Sierra Club v. U.S. Atomic Energy Commission.

No. 1867-73 (D.D.C. August 3, 1974)

The court grants plaintiffs' motion for summary judgment and orders the Atomic Energy Commission to prepare a NEPA impact statement for its nuclear power export process within twelve months. The Export-Import Bank, which assists the export process by providing low interest loans to foreign purchasers, need not prepare an EIS of its own, however, since such duplication would unnecessarily waste bureaucratic resources. The AEC is the "sponsoring agency" of the export process, and is thus responsible for formulating the impact statement; other agencies' views and consultation are to be obtained through the commenting process. The court does not ruld on whether the Export-Import Bank is subject to NEPA and must publish guidelines for evaluating the environmental effects of its activities, noting that this is not a case in which the Bank is the sole federal agency involved in the exportation of some commodity.

Counsel for Plaintiffs
Eldon Greenberg
1751 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendants
Frederick L. Miller
Department of Justice
Washington, D.C. 20530

[4 ELR 20685]

Gasch, J.

MEMORANDUM-ORDER

This matter is before the Court upon cross-motions for summary judgment. Defendant Export-Import Bank (Eximbank) filed its motion first, and plaintiffs filed an opposition and cross-motion shortly thereafter. In addition, defendants Atomic Energy Commission (AEC) and the Department of State (State) and the various intervenors have all opposed certain aspects of plaintiffs' cross-motion for summary judgment which pertain to the time within which the AEC will prepare and circulate an environmental impact statement (EIS).

Plaintiffs are four environment and conservation organizations - the Sierra Club, the National Parks and Conservation Association, the Environmental Defense Fund and the Natural Resources Defense Council - which contend that they are "actively engaged in developing and disseminating information to the public with respect to environmental issues, particularly those relating to energy use and development."¹ Defendants are three agencies of the United States and their directors; defendant-intervenors are four companies who fabricate nuclear generating systems and/or enriched nuclear fuel.²

This litigation was brought to compel the defendants to prepare an environmental impact statement as envisioned by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., on the nuclear power export process,³ under which the United States concludes agreements with foreign nations to sell and export to those nations nuclear power generating systems and enriched nuclear fuels produced by domestic companies. These agreements, entitled "Agreement for Cooperation Concerning Civil Uses of Atomic Energy."⁴ are jointly negotiated by the AEC and State, and are administered by the AEC. Eximbank, while not a party to negotiation of the Agreements, often plays an important role in consummating a purchase of nuclear facilities by providing low-interest loans and/or credits. At the time the complaint was filed, the United States had concluded Agreements with 19 countries, 11 of which obtained at least some financing from Eximbank.

The stance of this litigation has changed in a significant manner since the filing of the complaint. By letter dated March 15, 1974, counsel for the government indicated "that the Atomic Energy Commission has decided to commence preparation of an environmental impact statement (EIS) on the overall nuclear power export process." The Department of State, which has developed § 4332(2)(B) procedures, agrees that NEPA applies to it, thus placing those two defendants on a separate footing from Eximbank, which continued to assert that it has no NEPA obligations whatsoever. As a result, the went forward against Eximbank on the issues raised in the complaint, leaving as to the AEC and possibly State only the question of whether the Court should impose a time limit for preparation of the EIS by the AEC.

Eximbank moved for summary judgment, asserting four major grounds: (1) Eximbank has no export "program," (2) plaintiffs lack standing to sue, (3) plaintiffs' claims are political questions, and (4) NEPA does not apply to the export of nuclear facilities. Plaintiffs cross-moved seeking a declaration that Eximbank is subject to the provisions of NEPA, requesting that this Court, among, other things, order Eximbank to publish formal procedures for consideration of the environmental impacts of its activities in accordance with 42 U.S.C. § 4332(2)(B).

Turning first to the question of standing, the Court notes that the recent decision of the Supreme Court in Schlesinger v. Reservists Committee To Stop The War, 42 U.S.L.W. 5088 (June 25, 1974), renders plaintiffs' standing not without some doubt. Nonetheless, the disposition of this litigation makes a detailed exposition of the standing question unnecessary.⁵

Eximbank contends that it has no "nuclear power export program," and that it remains merely the financier to whom parties come after an Agreement has been concluded. The Court sees merit in this argument, particularly in light of the fact that Eximbank plays no direct role in the negotiation of Agreements, and that a sale of nuclear power generating equipment and enriched fuel can be consummated without Eximbank participation, as has been the case with at least eight countries. However, the fact that Eximbank is an agency of the United States and does play a substantial role in financing many exports of nuclear plants and fuels cannot wholly be ignored.⁶ NEPA makes no exceptions in directing "all agencies of the Federal Government" to comply with its provisions,⁷ and thus it is against that statute and subsequent case law that the Court must measure and determine Eximbank's duties with respect to the nuclear power export process.

42 U.S.C. § 4332 provides that

. . . (2) all agencies of the Federal Government shall —

* * *

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and [4 ELR 20686] enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.

