Public Service Co. of New Hampshire v. U.S. Nuclear Regulatory Com'n

• Citation: 582 F.2d 77
• Decision Date: 21 June 1978
• Docket Number: No. 77-1419,77-1419
• Parties: , 8 Envtl. L. Rep. 20,557 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION et al., Respondents, Society for the Protection of New Hampshire Forests, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 77

582 F.2d 77

12 ERC 1561, 8 Envtl. L. Rep. 20,557

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION et al., Respondents, Society for the Protection of New Hampshire Forests, Intervenor.

No. 77-1419.

United States Court of Appeals, First Circuit.

Argued Jan. 3, 1978.

Decided June 21, 1978.

Thomas G. Dignan, Jr., Boston, Mass., with whom R. K. Gad III, John A. Ritsher, and Ropes & Gray, Boston, Mass., were on brief, for petitioner.

Harry H. Voigt, James P. McGranery, Jr., Robert S. Faron, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., Peter A. Marquardt, Detroit, Mich., and Charles W. Campbell, Plainfield, Ind., on brief for Edison Electric Institute, The Detroit Edison Co., and Public Service Co. of Indiana, amici curiae.

Stephen S. Ostrach, Atty., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom Jerome Nelson, Gen. Counsel, Stephen F. Eilperin, Sol., Richard S. Mallory, Atty., U. S. Nuclear Regulatory Commission, and Peter R. Steenland, Jr., Chief, App. Section Land and Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., were on brief, for respondents.

Robert A. Backus, Manchester, N. H., with whom Harvey N. Winchester, Boston, Mass., and O'Neill, Backus, Spielman & Little, Manchester, N. H., were on brief, for Society for the Protection of New Hampshire Forests, intervenor.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Petitioner, Public Service Company of New Hampshire (PSCO), challenges the propriety of the Nuclear Regulatory Commission's ¹ (Commission) order to reroute certain transmission lines tying the proposed Seabrook Nuclear Power Station (Seabrook) to the New England 345 KV transmission grid. PSCO maintains that the order, drawn so as to minimize environmental injury, is beyond the scope of the Commission's power. PSCO asserts that the Commission's organic statute, specifically section 271 of the Atomic Energy Act of 1954, 42 U.S.C. § 2018, ² denies the Commission the authority to designate such routing and that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 Et seq., cannot confer jurisdiction otherwise denied an administrative agency. PSCO also claims that, in issuing the order, the Commission impermissibly preempted state authority.

The question we address, Viz., whether the Commission properly can assert jurisdiction over the routing of transmission lines running forth from the nuclear reactor, is one of first impression. At issue is the location of approximately two of the 86 miles of transmission lines that will emanate from Seabrook. The cost of the rerouting represents a miniscule fraction of the total facility costs. The underlying question of the Commission's authority is, nonetheless, an important one.

We start with a statement of the background, then discuss NEPA, follow with an analysis of the Commission's jurisdiction, and finally comment on the question of preemption.

Background

PSCO requested certification of its selected site and facility from the New Hampshire Public Utilities Commission, as required by state law. NH RSA § 162-F (Supp.1975). After lengthy hearings which started on June 19, 1972, and included over 5,800 pages of testimony, the certificate was granted by the Public Utilities Commission on January 29, 1974. ³ The certificate included the siting of three transmission lines along the routes proposed by PSCO. In its authorization the Public Utilities Commission added that the approved routes could be later modified upon request, "should meaningful negotiation with responsible local authorities, regional commissions, etc. result in any beneficial route relocations."

PSCO then submitted its plans for the nuclear facility and transmission lines to the Atomic Safety and Licensing Board. ⁴ The routing for the lines generally followed the routes previously submitted to and Conditionally approved (See discussion on preemption, Infra, at 86) by the New Hampshire Public Utilities Commission. After extensive hearings, the Licensing Board approved PSCO's application with two exceptions. The Board conditioned the Seabrook permits on the rerouting of one of the lines around the Pow Wow River-Cedar Swamp rather than PSCO's proposed route directly through it. The Board reasoned that the Pow Wow River-Cedar Swamp was an area containing "relatively dense or pure stands of the Atlantic White Cedar, a species found only in the Atlantic coastal regions . . . which is becoming increasingly scarce as its available habitat is reduced by economic development." The Board also found the marshlands to be an important habitat and flight lane for migratory waterfowl; because of the Pow Wow River, the area is surrounded by an extensive marshland complex, making it one of the few extensive river-marsh ecosystems in southeastern New Hampshire. The Swamp environs are recognized as a natural area by the New England Natural Areas Inventory. Intervenor in this action, the Society for the Protection of New Hampshire Forests, has approximately 10-15% Of the area under its protective ownership, and uses the area, as do campers, canoeists and youth groups, for nature outings. The Board found that PSCO's proposed transmission corridor through the mid-point of the marsh, using two 200-foot high steel lattice-work towers, would result in a diversion of a significant number of migratory waterfowl from the Swamp and would constitute a "visual insult" to the relatively pristine area. The Board proposed a dogleg which would skirt the edge of the natural area and would use 75-foot wooden H-frames, compatible with the surrounding forest.

