In No. 76-419, after extensive hearings before the Atomic Safety
and Licensing Board (Licensing Board) and over respondents'
objections, the Atomic Energy Commission (AEC) granted petitioner
Vermont Yankee Nuclear Power Corp. a license to operate a nuclear
power plant, and this ruling was affirmed by the Atomic Safety and
Licensing Appeal Board (Appeal Board). Subsequently, the AEC,
specifically referring to the Appeal Board's decision, instituted
rulemaking proceedings to deal with the question of considering
environmental effects associated with the uranium fuel cycle in the
individual cost-benefit analyses for light-watercooled nuclear
power reactors. In these proceedings, the Licensing Board was not
to use full formal adjudicatory procedures. Eventually, as a result
of these rulemaking proceedings, the AEC issued a so-called fuel
cycle rule. At the same time, the AEC approved the procedures used
at the hearing; indicated that the record, including the
Environmental Survey, provided an adequate data base for the rule
adopted; and ruled that, to the extent the rule differed from the
Appeal Board's decision, such decision had no further precedential
significance, but that, since the environmental effects of the
uranium fuel cycle had been shown to be relatively insignificant,
it was unnecessary to apply the rule to Vermont Yankee's
environmental reports submitted prior to the rule's effective date
or to the environmental statements circulated for comment prior to
such date. Respondents appealed from both the AEC's adoption of the
fuel cycle rule and its decision to grant Vermont Yankee's license.
With respect to the license, the Court of Appeals first ruled that,
in the absence of effective rulemaking proceedings, the AEC must
deal with the environmental impact of fuel reprocessing and
disposal in individual licensing proceedings, and went on to hold
that, despite the fact that it appeared that the AEC employed all
the procedures required by the Administrative Procedure Act (APA)
in 5 U.S.C. § 553 (1976 ed.) and more,
Page 435 U. S. 520
the rulemaking proceedings were inadequate, and overturned the
rule, and, accordingly, the AEC's determination with respect to the
license was also remanded for further proceedings. In No. 76-528,
after examination of a report of the Advisory Committee on Reactor
Safeguards (ACRS) and extensive hearings, and over respondent
intervenors' objections, the AEC granted petitioner Consumers Power
Co. a permit to construct two nuclear reactors, and this ruling was
affirmed by the Appeal Board. At about this time, the Council on
Environmental Quality revised its regulations governing the
preparation of environmental impact statements so as to mention for
the first time the necessity for considering energy conservation as
one of the alternatives to a proposed project. In view of this
development and a subsequent AEC ruling indicating that all
evidence of energy conservation should not necessarily be barred at
the threshold of AEC proceedings, one of the intervenors moved to
reopen the permit proceedings so that energy conservation could be
considered, but the AEC declined to reopen the proceedings.
Respondents appealed from the granting of the construction permit.
The Court of Appeals held that the environmental impact statement
for the construction of the reactors was fatally defective for
failure to examine energy conservation as an alternative to plants
of this size, and that the ACRS report was inadequate, and should
have been returned to the ACRS for further elucidation,
understandable to a layman, and remanded the case for appropriate
consideration of waste disposal and other unaddressed issues.
1. Generally speaking, 5 U.S.C. § 553 (1976 ed.) establishes the
maximum procedural requirements that Congress was willing to have
the courts impose upon federal agencies in conducting rulemaking
proceedings, and while agencies are free to grant additional
procedural rights in the exercise of their discretion, reviewing
courts are generally not free to impose them if the agencies have
not chosen to grant them. And, even apart from the APA, the
formulation of procedures should basically be left within the
discretion of the agencies to which Congress has confided the
responsibility for substantive judgments. Pp. 435 U. S.
2. The Court of Appeals in these cases has seriously misread or
misapplied such statutory and decisional law cautioning reviewing
courts against engrafting their own notions of proper procedures
upon agencies entrusted with substantive functions by Congress, and
moreover, as to the Court of Appeals' decision with respect to
agency action taken after full adjudicatory hearings, it improperly
intruded into the agency's decisionmaking process. Pp. 435 U. S.
(a) In No. 76-419, the AEC acted well within its statutory
Page 435 U. S. 521
when it considered the environmental impact of the fuel
processes when licensing nuclear reactors. Pp. 435 U. S.
(b) Nothing in the APA, the National Environmental Policy Act of
1969 (NEPA), the circumstances of the case in No. 76-419, the
nature of the issues being considered, past agency practice, or the
statutory mandate under which the AEC operates permitted the Court
of Appeals to review and overturn the rulemaking proceeding on the
basis of the procedural devices employed (or not employed) by the
AEC, so long as the AEC used at least the statutory minima, a
matter about which there is no doubt. Pp. 435 U. S.
(c) As to whether the challenged rule in No. 76-419 finds
sufficient justification in the administrative proceedings that it
should be upheld by the reviewing court, the case is remanded so
that the Court of Appeals may review the rule as the APA provides.
The court should engage in this kind of review, and not stray
beyond the judicial province to explore the procedural format or to
impose upon the agency its own notion of which procedures are
"best" or most likely to further some vague, undefined public good.
P. 435 U. S.
(d) In No. 76-528, the Court of Appeals was wrong in holding
that rejection of energy conservation on the basis of the
"threshold test" was capricious and arbitrary as being inconsistent
with the NEPA's basic mandate to the AEC, since the court's
rationale basically misconceives not only the scope of the agency's
Statutory responsibility, but also the nature of the administrative
process, the thrust of the agency's decision, and the type of
issues the intervenors were trying to raise. The court seriously
mischaracterized the AEC's "threshold test" as placing "heavy
substantive burdens on intervenors." On the contrary, the AEC's
stated procedure as requiring a showing sufficient to require
reasonable minds to inquire further is a procedure well within the
agency's discretion. Pp. 435 U. S.
(e) The Court of Appeals' holding in No. 76-528 that the
Licensing Board should have returned the ACRS report to the ACRS
for further elaboration is erroneous as being an unjustifiable
intrusion into the administrative process, and there is nothing in
the relevant statutes to justify what the court did. Pp.
435 U. S.
No. 76-19, 178 U.S.App.D.C. 336, 547 F.2d 633, and No. 76-528,
178 U.S.App.D.C. 325, 547 F.2d 622, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which all
other Members joined except BLACKMUN and POWELL, JJ., who took no
part in the consideration or decision of the cases.
Page 435 U. S. 523
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In 1946, Congress enacted the Administrative Procedure Act,
which, as we have noted elsewhere, was not only "a new, basic and
comprehensive regulation of procedures in many agencies," Won
Yang Sung v. McGrath, 339 U. S. 33
but was also a legislative enactment which settled "long-continued
and hard-fought contentions, and enacts a formula upon which
opposing social and political forces have come to rest."
at 339 U. S. 40
Section 4 of the Act, 5 U.S.C. § 553 (1976 ed.), dealing with
rulemaking, requires in subsection (b) that
Page 435 U. S. 524
"notice of proposed rule making shall be published in the
Federal Register . . . ," describes the contents of that notice,
and goes on to require in subsection (c) that, after the notice,
"shall give interested persons an opportunity to participate in
the rule making through submission of written data, views, or
arguments with or without opportunity for oral presentation. After
consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of
their basis and purpose."
Interpreting this provision of the Act in United States v.
Allegheny-Ludlum Steel Corp., 406 U.
(1972), and United States v. Florida East
Coast R. Co., 410 U. S. 224
(1973), we held that, generally speaking, this section of the Act
established the maximum procedural requirements which Congress was
willing to have the courts impose upon agencies in conducting
rulemaking procedures. [Footnote
] Agencies are free to grant additional procedural rights in
the exercise of their discretion, but reviewing courts are
generally not free to impose them if the agencies have not chosen
to grant them. This is not to say necessarily that there are no
circumstances which would ever justify a court in overturning
agency action because of a failure to employ procedures beyond
those required by the statute. But such circumstances, if they
exist, are extremely rare.
Even apart from the Administrative Procedure Act, this Court
has, for more than four decades, emphasized that the formulation of
procedures was basically to be left within the discretion of the
agencies to which Congress had confided the responsibility for
substantive judgments. In FCC v. Schreiber, 381 U.
, 381 U. S. 290
(1965), the Court explicated
Page 435 U. S. 525
this principle, describing it as
"an outgrowth of the congressional determination that
administrative agencies and administrators will be familiar with
the industries which they regulate and will be in a better position
than federal courts or Congress itself to design procedural rules
adapted to the peculiarities of the industry and the tasks of the
The Court there relied on its earlier case of FCC v.
