481 F.2d 1079 (D.C. Cir. 1973), 72-1331, Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission

Docket Nº:72-1331.
Citation:481 F.2d 1079
Party Name:SCIENTISTS' INSTITUTE FOR PUBLIC INFORMATION, INC., Appellant, v. ATOMIC ENERGY COMMISSION et al.
Case Date:June 12, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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481 F.2d 1079 (D.C. Cir. 1973)

SCIENTISTS' INSTITUTE FOR PUBLIC INFORMATION, INC., Appellant,

v.

ATOMIC ENERGY COMMISSION et al.

No. 72-1331.

United States Court of Appeals, District of Columbia Circuit.

June 12, 1973

Argued Sept. 8, 1972.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Page 1082

J. G. Speth, with whom Ronald J. Wilson, Washington, D. C., was on the brief, for appellant.

Edmund B. Clark, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Kent Frizzell and Martin R. Hoffmann, Peter A. Bernard Gen. Counsel, Jerome Nelson, Sol., Atomic Energy Comm., and Thomas L. McKevitt and Peter R. Steenland, Attys., Dept. of Justice, were on the brief, for appellees.

John D. Hoffman, San Francisco, Cal., filed a brief on behalf of Sierra Club and Committee for Nuclear Responsibility, Inc. as amici curiae urging reversal.

Before BAZELON, Chief Judge, and WRIGHT and WILKEY, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

Appellant claims that the Atomic Energy Commission's Liquid Metal Fast Breeder Reactor program involves a "recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *" under Section 102(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(C) (1970), and that the Commission is therefore required to issue a "detailed statement" for the program. The District Court held that no statement was presently required since, in its view, the program was still in the research and development stage and no specific implementing action which would significantly affect the environment had yet been taken. Taking into account the magnitude of the ongoing federal investment in this program, the controversial environmental effects attendant upon future widespread deployment of breeder reactors should the program fulfill present expectations, the accelerated pace under which this program has moved beyond pure scientific research toward creation of a viable, competitive breeder reactor electrical energy industry, and the manner in which investment in this new technology is likely to restrict future alternatives, we hold that the Commission's program comes within both the letter and the spirit of Section 102(C) and that a detailed statement about the program, its environmental impact, and alternatives thereto is presently required. Since the Commission has not yet issued such a statement, we reverse and remand the case to the District Court for entry of appropriate declaratory relief. 1

I. FACTUAL BACKGROUND: THE LIQUID METAL FAST BREEDER REACTOR PROGRAM

Although more than a superficial understanding of the technology underlying this case is beyond the layman's ken, a brief summary will prove helpful. Nuclear reactors use nuclear fission-the splitting of the atom-to produce heat which may be used to generate electricity in nuclear power plants. Only a few, relatively rare, naturally occurring substances-primarily Uranium-235-can maintain the nuclear fission chain reaction necessary for operation of these

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reactors. There are thus severe constraints on the long run potential of nuclear energy for generating electricity unless new nuclear fuel is "artificially" produced. Such fuel can be produced through the process of "breeding" within a "fast breeder reactor." The fast breeder reactor differs from the now common light water nuclear reactor in that the neutrons which split atoms in the fuel (thereby releasing new neutrons and heat energy) travel much faster than the neutrons in ordinary reactors. The reactor breeds new fuel through what has aptly been termed "a sort of modern alchemy." 2 Some neutrons leave the inner core of the reactor, which is made up of fissionable Uranium-235, and enter a blanket of nonfissionable Uranium-238. When atoms in this blanket are struck by neutrons, they are transmuted into Plutonium-239, itself a fissionable fuel which can be removed from the reactor and used in other installations. It is estimated that after about 10 years of operation the typical fast breeder reactor will produce enough fissionable Plutonium-239 not only to refuel itself completely, but also to fuel an additional reactor of comparable size. The Liquid Metal Fast Breeder Reactor (henceforth LMFBR) is simply a fast breeder reactor that uses a liquid metal, sodium, as a coolant and heat transfer agent.