The Licensing Board also directed that the second line under dispute be routed directly through the Packer Bog, rather than the previously approved route which would skirt the edge of the Bog, but would require the cutting of white cedar. PSCO itself indicated that it preferred the route directly through the Bog, but complains before this court that the Board could not have "ordered" it to adopt this route. ⁵

NRC's Responsibility Under NEPA

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 Et seq., articulated a mandate to federal agencies to "use all practicable means" to avoid environmental "degradation," and to preserve "natural aspects of our national heritage" to the extent consistent with "other essential considerations of national policy . . .." 42 U.S.C. § 4331(b). See also Federal-Aid Highway Act of 1962, 23 U.S.C. § 138; Department of Transportation Act of 1966, 49 U.S.C. § 1653(f). Congress directed federal agencies to consider "to the fullest extent possible" the environmental impact of their policies, regulations, and actions. 42 U.S.C. § 4332. This charge is "neither accidental nor hyperbolic." Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U.S. 776, 787, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). NEPA is activated whenever a major federal action may significantly affect the human environment. 42 U.S.C. § 4332(2)(C). Licensing of a nuclear power station by a federal regulatory commission is a major federal action. NRDC v. NRC, 547 F.2d 633, 638 (D.C.Cir.1976), Rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). See also 40 C.F.R. § 1500.5(a)(2); Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?, 72 Colum.L.Rev. 963, 966-967 (1972).

NEPA's mandate has been given strict enforcement in the courts, with frequent admonitions that it is insufficient to give mere lip service to the statute and then proceed in blissful disregard of its requirements. See, e. g., Flint Ridge Dev. Co., supra, 426 U.S. at 787-788, 96 S.Ct. 2430; County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1389 (2d Cir. 1977), Cert. denied, 435 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973); Calvert Cliffs' Coord. Com. v. AEC, 146 U.S.App.D.C. 33, 41, 449 F.2d 1109, 1117 (1971). Section 102(2)(C), 42 U.S.C. § 4332(2)(C), is an "action forcing" provision, Kleppe v. Sierra Club, 427 U.S. 390, 409, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Greene County Planning Board v. FPC, 455 F.2d 412, 415 (2d Cir.), Cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), which imposes a duty upon federal agencies to act so as to effectuate the purposes of the statute to the fullest possible degree. See 115 Cong.Rec. (Part 30) 40416, 40419 (1969). The directive to agencies to minimize all unnecessary adverse environmental impact obtains except when specifically excluded by statute or when existing law makes compliance with NEPA impossible. Flint Ridge, supra, 426 U.S. at 787-788, 96 S.Ct. 2430; Calvert Cliffs, supra, 146 U.S.App.D.C. at 37, 449 F.2d at 1115 and n. 12; 40 C.F.R. § 1500.4(a); 115 Cong.Rec. 39703 (1969). ⁶ As stated by the court in Calvert Cliffs, "Unless (specific statutory) obligations are plainly mutually exclusive with the requirements of NEPA, the specific mandate of NEPA must remain in force." 146 U.S.App.D.C. at 49, 449 F.2d at 1125. Unless there are specific statutory provisions which necessarily collide with NEPA, the Commission was under a duty to consider and, to the extent within its authority, ⁷ minimize environmental damage resulting from Seabrook and its transmission lines.

Does The NRC's Organic Statute Bar The Commission From Exercising Any Authority Over Transmission Lines?

We examine the Commission's organic statute, 42 U.S.C. §§ 2011 Et seq. and 42 U.S.C. §§ 5801, 5841-5849, to determine whether there is an inevitable clash between it and the exercise by the Commission in this instance of its NEPA-mandated duty. Both the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 confer broad regulatory functions on the Commission and specifically authorize it to promulgate...