Pottsville Broadcasting Co., 309 U. S. 134
309 U. S. 138
(1940), where it had stated that a provision dealing with the
conduct of business by the Federal Communications Commission
delegated to the Commission the power to resolve
"subordinate questions of procedure . . . [such as] the scope of
the inquiry, whether applications should be heard contemporaneously
or successively, whether parties should be allowed to intervene in
one another's proceedings, and similar questions."
It is in the light of this background of statutory and
decisional law that we granted certiorari to review two judgments
of the Court of Appeals for the District of Columbia Circuit
because of our concern that they had seriously misread or
misapplied this statutory and decisional law cautioning reviewing
courts against engrafting their own notions of proper procedures
upon agencies entrusted with substantive functions by Congress. 429
U.S. 1090 (1977). We conclude that the Court of Appeals has done
just that in these cases, and we therefore remand them to it for
further proceedings. We also find it necessary to examine the Court
of Appeals' decision with respect to agency action taken after full
adjudicatory hearings. We again conclude that the court improperly
intruded into the agency's decisionmaking process, making it
necessary for us to reverse and remand with respect to this part of
the cases also.
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended,
42 U.S.C. § 2011 et seq.,
the Atomic Energy Commission
Page 435 U. S. 526
was given broad regulatory authority over the development of
nuclear energy. Under the terms of the Act, a utility seeking to
construct and operate a nuclear power plant must obtain a separate
permit or license at both the construction and the operation stage
of the project. See
42 U.S.C. §§ 2133, 2232, 2235, 2239.
In order to obtain the construction permit, the utility must file a
preliminary safety analysis report, an environmental report, and
certain information regarding the antitrust implications of the
proposed project. See
10 CFR §§ 2.101, 50.30(f), 50.33a,
50.34(a) (1977). This application then undergoes exhaustive review
by the Commission's staff and by the Advisory Committee on Reactor
Safeguards (ACRS), a group of distinguished experts in the field of
atomic energy. Both groups submit to the Commission their own
evaluations, which then become part of the record of the utility's
application. [Footnote 3
42 U.S.C. §§ 2039, 2232(b). The Commission staff also
undertakes the review required by the National Environmental Policy
Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et
and prepares a draft environmental impact statement,
which, after being circulated for comment, 10 CFR §§ 51.22-51.25
(1977), is revised and becomes a final environmental impact
statement. § 51.26. Thereupon, a three-member Atomic Safety and
Licensing Board conducts a public adjudicatory hearing, 42 U.S.C. §
2241, and reaches a decision [Footnote 4
] which can be
Page 435 U. S. 527
appealed to the Atomic Safety and Licensing Appeal Board, and
currently, in the Commission's discretion, to the Commission
itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final
agency decision may be appealed to the courts of appeals. 42 U.S.C.
§ 2239; 28 U.S.C. § 2342. The same sort of process occurs when the
utility applies for a license to operate the plant, 10 CFR §
50.34(b) (1977), except that a hearing need only be held in
contested cases, and may be limited to the matters in controversy.
42 U.S.C. § 2239(a); 10 CFR § 2.105 (1977); 10 CFR pt.
2, App. A, V(f) (1977). [Footnote
These cases arise from two separate decisions of the Court of
Appeals for the District of Columbia Circuit. In the first, the
court remanded a decision of the Commission to grant a license to
petitioner Vermont Yankee Nuclear Power Corp. to operate a nuclear
power plant. Natural Resources Defense Council v. NRC,
U.S.App.D.C. 336, 547 F.2d 633 (1976). In the second, the court
remanded a decision of that same agency to grant a permit to
petitioner Consumers Power Co. to construct two pressurized water
nuclear reactors to generate electricity and steam. Aeschliman
178 U.S.App.D.C. 325, 547 F.2d 622 (1976).
In December, 1967, after the mandatory adjudicatory hearing and
necessary review, the Commission granted petitioner Vermont Yankee
a permit to build a nuclear power plant in Vernon, Vt. See
4 A.E.C. 36 (1967). Thereafter, Vermont Yankee applied for an
operating license. Respondent Natural Resources Defense Council
(NRDC) objected to the granting
Page 435 U. S. 528
of a license, however, and therefore a hearing on the
application commenced on August 10, 1971. Excluded from
consideration at the hearings, over NRDC's objection, was the issue
of the environmental effects of operations to reprocess fuel or
dispose of wastes resulting from the reprocessing operations.
] This ruling was
affirmed by the Appeal Board in June, 1972.
In November, 1972, however, the Commission, making specific
reference to the Appeal Board's decision with respect to the
Vermont Yankee license, instituted rulemaking proceedings
"that would specifically deal with the question of consideration
of environmental effects associated with the uranium fuel cycle in
the individual cost-benefit analyses for light water cooled nuclear
App. 352. The notice of proposed rulemaking offered two
alternatives, both predicated on a report prepared by the
Commission's staff entitled Environmental Survey of the Nuclear
Fuel Cycle. The first would have required no quantitative
evaluation of the environmental hazards of fuel reprocessing or
disposal. because the Environmental Survey had found them to be
slight. The second would have specified numerical values for the
environmental impact of this part of the fuel cycle, which values
would then be incorporated into a table, along with the other
relevant factors, to determine the overall cost-benefit balance for
each operating license. See id.
Much of the controversy in this case revolves around the
Page 435 U. S. 529
procedures used in the rulemaking hearing which commenced in
February, 1973. In a supplemental notice of hearing, the Commission
indicated that, while discovery or cross-examination would not be
utilized, the Environmental Survey would be available to the public
before the hearing, along with the extensive background documents
cited therein. All participants would be given a reasonable
opportunity to present their position, and could be represented by
counsel if they so desired. Written and, time permitting, oral
statements would be received and incorporated into the record. All
persons giving oral statements would be subject to questioning by
the Commission. At the conclusion of the hearing, a transcript
would be made available to the public, and the record would remain
open for 30 days to allow the filing of supplemental written
statements. See generally id.
at 361-363. More than 40
individuals and organizations representing a wide variety of
interests submitted written comments. On January 17, 1973, the
Licensing Board held a planning session to schedule the appearance
of witnesses and to discuss methods for compiling a record. The
hearing was held on February 1 and 2, with participation by a
number of groups, including the Commission's staff, the United
States Environmental Protection Agency, a manufacturer of reactor
equipment, a trade association from the nuclear industry, a group
of electric utility companies, and a group called Consolidated
National Intervenors, which represented 79 groups and individuals,
including respondent NRDC.
After the hearing, the Commission's staff filed a supplemental
document for the purpose of clarifying and revising the
Environmental Survey. Then the Licensing Board forwarded its report
to the Commission without rendering any decision. The Licensing
Board identified as the principal procedural question the propriety
of declining to use full formal adjudicatory procedures. The major
substantive issue was the technical adequacy of the Environmental
Page 435 U. S. 530
In April, 1974, the Commission issued a rule which adopted the
second of the two proposed alternatives described above. The
Commission also approved the procedures used at the hearing,
] and indicated that
the record, including the Environmental Survey, provided an
"adequate data base for the regulation adopted." Id.
392. Finally, the Commission ruled that, to the extent the rule
differed from the Appeal Board decisions in Vermont Yankee, "those
decisions have no further precedential significance," id.
at 386, but that, since
"the environmental effects of the uranium fuel cycle have been
shown to be relatively insignificant, . . . it is unnecessary to
apply the amendment to applicant's environmental reports submitted
prior to its effective date or to Final Environmental Statements
for which Draft Environmental Statements have been circulated for
comment prior to the effective date,"
Respondents appealed from both the Commission's adoption of the
rule and its decision to grant Vermont Yankee's license to the
Court of Appeals for the District of Columbia Circuit.
In January, 1969, petitioner Consumers Power Co. applied for a
permit to construct two nuclear reactors in Midland,
Page 435 U. S. 531
Mich. Consumers Power's application was examined by the
Commission's staff and the ACRS. The ACRS issued reports which
discussed specific problems and recommended solutions. It also made
reference to "other problems" of a more generic nature, and
suggested that efforts should be made to resolve them with respect
to these, as well as all other, projects. [Footnote 8
] Two groups, one called Saginaw and another
called Mapleton, intervened and opposed the application. [Footnote 9
] Saginaw filed with the
Board a number of environmental contentions, directed over 300
interrogatories to the ACRS, attempted to depose the chairman of
the ACRS, and requested discovery of various ACRS documents. The
Licensing Board denied the various discovery requests directed to
the ACRS. Hearings were then held on numerous radiological health
and safety issues. [Footnote
] Thereafter, the Commission's staff issued a draft
Page 435 U. S. 532
environmental impact statement. Saginaw submitted 119
environmental contentions which were both comments on the proposed
draft statement and a statement of Saginaw's position in the
upcoming hearings. The staff revised the statement and issued a
final environmental statement in March, 1972. Further hearings were
then conducted during May and June, 1972. Saginaw, however,
choosing not to appear at or participate in these latter hearings,
indicated that it had "no conventional findings of fact to set
forth" and had not "chosen to search the record and respond to this
proceeding by submitting citations of matters which we believe were
proved or disproved." See
App. 190 n. 9. But the Licensing
Board, recognizing its obligations to "independently consider the
final balance among conflicting environmental factors in the
record," nevertheless treated as contested those issues "as to
which intervenors introduced affirmative evidence or engaged in
substantial cross-examination." Id.
at 205, 191.
