Calvert Cliffs Coordinating Committee v. USAEC

District of Columbia Circuit
Argued April 16, 1971
Decided July 23, 1971

Calvert Cliffs Coordinating Committee as Petitioners

USAEC and United States as Respondents

They were proceeding to review the order of the Atomic Energy Commission. The Court of Appeals, J. Skelly Wright, Circuit Judge, held that the courts have the power to require agencies to comply with procedural directions of the National Environmental Policy Act of 1969 and that the Commission’s rules precluding review consideration of non-radiological environmental issues unless specifically raised, prohibiting raising such issues in certain pending proceedings or when other agencies have passed on problems, and precluding care between the grant of construction permit and review of the assignment of the operating license, did not comply with Act.

REMANDED…

J. Skelly Wright, Circuit judge:

“These cases are only the beginning of what promises to become a flood of new litigation-litigation seeking judicial assistance in protecting our natural environment. Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’ But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must interpret the broadest and perhaps most important of the recent statutes for the first time: the National Environmental Policy Act of 1969 (NEPA). We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that critical legislative purposes heralded in the hall of Congress are not lost or misdirected in the vast hallways of the federal bureaucracy.

Like so much other reform legislation of the last 40 years, NEPA is cast in terms of a general mandate and broad delegation of authority to new and old administrative agencies. It takes the significant step of requiring all federal agencies to consider the values of environmental preservation in their spheres of activity, and it prescribes specific procedural measures to ensure that those values are, in fact, fully respected. Petitioners argue that rules recently adopted by the Atomic Energy Commission to govern consideration of environmental matters fail to satisfy the rigor demanded by NEPA. On the other hand, the Commission contends that the vagueness of the NEPA mandate and delegation leaves much room for discretion and that the rule challenged by petitioners falls well within the broad scope of the Act. We find the policies embodied in NEPA to be more precise and more demanding than the Commission. We conclude that the Commission’s procedural rules do not comply with the congressional policy. Hence we remand these cases for further rulemaking.

The particular importance of the pre-operating license stage is not difficult to fathom. In cases where environmental costs were not considered in granting a construction permit, the planned facility will likely include some features that significantly damage the environment and could not have survived a rigorous balancing of costs and benefits. This environmental damage must be fully considered in the later operating license proceedings. But by that time, the situation will have changed radically. Once a facility has been entirely constructed, the economic cost of any alteration may be very significant. In the language of NEPA, there is likely to be an ‘irreversible and irretrievable commitment of resources,’ which will inevitably restrict the Commission’s options. Either the licensee will have to undergo a significant expense in making alterations in a completed facility, or the environmental harm will have to be tolerated. It is all too probable that the latter result would come to pass.

By refusing to consider the requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection that Congress desires. It may also foreclose rigorous consideration of ecological factors at the eventual operating license proceedings. If ‘irreversible and irretrievable commitment(s) of resources’ have already been made, the license hearing (and any public intervention therein) may become a hollow exercise. This hardly amounts to consideration of environmental values ‘to the fullest extent possible.’

A full NEPA consideration of alterations in a facility’s original plans is essential and appropriate well before the operating license proceedings. It is not duplicative if environmental issues were not considered in granting the construction permit. And it need not be duplicated, absent new information or new developments, at the operating license stage. So for the pre-operating license review to be as effective as possible, the Commission should consider the requirement of a temporary halt in construction very seriously pending its thought and the ‘back fitting’ of technological innovation, for no action which might minimize environmental damage, may be dismissed out of hand. Of course, the final operation of the facility may be delayed thereby. But some delay is inherent whenever the NEPA consideration is conducted-whether before or at the license proceedings. It is far more consistent with the purposes of the Act to delay operating at a stage where absolute environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.

Thus we conclude that the Commission must go further than it has in its present rules. It must consider action, as well as file reports and papers, at the pre-operating license stage. As the Commission admits, such consideration does not amount to a retroactively applying NEPA. Although the projects in question may have commenced and were approved before January 1, 1970, the Act applies since they must still pass muster before operation. We only demand that the environmental review be as complete and fruitful as possible.”