Vermont Yankee: Supreme Court Sets New Limits on Judicial Review of Agency Rule Making

In an opinion of widely disputed but potentially substantial impact on the law governing judicial review of administrative decision making, the United States Supreme Court on April 3 reversed two opinions of the Court of Appeals for the District of Columbia Circuit which had remanded to the Nuclear Regulatory Commission (NRC) separate decisions to license two nuclear power plants. Amid stern criticism of the appeals court for overzealous activism amounting to "judicial intervention run riot," the High Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council¹ unanimously held that where parties to the NRC's licensing proceedings have been afforded the minimum procedural privileges guaranteed by § 553 of the Administrative Procedure Act (APA),² reviewing courts must find those procedures adequate in the absence of "extremely compelling circumstances."³ The effect of this ruling is to call into question the D.C. Circuit's long-standing practice of requiring agencies to augment basic notice and comment rule making with more sophisticated procedural devices, such as cross-examination and discovery, to form what is known as "hybrid" rule making.⁴

The decision also marks the Supreme Court's first notable venture into agency consideration of alternatives under the National Environmental Policy Act (NEPA).⁵ In upholding the Commission's decision not to analyze energy conservation measures as an alternative to the construction of two nuclear reactors, the opinion essentially retraces existing standards as to federal agencies' affirmative duty to consider project alternatives proposed by an outside party.

Instead of resolving the issues by narrowly delineating the nature of the duties imposed by NEPA and the APA, the Court simply certified the agency's compliance in each case, thereby leaving room for wide speculation as to the application of the rulings in subsequent cases. The Natural Resources Defense Council and other environmental groups, though initially somewhat stunned by the broad terms in which their defeat had been cast, subsequently released statements downplaying the adverse impact of the ruling or endorsing the result as a virtual victory for opponents of nuclear development. This view seems overly optimistic. The decision can also be seen as a directive to the federal courts to approach with greater deference the NRC licensing process and perhaps other federal activities affecting the environment as well.

NRDC v. NRC

In Natural Resources Defense Council v. Nuclear Regulatory Commission, the principal question before the Court was the procedural adequacy of the rule making conducted by the Commission to determine the environmental effects of the "back end" of the uranium fuel cycle.⁶ These effects had previously been raised in adjudicatory proceedings in connection with petitioner Vermont Yankee's application for an operating license for a proposed nuclear reactor. In that arena, intervenors had urged that the license not be issued until a full study had been made of the hazards of the fuel cycle. In affirming the issuance of the operating license,⁷ the Atomic Safety and Licensing Appeal Board upheld the exclusion of these issues from the proceedings below, finding such considerations speculative and better suited for analysis within generic rule makings. Five months later the Commission instituted legislative-type rule-making proceedings to address this issue.⁸ The end product was a rule which endeavored to quantify the fuel cycle's environmental effects by means of numerical values to be inserted within the "cost" side of the cost/benefit equations computed for every proposed facility.⁹

Intervenors appealed both the rule and the issuance of the license on numerous grounds, including the denial of adequate procedures in the rule making. The appeals court struck down the fule cycle rule and in the absence of an adequate explication of the environmental and [8 ELR 10104] health hazards, remanded the operating license as well. Unfortunately, Judge Bazelon's opinion fell far short of his usual standard of clarity. The devotion of several pages to a detailed criticism of the sufficiency of the factual bases of the agency's conclusion would seem to indicate that the rule was remanded because of deficiencies in the record. On the other hand, the authority relied on, Judge Tamm's concurring opinion, and other scattered statements strongly suggest that the remand was for a procedural remedy: "It may be that no combination of the procedures mentioned above will prove adequate, and the agency will be required to develop new procedures…."¹⁰ Moreover, despite the court's obfuscation in addressing the source of the error below, it failed to indicate clearly to the NRC how to comply with its order, stating that on remand "the procedures the agency adopted in this case, if administered in a more sensitive, deliberate manner might suffice."¹¹

This result follows a trend which has evolved over the past several years, in which the court has invalidated agency rules for inadequacies in rule-making proceedings even though such proceedings clearly satisfied the notice and comment requirements of § 553 of the APA.