At issue now are 17 of those 119 contentions which are claimed
to raise questions of "energy conservation." The Licensing Board
indicated that, as far as appeared from the record, the demand for
the plant was made up of normal industrial and residential use.
at 207. It went on to state that it was "beyond our
province to inquire into whether the customary uses being made of
electricity in our society are proper' or `improper.'"
Ibid. With respect to claims that Consumers Power
stimulated demand by its advertising the Licensing Board indicated
"[n]o evidence was offered on this point, and, absent some
evidence that Applicant is creating abnormal demand, the Board did
not consider the
Page 435 U. S. 533
at 207-208. The Licensing Board also failed to
consider the environmental effects of fuel reprocessing or disposal
of radioactive wastes. The Appeal Board ultimately affirmed the
Licensing Board's grant of a construction permit, and the
Commission declined to further review the matter.
At just about the same time, the Council on Environmental
Quality revised its regulations governing the preparation of
environmental impact statements. 38 Fed.Reg. 20550 (1973). The
regulations mentioned for the first time the necessity of
considering in impact statements energy conservation as one of the
alternatives to a proposed project. The new guidelines were to
apply only to final impact statements filed after January 28, 1974.
at 20557. Thereafter, on November 6, 1973, more than a
year after the record had been closed in the Consumers
case and while that case was pending before the Court of
Appeals, the Commission ruled in another case that, while its
statutory power to compel conservation was not clear, it did not
follow that all evidence of energy conservation issues should
therefore be barred at the threshold. In re Niagara Mohawk
6 A.E.C. 995 (1973). Saginaw then moved the
Commission to clarify its ruling and reopen the Consumers
In a lengthy opinion, the Commission declined to reopen the
proceedings. The Commission first ruled it was required to consider
only energy conservation alternatives which were "reasonably
available,'" would, in their aggregate effect, curtail demand for
electricity to a level at which the proposed facility would not be
needed, and were susceptible of a reasonable degree of proof. App.
332. It then determined, after a thorough examination of the
record, that not all of Saginaw's contentions met these threshold
tests. Id. at 334-340. It further determined that the
Board had been willing at all times to take evidence on the other
contentions. Saginaw had simply failed to present any such
Page 435 U. S. 534
Commission further criticized Saginaw for its total disregard of
even those minimal procedural formalities necessary to give the
Board some idea of exactly what was at issue. The Commission
"[p]articularly in these circumstances, Saginaw's complaint that
it was not granted a hearing on alleged energy conservation issues
comes with ill grace. [Footnote
at 342. And in response to Saginaw's contention
that, regardless of whether it properly raised the issues, the
Licensing Board must consider all environmental issues, the
Commission basically agreed, as did the Board itself, but further
reasoned that the Board must have some workable procedural rules,
and these rules,
"in this setting, must take into account that energy
conservation is a novel and evolving concept. NEPA "does not
require a crystal ball' inquiry." Natural Resources Defense
Council v. Morton, [148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837
(1972)]. This consideration has led us to hold that we will not
apply Niagara retroactively. As we gain experience on a
case-by-case basis and, hopefully, feasible energy conservation
techniques emerge, the applicant, staff, and licensing boards will
have obligations to develop an adequate record on these issues in
appropriate cases, whether or not they are raised by
"However, at this emergent stage of energy conservation
principles, intervenors also have their responsibilities. They must
state clear and reasonably specific energy conservation contentions
in a timely fashion. Beyond that, they have a burden of coming
forward with some
Page 435 U. S. 535
affirmative showing if they wish to have these novel contentions
explored further. [Footnote
at 344 (footnotes omitted). Respondents then
challenged the granting of the construction permit in the Court of
Appeals for the District of Columbia Circuit.
With respect to the challenge of Vermont Yankee's license, the
court first ruled that, in the absence of effective rulemaking
proceedings, [Footnote 13
the Commission must deal with the environmental impact of fuel
reprocessing and disposal in individual licensing proceedings. 178
U.S.App.D.C. at 344, 547 F.2d at 641. The court then examined the
rulemaking proceedings and, despite the fact that it appeared that
the agency employed all the procedures required by 5 U.S.C. § 553
(1976 ed.) and more, the court determined the proceedings to be
inadequate, and overturned the rule. Accordingly, the Commission's
determination with respect to Vermont Yankee's license was also
remanded for further proceedings. [Footnote 14
] 178 U.S. App.D.C. at 358, 547 F.2d at
Page 435 U. S. 536
With respect to the permit to Consumers Power, the court first
held that the environmental impact statement for construction of
the Midland reactors was fatally defective for
Page 435 U. S. 537
failure to examine energy conservation as an alternative to a
plant of this size. 178 U.S.App.D.C. at 331, 547 F.2d at 628. The
court also thought the report by ACRS was inadequate, although it
did not agree that discovery from individual ACRS members was the
proper way to obtain further explication of the report. Instead,
the court held that the Commission should have sua sponte
sent the report back to the ACRS for further elucidation of the
"other problems" and their resolution. Id.
at 335, 547
F.2d at 632. Finally, the court ruled that the fuel cycle issues in
this case were controlled by NRDC v. NRC,
and remanded for appropriate consideration of waste disposal and
other unaddressed fuel cycle issues as described in that opinion.
178 U.S.App.D.C. at 335, 547 F.2d at 632.
Page 435 U. S. 538
Petitioner Vermont Yankee first argues that the Commission may
grant a license to operate a nuclear reactor without any
consideration of waste disposal and fuel reprocessing. We find,
however, that this issue is no longer presented by the record in
this case. The Commission does not contend that it is not required
to consider the environmental impact of the spent fuel processes
when licensing nuclear power plants. Indeed, the Commission has
publicly stated subsequent to the Court of Appeals' decision in the
instant case that consideration of the environmental impact of the
back end of the fuel cycle in
"the environmental impact statements for individual LWR's
[light-water power reactors] would represent a full and candid
assessment of costs and benefits consistent with the legal
requirements and spirit of NEPA."
41 Fed Reg. 45849 (1976). Even prior to the Court of Appeals'
decision, the Commission implicitly agreed that it would consider
the back end of the fuel cycle in all licensing proceedings: it
indicated that it was not necessary to reopen prior licensing
proceedings, because "the environmental effects of the uranium fuel
cycle have been shown to be relatively insignificant," and thus
incorporation of those effects into the cost-benefit analysis would
not change the results of such licensing proceedings. App 395.
Thus, at this stage of the proceedings, the only question presented
for review in this regard is whether the Commission may consider
the environmental impact of the fuel processes when licensing
nuclear reactors. In addition to the weight which normally attaches
to the agency's determination of such a question, other reasons
support the Commission's conclusion.
Vermont Yankee will produce annually well over 100 pounds of
radioactive wastes, some of which will be highly toxic. The
Commission itself, in a pamphlet published by its
Page 435 U. S. 539
information office, clearly recognizes that these wastes "pose
the most severe potential health hazard. . . ." U.S. Atomic Energy
Commission, Radioactive Wastes 12 (1965). Many of these substances
must be isolated for anywhere from 600 to hundreds of thousands of
years. It is hard to argue that these wastes do not constitute
"adverse environmental effects which cannot be avoided should the
proposal be implemented," or that, by operating nuclear power
plants, we are not making "irreversible and irretrievable
commitments of resources." 42 U.S.C. §§ 4332(2)(C)(ii), (v). As the
Court of Appeals recognized, the environmental impact of the
radioactive wastes produced by a nuclear power plant is
analytically indistinguishable from the environmental effects of
"the stack gases produced by a coal-burning power plant." 178
U.S.App.D.C. at 341, 547 F.2d at 638. For these reasons, we hold
that the Commission acted well within its statutory authority when
it considered the back end of the fuel cycle in individual
We next turn to the invalidation of the fuel cycle rule. But
before determining whether the Court of Appeals reached a
permissible result, we must determine exactly what result it did
reach, and, in this case, that is no mean feat. Vermont Yankee
argues that the court invalidated the rule because of the
inadequacy of the procedures employed in the proceedings. Brief for
Petitioner in No. 76-419, pp. 30-38. Respondents, on the other
hand, labeling petitioner's view of the decision a "straw man,"
argue to this Court that the court merely held that the record was
inadequate to enable the reviewing court to determine whether the
agency had fulfilled its statutory obligation. Brief for
Respondents in No. 76-419, pp. 28-30, 40. But we unfortunately have
not found the parties' characterization of the opinion to be
entirely reliable; it appears here, as in Orloff v.
