Natural Resources Defense Council, Inc. v. Nuclear Regulatory Com'n

• Decision Date: 30 March 1981
• Docket Number: No. 80-1477,80-1477
• Citation: 647 F.2d 1345
• Parties: , 208 U.S.App.D.C. 216, 11 Envtl. L. Rep. 20,266 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Westinghouse Electric Corporation, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1345

647 F.2d 1345

15 ERC 1857, 208 U.S.App.D.C. 216, 11

Envtl. L. Rep. 20,266

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America Respondents Westinghouse Electric Corporation, Intervenor.

No. 80-1477.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1980.

Decided March 30, 1981.

Clifton E. Curtis, Washington, D. C., with whom James N. Barnes, Leonard C. Meeker, S. Jacob Scherr, Thomas B. Stoel, Jr., Graeme W. Bush, James B. Dougherty and Ellyn Weiss, Washington, D. C., were on the brief, for petitioner.

Carlton R. Stoiber, Deputy Gen. Counsel, Nuclear Regulatory Commission of the bar of the Supreme Court of Colorado, Washington, D. C., by special leave of Court pro hac vice with whom Leonard Bickwit, Jr., Gen. Counsel, Nuclear Regulatory Commission, Stephen F. Eilperin, Sol. and Irwin B. Rothschild, III, Atty., Nuclear Regulatory Commission, Washington, D. C., were on the brief, for respondent, Nuclear Regulatory Commission.

Peter R. Steenland, Jr., Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., David C. Shilton, Atty., Dept. of Justice, Mark B. Feldman, Deputy Legal Adviser, Dept. of State, and Ronald J. Bettauer, Asst. Legal Adviser, Dept. of State, Washington, D. C., were on the brief, for respondent United States.

Peter D. Trooboff, Washington, D. C., with whom Brice M. Clagett and Paul G. Gaston, Washington, D. C., were on the brief, for amicus curiae urging that the Commission's decision to grant the nuclear export licenses be upheld.

Barton Z. Cowan, Pittsburgh, Pa., with whom John R. Kenrick, John J. Myers, Pittsburgh, Pa., Christopher H. Buckley, Jr., Jonathan Z. Cannon, Washington, D. C., and John R. Erbey, Pittsburgh, Pa., were on the brief, for intervenor.

Before SPOTTSWOOD W. ROBINSON, III, WILKEY and GINSBURG ^*, Circuit Judges.

Opinion filed by Circuit Judge WILKEY.

Opinion filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III, concurring in the judgment.

WILKEY, Circuit Judge:

This appeal raises the issue of whether and to what extent "effective control" of nuclear exports requires the Nuclear Regulatory Commission (NRC or Commission) to consider projected health and safety impacts associated with an exported reactor in the recipient foreign country. To answer this question it is necessary to look closely at the complex statutory mandate for atomic energy.

OUTLINE

I. BACKGROUND

A. Export License Proceedings

B. The Philippines' Application

C. The Commission's Decision

1. Atomic Energy Act.

2. National Environmental Policy of 1969 (NEPA).

3. Separate Opinions

II. PRELIMINARY DISCUSSION

A. The Issues

B. Examining Foreign Impacts in General

1. How could consideration by the NRC, in a domestic

decisionmaking context, of health, safety and

environmental impacts in the Phillipines 'constitute

an exercise of American sovereign power within the

area of the foreign country's territorial sovereignty'?

2. Do the actions of the NRC affect the foreign relations

of the United States?

C. Legal Standard of Review

III. THE ATOMIC ENERGY ACT AS AMENDED BY NNPA

A. Congressional Purpose

B. Environmental Protection Standards

1. Statutes.

2. Precedents.

C. 'Non-Inimicality'

1. Not inimical to the 'common defense and security'

a. Policy considerations

b. Reliance on the executive.

2. Not inimical to the 'health and safety of the public.'

IV. NEPA REQUIREMENT AS TO EXTRATERRITORIAL IMPACTS

A. Legislative History

B. Judicial Precedents

V. CONCLUSION

One important object of our nuclear energy laws in the international area is nonproliferation. Nonproliferation cannot be achieved by nonparticipation by the United States in the world commerce in nuclear machinery and materials; our policy set by the Congress recognizes that American abstention from international nuclear trade risks leaving the field to less responsible suppliers and encouraging uncontrolled proliferation. Reliable exports from the United States of reactors and fissile materials are thus a necessary implement of nuclear nonproliferation and nuclear safety control. Such assurance of reliability casts the United States as an attractive supplier for international customers intent upon developing their own national nuclear power programs. An attractive supplier, Congress hoped, would make reliance on "less responsible" sources for nuclear development unnecessary. American safety standards would naturally be built in, and exported along with the American products sold abroad. More importantly, however, the United States, as a nuclear supplier insisting on nonproliferation standards, is committed to being "more responsible" for the prevention of uncontrolled proliferation of nuclear weapons. Thus, nonproliferation, safety, and nuclear exports from the United States march in tandem.

