirement is analogous to the tort law concept of proximate cause, the Court was careful to add that it was not calling for the wholesale incorporation of tort rules into the law under NEPA, and that in any given case the question of proximate cause should be resolved by reference to the policies and underlying goals of NEPA.

The Court's use of a proximate cause standard for weeding out the effects of an action that are beyond NEPA's reach is an eminently sound idea. So sound, in fact, that it has been put to heavy use by the courts for roughly the last ten years. The rule referred to is that which relieves agencies from the obligation of addressing, within impact statements, any effects of the proposed action which are "remote."⁵⁵ Though the Court did not refer to these authorities, its decision reflects the same thinking: at some point a line must be drawn which removes from the NEPA analysis, and presumably the decisionmaking process, those effects which are so removed that they should have no real bearing on the decision as to whether and how to proceed with the project at hand.

As to whether the psychological health effects allegedly caused by the Unit 1 are too "remote," or not "proximate," this is a close call over which reasonable people might disagree. Most would agree, on the other hand, [13 ELR 10186] with the outcome of the hypothetical posed by Justice Rehnquist concerning the psychological effects suffered by residents of other parts of the country who worry about those living near Three Mile Island. In short, there is a range of cases in which the answer to the proximate cause question is clear, and a range in which the answer provided by a court must be respected even if one disagrees with it.

It's worth pointing out, however, that in Metropolitan Edison a straightforward application of this proximate cause standard would have been sufficient to dispose of the matter. But the Court went further, to add that since the alleged health effects had been caused by a perception of risk they had not been "caused by an environmental impact" and thus were outside NEPA's scope. This was an overcomplicated approach to a fairly simple problem. Hopefully, the stray dicta generated in the process will not create problems in the future.⁵⁶

Granted, there is a need for a rationale for excluding from NEPA's scope a wide range of federal actions that affect human health, such as Medicare cutbacks. The Metropolitan Edison formula, under which one must examine the health effects of an action to determine whether they are environmentally caused, would presumably excuse a NEPA analysis of the health effects of Medicare cutbacks because they are "caused" by a financial shortfall rather than environmental changes. This formula may therefore achieve the objective of excluding from NEPA's scope many cases which are not "environmental." Nevertheless, it is plagued by significant problems. One, as pointed out above, is that it may often be difficult to distinguish "causes" from "effects." Another is demonstrated by Metropolitan Edison, in which we have numerous courts and parties drawing hairline distinctions between those of Three Mile Island's health effects which are environmentally caused and those which aren't. This kind of hairsplitting will inevitably prove arbitrary, unproductive, and inconsistent with the spirit of NEPA. While it seems fair to speculate that Congress could not have wished EISs to be prepared on Medicare cutbacks, it requires a considerable stretch of the imagination to speculate that Congress, given its known concerns with the human health effects of nuclear power plants, intended certain categories of health effects to be analyzed under NEPA and others to be ignored.

A preferable approach is to exclude from NEPA's scope those actions which do not have a significant effect on the physical (i.e., nonhuman) environment. To put it differently, human health effects may be disregarded when making the threshold determination of whether a proposed federal action necessitates the preparation of an EIS. But when an action meets this test, the impact statement must contain a full discussion of the human health effects likely to result, even if they stem from an allegedly nonenvironmental factor, such as a risk of reactor melt-downs. This standard, which is borrowed from the "socioeconomic effects" cases discussed above, clearly excludes federal actions such as Medicare cutbacks or drug approvals. At the same time, it would encompass the licensing (or relicensing) of nuclear power plants, and require a complete analysis of all of their human health costs.

Two caveats. First, the "remote impacts" rule is a good one which, when applied to health effects, obviates some of the more extreme scenarios that one might imagine involving the extended, indirect, human impacts of federal projects. This rule, for example, would excuse analysis of the mental state of those who worry about Three Mile Island's neighbors from a distance. Second, psychological health issues are likely to present evidentiary and other difficulties that may not be presented by the more typical kinds of health issues, such as those surrounding radiation exposure.⁵⁷ Accordingly, it is important that politically-grounded opposition to a project, even though intense, not be confused with normal, medically-diagnosable, reactions to projects. If kept on a scientific plane, psychological health issues should be no less susceptible to rational evaluation than the wide range of complex environmental questions that typically surround major federal projects.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

2. 51 U.S.L.W. 4371, 13 ELR 20515 (Apr. 19, 1983).

