Gage v. United States Atomic Energy Commission, 72-1459.

• Decision Date: 23 May 1973
• Docket Number: No. 72-1459.,72-1459.
• Citation: 479 F.2d 1214
• Parties: Laurence GAGE et al., Petitioners, v. UNITED STATES ATOMIC ENERGY COMMISSION and United States of America Commonwealth Edison Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

479 F.2d 1214 (1973)

Laurence GAGE et al., Petitioners, v. UNITED STATES ATOMIC ENERGY COMMISSION and United States of America Commonwealth Edison Company, Intervenor.

No. 72-1459.

United States Court of Appeals, District of Columbia Circuit.

Argued March 6, 1973.

Decided May 23, 1973.

Joseph Karaganis, Washington, D. C., with whom Wallace Duncan, Washington, D. C., was on the brief, for petitioners.

Jerome Nelson, Sol. A. E. C., with whom Kent Frizzell, Asst. Atty. Gen., Martin R. Hoffmann, Gen. Counsel, Harvey S. Price, Atty., A. E. C., Edmund B. Clark and Peter R. Steenland, Attys. Dept. of Justice, were on the brief, for respondent.

Marx Leva, Washington, D. C., with whom Craig Matthews, Richard Shlakman and Lois Schiffer, Washington, D. C., were on the brief, for intervenor.

William H. Cuddy, Hartford, Conn., filed a brief on behalf of American Electric Power Co. Inc., and others, as amici curiae.

Before TAMM and WILKEY, Circuit Judges, and JAMESON,^* Senior United States District Judge for the District of Montana.

WILKEY, Circuit Judge:

This case arises on petition to review an order of the Atomic Energy Commission. The challenged order promulgated rules¹ designed to implement the National Environmental Policy Act (NEPA),² the policies of which are required to be reflected in agency regulations to the fullest extent possible.³ As amended by the AEC's order, the regulations operate to prevent utilities from undertaking certain site preparation activities prior to the Commission's decision on their applications for permits to construct nuclear facilities. Since a detailed environmental impact statement must be issued and analyzed prior to the grant of such a construction permit, the regulations also operate to bar site preparation prior to environmental review.

Petitioners, who could have but did not participate in the underlying rulemaking proceedings, challenge the regulations on the grounds that (1) NEPA requires the rules to go farther, to bar all land acquisition by license applicants before permit issuance, and (2) the regulations should themselves have been accompanied by a detailed statement concerning their impact on the environment. We hold that petitioners have come to the wrong forum with an inappropriate claim in search of an unavailable remedy. We dismiss their petition.

I. Facts

The new regulations challenged here effect a radical change in the concept of "construction of a production or utilization facility" subject to AEC regulation and barred before issuance of a construction permit. Under previous provisions, a utility planning to build a nuclear facility could extensively alter the proposed site before the AEC had reviewed potential environmental impacts or decided on the construction permit application.⁴ The new rule bars "any clearing of land, excavation or other substantial action that would adversely affect the natural environment of a site and construction of non-nuclear facilities . . . for use in connection with the facility." However, the rule still allows, among other things, "changes desirable for the temporary use of the land for public recreational uses, necessary borings to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of the site or to the protection of environmental values."⁵

Both on proposal and promulgation, the AEC stated that "the Commission considers these amendments to be consistent with the direction of the Congress, as expressed in Section 102 of the National Environmental Policy Act of 1969, that, to the fullest extent possible, the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in that act."⁶ Petitioners primarily contend that these regulations do not in fact go "to the fullest extent possible" in implementing NEPA; specifically, that land acquisition prior to AEC approval is not barred.