The court has not attempted to justify this practice either under the Constitution¹² or on language within a relevant statute requiring adjudicatory proceedings under §§ 556 and 557.¹³ Instead, it has relied either on a stray adjective in the statutory language suggesting that a more thorough hearing was contemplated,¹⁴ or has determined that "basic considerations of fairness" required a more complete discourse on questions of great importance or technical complexity.¹⁵ This trend has been cited by commentators with virtually unanimous approval¹⁶ and was apparently not challenged in principle by the government in its brief to the appellate court.¹⁷

On review, the threshold question faced by the Supreme Court was the identification of the appellate court's rationale, a task understandably characterized by Justice Rehnquist as "no mean feat."¹⁸ Framing the lower court's decision as a remand for inadequate procedures, the Court concluded that the decision was "wrong" for violating the maxim that administrative agencies should generally be left "free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties."¹⁹ This holding is based on the notion that when dealing with issues falling within their jurisdictions, agencies are more adept than courts at selecting the proper mix of procedural devices with which to elicit a full range of factual and rebuttal data while eliminating those procedures, such as discovery against nonfederal parties, which may unjustifiably delay the issuance of a rule.²⁰ Another concern is that if administrative hearings are subject to review against an indeterminate standard of procedural thoroughness, adjudicatory measures would be followed as a matter of course.²¹

Thus, to the extent that the court of appeals remanded with instructions to add further procedural overlays, that ruling was clearly reversed. However, while Justice Rehnquist's expansive opinion might on first reading be interpreted to signal a crashing halt to what Judge Wright has termed the D.C. Circuit's "ad hoc approach"²² to administrative procedure, a close comparison of the two opinions reveals that the Justice may have been mixing [8 ELR 10105] apples and oranges. In NRDC v. NRC, Judge Bazelon was fully cognizant of the High Court's past admonitions against judicial intervention into the selection of administrative procedural format. Indeed, the opinion refers to and quotes extensively from Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp.,²³ stating:

Unless there are statutory directives to the contrary, an agency has discretion to select procedures which it deems best to compile a record illuminating the issues….²⁴

But Judge Bazelon then went on:

What a reviewing court can do, however, is to scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided, and that the agency has taken a good, hard look at the major questions before it….²⁵

The court of appeals thus found itself in a not unfamiliar bind. It was confronted on one hand by the mandate of Transcontinental and its predecessors to refrain from dictating rigid procedures to an agency, yet it was supported by a substantial body of scholarly and decisional authority, none of which had been reviewed by the Supreme Court, in its view that an issue of the technical complexity and environmental urgency of the uranium fuel cycle rule should be predicated on more than summary proceedings. Its reference to a more "sensitive and deliberate" application of procedural devices is clearly an attempt to walk the fine line between the two concepts.

Mr. Justice Rehnquist's opinion, on the other hand, appears to tread back and forth between the two by ignoring this distinction. It may be, however, that the Supreme Court in fact intended to erase the distinction, as there are strong indications within the opinion that the Court believed the appellate court erred simply in holding the rule-making procedures inadequate.²⁶ If this is so, it hails a regrettably ignominious demise for a doctrine which offers great potential for encouraging flexibility and integrity in the administrative process in general²⁷ and the nuclear licensing context in particular.²⁸

Limitations on the ability of the judiciary to impose added procedural obligations on the agencies are no doubt viewed by some as necessary streamlining, resulting in little loss of salutary effect. Judge Friendly has argued as a corollary that intricate semantic distinctions over the proper standard of judicial review are largely useless, because the courts have always and will continue to compare agency rule making against a basic standard of "reasonableness."²⁹ Even the learned Judge would admit, however, that as the issues in environmental regulation become increasingly technical, they strain the capability of judges to afford substantive review of agency decisions. Thus, it becomes correspondingly more important that the judiciary be given rein to assure, by requiring the use of carefully tailored trial-type procedures, that agency regulations are at least promulgated only after intensive debate and detailed analysis. The danger of the Vermont Yankee opinion is that it may be read to deprive the courts of valuable methods of keeping pace with the advancing sophistication of the administrative agencies.

Consumers Power

The second portion of the opinion in Vermont Yankee reviews the judgment of the D.C. Circuit in Aeschliman v. Nuclear Regulatory Commission, reversing the agency's granting of construction permits for two reactors to be built in Michigan by the Consumers Power Co.³⁰ At adjudicatory hearings held in mid-1972 to consider applications for these permits, intervenors challenged the agency's environmental impact statement (EIS) for failure, in its section on alternatives, to consider implementation of measures to reduce consumer demand for power. The Commission issued the permits, ruling that in light of the lack of evidence documenting the practicality and effectiveness of this alternative, it fell outside the "rule of reason" test set forth in NRDC v. Morton³¹ and need not be considered.