Because the breeding principle makes possible vast expansion of fuel available for nuclear reactors (Uranium-238 is many times more common than Uranium-235), it has been the subject of considerable interest since the earliest days of atomic energy. The Commission demonstrated the feasibility of breeder reactors by constructing several experimental breeder reactors in the 1950's. In its 1962 Report to the President on Civilian Nuclear Power, the Commission specifically recommended that future Government programs include vigorous development and timely introduction of economic breeder reactors which, in the Commission's view, were essential to long-range major use of nuclear energy. 3 By 1967, when the Commission supplemented its Report to the President, the LMFBR had been singled out as a priority program representing the largest civilian power development area. 4 The Commission's focus expanded beyond solving the technical problems posed by the LMFBR, and began to embrace efforts to build an industrial base and obtain acceptance for LMFBR plant types by utilities, primarily through planned Government-assisted construction of commercial scale LMFBR electrical power plants. 5 In sum, the Commission came to see its program as serving "as the key to effecting the transition of the fast breeder program from the technology development stage to the point of large-scale commercial utilization." 6

In furtherance of these objectives the Commission, in 1968, issued a 10-volume LMFBR Program Plan, the dual objectives of which were (1) to achieve, through research and development, the necessary technology, and (2) "to assure maximum development and use of a competitive, self-sustaining industrial LMFBR capability." 7 With growing concern about a possible energy crisis,

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rapid commercial implementation of LMFBR technology has become a national mission. 8 In the style of President Kennedy's 1960 commitment to put an American on the moon by the end of the decade, President Nixon, in his June 4, 1971 Energy Message to Congress, announced as the highest priority item of his program "[a] commitment to complete the successful demonstration of the liquid metal fast breeder reactor by 1980, " 9 and this goal has obtained the concurrence of Congress' Joint Committee on Atomic Energy. 10 Statutory authorization has been obtained to proceed with the first demonstration plant, 11 financed in large part by the federal government, 12 and the Commission has entered into negotiations with the Tennessee Valley Authority and Commonwealth Edison aimed at concluding construction contracts for the plant. On September 26, 1971 the President announced his intention to seek the necessary legislative authority for a second demonstration plant. 13 The Congress supports the program through annual appropriations and, at a time of general budgetary restraint, LMFBR program funds have recently mushroomed to $90.3 million in fiscal 1971 and $130 million in fiscal 1972. 14 The Commission expects future federal expenditures for the program to be over $2 billion. 15 These funds have been in the past, and will continue in the future to be, matched with sizable financial commitments from the private sector. 16

The LMFBR's prospects are sufficiently bright to have led President Nixon to say: "Our best hope today for meeting the Nation's growing demand for economical clean energy lies with the fast breeder reactor." 17 And the Commission has recently predicted that by the year 2000 LMFBR capacity will equal total electrical generating capacity in the United States today. 18

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  1. APPLICATION OF NEPA TO TECHNOLOGY DEVELOPMENT PROGRAMS

NEPA requires federal agencies to include a detailed environmental impact statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *." That the Commission must issue a detailed statement for each of the major test facilities and demonstration plants encompassed by the LMFBR program is conceded by the Commission and not at issue in this case. The Commission has already issued an impact statement for its Fast Flux Test Facility to be constructed in Hanford, Washington, and, at the President's request, has completed a statement for the first demonstration plant prior to the time such a statement would normally be issued. 19 Nor is the adequacy of either of these statements as they pertain to their respective individual facilities an issue on this appeal. The question raised, instead, is basically twofold: whether at some point in time the Commission must issue a statement for the research and development program as a whole, rather than simply for individual facilities, and, assuming an affirmative answer to this question, whether a statement covering the entire program should be drafted now.

Our consideration of this case has been somewhat complicated by the Commission's ambivalent position with respect to these already difficult questions. The Commission's basic position seems to be that NEPA requires detailed statements only for particular facilities, and that no separate NEPA analysis of an entire research and development program is required. In the words of then Chairman James Schlesinger: "These environmental statements are intended to deal with the particular facility...

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