Willoughby, 345 U. S. 83
345 U. S. 87
Page 435 U. S. 540
"in this Court, the parties changed positions as nimbly as if
dancing a quadrille." [Footnote
After a thorough examination of the opinion itself, we
Page 435 U. S. 541
that, while the matter is not entirely free from doubt, the
majority of the Court of Appeals struck down the rule because of
the perceived inadequacies of the procedures employed in the
rulemaking proceedings. The court first determined the intervenors'
primary argument to be
"that the decision to preclude 'discovery or cross-examination'
denied them a meaningful opportunity to participate in the
proceedings as guaranteed by due process."
178 U.S.App.D.C. at 346, 547 F.2d at 643. The court then went on
to frame the issue for decision thus:
"Thus, we are called upon to decide whether the procedures
provided by the agency were sufficient to ventilate the
547 F.2d at 643. The court conceded that, absent
extraordinary circumstances, it is improper for a reviewing court
to prescribe the procedural format an agency must follow, but it
likewise clearly thought it entirely appropriate to "scrutinize the
record as a whole to insure that genuine opportunities to
participate in a meaningful way were provided. . . ." Id.
at 347, 547 F.2d at 644. The court also refrained from actually
ordering the agency to follow any specific procedures, id.
at 356-357, 547 F.2d at 653-654, but there is little doubt in our
Page 435 U. S. 542
the ineluctable mandate of the court's decision is that the
procedures afforded during the hearings were inadequate. This
conclusion is particularly buttressed by the fact that after the
court examined the record, particularly the testimony of Dr.
Pittman, and declared it insufficient, the court proceeded to
discuss at some length the necessity for further procedural devices
or a more "sensitive" application of those devices employed during
the proceedings. Ibid.
The exploration of the record and
the statement regarding its insufficiency might initially lead one
to conclude that the court was only examining the sufficiency of
the evidence, but the remaining portions of the opinion dispel any
doubt that this was certainly not the sole, or even the principal,
basis of the decision. Accordingly, we feel compelled to address
the opinion on its own terms, and we conclude that it was
In prior opinions, we have intimated that, even in a rulemaking
proceeding, when an agency is making a "quasi-judicial'"
determination by which a very small number of persons are
"`exceptionally affected, in each case upon individual grounds,'"
in some circumstances, additional procedures may be required in
order to afford the aggrieved individuals due process. [Footnote 16] United States v.
Florida East Coast R. Co., 410 U.S. at 410 U. S. 242,
410 U. S. 245,
quoting from Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U. S. 441,
239 U. S. 446
(1915). It might also be true, although we do not think the issue
is presented in this case, and accordingly do not decide it, that a
totally unjustified departure from well settled agency procedures
of long standing might require judicial correction. [Footnote 17]
Page 435 U. S. 543
But this much is absolutely clear. Absent constitutional
constraints or extremely compelling circumstances, the
"administrative agencies 'should be free to fashion their own
rules of procedure, and to pursue method of inquiry capable of
permitting them to discharge their multitudinous duties.'"
FCC v. Schreiber,
381 U.S. at 381 U. S. 290
quoting from FCC v. Pottsville
Page 435 U. S. 544
309 U.S. at 309 U. S. 143
Indeed, our cases could hardly be more explicit in this regard. The
Court has, as we noted in FCC v. Schreiber, supra
381 U. S. 290
and n. 17, upheld this principle in a variety of applications,
] including that
case where the District Court, instead of inquiring into the
validity of the Federal Communications Commission's exercise of its
rulemaking authority, devised procedures to be followed by the
agency on the basis of its conception of how the public and private
interest involved could best be served. Examining § 4(j) of the
Communications Act of 1934, the Court unanimously held that the
Court of Appeals erred in upholding that action. And the basic
reason for this decision was the Court of Appeals' serious
departure from the very basic tenet of administrative law that
agencies should be free to fashion their own rules of
We have continually repeated this theme through the years, most
recently in FPC v. Transcontinental Gas Pipe Line Corp.,
423 U. S. 326
(1976), decided just two Terms ago. In that case, in determining
the proper scope of judicial review of agency action under the
Natural Gas Act, we held that, while a court may have occasion to
remand an agency decision because of the inadequacy of the record,
the agency should normally be allowed to
"exercise its administrative discretion in deciding how, in
light of internal organization considerations, it may best proceed
to develop the needed evidence, and how its prior decision should
be modified in light of such evidence as develops."
at 423 U. S. 333
We went on to emphasize:
"At least in the absence of substantial justification for doing
otherwise, a reviewing court may not, after determining that
additional evidence is requisite for adequate
Page 435 U. S. 545
review, proceed by dictating to the agency the methods,
procedures, and time dimension of the needed inquiry and ordering
the results to be reported to the court without opportunity for
further consideration on the basis of the new evidence by the
agency. Such a procedure clearly runs the risk of 'propel[ling] the
court into the domain which Congress has set aside exclusively for
the administrative agency.' SEC v. Chenery Corp.,
332 U. S.
, 332 U. S. 196
Respondent NRDC argues that § 4 of the Administrative Procedure
Act, 5 U.S.C. § 553 (1976 ed.), merely establishes lower procedural
bounds, and that a court may routinely require more than the
minimum when an agency's proposed rule addresses complex or
technical factual issues or "Issues of Great Public Import." Brief
for Respondents in No. 76-419, p. 49. We have, however, previously
shown that our decisions reject this view. Supra
435 U. S. 542
to this page. We also think the legislative history, even the part
which it cites, does not bear out its contention. The Senate Report
explains what eventually became § 4 thus:
"This subsection states . . . the minimum requirements of public
rulemaking procedure short of statutory hearing. Under it, agencies
might in addition confer with industry advisory committees, consult
organizations, hold informal 'hearings,' and the like.
Considerations of practicality, necessity, and public interest . .
. will naturally govern the agency's determination of the extent to
which public proceedings should go. Matters of great import, or
those where the public submission of facts will be either useful to
the agency or a protection to the public, should naturally be
accorded more elaborate public procedures."
S.Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945). The House
Report is in complete accord:
"'[U]niformity has been found possible and desirable for all
classes of both equity and law actions in the courts. . . .
Page 435 U. S. 546
It would seem to require no argument to demonstrate that the
administrative agencies, exercising but a fraction of the judicial
power, may likewise operate under uniform rules of practice and
procedure, and that they may be required to remain within the terms
of the law as to the exercise of both quasi-legislative and
"* * * *"
"The bill is an outline of minimum essential rights and
procedures. . . . It affords private parties a means of knowing
what their rights are and how they may protect them . . . ."
"* * * *"
". . . [The bill contains] the essentials of the different forms
of administrative proceedings. . . ."
H.R.Rep. No.1980, 79th Cong., 2d Sess., 9, 117 (1946). And the
Attorney General's Manual on the Administrative Procedure Act 31,
35 (1947), a contemporaneous interpretation previously given some
deference by this Court because of the role played by the
Department of Justice in drafting the legislation, [Footnote 19
] further confirms that view. In
short, all of this leaves little doubt that Congress intended that
the discretion of the agencies, and not that of the courts, be
exercised in determining when extra procedural devices should be
There are compelling reasons for construing § 4 in this manner.
In the first place, if courts continually review agency proceedings
to determine whether the agency employed procedures which were, in
the court's opinion, perfectly tailored to reach what the court
perceives to be the "best" or "correct" result, judicial review
would be totally unpredictable. And the agencies, operating under
this vague injunction to employ
Page 435 U. S. 547
the "best" procedures and facing the threat of reversal if they
did not, would undoubtedly adopt full adjudicatory procedures in
every instance. Not only would this totally disrupt the statutory
scheme, through which Congress enacted "a formula upon which
opposing social and political forces have come to rest," Wong
Yang Sung v. McGrath,
339 U.S. at 339 U. S. 40
but all the inherent advantages of informal rulemaking would be
totally lost. [Footnote
Secondly, it is obvious that the court in these cases reviewed
the agency's choice of procedures on the basis of the record
actually produced at the hearing, 178 U.S.App.D.C. at 347, 547 F.2d
at 644, and not on the basis of the information available to the
agency when it made the decision to structure the proceedings in a
certain way. This sort of Monday morning quarterbacking not only
encourages, but almost compels, the agency to conduct all
rulemaking proceedings with the full panoply of procedural devices
normally associated only with adjudicatory hearings.