In remanding the permits, the court of appeals rejected the Commission's "threshold test," which effectively requires intervenors to show that a given alternative is reasonably practical before the agency must consider it. Writing again for the majority, Judge Bazelon explained that the court in Calvert Cliffs³² had recentered the existing balance to require agency analysis of alternatives at a much earlier stage. Explicitly mentioned with approval was a threshold standard derived from the Commission's opinion which would require comments on an EIS to make a "showing … sufficient to require reasonable minds to inquire further."³³ The standard was qualified so as not to permit the agency to require an affirmative evidentiary presentation.

In a separate analysis, the appeals court remanded the [8 ELR 10106] report of the Advisory Committee on Reactor Safeguards (ACRS)³⁴ on the grounds that its extensive reliance on technical jargon was inconsistent with the Committee's statutory purpose of informing the public of the safety or hazards of the facilities it studies. The report was also held inadequate for its oblique reference to "other problems" which had been raised in previous reports and which the ACRS "believed" could be resolved during plant construction. As a final and independent ground for remanding the permits, the court ruled that the fuel cycle issues were controlled by the companion case of NRDC v. NRC.

In reversing the court of appeals, the Supreme Court described the notion of alternatives under NEPA in language which, if taken out of context, rings ominously:

Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.³⁵

In fact, however, the Court's disagreement with the lower court appears not so much over the requirements of the Act nor the appropriate "threshold test" which it establishes, but with Judge Bazelon's view of the viability of the "energy conservation alternative" in that factual setting and with the Judge's interpretations of the NRC's application of the threshold test. Justice Rehnquist's rhetoric regarding the limits of the efficacy of alternatives which must be analyzed does not, therefore, signal a significant departure from existing case law.³⁶ Moreover, the opinion reaffirms at another point that:

… when an intervenor's comments "bring 'sufficient, attention to the issue to stimulate the Commission's consideration of it,'" the Commission must "undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS….³⁷

The Court was clearly sympathetic to the Commission's reluctance to consider fully all possible energy conservation measures at a point prior to the 1973 oil embargo and the ensuing public recognition of the "energy crisis." It was not until November 1973 that the Commission formally ruled in Niagara Mohawk Power Corp.³⁸ that licensing boards must consider conservation alternatives, nor until January 1974 that the guidelines of the Council on Environmental Quality³⁹ required impact statements to consider such questions. Nevertheless, in the early 1970s the Commission was not living in a vacuum. As was pointed out in the intervenor's brief to the Court,⁴⁰ Atomic Energy Commission witnesses had repeatedly testified to Congress as early as two years prior to the preparation of the Consumers Power EIS that the Commission had recognized its statutory obligation to consider this alternative when processing permit and license applications.⁴¹ It is clear, therefore, that the Commission was on advance notice of the importance of the energy conservation alternative and had in fact considered it to some extent outside the Consumers Power EIS. The fact that the Supreme Court was not persuaded by this evidence may reflect a view that EISs need not be reviewed with the exacting scrutiny that was applied, for example, in Calvert Cliffs.⁴²

There appears no single aspect of Judge Bazelon's opinion in Aeschliman with which the Court disagreed more fundamentally than the invalidation of the ACRS report. Although it agreed that the legislative history of the Committee's organic statute⁴³ assigned it a public information role, the Court determined that this role is subsidiary to its principal function of assisting the Commission, and found no statutory authority to invalidate its reports for overly technical language or for failing to analyze fully all unresolved questions relating to nuclear power.

Conclusion

Vermont Yankee is the only true NEPA case to have been granted certiorari by the Supreme Court this term; a preliminary examination of the Act in the aftermath of the decision reveals no structural damage, although perhaps a few new wounds. In Vermont Yankee, the Court has provided an abundant source of dictum which will no doubt be extensively quoted by those arguing that in a particular case "time and resources are too limited"⁴⁴ to require an impact statement to address an [8 ELR 10107] alternative pressed by the opponents of a particular project. On the whole, however, the opinion does not depart seriously from accepted interpretations of the statute. To the extent that the Court has retraced the contours of the duty to consider alternatives under § 102(2)(C), it has firmed the foundations; indeed, it will be surprising if we have seen thelast of the notion that agencies must fully analyze alternatives which have been proposed with sufficient force to "require reasonable minds to inquire further." One development of concern may be the pronouncement that NEPA does not authorize courts to require more extensive administrative proceedings than those now mandated by § 553 of the APA. In view of the oft-reached result that NEPA does not even require the convening of notice and comment hearings,⁴⁵ however, this holding is not surprising and should have little prospective impact.