3. See Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676; Water Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91.

4. NEPA § 2, 42 U.S.C. § 4321, ELR STAT. 41009 (1976) (emphasis added).

5. NEPA § 101, 42 U.S.C. § 4331, ELR STAT. 41009 (1976) (emphasis added).

6. 42 U.S.C. § 4331(c), ELR STAT. 41009 (emphasis added).

7. CONGRESSIONAL WHITE PAPER ON A NATIONAL POLICY FOR THE ENVIRONMENT, 90TH CONG., 2D SESS. (Comm. Print 1968). The genesis and nature of the White Paper are described at 115 CONG. REC. 29068 col. 2 (1969).

8. 115 CONG. REC. 29070 col. 1 (1969).

9. Id.

10. Id. at 29071 col. 1.

11. 91st Cong., 1st Sess. (1969).

12. see S. REP. No. 91-296, 91st Cong., 1st Sess. (1969), reprinted at 115 CONG. REC. 19009 col. 2 (1969) (noting obligation of Council on Environmental Quality to "relate each area of study and analysis to the conservation, social, economic, and health goals of the Nation") (emphasis added); id., 115 CONG. REC. at 19010 col. 1 (1969) (1969) (calling for "new means and procedures" and coordinated governmental actions "to create and maintain a balanced and healthful environment.") (emphasis added). See also the comments offered by the Department of Health, Education, and Welfare on the House bill from which much of the final statutory language was drawn:

We strongly support an appropriate mechanism for development of a coordinated national policy on environmental quality. This Department conducts many programs concerned with the environment. These programs almost exclusively concern the effects of environmental stress on human health and welfare. Included in these programs are activities concerned with the effect of environmental forces on man in his home, in the community, and in the workplace, and the environment as it relates to products used by man and their effect on him.

1969 U.S. CODE CONG. & ADMIN. NEWS 2762.

13. Among the many references in the legislative history to mental health effects is the second sentence uttered by Senator Jackson upon introducing the bill from which NEPA was ultimately forged:

The purpose of this legislation is to lay the framework for a continuing program of research and study which will insure that present and future generations of Americans will be able to live in and enjoy an environment free of hazards to mental and physical well-being.

115 CONG. REC. 3698 col. 3 (1969) (emphasis added). See also the "Congressional White Paper," note 7, supra, expressing concern over the "psychophysical stress" and "psychological discomfort" caused by environmental pollution. 115 CONG. REC. 29070 col. 1, col. 3 (1969). Accord, 115 CONG. REC. 19010 col. 1 (1969) (conference committee report).

14. 115 CONG. REC. 19009 col. 3 (1969).

15. 484 F. Supp. 540 (S.D. Iowa), rev'd on other grounds, 631 F.2d 1353 (8th Cir. 1980) (determining that the effects of the rule had been examined sufficiently under NEPA).

16. Id. at 533 (citation omitted).

17. 13 ELR 20174, 20175 (D. Or. 1982).

18. Alaska Survival v. Weeks, 12 ELR 20949 (D. Alaska 1982); National Organization for the Reform of Marijuana Laws v. Department of State, 452 F. Supp. 1226, 8 ELR 20572 (D.D.C. 1978); Wisconsin v. Butz, 389 F. Supp. 1065, 3 ELR 20240 (E.D. Wis. 1975); Lee v. Resor, 348 F. Supp. 389, 2 ELR 20665 (M.D. Fla. 1972).

19. 539 F. Supp. 1237, 12 ELR 20864 (S.D.N.Y. 1982).

20. Id. at 1274, 12 ELR at 20882.

21. See, e.g., Manygoats v. Kleppe, 558 F.2d 556, 7 ELR 20576 (10th Cir. 1977) (upholding discussion of human exposure to gasses in EIS on uranium mining); Natural Resources Defense Council v. Tennessee Valley Authority, 367 F. Supp. 128, 3 ELR 20725 (E.D. Tenn. 1973) (health effects of strip mining), aff'd per curiam, 502 F.2d 852, 4 ELR 20737 (6th Cir. 1974).

22. 516 F.2d 378, 5 ELR 20373 (2d Cir. 1975).