Finally, and perhaps most importantly, this sort of review
fundamentally misconceives the nature of the standard for judicial
review of an agency rule. The court below uncritically assumed that
additional procedures will automatically result in a more adequate
record because it will give interested parties more of an
opportunity to participate in and contribute to the proceedings.
But informal rulemaking need not be based solely on the transcript
of a hearing held before an agency. Indeed, the agency need not
even hold a formal hearing. See
5 U.S.C. § 553(c) (1976
ed.). Thus, the adequacy of the "record" in this type of proceeding
is not correlated directly to the type of procedural devices
employed, but rather turns on whether the agency has followed the
statutory mandate of the Administrative Procedure Act or other
relevant statutes. If the agency is compelled to support
Page 435 U. S. 548
the rule which it ultimately adopts with the type of record
produced only after a full adjudicatory hearing, it simply will
have no choice but to conduct a full adjudicatory hearing prior to
promulgating every rule. In sum, this sort of unwarranted judicial
examination of perceived procedural shortcomings of a rulemaking
proceeding can do nothing but seriously interfere with that process
prescribed by Congress.
Respondent NRDC also argues that the fact that the Commission's
inquiry was undertaken in the context of NEPA somehow permits a
court to require procedures beyond those specified in § 4 of the
APA when investigating factual issues through rulemaking. The Court
of Appeals was apparently also of this view, indicating that
agencies may be required to "develop new procedures to accomplish
the innovative task of implementing NEPA through rulemaking." 178
U.S.App.D.C. at 356, 547 F.2d at 653. But we search in vain for
something in NEPA which would mandate such a result. We have before
observed that "NEPA does not repeal by implication any other
statute." Aberdeen Rockfish R. Co. v. SCRAP, 422 U.
, 422 U. S. 319
(1975). See also United States v. SCRAP, 412 U.
, 412 U. S. 694
(1973). In fact, just two Terms ago, we emphasized that the only
procedural requirements imposed by NEPA are those stated in the
plain language of the Act. Kleppe v. Sierra Club,
427 U. S. 390
427 U. S.
-406 (1976). Thus, it is clear NEPA cannot serve as
the basis for a substantial revision of the carefully constructed
procedural specifications of the APA.
In short, nothing in the APA, NEPA, the circumstances of this
case, the nature of the issues being considered, past agency
practice, or the statutory mandate under which the Commission
operates permitted the court to review and overturn the rulemaking
proceeding on the basis of the procedural devices employed (or not
employed) by the Commission so long as the Commission employed at
least the statutory minima,
a matter about which there is
no doubt in this case.
Page 435 U. S. 549
There remains; of course, the question of whether the challenged
rule finds sufficient justification in the administrative
proceedings that it should be upheld by the reviewing court. Judge
Tamm, concurring in the result reached by the majority of the Court
of Appeals, thought that it did not. There are also intimations in
the majority opinion which suggest that the judges who joined it
likewise may have thought the administrative proceedings an
insufficient basis upon which to predicate the rule in question. We
accordingly remand so that the Court of Appeals may review the rule
as the Administrative Procedure Act provides. We have made it
abundantly clear before that, when there is a contemporaneous
explanation of the agency decision, the validity of that action
"stand or fall on the propriety of that finding, judged, of
course, by the appropriate standard of review. If that finding is
not sustainable on the administrative record made, then the
Comptroller's decision must be vacated and the matter remanded to
him for further consideration."
Camp v. Pitts, 411 U. S. 138
411 U. S. 143
(1973). See also SEC v. Chenery Corp., 318 U. S.
(1943). The court should engage in this kind of
review and not stray beyond the judicial province to explore the
procedural format or to impose upon the agency its own notion of
which procedures are "best" or most likely to further some vague,
undefined public good. [Footnote
We now turn to the Court of Appeals' holding "that rejection of
energy conservation on the basis of the threshold
Page 435 U. S.
was capricious and arbitrary," 178 U.S.App.D.C. at 332, 547
F.2d at 629, and again conclude the court was wrong.
The Court of Appeals ruled that the Commission's "threshold
test" for the presentation of energy conservation contentions was
inconsistent with NEPA's basic mandate to the Commission.
at 330, 547 F.2d at 627. The Commission, the court
reasoned, is something more than an umpire who sits back and
resolves adversary contentions at the hearing stage.
547 F.2d at 627. And when an intervenor's comments
"bring sufficient attention to the issue to stimulate the
Commission's consideration of it,'" the Commission must
"undertake its own preliminary investigation of the proffered
alternative sufficient to reach a rational judgment whether it is
worthy of detailed consideration in the EIS. Moreover, the
Commission must explain the basis for each conclusion that further
consideration of a suggested alternative is unwarranted."
at 331, 547 F.2d at 628, quoting from Indiana
& Michigan Electric Co. v. FPC,
163 U.S.App.D.C. 334, 337,
502 F.2d 336, 339 (1974), cert. denied,
420 U.S. 946
While the court's rationale is not entirely unappealing as an
abstract proposition, as applied to this case, we think it
basically misconceives not only the scope of the agency's statutory
responsibility, but also the nature of the administrative process,
the thrust of the agency's decision, and the type of issues the
intervenors were trying to raise.
There is little doubt that, under the Atomic Energy Act of 1954,
state public utility commissions or similar bodies are empowered to
make the initial decision regarding the need for power. 42 U.S.C. §
2021(k). The Commission's prime area of concern in the licensing
context, on the other hand, is national security, public health,
and safety. §§ 2132, 2133, 2201. And it is clear that the need, as
that term is conventionally used, for the power was thoroughly
explored in the hearings. Even the Federal Power Commission, which
Page 435 U. S. 551
sales in interstate commerce, 16 U.S.C. § 824 et seq.
(1976 ed.), agreed with Consumers Power's analysis of projected
need. App. 207.
NEPA, of course, has altered slightly the statutory balance,
requiring "a detailed statement by the responsible official on . .
. alternatives to the proposed action." 42 U.S.C. § 4332(C). But,
as should be obvious even upon a moment's reflection, the term
"alternatives" is not self-defining. To make an impact statement
something more than an exercise in frivolous boilerplate, the
concept of alternatives must be bounded by some notion of
feasibility. As the Court of Appeals for the District of Columbia
Circuit has itself recognized:
"There is reason for concluding that NEPA was not meant to
require detailed discussion of the environmental effects of
'alternatives' put forward in comments when these effects cannot be
readily ascertained and the alternatives are deemed only remote and
speculative possibilities, in view of basic changes required in
statutes and policies of other agencies -- making them available,
if at all, only after protracted debate and litigation not
meaningfully compatible with the timeframe of the needs to which
the underlying proposal is addressed."
Natural Resources Defense Council v. Morton,
U.S.App.D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972). See also
Life of the Land v. Brinegar,
485 F.2d 460 (CA9 1973),
416 U.S. 961 (1974). Common sense also
teaches us that the "detailed statement of alternatives" cannot be
found wanting simply because the agency failed to include every
alternative device and thought conceivable by the mind of man. Time
and resources are simply too limited to hold that an impact
statement fails because the agency failed to ferret out every
possible alternative, regardless of how uncommon or unknown that
alternative may have been at the time the project was approved.
Page 435 U. S. 552
With these principles in mind we now turn to the notion of
"energy conservation," an alternative the omission of which was
thought by the Court of Appeals to have been "forcefully pointed
out by Saginaw in its comments on the draft EIS." 178 U.S.App.D.C.
at 328, 547 F.2d at 625. Again, as the Commission pointed out,
"the phrase 'energy conservation' has a deceptively simple ring
in this context. Taken literally, the phrase suggests a virtually
limitless range of possible actions and developments that might, in
one way or another, ultimately reduce projected demands for
electricity from a particular proposed plant."
