Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission

No. 75-4276 (2d Cir. September 8, 1976)

The court denies defendants' petition for rehearing. Nothing in the Supreme Court's recent decision in Kleppe v. Sierra Club, 6 ELR 20532, requires an outcome contrary to this court's earlier decision that the Commission must refrain from commercial licensing of mixed oxide fuel-related activities pending the completion of its supplemental NEPA inquiry into the industry-wide implementation of plutonium technology. The activity which he Court allowed to proceed in Kleppe had independent utility, while interim licensing in this case is "clearly tied to the anticipated wide-scale use and would commit substantial resources to the mixed oxide fuel technology." Until the supplemental generic NEPA review is completed, the Commission cannot adequately assess the consequences of such action. For the court's earlier opinion, see 6 ELR 20513.

Counsel are listed at 6 ELR 20513.

Clark, Pierce & Owen, JJ.

[6 ELR 20723]

Per curiam:

Respondents, the United States Nuclear Regulatory Commission and the United States, and certain Intervenors, petition for a rehearing of the court's decision in these cases dated May 26, 1976. In its petition, the Commission has pointed out certain factual errors in the opinion which have been corrected by separate order. Since respondents and intervenors advance no argument which would require a different result in the disposition of these cases, the petitions for rehearing are denied.

Respondents seek to reargue the court's conclusion that the controversy was reviewable and its decision that the Commission must refrain from commercial licensing of mixed oxide fuel related activities pending the completion of the GESMO inquiry and a final Commission decision thereon.

The court adheres to its decision on reviewability. Respondents' arguments are but a recasting of those advanced on the original appeal and are no more persuasive in their present form.

Respondents' principal argument on the merits is based upon their reading of the recent Supreme Court decision in Kleppe v. Sierra Club, 44 U.S.L.W. 5104 (U.S. June 28, 1976), reversing Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir. 1975). In Kleppe, the Supreme Court found error in the Circuit Court's decision to enjoin certain coal mining operations until the agency had completed a regional impact statement for thedevelopment of a four-state region. In so doing, the Supreme Court stressed that the agency had denied the existence of any regional plan, and found the Circuit Court's conclusion that such a plan was contemplated to be unsupported by the record. Id. at 5106-08. However, the Court observed that in the case of a national plan of development, a broad scale impact statement might be required by NEPA. Id. at 5107 n.14.

Nothing in the Kleppe decision requires an outcome contrary to the decision here. In its opinion, the court concluded that the Commission's decision to proceed to general commercial licensing of a new nuclear technology constituted major federal action not accompanied by an adequate environmental impact statement. Slip. Opin. at 3903, 3935. The Gesmo study is the announced basis for the NEPA decision on the question of industry-wide implementation of plutonium technology. The court's NEPA assessment of Draft GESMO was necessary since the Commission relied upon the Draft to support its decision to begin licensing. See 40 Fed. Reg. at 53061. The Commission's decision to commence commercial licensing without awaiting the results of the GESMO supplement was the fundamental error of the November 11, 1975 order.

Since it is clear that GESMO assesses a nationwide plan for the commercialization of mixed oxide fuel, this court's decision restraining the present plan for interim licensing was consistent with Kleppe. The court concluded that interim impact statements drafted in accordance with presently existing Commission rules and precedent would necessarily result in impact analyses inadequate under NEPA. Slip. Opin. at 3932, 3936-37; see Kleppe, supra, 44 U.S.L.W. at 5109 n.16. Thus, this court's decision is in accordance with the NEPA analysis set forth in Kleppe.

Further, Kleppe's decision that the agency need not refrain from individual licensing was based upon the undisputed fact that the approval of one lease or mining plan does not commit the agency to license others. Id. at 5111 n.26. Accordingly, Kleppe allowed activity which had independent utility and which was substantially independent from the issue of regional development. In this case the proposed activity is "clearly tied to the anticipated wide-scale use and would commit substantial resources to the mixed oxide fuel technology." Slip Opin. at 3934-35.

Kleppe allowed the agency to continue the licensing of coal mining operations, an activity which has occurred in this nation for over a century. In this case the agency desires to commence the commercialization of a new and potentially dangerous nulcear fuel technology without complying with the procedural guidelines of NEPA.

The commercial use of plutonium raises fundamental environmental questions which require a scrupulously deliberate and complete assessment of the hazards presented to society. The statutes enacted by Congress will permit nothing less. NEPA was intended to insure that an agency make a thorough inquiry into significant environmental effects and potential hazards before embracing a major new technology. Until the GESMO supplement is completed, the Commission cannot adequately assess the consequences of its action.

For the foregoing reasons, the petitions for rehearing are in all respects denied.