UNITED STATES ATOMIC ENERGY
COMMISSION and United States
of America, Respondents.
Nos. 24839, 24871.
District of Columbia Circuit.
Argued April 16, 1971.
Decided July 23, 1971.
Proceeding to review order of Atomic Energy Commission. The Court of Appeals, J. Skelly Wright, Circuit judge, held that the courts have power to require agencies to comply with procedural directions of National Environ-mental Policy Act of 1969 and that the Commission's rules precluding review consideration of nonradiological environmental issues unless specifically raised, prohibiting raising such issues in certain pending proceedings or when issues have been passed on by other agencies, and precluding consid-eration between grant of construction permit and consideration of grant of operating license, did not comply with Act.
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 commit-ment 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 for the first time interpret the broadest and perhaps most important of the recent statutes: 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 important legislative purposes, heralded in the hall of Congress, are not lost or misdirected in the vast hallways of the fed-eral bureaucracy.
NEPA, like so much other reform legislation of the last 40 years, is cast in terms of a general mandate and broad delegation of authority to new and old administrative agencies. It takes the major step of requiring all federal agencies to consider values of environmental preservation in their spheres of activity, and it prescribes certain 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. The Com-mission, on the other hand, 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 a good deal clearer and more demanding than does the Commission. We conclude that the Commission's procedural rules do not comply with the congressional policy. Hence we remand these cases for further rule making.
The special 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, it is very likely that the planned facility will include some features which do significant damage to the environment and which could not have survived a rigorous balancing of costs and benefits. At the later operating license proceedings, this environmental damage will have to be fully considered. But by that time the situation will have changed radically. Once a facility has been completely constructed, the economic cost of any alteration may be very great. 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 major 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 requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection desired by Congress. It may also foreclose rigorous consideration of environmental 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 environ-mental values "to the fullest extent possible."
A full NEPA consideration of alterations in the original plans of a facility, then, is both important and appropriate well before the operating license proceedings. It is not duplicative if environmental issues were not consid-ered in granting the construction permit. And it need not be duplicated, absent new information or new developments, at the operating license stage. In order that the pre-operating license review be as effective as possible, the Commission should consider very seriously the requirement of a temporary halt in construction pending its review and the "backfitting" of technological innovation. For no action which might minimize environmental damage may be dismissed out of hand. Of course, final operation of the facility may be delayed thereby. But some delay is inherent whenever the NEPA consider-ation 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 real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.
(12) Thus we conclude that the Commission must go farther than it has in its present rules. It must consider action, as well as file reports and pa-pers, at the pre-operating license stage. As the Commission candidly admits, such consideration does not amount to a retroactive application of NEPA. Although the projects in question may have been commenced and initially approved before January 1, 1970, the Act clearly applies to them since they must still pass muster before going into full operation. All we demand is that the environmental review be as full and fruitful as possible.