Of potentially far greater impact is the reversal of a highly regarded tradition in the courts of appeals, particularly the D.C. Circuit, of requiring administrative agencies to establish hearing procedures more elaborate than otherwise required under § 553 where necessary in the interest of fairness to the parties or to establish an adequate record in unusually complex rule makings. If this is the intended result of the Court's decision, and that conclusion is unmistakable, it is unfortunate that the Court did not address the question more directly. Ironically, such a result might be welcomed by environmentalists in some situations outside the nuclear context, as it would tend to strengthen the position of agencies such as the Environmental Protection Agency and the Corps of Engineers when promulgating rules or issuing permits which generally are seen as environmentally protective.

It is indisputable, on the other hand, that if any agency can now anticipate increased deference when its actions are challenged in the courts, it is the Advisory Committee on Reactor Safeguards. Proponents of nuclear power argue that Vermont Yankee is equally intended as a thinly veiled message to the courts of appeals to adopt a "hands off" approach to future licensing decisions of the Commission as well. They may have a point; opponents can certainly take little solace in the fact that the fuel cycle rule was remanded by the Court for a look at the adequacy of the supporting record.⁴⁶

Finally, it is worth noting that Justice Rehnquist's sharply-worded opinion is obviously, if not predictably, a heated reaction to the loosely supported, almost offhand manner adopted by the court of appeals in these cases. The text is liberally laced with invective directed at the lower court,⁴⁷ which suggests the Court's impatience with the cavalier remand of licenses which have been mired in administrative and judicial machinery for nine years. This impatience may also extend to the stalling and occasionally annoying tactics of the anti-nuclear intervenors.⁴⁸ Perhaps with a more deliberate analysis in a less one-sided factual setting, the Court will flesh out the specifics of its rulings in Vermont Yankee, particularly with respect to the question of hybrid rule making. But the federal courts will not stand idly by in the interim. To date, at least two courts have considered various aspects of the decision, and on the whole that reception has been rather cold.⁴⁹ A more crucial interpretation can be expected from the D.C. Circuit in the not too distant future.

1. 46 U.S.L.W. 4301, 8 ELR 20288, 20297 (Apr. 3, 1978). The opinion reviews the decisions in Natural Resources Defense Council v. United States Nuclear Regulatory Comm'n, 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976) (remanding operating license issued to Vermont Yankee Corp.) and Aeschliman v. United States Nuclear Regulatory Comm'n, 547 F.2d 622, 6 ELR 20599 (D.C. Cir. 1976) (remanding construction permit issued to Consumers Power Corp.). Hereafter, when discussing these cases at the court of appeals level, they will be referred to as NRDC v. NRC and Consumers Power, respectively.

2. 5 U.S.C. § 551 et seq., ELR STAT. & REG. 41001.

3. 46 U.S.L.W. at 4307, 8 ELR at 20293.

4. See authorities cited infra, at n. 15, 16.

5. 42 U.S.C. § 4321 et. seq., ELR STAT. & REG. 41009.

6. The uranium fuel cycle includes all stages through which nuclear reactor fuel passes, from the mining of raw ore to placement in long-term waste storage. The "back end" of the cycle includes the removal of spent fuel rods from the reactor, reprocessing into a form suitable for storage, and isolation of the material for 250,000 to one million years, assuming that an appropriate storage technology is developed.

7. In re Vermont Yankee Nuclear Power Corp., 4 A.E.C. 930 (June 6, 1972).

8. 37 Fed. Reg. 24191 (Nov. 15, 1973). These proceedings differed from the basic notice and comment format established under § 553 of the APA to the extent of providing for oral testimony, questioning of participants by the hearing panel, and making available in advance documentation forming some part of the factual basis for the rule. A later notice specifically precluded cross-examination. 38 Fed. Reg. 49 (Jan. 3, 1973). For a full discussion of the procedures employed, see Shapar, Licensing of Nuclear Power Reactors in the United States, New Developments, 15 ATOM. ENERGY L.J. 135 (1973).

9. Essentially, the Commission found these effects to be "insignificant," and revalidated the Vermont Yankee license as issued.

10. 547 F.2d at 653.

