Culpeper League for Environmental Protection v. U.S. Nuclear Regulatory Com'n

• Decision Date: 11 April 1978
• Docket Number: Nos. 76-1484 and 76-1532,s. 76-1484 and 76-1532
• Citation: 187 U.S. App.D.C. 422,574 F.2d 633
• Parties: , 187 U.S.App.D.C. 422, 8 Envtl. L. Rep. 20,286 CULPEPER LEAGUE FOR ENVIRONMENTAL PROTECTION, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Virginia Electric and Power Company, Intervenor. FAUQUIER LEAGUE FOR ENVIRONMENTAL PROTECTION, Petitioner, v. NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, Virginia Electric and Power Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 633

574 F.2d 633

11 ERC 1473, 187 U.S.App.D.C. 422, 8

Envtl. L. Rep. 20,286

CULPEPER LEAGUE FOR ENVIRONMENTAL PROTECTION, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United

States of America, Respondents,

Virginia Electric and Power Company, Intervenor.

FAUQUIER LEAGUE FOR ENVIRONMENTAL PROTECTION, Petitioner, v. NUCLEAR REGULATORY COMMISSION and the United States of

America, Respondents,

Virginia Electric and Power Company, Intervenor.

Nos. 76-1484 and 76-1532.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1977.

Decided March 16, 1978.

Rehearing Denied April 11, 1978.

Clarence T. Kipps, Jr., Washington, D. C., for petitioner in No. 76-1484.

Collister Johnson, Jr., Washington, D.C., of the bar of the Supreme Court of Virginia Pro Hac Vice by special leave of court for petitioner in No. 76-1532. John T. Schell, Arlington, Va., was on the brief for petitioner in No. 76-1532.

Steven C. Goldberg, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Peter L. Strauss, Gen. Counsel, Stephen F. Eilperin, Asst. Gen. Counsel, U. S. Nuclear Regulatory Commission and Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., were on the brief for respondents.

Michael W. Maupin, Richmond, Va., with whom James N. Christman, Richmond, Va., was on the brief for intervenor.

Before: MacKINNON, ROBB and WILKEY, Circuit Judges.

PER CURIAM:

The Culpeper League for Environmental Protection (Culpeper) and the Fauquier League for Environmental Protection (Fauquier) petition for review of an order of the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission, Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2) Docket Nos. 50-338 & 50-339 (Dec. 8, 1975), at J.A. II-161-189. In its order the Board approved a routing proposal by Virginia Electric & Power Company (VEPCO) for an electric power transmission line between its North Anna nuclear power station and its Morrisville substation, 32.6 miles north. ¹ Petitioners have contested VEPCO's proposed route both here and before the Board, contending that alternate, less environmentally harmful routes are available. Petitioners maintain that the Board in approving VEPCO's proposed route disregarded the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., by failing to give adequate consideration to these alternate routes. We think however that the Board complied with NEPA and accordingly we dismiss the petition for review.

The main point of petitioners' attack is that the Board's action contravenes our holding in Aeschliman v. Nuclear Regulatory Commission, 178 U.S.App.D.C. 325, 547 F.2d 622 (1976), cert. granted sub nom. Consumers Power Co. v. Aeschliman, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). We think however that petitioners' reliance on the Aeschliman decision is misplaced. In the Aeschliman case we reversed the Nuclear Regulatory Commission's refusal to give any consideration to energy conservation measures once they had been advanced as a "colorable" alternative. 178 U.S.App.D.C. at 331, 547 F.2d at 628. We noted further that the Commission must explain why further consideration of an alternative was unwarranted, and with sufficient explication to facilitate judicial review. Id. In the present case the Board has adhered to our decision in Aeschliman. The Board's order shows that it has fully considered each of the three alternatives advanced by the petitioners. See J.A. at II-163, II-165, II-173-76, II-178-84. Not only did the Board in its order analyze each of these alternatives and describe their environmental consequences, but the Board explained why it selected the route proposed by VEPCO instead of an alternate one. See id. The order manifests, moreover, that the Board has taken a "hard look" at the environmental consequences of each proposal, see Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 49 L.Ed.2d 576 n. 21, citing Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 16, 458 F.2d 827, 838 (1972). In such a case, the Supreme Court has cautioned, a court may not " 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.' " Id.

Petitioners also argue that the Board's judgment in weighing and balancing the costs of the alternatives is flawed in two respects. First, petitioners assert that the Board acted unreasonably by placing excessive weight on the present intended use of the Rappahannock Wildlife Management Area (RWMA), a 3800-acre forested area with some 51/2 miles of river front. The route proposed by VEPCO would traverse this area while those suggested by petitioners would not. The Board concluded that the environmental consequences of running the transmission line through the RWMA would be slight because the foreseeable uses of the area hunting and fishing and development of a day-use facility comprised of a...