23. Id. at 388, 5 ELR at 20378.

24. 428 F. Supp. 908, 7 ELR 20325 (D. Or. 1977).

25. Id. at 927, 7 ELR at 20333.

26. 42 U.S.C. § 4331(a), ELR STAT. 41009.

27. See, e.g., 115 CONG. REC. 29074 cols. 2-3 (1969) ("Congressional White Paper," note 7, supra); 115 CONG. REC. 40420 col. 1 (1969) (conference report).

28. NEPA § 102(2)(A), 42 U.S.C. § 4332(2)(A), ELR STAT. 41010.

29. See, e.g., Breckinridge v. Rumsfeld, 537 F.2d 864, 6 ELR 20597 (6th Cir. 1976), cert. denied, 426 U.S. 1061 (1977); Sierra Club v. Froehlke, 359 F. Supp. 1289, 3 ELR 20248 (S.D. Tex. 1973), remanded on other grounds sub nom. Sierra Club v. Callaway, 499 F.2d 982, 4 ELR 20731 (5th Cir. 1974).

30. See 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), cert. denied, 426 U.S. 1061 (1977); Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225, 5 ELR 20698 (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976); Maryland-National Capital Park and Planning Comm'n v. United States Postal Serv., 487 F.2d 1929, 3 ELR 20702 (D.C. 1973); First National Bank of Chicago v. Richardson, 484 F.2d 1369, 3 ELR 20771 (7th Cir. 1973); Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973); Monarch Chemical Works, Inc. v. Exon, 466 F. Supp. 639, 9 ELR 20478 (D. Neb.), aff'd sub nom. Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 9 ELR 20697 (8th Cir. 1979); Trinity Episcopal School Corp. v. Romney, 387 F. Supp. 1044 (S.D.N.Y. 1974). See also Como-Falcon Community Coalition, Inc. v. Department of Labor, 465 F. Supp. 850, 9 ELR 20383 (D. Minn. 1978), aff'd, 609 F.2d 342, 9 ELR 20755 (8th Cir. 1979), cert. denied, 446 U.S. 936 (1980).

31. See, e.g., Goodman Group v. Dishroom, 679 F.2d 182, 12 ELR 21069 (9th Cir. 1982); Citizens Committee Against Interstate 675 v. Lewis, 542 F. Supp. 496, 13 ELR 20367 (S.D. Ohio 1982).

32. See 40 C.F.R. § 1508.14, ELR REG. 46003 (1982). See also the discussion of CEQ's rules, infra, at notes 37-40 and accompanying text.

33. 471 F.2d 823, 3 ELR 20717 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

34. Id. at 834 n.15, 2 ELR 20722 n.15.

35. See Environmental Defense Fund v. Matthews, 410 F. Supp. 336, 6 ELR 20369 (D.D.C. 1976) (voiding regulations permitting FDA decisionmakers to disregard NEPA-mandated considerations under certain circumstances).

36. See, e.g., NUCLEAR REGULATORY COMMISSION, ROUTINE USE OF PLUTONIUM-POWERED CARDIAC PACEMAKERS, NUREG-0060, EIS NO. 76-1105F (1976) (analyzing health (including "psychological") benefits, health costs, and economic costs of cleanup in case of accidental rupture). See also, e.g., FOOD AND DRUG ADMINISTRATION, FLUOROCARBONS: ENVIRONMENTAL AND HEALTH IMPLICATIONS, EIS NO. 78-0268F (1978); NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, PROPOSED RULEMAKING CONCERNING MOTOR VEHICLE OCCUPANT CRASH PROTECTION, EIS NO. 77-0984F (1977); OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, STANDARD FOR OCCUPATIONAL EXPOSURE TO INORGANIC ARSENIC, EIS NO. 77-0351F (1977).

37. CEQ's regulations have been declared by the Supreme Court to be entitled to "substantial deference" by the lower courts. Andrus v. Sierra Club, 442 U.S. 347, 357-58, 9 ELR 20390, 20393 (1979).

38. 40 C.F.R. § 1508.8(b), ELR REG. 46032 (1982).

39. 40 C.F.R. § 1508.14, ELR REG. 46033 (1982).