11. Id. at 653-54.

12. Under certain circumstances due process may require the holding of an adjudicatory hearing, Goldberg, v. Kelly, 397 U.S. 254 (1970), but the parties in Vermont Yankee conceded, and the Court agreed, that such circumstances were not present in that case. 46 U.S.L.W. at 4306 n.16, 8 ELR at 20293 n.16.

13. These sections apply only "where the agency statute, in addition to providing a hearing, prescribes explicitly that it be on the record." United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757 (1972).

14. Mobil Oil Corp. v. Federal Power Comm'n, 483 F.2d 1238 (D.C. Cir. 1973) (Natural Gas Act's requirement that rate making be "supported by substantial evidence") (emphasis added).

15. International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 631, 3 ELR 20133, 20138 (D.C. Cir. 1973) ("a right of cross-examination, consistent with time limitations, might well extend to particular cases of need, on critical points where the general procedure proved inadequate to probe 'soft' and sensitive subjects and witnesses"); Walter Holm and Co. v. Hardin, 449 F.2d 1009 (D.C. Cir. 1971); American Airlines, Inc. v. CAB, 359 F.2d 624, 632-33, cert. denied, 385 U.S. 843 (1966). Cf. Natural Resources Defense Council v. NRC, 539 F.2d 834, 838, 6 ELR 20615, 20617 (D.C. Cir. 1976) (dictum); O'Donnell v. Shaffer, 491 F.2d 59, 62 (D.C. Cir. 1974); Appalachian Power Co. v. EPA, 477 F.2d 495, 503, 3 ELR 20310, 20313 (4th Cir. 1973).

16. Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 537 (1974); Friendly, Some Kind of a Hearing, 123 U. PA. L. REV. 1267, 1314-15 (1975). See also Administrative Conference of the United States, Recommendation 73-6 (1971); DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES, supplementing DAVIS, ADMINISTRATIVE LAW TREATISE § 6.01-3 at 178. But see Wright, The Courts and the Rule Making Process: The Limits of Judicial Review, 59 CORNELL L. REV. 375, 384 (1974).

17. 547 F.2d at 643 n.24, quoting from Brief for the United States at 13-14.

18. 46 U.S.L.W. at 4306, 8 ELR at 20292.

19. 46 U.S.L.W. at 4307, 8 ELR at 20293, quoting from Federal Communications Comm'n v. Schreiber, 381 U.S. 279, 290 (1965). In a line of cases culminating most recently in Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 (1976), the Court has warned that without constitutional, statutory, or other compelling reasons, a reviewing court may not, after finding the factual support for a rule making deficient, remand with instructions to utilize a specific set of more rigorous procedures. See e.g., United States v. Florida East Coast Ry., 410 U.S. 224, 242-45 (1973); Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947); cases cited at 8 ELR 20293 n.18. See also DAVIS, supra n.16, § 6.04 at 209-19.

20. Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947).

21. 46 U.S.L.W. at 4308, 8 ELR at 20294; Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REV. 375, 387-88 (1974); Natural Resources Defense Council v. United States Nuclear Regulatory Comm'n, 547 F.2d 633, 658 (D.C. Cir. 1976) (concurring opinion of Tamm, J.). Cf. Friends of the Earth v. Atomic Energy Comm'n, 485 F.2d 1031, 1035, 3 ELR 20832, 20834 (D.C. Cir. 1973) (additional remarks of Leventhal, J.).

22. Wright, supra n.16.

23. 423 U.S. 326 (1976).

24. 547 F.2d at 644 (footnote omitted) (emphasis added).

25. Id.

26. On remand, the majority of the panel of the Court of Appeals … may not hold, as it did in its previous opinion that the rule is invalid because of the inadequacy of the agency procedures.

46 U.S.L.W. at 4305 n.14, 8 ELR 20291 n.14.

Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.

Id. at 4308, 20294 (second emphasis supplied).

27. See authority cited at note 16 supra.

28. The Use of Generic Rulemaking to Resolve Environmental Issues in Nuclear Power Plant Licensing, 61 VA. L. REV. 869, 889 n.117 and accompanying text, 900 (1975); Lieberman, Generic Hearings: Preparing for the Future, 16 ATOM. ENERGY L.J. 141, 170-73 (1974); AEC Rulemakings and Public Participation, 62 GEO. L.J. 1737, 1744 (1974); Ellis and Johnston, Licensing of Nuclear Power Plants by the Atomic Energy Commission 52 (1971) (staff report prepared for the chairman of the Administrative Conference of the United States).