Petitioners' current lively interest in the challenged regulations stems from their plight as farmers caught in the path of a land acquisition program undertaken by the Commonwealth Edison Company.⁷ In November 1970 Edison applied for a construction permit to build a nuclear generating facility in LaSalle County, Illinois. Without awaiting any AEC action, the utility acquired 90% of the land needed for the proposed site and now plans to complete this acquisition with the use or threat of condemnation power granted by the State of Illinois.⁸

Petitioners contend that the mere acquisition of land — its change in ownership from these farmers or their landlords to Edison — would significantly damage the environment. Further, they argue that allowing acquisition to proceed before the AEC gets a chance to review the environmental impact of construction permit approval would change the balance of costs and benefits, thereby potentially affecting the AEC's decision.⁹ Petitioners claim that NEPA requires the regulations to bar an applicant's acquisition of land before the AEC's grant of a construction permit, in order to prevent environmental damage and to protect the ability of the AEC to conduct a full and fair environmental review.

Notice of the proposed regulations, in substantially the same form as those promulgated, appeared in the Federal Register on 1 December 1971. Fifteen interested persons became parties to the rule-making proceedings and submitted comments. Significantly absent were both petitioners and any other party advancing the arguments they attempt to raise now before this court.¹⁰ Petitioners stood aside, uninvolved, despite the fact that they had actual knowledge of the proceedings and were urged by AEC staff members to join the fray.¹¹

II. Petition for Review

Petitioners refrained from participating in the appropriate and available administrative procedure, which is the statutorily prescribed prerequisite for this court's jurisdiction to entertain their petition for review of an Atomic Energy Commission order. The Atomic Energy Act, at 42 U.S.C. § 2239, provides that "any person whose interest may be affected" by certain proceedings, including those concerning issuance or modification of rules dealing with the activities of licensees, may get a hearing on request and shall be admitted "as a party to such proceeding." Any final order of the AEC in such a proceeding is "subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended,¹² and to the provisions of section 10 of the Administrative Procedure Act, as amended."

This petition for review was brought pursuant to the Act of 29 December 1950, which grants the Court of Appeals "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or determine the validity of . . . all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42." Jurisdiction may be invoked by the filing of a petition, under 28 U.S.C. § 2344, by "any party aggrieved by the final order." (Emphasis added.) Since petitioners were never parties to the rule-making proceedings, this court simply does not have jurisdiction over their claim.

Petitioners argue that the "party" status requirement, and the "exhaustion" doctrine implicit therein, does not apply in the context of an order promulgating rules of general and continuing effect. They base that claim on evidence that the Hobbs Act was originally intended to cover review of adjudicative orders. If taken too far, the argument from the legislative history of the Hobbs Act would lead to the conclusion that rule-promulgating orders are not properly the subject of petitions for review. That would vindicate petitioners' interpretation of the statute's origins; but it would also leave them without any remedy in this court. At best, their argument from legislative history is inconclusive.¹³

The clear words of the statutes involved make no distinction between orders which promulgate rules and orders in adjudicative proceedings. This court seems to have assumed that the "party" status requirement applies in either case.¹⁴ In addition, the general policy supporting this requirement applies with, if anything, even more force in the context of direct appellate court review of rule-making.

Unlike requests for review of adjudicative orders, petitions for "direct" review of rule-promulgating orders demand judicial scrutiny of regulations which may well not have been applied in a concrete case.¹⁵ Unlike adjudication, rule-making may proceed in the absence of those who may ultimately have a right to complain of the application of the regulations which result. Unlike those subject to adjudicative orders, persons who may ultimately be affected by regulations may have legitimate grounds for deciding not to join in the formulation of the rules. For example, the ultimate impact, or even the likelihood of enforcement, of proposed rules may be far from clear. Standing aside may not foreclose all opportunity to propose new regulations or to challenge the validity of the promulgated regulations when they are applied to such a person's detriment in a concrete case; but such abstinence will probably preclude the compilation of a record adequate for judicial review of the specific claims he has reserved. That is what happened in this case — and the effect of this void in the record on our ability to analyze petitioners' major claim highlights the flaw in their petition for relief from this court.

Petitioners seek expansion of a major rule of nationwide application on the basis of arguments which were never considered and which, therefore, are not addressed at all in the record compiled by the AEC. Yet the questions they raise would be very serious, complex and difficult even if a record had been compiled. The "party" status requirement operates to preclude direct appellate court review without a record which at the least has resulted from the...