App. 331. Moreover, as a practical matter, it is hard to dispute
the observation that it is largely the events of recent years that
have emphasized not only the need but also a large variety of
alternatives for energy conservation. Prior to the drastic oil
shortages incurred by the United States in 1973, there was little
serious thought in most Government circles of energy conservation
alternatives. Indeed, the Council on Environmental Quality did not
promulgate regulations which even remotely suggested the need to
consider energy conservation in impact statements until August 1,
40 CFR § 1500.8(a)(4) (1977); 38 Fed.Reg. 20554
(1973). And even then the guidelines were not made applicable to
draft and final statements filed with the Council before January
28, 1974. Id.
at 20557, 21265. The Federal Power
Commission likewise did not require consideration of energy
conservation in applications to build hydroelectric facilities
until June 19, 1973. 18 CFR pt. 2, App. A. § 8.2 (1977); 38
Fed.Reg. 15946, 15949 (1973). And these regulations were not made
retroactive either. Id.
at 15946. All this occurred over a
year and a half after the draft environmental statement for Midland
had been prepared, and over a year after the final environmental
statement had been prepared and the hearings completed.
We think these facts amply demonstrate that the concept of
"alternatives" is an evolving one, requiring the agency to
Page 435 U. S. 553
explore more or fewer alternatives as they become better known
and understood. This was well understood by the Commission, which,
unlike the Court of Appeal, recognized that the Licensing Board's
decision had to be judged by the information then available to it.
And judged in that light, we have little doubt the Board's actions
were well within the proper bounds of its statutory authority. Not
only did the record before the agency give every indication that
the project was actually needed, but also there was nothing before
the Board to indicate to the contrary.
We also think the court's criticism of the Commission's
"threshold test" displays a lack of understanding of the historical
setting within which the agency action took place and of the nature
of the test itself. In the first place, while it is true that NEPA
places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action, it is
still incumbent upon intervenors who wish to participate to
structure their participation so that it is meaningful, so that it
alerts the agency to the intervenors' position and contentions.
This is especially true when the intervenors are requesting the
agency to embark upon an exploration of uncharted territory, as was
the question of energy conservation in the late 1960's and early
"[C]omments must be significant enough to step over a threshold
requirement of materiality before any lack of agency response or
consideration becomes of concern. The comment cannot merely state
that a particular mistake was made . . . ; it must show why the
mistake was of possible significance in the results. . . ."
Portland Cement Assn. v. Ruckelshaus,
308, 327, 486 F.2d 375, 394 (1973), cert. denied sub nom.
Portland Cement Cor. v. Administrator, EPA,
417 U.S. 921
(1974). Indeed, administrative proceedings should not be a game or
a forum to engage in unjustified obstructionism by making
Page 435 U. S. 554
cryptic and obscure reference to matters that "ought to be"
considered, and then, after failing to do more to bring the matter
to the agency's attention, seeking to have that agency
determination vacated on the ground that the agency failed to
consider matters "forcefully presented." In fact, here, the agency
continually invited further clarification of Saginaw's contentions.
Even without such clarification it indicated a willingness to
receive evidence on the matters. But not only did Saginaw decline
to further focus its contentions, it virtually declined to
participate, indicating that it had "no conventional findings of
fact to set forth" and that it had not "chosen to search the record
and respond to this proceeding by submitting citations of matter
which we believe were proved or disproved."
We also think the court seriously mischaracterized the
Commission's "threshold test" as placing "heavy substantive burdens
. . . on intervenors. . . ." 178 U.S.App.D.C. at 330, and n. 11,
547 F.2d at 627, and n. 11. On the contrary, the Commission
"We do not equate this burden with the civil litigation concept
of a prima facie
case, an unduly heavy burden in this
setting. But the showing should be sufficient to require reasonable
minds to inquire further."
App. 344 n. 27. We think this sort of agency procedure well
within the agency's discretion.
In sum, to characterize the actions of the Commission as
"arbitrary or capricious" in light of the facts then available to
it, as described at length above, is to deprive those words of any
meaning. As we have said in the past:
"Administrative consideration of evidence . . . always creates a
gap between the time the record is closed and the time the
administrative decision is promulgated [and, we might add, the time
the decision is judicially reviewed]. . . . If, upon the coming
down of the order,
Page 435 U. S. 555
litigants might demand rehearings as a matter of law because
some new circumstance has arisen, some new trend has been observed,
or some new fact discovered, there would be little hope that the
administrative process could ever be consummated in an order that
would not be subject to reopening."
ICC v. Jersey City, 322 U. S. 503
322 U. S. 514
(1944). See also Northern Lines Merger Cases, 396 U.
, 396 U. S. 521
We have also made it clear that the role of a court in reviewing
the sufficiency of an agency's consideration of environmental
factors is a limited one, limited both by the time at which the
decision was made and by the statute mandating review.
"Neither the statute nor its legislative history contemplates
that a court should substitute its judgment for that of the agency
as to the environmental consequences of its actions."
Kleppe v. Sierra Club,
427 U.S. at 427 U. S. 410
n. 21. We think the Court of Appeals has forgotten that injunction
here, and, accordingly, its judgment in this respect must also be
reversed. [Footnote 22
Page 435 U. S. 556
Finally, we turn to the Court of Appeals' holding that the
Licensing Board should have returned the ACRS report to ACRS for
further elaboration, understandable to a layman, of the reference
to other problems.
The Court of Appeals reasoned that, since one function of the
report was "that all concerned may be apprised of the safety or
possible hazard of the facilities," the report must be in terms
understandable to a layman and replete with cross-references to
previous reports in which the "other problems" are detailed. Not
only that, but if the report does not so elaborate, and the
Licensing Board fails to sua sponte
return the report to
ACRS for further development, the entire agency action, made after
exhaustive studies, reviews, and 14 days of hearings, must be
Again the Court of Appeals has unjustifiably intruded into the
administrative process. It is true that Congress thought
publication of the ACRS report served an important function. But
the legislative history shows that the function of publication was
subsidiary to its main function, that of providing technical advice
from a body of experts uniquely qualified to provide assistance.
42 U.S.C. § 2039; S.Rep. No. 296, 85th Cong., 1st
Sess., 24 (1957); Joint Committee on Atomic Energy, A Study of AEC
Procedures and Organization in the Licensing of Reactor Facilities,
85th Cong., 1st Sess., 32-34 (Comm.Print 1957). The basic
information to be conveyed to the public is not necessarily a full
technical exposition of every facet of nuclear energy, but rather
the ACRS's position, and reasons therefor, with respect to the
safety of a proposed nuclear reactor. Accordingly, the ACRS cannot
be faulted for not dealing with every facet of nuclear energy in
every report it issues.
Of equal significance is the fact that the ACRS was not
obfuscating its findings. The reports to which it referred were
matters of public record, on file in the Commission's
Page 435 U. S. 557
public documents room. Indeed, all ACRS reports are on file
there. Furthermore, we are informed that, shortly after the
Licensing Board's initial decision, ACRS prepared a list which
identified its "generic safety concerns." In light of all this, it
is simply inconceivable that a reviewing court should find it
necessary or permissible to order the Board to sua sponte
return the report to ACRS. Our view is confirmed by the fact that
the putative reason for the remand was that the public did not
understand the report, and yet not one member of the supposedly
uncomprehending public even asked that the report be remanded. This
surely is, as petitioner Consumers Power claims, "judicial
intervention run riot." Brief for Petitioner in No. 76-528, p.
We also think it worth noting that we find absolutely nothing in
the relevant statutes to justify what the court did here. The
Commission very well might be able to remand a report for further
clarification, but there is nothing to support a court's ordering
the Commission to take that step or to support a court's requiring
the ACRS to give a short explanation, understandable to a layman,
of each generic safety concern.
All this leads us to make one further observation of some
relevance to this case. To say that the Court of Appeals' final
reason for remanding is insubstantial, at best, is a gross
understatement. Consumers Power first applied in 1969 for a
construction permit -- not even an operating license, just a
construction permit. The proposed plant underwent an incredibly
extensive review. The reports filed and reviewed literally fill
books. The proceedings took years, and the actual hearings
themselves over two weeks. To then nullify that effort seven years
later because one report refers to other problems, which problems
admittedly have been discussed at length in other reports available
to the public, borders on the Kafkaesque. Nuclear energy may some
day be a cheap, safe source of power, or it may not. But Congress
has made a
Page 435 U. S. 558
choice to at least try nuclear energy, establishing a reasonable
review process in which courts are to play only a limited role. The
fundamental policy questions appropriately resolved in Congress and
in the state legislatures are not
subject to reexamination
in the federal courts under the guise of judicial review of agency
action. Time may prove wrong the decision to develop nuclear
energy, but it is Congress or the States, within their appropriate
agencies, which must eventually make that judgment. In the
meantime, courts should perform their appointed function. NEPA does
set forth significant substantive goals for the Nation, but its
mandate to the agencies is essentially procedural. See
U.S.C. § 4332. See also Aberdeen & Rockfish R. Co. v.