29. Friendly, Some Kind of Hearing, 123 U. PA. L. REV. 1267 (1975).

30. 547 F.2d 622, 6 ELR 20599 (1976).The initial applications were filed more than nine years prior to the Supreme Court's decision.

31. In re Consumers Power Co., ALAB-123, RAI-73-5-331 (May 18, 1973); citing from Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972).

32. Calvert Cliffs Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

33. 547 F.2d at 628 n.13.

34. The ACRS is a group of technical experts, appointed from outside the Commission, which reviews the design safety characteristics of each nuclear facility for which an operating license is sought. Its recommendations are nonbinding on the Commission, but its conclusions are typically relied upon by the Commission when deciding to issue a license. See 50 C.F.R. § 50.58 (1977).

35. 46 U.S.L.W. at 4308, 8 ELR at 20295. Earlier in the opinion, it was also stated:

To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility.

Id. at 4308, 20295.

36. See, e.g., Brooks v. Coleman, 518 F.2d 17, 19, 5 ELR 20444, 20445 (9th Cir. 1975); Life of the Land v. Brinegar, 485 F.2d 460, 3 ELR 20811 (9th Cir. 1973).

37. 46 U.S.L.W. at 4308-09, 8 ELR at 20295.

38. 4 RAI-73-11-995 (Nov. 6, 1973).

39. 40 C.F.R. § 1500.8(a)(4); 38 Fed. Reg. 20550, 20554 (Aug. 7, 1973).

40. Consumers Power Co. v. Aeschliman, No. 76-528, Brief for Respondents, at 38.

41. Hearings on the Calvert Cliffs Court Decision, Pt. II, before the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess. 398, 408 (1971) (statement of AEC Chairman Schlesinger) (licensing boards have the "authority and responsibility" to consider insulation, conservation, and other ways to reduce demand); Joint Hearings on the Operation of the National Environmental Policy Act before the Senate Committee on Public Works and Interior and Insular Affairs, 92d Cong., 2d Sess. 405-09 (1972) (agreeing with CEQ and EPA that under NEPA the Commission was obligated to consider environmental conservation as an alternative to building a reactor).

42. Calvert Cliffs Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

43. 42 U.S.C. § 2039; S. REP. NO. 296, 85th Cong., 1st Sess. 24 (1957).

44. 46 U.S.L.W. at 4309, 8 ELR at 20295.

45. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1285, 3 ELR 20045 (9th Cir. 1973); Bucks Cty. Bd. of Comm'rs v. Interstate Energy Co., 403 F. Supp. 805, 6 ELR 20406, 20412 (E.D. Pa. 1975).

46. In May 1977, the NRC announced that new rule-making proceedings, in which written questions may be submitted for presentation to other parties, will be held to replace the rule invalidated in NRDC v. NRC. 42 Fed. Reg. 26987, 26988-89 (May 26, 1977). In a concurrence to that decision, Judge Tamm speculated that the Commission would attempt to comply with the remand by "mechanically generating more 'negative' information respecting current problems with disposal of high level radioactive wastes and then will 'overcome' this information with citations to favorable studies and articles…." 547 F.2d at 660.

47. The Justice described the Aeschliman, opinion in these terms: "To say that the Court of Appeals' final reason for remanding is insubstantial at best is a gross understatement." He later described the same ruling as "border[ing] on the Kafkaesque." 46 U.S.L.W. at 4311, 8 ELR at 20297.

48. At oral argument, intervenors' counsel in Consumers Power was openly criticized for filing a memorandum with the Court only days before, thus denying other parties an opportunity to respond.

49. In a case in which plaintiffs challenged the omission of certain alternatives from an EIS prepared for the Energy Research and Development Administration's nuclear waste management program, the federal district court for the District of Columbia first distinguished Vermont Yankee on the facts, concluding: "Under these circumstances, this court believes that the approach of the Court of Appeals for this circuit in Aeschliman remains viable." Natural Resources Defense Council, Inc. v. ERDA, __ F. Supp. __, 8 ELR 20415, 20422 (D.D.C. May 8, 1978). But cf. Citizens Against Toxic Sprays, Inc. v. Bergland, __ F. Supp. __, 8 ELR 20350 (D. Ore. Apr. 18, 1978) (dissolution of injunction against herbicide spraying program, citing Vermont Yankee for support in addition to the court's finding that all defects in the EIS had been remedied).