Baltimore Gas and Electric Co v. Natural Resources Defense Council, Inc United States Nuclear Regulatory Commission v. Natural Resources Defense Council, Inc Commonwealth Edison Company v. Natural Resources Defense Council, Inc, Nos. 82-524

CourtUnited States Supreme Court
Writing for the CourtO'CONNOR
PartiesBALTIMORE GAS AND ELECTRIC CO., et al., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC. UNITED STATES NUCLEAR REGULATORY COMMISSION, et al., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. COMMONWEALTH EDISON COMPANY, et al., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al
Decision Date06 June 1983
Docket NumberNos. 82-524,82-545 and 82-551

462 U.S. 87
103 S.Ct. 2246
76 L.Ed.2d 437
BALTIMORE GAS AND ELECTRIC CO., et al., Petitioners

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC. UNITED STATES NUCLEAR REGULATORY COMMISSION, et al., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. COMMONWEALTH EDISON COMPANY, et al., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.

Nos. 82-524, 82-545 and 82-551.
Argued April 19, 1983.
Decided June 6, 1983.
Syllabus

Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impact of any major federal action. The dispute in these cases concerns the adoption by the Nuclear Regulatory Commission (NRC) of a series of generic rules to evaluate the environmental effects of a nuclear powerplant's fuel cycle. In these rules, the NRC decided that licensing boards should assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact (the so-called "zero-release" assumption) and thus should not affect the decision whether to license a particular nuclear powerplant. At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released by fuel cycle activities supporting a year's operation of a typical light water reactor. Challenges to the rules ultimately resulted in a decision by the Court of Appeals, on a petition for review of the final version of the rules, that the rules were arbitrary and capricious and inconsistent with NEPA because the NRC had not factored the consideration of uncertainties surrounding the zero-release assumption into the licensing process in such a manner that the uncertainties could potentially affect the outcome of any decision to license a plant.

Held: The NRC complied with NEPA, and its decision is not arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA). Pp. 97-108.

(a) The zero-release assumption, which was designed for the limited purpose of individual licensing decisions and which is but a single figure in Table S-3, is within the bounds of reasoned decisionmaking required by the APA. The NRC, in its statement announcing the final Table S-3 rule, summarized the major uncertainties of long-term storage of nuclear wastes, noted that the probability of intrusion was small, and found the evidence "tenable but favorable" that an appropriate storage site

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could be found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. In these circumstances, the NRC complied with NEPA's requirements of consideration and disclosure of the environmental impacts of its licensing decisions. It is not the task of this Court to determine what decision it would have reached if it had been the NRC. The Court's only task is to determine whether the NRC had considered the relevant factors and articulated a rational connection between the facts found and the choice made. Under this standard, the zero-release assumption, within the context of Table S-3 as a whole, was not arbitrary or capricious. Pp. 97-106.

(b) It is inappropriate to cast doubt on the licensing proceedings simply because of a minor ambiguity in the language of an earlier rule as to whether licensing boards were required to consider health effects, socioeconomic effects, or cumulative impacts, where there is no evidence that this ambiguity prevented any party from making as full a presentation as desired or ever affected the decision to license a plant. Pp. 106-108.

--- U.S.App.D.C. ---, 685 F.2d 459, reversed.

David A. Strauss, Washington, D.C., for petitioners.

Timothy B. Atkeson, Washington, D.C., for respondents.

Page 89

Justice O'CONNOR delivered the opinion of the Court.

Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (NEPA), requires federal agencies to consider the environmental impact of any major federal action.1 As part of its generic rulemaking proceedings to evaluate the environmental effects of the nuclear fuel cycle for nuclear power plants, the Nuclear

Page 90

Regulatory Commission (Commission) 2 decided that licensing boards should assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact and thus should not affect the decision whether to license a particular nuclear power plant. We conclude that the Commission complied with NEPA and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706.3

I

The environmental impact of operating a light-water nuclear power plant 4 includes the effects of offsite activities necessary to provide fuel for the plant ("front end" activities), and of offsite activities necessary to dispose of the highly toxic and long-lived nuclear wastes generated by the plant ("back end" activities). The dispute in these cases con-

Page 91

cerns the Commission's adoption of a series of generic rules to evaluate the environmental effects of a nuclear power plant's fuel cycle. At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released by fuel cycle activities supporting a year's operation of a typical light-water reactor.5 The three versions of Table S-3 contained similar numerical values, although the supporting documentation has been amplified during the course of the proceedings.