422 U.S. at 422 U. S. 319
It is to insure a fully informed and well considered decision, not
necessarily a decision the judges of the Court of Appeals or of
this Court would have reached had they been members of the
decisionmaking unit of the agency. Administrative decisions should
be set aside in this context, as in every other, only for
substantial procedural or substantive reasons as mandated by
statute, Consolo v. FMC, 383 U. S. 607
383 U. S. 620
(1966), not simply because the court is unhappy with the result
reached. And a single alleged oversight on a peripheral issue,
urged by parties who never fully cooperated or indeed raised the
issue below, must not be made the basis for overturning a decision
properly made after an otherwise exhaustive proceeding.
Reversed and remanded.
MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL took no part in the
consideration or decision of these cases.
* Together with No. 76-528, Consumers Power Co. v.
Aeschliman et al.,
also on certiorari to the same court.
While there was division in this Court in United States v.
Florida East Coast R. Co.
with respect to the
constitutionality of such an interpretation in a case involving
ratemaking, which Mr. Justice Douglas and MR. JUSTICE STEWART felt
was "adjudicatory" within the terms of the Act, the cases in the
Court of Appeals for the District of Columbia Circuit which we
review here involve rulemaking procedures in their most pristine
The licensing and regulatory functions of the Atomic Energy
Commission (AEC) were transferred to the Nuclear Regulatory
Commission (NRC) by the Energy Reorganization Act of 1974, 42
U.S.C. § 5801 et seq.
(1970 ed., Supp. V). Hereinafter,
both the AEC and NRC will be referred to as the Commission.
ACRS is required to review each construction permit application
for the purpose of informing the Commission of the "hazards of
proposed or existing reactor facilities and the adequacy of
proposed reactor safety standards." 42 U.S.C. § 2039.
The Licensing Board issues a permit if it concludes that there
is reasonable assurance that the proposed plant can be constructed
and operated without undue risk, 42 U.S.C. § 2241; 10 CFR §
50.35(a) (1977), and that the environmental cost-benefit balance
favors the issuance of a permit.
When a license application is contested, the Licensing Board
must find reasonable assurance that the plant can be operated
without undue risk and will not be inimical to the common defense
and security or to the health and safety of the public.
42 U.S.C. § 2232(a); 10 CFR § 50.57(a) (1977). The
Licensing Board's decision is subject to review similar to that
afforded the Board's decision with respect to a construction
The nuclear fission which takes place in light-water nuclear
reactors apparently converts its principal fuel, uranium, into
plutonium, which is itself highly radioactive but can be used as
reactor fuel if separated from the remaining uranium and
radioactive waste products. Fuel reprocessing refers to the process
necessary to recapture usable plutonium. Waste disposal, at the
present stage of technological development, refers to the storage
of the very long-lived and highly radioactive waste products until
they detoxify sufficiently that they no longer present an
environmental hazard. There are presently no physical or chemical
steps which render this waste less toxic, other than simply the
passage of time.
The Commission stated:
"In our view, the procedures adopted provide a more than
adequate basis for formulation of the rule we adopted. All parties
were fully heard. Nothing offered was excluded. The record does not
indicate that any evidentiary material would have been received
under different procedures. Nor did the proponent of the strict
'adjudicatory' approach make an offer of proof -- or even remotely
suggest -- what substantive matters it would develop under
different procedures. In addition, we note that 11 documents
including the Survey were available to the parties several weeks
before the hearing, and the Regulatory staff, though not requested
to do so, made available various drafts and handwritten notes.
Under all of the circumstances, we conclude that adjudicatory type
procedures were not warranted here."
App. 389-390 (footnote omitted).
The ACRS report as quoted, 178 U.S.App.D.C. at 333, 547 F.2d at
"Other problems related to large water reactors have been
identified by the Regulatory Staff and the ACRS and cited in
previous ACRS reports. The Committee believes that resolution of
these items should apply equally to the Midland Plant Units 1 &
"The Committee believes that the above items can be resolved
during construction, and that, if due consideration is given to
these items, the nuclear units proposed for the Midland Plant can
be constructed with reasonable assurance that they can be operated
without undue risk to the health and safety of the public."
Saginaw included the Saginaw Valley Nuclear Study Group, the
Citizens Committee for Environmental Protection of Michigan, the
United Automobile Workers International, and three other
environmental groups. Mapleton included Nelson Aeschliman and five
other residents of a community near the proposed plant site.
Mapleton did not raise any contentions relating to energy
Pursuant to the regulations then in effect, the Licensing Board
refused to consider most of the environmental issues in this first
set of hearings. On the last day of those hearings, however, the
Court of Appeals for the District of Columbia Circuit decided
Calvert Cliffs' Coordinating Comm. v. AEC,
U.S.App.D.C. 33, 449 F.2d 1109 (1971), which invalidated the
Commission's NEPA regulations. One effect of that decision was to
require that environmental matters be considered in pending
proceedings, including this one. Accordingly, the Commission
revised its regulations and then undertook an extensive
environmental review of the proposed nuclear plants, requiring
Consumers Power to file a lengthy environmental report. Thereafter,
the Commission's staff prepared the draft environmental impact
statement discussed in text.
The Licensing Board had highlighted this same problem in its
initial decision, noting
"that the failure to propose proper findings and conclusions has
greatly complicated the task of the Board, and has made it
virtually impossible in some instances to know whether particular
issues are, in fact, contested."
App. 190 n. 10. The Appeal Board was even less charitable,
noting that that "[p]articipation in this manner, in our opinion,
subverts the entire adjudicatory process." Id.
In what was essentially dictum, the Commission also ruled, after
considering the various relevant factors -- such as the extent to
which the new rule represents a departure from prior practice, the
degree of reliance on past practice, and consequent burdens imposed
by retroactive application of the rule -- that the rule enunciated
should not be applied retroactively to cases
which had progressed to final order and issuance of construction
permits before Niagara
was decided. App 337.
In the Court of Appeals, no one questioned the Commission's
authority to deal with fuel cycle issues by informal rulemaking, as
opposed to adjudication. 178 U.S.App.D.C. at 345-346, 547 F.2d at
642-643. Neither does anyone seriously question before this Court
the Commission's authority in this respect.
After the decision of the Court of Appeals, the Commission
promulgated a new interim rule pending issuance of a final rule. 42
Fed.Reg. 13803 (1977). See Vermont Yankee Nuclear Power
5 N.R.C. 717 (1977). The Commission then, at the
request of the New England Coalition on Nuclear Pollution, applied
the interim rule to Vermont Yankee and determined that the
cost-benefit analysis was still in the plant's favor. Vermont
Yankee Nuclear Power Corp.,
6 N.R.C. 25 (1977). That decision
is presently on appeal to the Court of Appeals for the First
Circuit. The Commission has also indicated in its brief that it
intends to complete the proceedings currently in progress looking
toward the adoption of a final rule regardless of the outcome of
this case. Brief for Federal Respondents 37 n. 36. Following oral
argument, respondent NRDC, relying on the above facts, filed a
suggestion of mootness and a motion to dismiss the writ of
certiorari as improvidently granted. We hold that the case is not
moot, and deny the motion to dismiss the writ of certiorari as
Upon remand, the majority of the panel of the Court of Appeals
is entirely free to agree or disagree with Judge Tamm's conclusion
that the rule pertaining to the back end of the fuel cycle under
which petitioner Vermont Yankee's license was considered is
arbitrary and capricious within the meaning of § 10(e) of the
Administrative Procedure Act, 5 U.S.C. § 706 (1976 ed.), even
though it may not hold, as it did in its previous opinion, that the
rule is invalid because of the inadequacy of the agency procedures.
Should it hold the rule invalid, it appears in all probability that
the Commission will proceed to promulgate a rule resulting from
rulemaking proceedings currently in progress. Brief for Federal
Respondents 37 n. 36. In all likelihood, the Commission would then
be required, under the compulsion of the court's order, to examine
Vermont Yankee's license under that new rule.
If, on the other hand, a majority of the Court of Appeals should
decide that it was unwilling to hold the rule in question arbitrary
and capricious merely on the basis of § 10(e) of the Administrative
Procedure Act, Vermont Yankee would not necessarily be required to
have its license reevaluated. So far as petitioner Vermont Yankee
is concerned, there is certainly a case or controversy in this
Court with respect to whether it must, by virtue of the Court of
Appeals' decision, submit its license to the Commission for
reevaluation and possible revocation under a new rule. It is true
that we do not finally determine here the validity of the rule upon
which the validity of Vermont Yankee's license, in turn, depends.
