The Court of Appeals erred in setting aside the Atomic Energy
Commission's Licensing and Appeal Boards' approval of a
construction permit for a commercial nuclear powered electric
generating plant on the ground that the Boards failed to follow the
AEC's own regulations governing the minimum allowable "population
center distance" in nuclear plant siting. Where, even if the
meaning is not free from doubt, the AEC's reliance upon the actual
boundaries of population density, rather than upon political
boundaries, in its interpretation of the regulations sensibly
conforms to the purpose and wording of the regulations, and
comports with prior agency decisions, the Court of Appeals was
obligated to regard such a reasonable administrative interpretation
as controlling.
Certiorari granted; 515 F.2d 513, reversed and remanded.
PER CURIAM.
An Atomic Energy Commission Atomic Safety and Licensing Board
approved the issuance of a construction permit to Northern Indiana
Public Service Co. (NIPSCO) for a commercial nuclear powered
electrical generating plant proposed to be built on the south shore
of Lake Michigan, in Porter County, Ind., RAI-74-4, p. 557 (1974).
On appeal, an AEC Atomic Safety and Licensing Appeal Board, RAI-74,
p. 244 (1974), sustained the approval. On petition for review by
intervenors in the administrative proceedings, [
Footnote 1] a divided panel
Page 423 U. S. 13
of the Court of Appeals for the Seventh Circuit set aside the
approval on the ground that the Licensing Board and the Appeal
Board failed to follow the Commission's own regulations governing
"population center distance" in the nuclear plant siting. 515 F.2d
513 (1975). The petition for certiorari is granted, and the
judgment of the Court of Appeals is reversed.
Title 10 CFR § 100.10(b) (1975) of the Commission's regulations
provides that "the Commission will take . . . into consideration in
determining the acceptability of a [proposed nuclear plant] site"
the "population center distance," defined in 10 CFR § 100.3(c)
(1975) as "the distance from the reactor to the nearest boundary of
a densely populated center containing more than about 25,000
residents." At the time of NIPSCO'S application and also at the
time of the Court of Appeals' decision, 10 CFR § 100.11(a)(3)
(1975) further provided, in pertinent part, that, "[a]s an aid in
evaluating a proposed site" for a nuclear power plant, a permit
applicant should determine for the proposed unit a
"population center distance of at least one and one-third times
the distance from the reactor to the outer boundary of the low
population zone. In applying this guide, due consideration should
be given to the population distribution within the population
center."
Two miles was the minimum allowable "population center distance"
determined administratively pursuant to § 100.11(a)(3). Accepting
this determination, the Court of Appeals held that issuance of the
construction permit violated the agency's own regulations
because
Page 423 U. S. 14
the corporate boundary of the city of Portage, Ind. -- projected
to have a population in excess of 25,000 by 1981 -- lay within 1.1
miles of NIPSCO's proposed site. In reaching this conclusion, the
Court of Appeals rejected the agency's administrative
interpretation of its regulations as prescribing computation of
"population center distance" for § 100.11(a)(3) purposes, where the
difference is critical to the siting decision, not solely to a
political boundary, but to the boundary of "that portion of the
population center at which the dense population starts," RAI-74 1,
at 565. Under that interpretation of the regulations, the
"population center distance" was an acceptable 4.5 miles. [
Footnote 2]
The Court of Appeals erred in rejecting the agency's
interpretation of its own regulations. That interpretation is
supported by the wording of the regulations, and is consistent with
prior agency decisions. [
Footnote
3] The wording does not equate a "dense population center" with
a city or other political entity, nor does it define a "boundary"
in terms of preexisting lines drawn for nonsiting purposes. Rather,
the regulations require consideration of "population distribution
within the population center" in applying the "population center
distance" guide. Political boundaries, in contrast, may be drawn
for many
Page 423 U. S. 15
reasons irrelevant to safe reactor siting, and thus encompass
areas never likely to harbor a significant population. [
Footnote 4] But even if the meaning is
not free from doubt, the agency's reliance upon the actual
boundaries of population density in its interpretation sensibly
conforms to the purpose and wording of the regulations. In that
circumstance, the Court of Appeals was "obligated to regard as
controlling [such] a reasonable, consistently applied
administrative interpretation. . . ."
Ehlert v. United
States, 402 U. S. 99,
402 U. S. 105
(1971).
See also Udall v. Tallman, 380 U. S.
1,
380 U. S. 16-17
(1965);
Power Reactor Co. v. Electricians, 367 U.
S. 396,
367 U. S. 408
(1961);
Bowles v. Seminole Rock & Sand Co.,
325 U. S. 410,
325 U. S.
413-414 (1945). [
Footnote 5]
The judgment is reversed, and the case is remanded for
consideration of other contentions against the issuance of the
construction permit not decided by the Court of Appeals.
So ordered.
[
Footnote 1]
Porter County Chapter of the Izaak Walton League of America,
Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen
for the Public Interest, Inc.; James E. Newman; Mildred Warner; and
George Hanks.
NIPSCO, the State of Illinois, and the city of Gary, Ind.,
intervened before the Court of Appeals.
[
Footnote 2]
We do not understand the Court of Appeals' discussion of the
evidence regarding population distribution within Portage to imply
an alternative ground for the holding that the agency violated its
own regulations.
[
Footnote 3]
In re Consumers Power Co., 5 A.E.C. 214, 218 (1972)
(although political boundary of nearby city was within
low-population zone, "the reduced population distance was
acceptable," since "populous areas" of the city were farther
removed from the reactor site than one and one-third times the
low-population zone radius);
In re Consolidated Edison
Co., 5 A.E.C. 43, 45 (1972);
cf. In re Southern California
Edison Co. (San Onofre Station), RAI-74-12, pp. 957, 960 n. 7
(1974).