40. When CEQ first proposed for public comment a regulatory interpretation of the term "human environment," it respected the rule articulated by the "socioeconomic effects" cases, i.e., that social and economic effects may be disregarded when determining whether the effects of a proposed action are "significant." See 43 Fed. Reg. 55988 (1978). This prompted expressions of concern by those who thought that the proposed rule might widen the "socio-economics effects" loophole too much. According to the Chamber of Commerce of the United States:

One of our foremost concerns deals with your definition of the "human environment." CEQ continues to define "human environment" in a manner which equates that term with the "physical environment." Unless the cultural and socioeconomic aspects of any proposed project are given equal weight with the physical and "environmental" impacts, the regulations, in our view, will fail to comport with the requirements of NEPA.

Letter from G. D. Knight, Director, Environment and Land Policy, Chamber of Commerce of the United States, to N. Yost, General Counsel, CEQ, August 16, 1978 (on file with CEQ). CEQ's response was that

[t]his was not the Council's intentions. The full scope of the environment is set out in Section 101 of NEPA. Human beings are central to that concept.

43 Fed. Reg. 55988 (1978) (preamble to final regulations).

41. The early history of the continuing procedural tangle surrounding the Unit 1 restart is discussed in Sholly v. NRC, 651 F.2d 780, 11 ELR 20329 (D.C. Cir. 1981).

42. In the Matter of Metropolitan Edison Co., 11 N.R.C. 297 (1980).

43. 14 N.R.C. 593 (1981).

44. Though the Commission vote on the matter was a 2-2 tie, the effect of that vote under NRC rules was to reverse the licensing board's decision.

45. People Against Nuclear Energy v. NRC, 678 F.2d 222, 12 ELR 20546 (D.C. Cir. 1982). See generally Comment, Weighing Human Impacts Under NEPA: NRC to Study Psychological Fallout of Three Mile Island, 12 ELR 10065 (1982).

46. 678 F.2d at 200, 12 ELR at 20550.

47. Metropolitan Edison Co. v. People Against Nuclear Energy, 13 ELR 20515, 20517 (Apr. 19, 1983).

48. 13 ELR at 20518.

49. Id.

50. 13 ELR at 20517.

51. 13 ELR 20518.

52. 13 ELR at 20518 n.9.

53. This is one point at which the Court demonstrated that it either disregarded or disbelieved PANE's assertion that, at least for the purposes of this litigation, it was not at all concerned with the risk of an accident at the plant. PANE's claim was that its members had been psychologically traumatized by the 1979 accident, and that merely resuming the generation of fission power at the plant would resurrect the anguish, with its associated physical manifestations, from which they were still in the process of recovering.

See also 13 ELR at 20518 n.12, at which the Courtacknowledges that PANE's contentions seem to be concerned with the symbolic significance of the restart, but dismisses them as politically motivated.

54. See, e.g., McDowell v. Schlesinger, 404 F. Supp. 221, 6 ELR 20224 (W.D. Mo. 1975) (relocation of military division alleged to over-burden sewage treatment and solid waste handling systems of recipient municipality, thus polluting the physical environment). See also Marquez-Colon v. Reagan, 668 F.2d 611, 12 ELR 20286 (1st Cir. 1981) (immigration camps alleged to present same problems.)

55. See, e.g., Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d 1206, 5 ELR 20151 (9th Cir. 1974); Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers, 505 F. Supp. 732, 11 ELR 20189 (D. Md. 1980); American Petroleum Institute v. Krecht, 456 F. Supp. 889, 8 ELR 20853 (C.D. Cal. 1978).

56. The dictum which seems to have the greatest potential for creating trouble in the future can be found at 12 ELR at 20518, at which Justice Rehnquist noted that Metropolitan Edison "bears strong resemblance" to certain of the "socioeconomic effects" cases. This is only true if one accepts the hypothetical, postulated by the Justice in the next sentence, that the plaintiffs in those cases had alleged that they would suffer psychological health injuries as a result of the proposed federal action. The fact is, however, that in those cases the issue was the threat to the plaintiffs' physical health as a result of their exposure to increased levels of crime, not their psychological reaction to that threat.

57. But cf. Comment, Workmen's Compensation Awards for Psychoneurotic Reactions, 70 YALE L.J. 1129, 1137 (1961) (mental health injuries are more difficult to feign than physical injuries).