The "responsible federal official," logically, is in the agency sponsoring a project or program. In our situation, the AEC would be that agency; in any event, of the three agencies, Eximbank is certainly the least likely to be considered the "sponsoring agency" of the nuclear power export process. In Sierra Club v. Froehlke, 359 F. Supp. 1289 (S.D. Tex. 1973), the court found that "NEPA requires sponsoring agencies, prior to the making of an impact statement, to 'consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.'"⁸ NEPA thus does not require that each federal agency involved in a project or program covered by § 4332 prepare a separate EIS. Rather, the statute was designed to assure that the agency solely or primarily responsible for the project or program would formulate the requisite EIS, consulting appropriate agencies in the process. In this case, the AEC has agreed to go ahead with the preparation of the EIS. Accordingly, the Court need not make a determination with respect to plaintiffs' assertion that Eximbank must also file an EIS on the exportation of nuclear power. Where the primary federal agency engages in the preparation of an EIS, it would be wasteful and unnecessarily duplicative to order a secondary agency to prepare an independent statement as well.

Also due to the decision by the AEC, the Court finds it need not reach plaintiffs' assertion that Eximbank must publish formal procedures for evaluating the environmental impacts of its activities. The solution of this question is singularly inappropriate where, as here, the Court finds it unnecessary to impose specifically any positive NEPA obligations on Eximbank. This case differs from one in which Eximbank would be the sole federal ahency involved in the exportation of some commodity.

Plaintiffs further contend that this Court should, in light of the decision by the AEC, order Eximbank and the Department of State to participate with the AEC in drawing up its EIS.⁹ With regard to inter-agency cooperation, the Froehlke court said that "the basic burden is on these [sponsoring] agencies to seek out and contact the appropriate authorities. On the other hand, the other federal agencies may not . . . merely sit by until contacted by a sponsoring agency."¹⁰ Because preparation of an EIS by the AEC has just begun, it would be premature to order Eximbank or the Department of State to consult with the AEC; the Court is certain that that agency is fully cognizant of its procedural obligations under NEPA. Likewise, the Court is confident that Eximbank and State share Congress' announced concern that federal agencies give "environmental amenities . . . appropriate consideration in decisionmaking along with economic and technical considerations;. . . .¹¹

Finally, plaintiffs have requested that this Court impose a time limit of one year upon the AEC for completion of the EIS. This time limit has been vigorously opposed by the AEC, State, and the several intervenors. The Court is mindful of the arguments put forth that such a comprehensive statement requires a great deal of time to prepare, but feels the 18-24 months estimated by the AEC is too extensive.¹² The exportation to several countries of nuclear power plants and enriched fuels presents an environmental issue of importance and concern. In light of this, the Court feels the AEC should complete an EIS on relevant aspects of the nuclear power export process within twelve (12) months.

It is by the Court this 3rd day of August, 1974,

ORDERED that Eximbank's motion for summary judgment and plaintiffs' cross-motion for summary judgment be dismissed as moot, consistent with the foregoing Memorandum, and it is further

ORDERED that plaintiffs' cross-motion for summary judgment be granted insofar as the Atomic Energy Commission is hereby directed to prepare and circulate the environmental impact statement it has undertaken no later than twelve months from this date.

1. Plaintiffs' Memorandum in Support of Cross-Motion for Summary Judgment, filed April 24, 1974, at 1.

2. The companies are General Electric Co., Westinghouse Electric Corp., Babcock & Wilcox Co., and General Atomic Co.

3. Plaintiffs identified the sale of atomic reactors and enriched fission fuels as the "nuclear power export program." Defendant Eximbank takes strong issue with this characterization, contending that each treaty and subsequent sale of reactors and fuel are separate and individual, and that it is in no way participating in a general "program" promoting the sale of reactors and fuel. For purposes of this litigation, plaintiffs agreed to refer to the matter as the "nuclear power export process."

4. See 42 U.S.C. § 2153.

5. Likewise, examination of the political question argument put forth by Eximbank is unnecessary.

6. Plaintiffs have stated, and Eximbank does not controvert, that Eximbank had financed 70 percent of all U.S. built nuclear power plants exported or contracted to be exported as of December 31, 1973. Further, as of February 15, 1974, Eximbank had advanced 43 separate credits totalling $1.6 billion to aid in financing nuclear power systems in 11 countries. The Court is cognizant of the fact that such loans constitute a significant portion of Eximbank's activities.

7. 7. 42 U.S.C. § 4332.

8. 359 F. Supp. at 1345.

9. In March 15, 1974, letter, counsel for the government did not mention what plans, if any, the Department of State had to join with the AEC in preparing an EIS. Thus, plaintiffs urge, this Court should fill that vacuum with an order. For the reasons set forth in the text, this would be an inappropriate action.

10. 359 F. Supp. at 1340.

11. 42 U.S.C. § 4332 (2) (B).

12. Affidavit of John A. Erlewine, General Manager of the AEC, filed May 20, 1974, at 2.