[
Footnote 4]
The Court of Appeals' opinion also notes that the boundaries of
1970 census enumeration districts, including an area within
Portage's political limits, lay less than a mile from the proposed
reactor site. The location of these boundaries, however, without
more, has no greater significance than the location of the
corporate border.
[
Footnote 5]
Our decision does not rely upon a revision of 10 CFR §
100.11(a)(3), 40 Fed.Reg. 26526 (1975), published after the
decision of the Court of Appeals by the Nuclear Regulatory
Commission, which, pursuant to the Energy Reorganization Act of
1974, § 201, 88 Stat. 1242, 42 U.S.C. § 5841 (1970 ed., Supp. IV),
now discharges the licensing responsibility formerly exercised by
the Atomic Energy Commission.
MR. JUSTICE DOUGLAS, concurring.
The Atomic Energy Commission, by general regulations, limited
the location of nuclear power plants so as not to be nearer than a
specified number of miles from population centers. After issuing a
construction
Page 423 U. S. 16
permit which the Court of Appeals held violated those
regulations, that agency's successor, the Nuclear Regulatory
Commission, amended the regulations so as to permit the deviation.
40 Fed.Reg. 26526 (1975). By its decision today, the Court holds
that the Court of Appeals "erred in rejecting the agency's
interpretation of its own regulations."
Ante at
423 U. S. 14. I
read today's decision as in no way relying on the agency's
post
hoc amendment of its regulations to save in this Court its
issuance of the construction permit.
Ante at
423 U. S. 15 n.
5. I therefore concur in the Court's decision. The Nuclear
Regulatory Commission's conduct in the course of this litigation,
however, compels further comment.
A certain danger lurks in the ability of an agency to
perfunctorily mold its regulations to conform to its instant needs.
In the present case, regulations performed an important function of
advising all interested parties of the factors that had to be
satisfied before a license could be issued. If those conditions can
be changed willy-nilly by the Commission after the hearing has been
held and after adjudication has been made, the Commission is cut
loose from its moorings, and no opponent of the licensing will be
able to tender competent evidence bearing on the critical issues.
Not just the Commission, but the entire federal bureaucracy is
vested with a discretionary power, against the abuse of which the
public needs protection.
"[A]dministrators must strive to do as much as they reasonably
can do to develop and to make known the needed confinements of
discretionary power through standards, principles, and rules."
K. Davis, Discretionary Justice 59 (1969). Confinement of
discretionary power, however, cannot be obtained where rules can be
changed and applied retroactively to affect a controversy.
For some years, the agency which was supposed to
Page 423 U. S. 17
promote nuclear energy was also charged with the responsibility
of protecting the public against its abuse. But a promoter is
naturally shortsighted when it comes to the adverse effects of his
project on the community. With the establishment of the Nuclear
Regulatory Commission, Congress undertook to rectify this weakness
in the control system by separating the promotion function from the
function of safeguarding the public. [
Footnote 2/1] But the power to change the rules after
the contest has been concluded would once more put the promotion of
nuclear energy ahead of the public's safety.
Eminent scientists have been steadfast in opposing the growth of
nuclear power plants in this Nation. The number who think nuclear
power should be abandoned has been growing. [
Footnote 2/2] The future of nuclear power in this
Page 423 U. S. 18
country is not a policy matter for courts to decide, but those
who oppose the promotion of nuclear power should have at least a
chance to know what the issues are when a case is set down for
hearing and adjudication, and to argue meaningfully about those
issues. If the rules can be changed by the Commission at any time
-- even after the hearing is over -- the protection afforded by the
opposition of scientific and environmental groups is greatly
weakened.
Ad hoc rulemaking in those areas touching the
public safety is to be looked upon with disfavor.
[
Footnote 2/1]
The separation of promotional and regulatory functions was
accomplished under the Energy Reorganization Act of 1974, 88 Stat.
1233, 42 U.S.C. § 581
et seq. (1970 ed., Supp IV). The
legislation transferred the research and development functions of
the AEC to the new Energy Research and Development Administration.
§ 5814(c). The AEC's regulatory functions became the responsibility
of the Nuclear Regulatory Commission. § 5841(f). Also transferred
to this new Commission were the responsibilities of the Atomic
Safety and Licensing Board and the Atomic Safety and Licensing
Appeal Board. § 5841(g).
The legislative history of the Act indicates that this division
of functions was
"a response to growing criticism that there is a basic conflict
between the AEC's regulation of the nuclear power industry and its
development and promotion of new technology for the industry."
S.Rep. No. 93-980, p. 2 (1974).
"The [Nuclear Regulatory Commission] will have solely regulatory
responsibilities, in keeping with a basic purpose of this act to
separate the regulatory functions of the Atomic Energy Commission
from its developmental and promotional functions, which are
transferred to [the Energy Research and Development
Administration]."
Id. at 19.
[
Footnote 2/2]
J Gofman & A. Tamplin, Poisoned Power: The Case Against
Nuclear Power Plants (1971);
see Ford & Kendall, What
Price Nuclear Power?, 10 Trial 11 (1974); Tamplin, Reacting to
Reactors, 10 Trial 15 (1974); Hearings on AEC Licensing Procedure
and Related Legislation before the Subcommittee on Legislation of
the Joint Committee on Atomic Energy, 92d Cong., 1st Sess., pt. 1,
pp. 294-302 (1971).