Aeschliman v. U.S. Nuclear Regulatory Com'n

• Decision Date: 22 February 1977
• Docket Number: 73-1867,Nos. 73-1776,s. 73-1776
• Parties: , 178 U.S.App.D.C. 325, 6 Envtl. L. Rep. 20,599 Nelson AESCHLIMAN et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Consumers Power Co., a Michigan Corp., Intervenor. SAGINAW VALLEY NUCLEAR STUDY GROUP et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Consumers Power Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 622

547 F.2d 622

9 ERC 1289, 178 U.S.App.D.C. 325, 6

Envtl. L. Rep. 20,599

Nelson AESCHLIMAN et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Consumers Power Co., a Michigan Corp., Intervenor.

SAGINAW VALLEY NUCLEAR STUDY GROUP et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Consumers Power Company, Intervenor.

Nos. 73-1776, 73-1867.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 27, 1974.

Decided July 21, 1976.

Certiorari Granted Feb. 22, 1977.

See 97 S.Ct. 1098.

Myron M. Cherry, Chicago, Ill., with whom Robert L. Graham, Chicago, Ill., was on the brief for petitioners in No. 73-1867 argued for all petitioners.

James L. Kelley, Atty., Nuclear Regulatory Commission, Washington, D. C., with whom Wallace H. Johnson, Asst. Attorney General, Marcus A. Rowden, Gen. Counsel, Nuclear Regulatory Commission, Raymond M. Zimmet, Assistant to the Solicitor, Nuclear Regulatory Commission. Edmund B. Clark, Jacques B. Gelin and Lawrence E. Shearer, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents.

Harold F. Reis, Washington, D. C., with whom J. A. Bouknight, Jr., Washington, D. C., was on the brief for intervenor Consumers Power Co.

Howard J. Vogel, St. Paul, Minn., was on the brief for petitioners in No. 73-1776.

William H. Ward, Wichita, Kan., filed a brief on behalf of the State of Kansas as amicus curiae urging reversal.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and JUSTICE, ^* United

States District Judge for the Eastern District of Texas.

Opinion for the Court filed by Chief Judge BAZELON.

BAZELON, Chief Judge:

These cases involve consolidated petitions for review of orders of the U.S. Atomic Energy Commission granting construction permits for two pressurized water nuclear reactors to generate electricity and steam. ¹

The applicant, Consumers Power Company (Consumers) made its initial application in January, 1969, under the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2133, 2232, 2235, and 2239. Consumers' own system is the primary customer of electricity, while the adjacent facility of the Dow Chemical Company (Dow) was the intended customer of the output of process steam. Location of the twin reactors in Midland, Michigan, across the Tittabawassee River from Dow was dictated, in part, by the fact that steam does not efficiently retain heat over long travels.

Petitioner Aeschliman and five other residents of nearby Mapleton, Michigan, constituting the Mapleton Intervenors, opposed grant of the permits. Similarly in opposition were petitioning organizations, Saginaw Valley Nuclear Study Group, a local not-for-profit environmental organization, et al. (Saginaw).

As required by 42 U.S.C. §§ 2039, 2232(b), the application was referred to the Advisory Committee on Reactor Safeguards (ACRS), and to the Commission staff. In 1970, both ACRS and the staff preliminarily concluded that the facility comported with the Atomic Energy Act's public health and safety standards.

After notice and hearings, ² a three-member Atomic Safety and Licensing Board issued a lengthy decision authorizing issuance of construction permits. Mapleton and Saginaw intervenors filed exceptions with the Atomic Safety and Licensing Appeal Board. Upon review, the Appeal Board affirmed in all respects, but attached conditions concerning the applicant's "quality assurance" program. ³

Following the filing of petitions for review, motions seeking reconsideration on various grounds were made and denied. ⁴

I

A.