In furtherance of these objectives Congress has created a regulatory and foreign policy regime designed to ensure "effective controls by the United States over its exports of nuclear materials and equipment and of nuclear technology." ¹ The Commission decided in the case before us to license a nuclear export without evaluating health, safety and environmental impacts within the recipient nation. We must judge the conformity of that decision with the Atomic Energy Act of 1954 (the Act), ² as amended by the Nuclear Non-Proliferation Act of 1978 (NNPA). ³ My review of the two acts leads me to conclude that the Commission acted lawfully in declining to consider foreign impacts. Its deference to the evaluation and foreign policy judgment made by the executive appears to me fully consistent with the objectives set by Congress.

Furthermore, I cannot find that the National Environmental Policy Act of 1969 (NEPA) ⁴ imposes an environmental impact statement (EIS) requirement on nuclear export decisions with respect to impacts falling exclusively within foreign jurisdictions. Within the language of the statute, solicitude for the President's prerogative in foreign relations dictates that NEPA's putative extra-territorial reach be curbed in the case of nuclear exports. Here, nonproliferation and foreign policy objectives superimpose a special perspective on the singular goal NEPA serves in the wholly domestic context. For international nuclear transactions, it appears to be the will of Congress that bilateral or multilateral cooperation respecting the environment take precedence over unilateral American efforts.

The Commission, on 6 May 1980, authorized the export by Westinghouse Electric Corporation (Westinghouse) to the Philippines of (a) a nuclear reactor, and (b) complementary nuclear materials. On 10 December 1980 this court denied petitioners' motion for a stay enjoining shipments of some of those materials. Today we uphold the Commission's two orders of 6 May 1980.

I. BACKGROUND

A. Export License Proceedings

The Commission concluded, in the first order ⁵ here under review, that Westinghouse's export license applications met all applicable licensing criteria required by the Atomic Energy Act as amended by NNPA. The exports, the Commission believed, "would not create unacceptable health, safety or environmental risks to U.S. territory or the global commons." ⁶ In the second order ⁷ the Commission declared that it would "only consider those health, safety and environmental impacts arising from exports of nuclear reactors that affect the territory of the United States or the global commons." ⁸ Petitioners, various organizations representing environmental interests, have challenged the Commission's decision to grant the export licenses. Westinghouse, the prospective exporter, has intervened. The Republic of the Philippines, as amicus curiae, has also appeared before us. ⁹ The procedural framework applicable to applications for nuclear export licenses is established in section 126 of the amended Atomic Energy Act. ¹⁰ The process is quite detailed and entails both administrative and executive participation. A brief outline of the regulatory scheme is as follows:

A prospective nuclear exporter files with the NRC an application for an export license. The NRC forwards the application to the Department of State, thereby triggering executive branch review by the Departments of State, Defense, Commerce, and Energy, as well as the Arms Control and Disarmament Agency. The NRC considers the application concurrently with the review undertaken within the executive. The executive branch must then forward to the Commission its recommendation concerning the issuance of the license. Having received the executive's views, the Commission must then act within sixty days, or alternatively, inform the applicant of the reasons for the delay, and provide follow-up reports. Sixty days after that, the President may withdraw the license application from the Commission if it has not yet acted, and authorize the export by executive order. Presidential authorization would be contingent upon a determination that "further delay would be excessive" and that "withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security." ¹¹

On the other hand, if the Commission does not issue a license because it finds itself unable to make the required statutory determinations, then the Commission may refer the pending license back to the President. The President may then rule on the license application subject to no statutory time limits. A presidential decision, however, in either the "withdrawal" or "referral" context, may be reviewed within sixty days by Congress. By a resolution of disapproval Congress may block a nuclear export authorized by the President (as opposed to one authorized by the NRC pursuant to the prerequisite executive recommendation). Finally, the Commission may also order public...