The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking proceedings. 39 Fed.Reg. 14188 et seq. (1974). This "original" rule, as it later came to be described, declared that in environmental reports and impact statements for individual licensing proceedings the environmental costs of the fuel cycle "shall be as set forth" in Table S-3 and that "[n]o further discussion of such environmental effects shall be required." Id., at 14191.6 The original Table S-3 contained no numerical entry for the long-term

Page 92

environmental effects of storing solidified transuranic and high-level wastes,7 because the Commission staff believed that technology would be developed to isolate the wastes from the environment. The Commission and the parties have later termed this assumption of complete repository integrity as the "zero-release" assumption: the reasonableness of this assumption is at the core of the present controversy.

The Natural Resources Defense Council (NRDC), a respondent in the present cases, challenged the original rule and a license issued under the rule to the Vermont Yankee Nuclear Power Plant. The Court of Appeals for the District of Columbia Circuit affirmed Table S-3's treatment of the "front end" of the fuel cycle, but vacated and remanded the portion of the rule relating to the back end because of perceived inadequacies in the rulemaking procedures. Natural Resources Defense Council, Inc. v. NRC, 547 F.2d 633 (1976). Judge Tamm disagreed that the procedures were inadequate, but concurred on the ground that the record on waste storage was inadequate to support the zero-release assumption. Id., at 658.

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), this Court unanimously reversed the Court of Appeals' decision that the Commission had used inadequate procedures, finding that the Commission had done all that was required by NEPA and the APA and determining that courts generally lack the authority to impose "hybrid" procedures greater than those contemplated by the governing statutes. We remanded for review of whether the original rule was adequately supported by the administrative record, specifically

Page 93

stating that the court was free to agree or disagree with Judge Tamm's conclusion that the rule pertaining to the back end of the fuel cycle was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U.S.C. § 706. Id., at 536, n. 14, 98 S.Ct., at 1207, n. 14.

While Vermont Yankee was pending in this Court, the Commission proposed a new "interim" rulemaking proceeding to determine whether to adopt a revised Table S-3. The proposal explicitly acknowledged that the risks from long-term repository failure were uncertain, but suggested that research should resolve most of those uncertainties in the near future. 41 Fed.Reg. 45849, 45850-45851 (1976). After further proceedings, the Commission promulgated the interim rule in March 1977. Table S-3 now explicitly stated that solidified high-level and transuranic wastes would remain buried in a federal repository and therefore would have no effect on the environment. App. to Pet. for Cert. 257a. Like its predecessor, the interim rule stated that "[n]o further discussion of such environmental effects shall be required." Id., at 255a. The NRDC petitioned for review of the interim rule, challenging the zero-release assumption and faulting the Table S-3 rule for failing to consider the health, cumulative, and socioeconomic effects of the fuel cycle activities. The Court of Appeals stayed proceedings while awaiting this Court's decision in Vermont Yankee. In April 1978, the Commission amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. 43 Fed.Reg. 15613 et seq. (1978).

In 1979, following further hearings, the Commission adopted the "final" Table S-3 rule. 44 Fed.Reg. 45362 et seq. (1979). Like the amended interim rule, the final rule expressly stated that Table S-3 should be supplemented in individual proceedings by evidence about the health, socioeconomic, and cumulative aspects of fuel cycle activities. The Commission also continued to adhere to the zero-release

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assumption that the solidified waste would not escape and harm the environment once the repository was sealed. It acknowledged that this assumption...

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    ...the public regarding the environmental decisionmaking process. Id. at 348-50; Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983); see also 40 C.F.R. § 1500.1(a) (describing the policy and function of NEPA). "Although these procedures are almost certain to affe......
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