Neither should anything we say today be taken as a limitation on
the Court of Appeals' discretion to take due account, if
appropriate, of any additions made to the record by the Commission
or to consolidate this appeal with the appeal from the interim
rulemaking proceeding which is already pending. But the fact that
the question of the validity of the first rule remains open upon
remand makes the controversy no less "live."
As we read the opinion of the Court of Appeals, its view that
reviewing courts may, in the absence of special circumstances,
justifying such a course of action impose additional procedural
requirements on agency action raises questions of such significance
in this area of the law as to warrant our granting certiorari and
deciding the case. Since the vast majority of challenges to
administrative agency action are brought to the Court of Appeals
for the District of Columbia Circuit, the decision of that court in
this case will serve as precedent for many more proceedings for
judicial review of agency actions than would the decision of
another Court of Appeals. Finally, this decision will continue to
play a major role in the instant litigation regardless of the
Commission's decision to press ahead with further rulemaking
proceedings. As we note in n
not only is the NRDC relying on the decision of
the Court of Appeals as a device to force the agency to provide
more procedures, but it is also challenging the interim rules
promulgated by the agency in the Court of Appeals, alleging again
the inadequacy of the procedures and citing the opinion of the
Court of Appeals as binding precedent to that effect.
Vermont Yankee's interpretation has been consistent throughout
the litigation. That cannot be said of the other parties, however.
The Government, Janus-like, initially took both positions. While
the petition for certiorari was pending, a brief was filed on
behalf of the United States and the Commission, with the former
indicating that it believed the court had unanimously held the
record to be inadequate, while the latter took Vermont Yankee's
view of the matter. See
Brief for Federal Respondents 5-9
(filed Jan. 10, 1977). When announcing its intention to undertake
licensing of reactors pending the promulgation of an "interim" fuel
cycle rule, however, the Commission said:
"[T]he court found that the rule was inadequately supported by
the record insofar as it treated two particular aspects of the fuel
cycle -- the impacts from reprocessing of spent fuel and the
impacts from radioactive waste management."
41 Fed.Reg. 45850 (1976). And even more recently, in opening
another rulemaking proceeding to replace the rule overturned by the
Court of Appeals, the Commission stated:
"The original procedures proved adequate for the development and
illumination of a wide range of fuel cycle impact issues. . . .
". . . The court here indicated that the procedures previously
employed could suffice, and indeed did for other issues."
"* * * *"
"Accordingly, notice is hereby given that the rules for the
conduct of the reopened hearing and the authorities and
responsibilities of the Hearing Board will be the same as
originally applied in this matter (38 Fed.Reg. 49, January 3, 1973)
except that specific provision is hereby made for the Hearing Board
to entertain suggestions from participants as to questions which
the Board should ask of witnesses for other participants."
42 Fed.Reg. 26988-26989 (1977).
Respondent NRDC likewise happily switches sides depending on the
forum. As indicated above, it argues here that the Court of Appeals
held only that the record was inadequate. Almost immediately after
the Court of Appeals rendered its decision, however, NRDC filed a
petition for rulemaking with the Commission which listed over 13
pages of procedural suggestions it thought "necessary to comply
with the Court's order and with the mandate of [NEPA]." NRDC,
Petition for Rulemaking, NRC Docket No. RM-50-3 (Aug. 10, 1976).
These proposals include cross-examination, discovery, and subpoena
Attachment, Rules for Conduct of Hearing on
Environmental Effects of the Uranium Fuel Cycle, �� 5(a), 9(b), 11.
NRDC likewise challenged the interim fuel cycle rule, and suggested
to the Court of Appeals that it hold the case pending our decision
in this case because the interim rules were "defective due to the
inadequacy of the procedures used in developing the rule. . . ."
Motion to Hold Petition for Review in Abeyance 1, in NRDC v. NRC,
No. 77-1448 (DC Cir., petition for review filed May 13, 1977;
motion filed July 5, 1977). NRDC has likewise challenged the
procedures being used in the final rulemaking proceeding as being
"no more than a re-run of hearing procedures which were found
inadequate [by the Court of Appeals]." NRDC Petition for
Reconsideration of the Ruling Reopening the Hearings on the
Environmental Effects of the Uranium Fuel Cycle 10, NRC Docket No.
RM-50-3 (June 6, 1977).
Respondent NRDC does not now argue that additional procedural
devices were required under the Constitution. Since this was
clearly a rulemaking proceeding in its purest form, we see nothing
to support such a view. See United States v. Florida East Coast
R. Co., 410 U. S. 224
410 U. S.
-245 (1973); Bowles v. Willingham,
321 U. S. 503
(1944); Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U. S. 441
NRDC argues that the agency has in the past provided more than
the minimum procedures specified in § 4 of the APA, and therefore
something more is required here, since
"[a]gencies are not free to alter their procedures on a whim,
grossly constricting parties' procedural rights when it deems them
an impediment or embarrassment to implementing its own views."
Brief for Respondents in No. 76-419, p. 46. In support, NRDC
first argues that the Commission has considered other equally
generic issues in adjudicatory proceedings. But NRDC conceded in
the court below that the agency could promulgate rules regarding
the fuel cycle in rulemaking proceedings. 178 U.S.App.D.C. at 346,
547 F.2d at 643. Moreover, even here it concedes
"that the Commission has in the past chosen to consider both
environmental and safety issues that would ordinarily be addressed
in adjudicatory licensing proceedings through 'generic' rulemaking,
a practice with which the lower court did not take issue."
Brief for Respondents in No. 76-419, p. 48. It now contends,
however, that the Commission provided more procedural safeguards in
those rulemaking proceedings than in the proceeding presently under
review. In support, it cites three previous proceedings where
cross-examination was supposedly provided. Id.
435 U. S. 49
Pretermitting both the fact that the Court of Appeals in no way
relied upon this argument in its decision and the question of
whether courts can impose additional procedures even when an agency
substantially departs from past practice, we find NRDC's argument
without merit. In the first place, three proceedings out of the
many held by NRC and its predecessor hardly establish the type of
longstanding and well established practice deviation from which
might justify judicial intervention. It appears, moreover, that, in
fact, the hearings cited by NRDC are not only not part of a
longstanding practice, but are themselves aberrational. Since 1970,
the Commission has conducted a large number of rulemaking
proceedings, some of which have involved matters of substantial
importance, and almost none of which have involved
cross-examination. See, e.g.,
Quality Assurance Criteria
for Nuclear Power Plants, 35 Fed.Reg. 10499 (1970); General Design
Criteria for Nuclear Power Plants, 36 Fed.Reg. 3255 (1971);
Pre-Construction Permit Activities, 39 Fed.Reg. 14506 (1974);
Environmental Protection -- Licensing and Regulatory Policy and
See, e.g., CAB v. Hermann, 353 U.
(1957); Oklahoma Press Pub. Co. v.
Walling, 327 U. S. 186
(1946); Wallace Corp. v. NLRB, 323 U.
(1944); Endicott Johnson Corp. v.
Perkins, 317 U. S. 501
(1943); Utah Fuel Co. v. National Bituminous Coal Comm'n,
306 U. S. 56
(1939); Norwegian Nitrogen Products Co. v. United States,
288 U. S. 294
See Power Reactor Co. v. Electricians, 367 U.
, 367 U. S. 408
(1961); United States v. Zucca, 351 U. S.
, 351 U. S. 96
Wright, The Courts and the Rulemaking Process: The
Limits of Judicial Review, 59 Cornell L.Rev. 375, 387-388
Of course, the court must determine whether the agency complied
with the procedures mandated by the relevant statutes. Citizens
to Preserve Overton Park v. Volpe, 401 U.
, 401 U. S. 417
(1971). But, as we indicated above, there is little doubt that the
agency was in full compliance with all the applicable requirements
of the Administrative Procedure Act.
The court also indicated at the end of the opinion in
"this matter requires remand and reopening of the issues of
energy conservation alternatives as well as recalculation of costs
and benefits, we assume that the Commission will take into account
the changed circumstances regarding Dow's [the principal customer
for the plant's steam] need for process steam, and the intended
continued operation of Dow's fossil fuel generating
178 U.S.App.D.C. at 335, 547 F.2d at 632. As we read the Court
of Appeals opinion, however, this was not an independent basis for
vacating and remanding the Commission's licensing decision. It also
appears from the record that the Commission has reconsidered the
changed circumstances and refused to reopen the proceedings at
least three times, see
App. 346-347, 348-349, 350-351, and
possibly a fourth, see
Brief for Nonfederal Respondents in
No. 76-528, pp. 19-20, n. 8. We see no error in the Commission's
actions in this respect.