Saginaw argues the Environmental Impact Statement (EIS) for construction of the Midland reactors did not adequately consider "alternatives to the proposed action" as required by §§ 102(C)(iii) and 102(D) of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4332(C)(iii); id., (D) (1970). In particular, Saginaw asserts the EIS was fatally defective for failure to examine energy conservation as an alternative to a plant of this size. The alternatives section of the EIS discusses several non-nuclear methods of power generation, but does not consider any measures for reducing consumer demand. ⁵ This omission was forcefully pointed out by Saginaw in its comments on the draft EIS. ⁶

The Licensing Board rejected energy conservation alternatives as "beyond our province," stating the "real question" was which power generating technology would be superior. ⁷ On administrative appeal, the Licensing Board's decision not to explore conservation alternatives was affirmed. The Appeal Board held that conservation was implicitly considered in the cost-benefit analysis and demand projections, and that in view of Saginaw's failure to introduce evidence, further discussion was not required under the "rule of reason" enunciated in NRDC v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). ⁸

Shortly after the Appeal Board decision, the Commission held in Niagara Mohawk Power Corp., RAI-73-11-995 (Nov. 6, 1973), that certain energy conservation issues should be considered in licensing proceedings. Saginaw thereupon appealed to the Commission for "clarification" of the Appeal Board's decision in light of Niagara. The Commission responded that before Licensing Boards need explore energy conservation alternatives, intervenors "must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some affirmative showing if they wish to have these novel contentions explored further." In re Consumers Power Co., RAI-74-1-19 at 32 (Jan. 24, 1974), I J.A. 71. The "affirmative showing" required was further elaborated as follows:

Purported energy conservation issues must meet a threshold test they must relate to some action, methods or developments that would, in their aggregate effect, curtail demand for electricity to a level at which the proposed facility would not be needed. . . . Beyond that, the issue must pertain to an alternative that is "reasonably available." Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (148 U.S.App.D.C. 5) (C.A.D.C.1972). (Footnote omitted.) Furthermore, the impact of proposed energy conservation alternatives on demand must be susceptible to a reasonable degree of proof. Largely speculative and remote possibilities need not be weighed against a convincing projection of demand.

Here, as with many other issues under the National Environmental Policy Act of 1969, a rule of reason applies. See Natural Resources Defense Council v. Morton, supra.

Id., 24, I J.A. 63. Measured by these standards, the Commission held Saginaw's comments on energy conservation "fell far short." ⁹ Saginaw had introduced no evidence demonstrating the feasibility of particular methods of energy conservation, much less evidence indicating that the proposed facility could be eliminated entirely. ¹⁰

B.

Saginaw contends that the "threshold test" applied in this case is inconsistent with NEPA's "basic mandate" to the Commission to "take the initiative" in considering environmental issues. Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1118-19 (1971). We agree.

In Calvert Cliffs the Commission proposed to limit consideration of environmental issues under NEPA to those "which parties affirmatively raise." Id., 1118. This court reversed, pointing out "it is unrealistic to assume that there will always be an intervenor with the information, energy, and money required" to investigate environmental issues. Id. The court held that the "primary responsibility" for fulfilling NEPA must lie with the Commission, which may not merely "sit back, like an umpire, and resolve adversary contentions at the hearing stage." ¹¹ Id. See also Greene County Planning Board v. FPC, 455 F.2d 412, 420 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). The same considerations persuade us that the Commission may not refuse to consider energy conservation alternatives unless an intervenor first brings forward information satisfying the strictures of its "threshold test."

The Commission derived the "threshold test" from the "rule of reason" courts use in reviewing the sufficiency of the alternatives considered in an EIS. NRDC v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 834 (1972). See also Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796, 800-801 (1975); NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975). Thus, for example, agencies are not required to consider alternatives which are "remote and speculative," Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974), but may deal with circumstances "as they exist and are likely to exist." Carolina Environmental Study Group v. United States, supra, 510 F.2d at 801.

The Commission properly recognized that such judgments present mixed questions of law and fact which can only be intelligently resolved based on a factual record. ¹² But the need to assemble data bearing on whether alternatives are promising enough to merit detailed consideration in the EIS does not mean the entire burden of compiling such information can be placed on the intervenors. In light of the allocation of responsibility established by Calvert Cliffs, we believe the Commission erred in promulgating a "threshold test" which essentially requires intervenors to prove an alternative satisfies the "rule of reason" before the Commission will investigate it.

In our view, an intervenor's comments on a draft EIS raising a colorable alternative not presently considered therein must only bring " sufficient attention to the issue to stimulate the Commission's consideration of it." ¹³ Thereafter, it is incumbent on the Commission to undertake its own preliminary investigation of the proffered alternative sufficient to...