Section 102(2)(C) of the National Environmental Policy Act
(NEPA) requires federal agencies to consider the environmental
impact of any major federal action. The dispute in these cases
concerns the adoption by the Nuclear Regulatory Commission (NRC) of
a series of generic rules to evaluate the environmental effects of
a nuclear powerplant's fuel cycle. In these rules, the NRC decided
that licensing boards should assume, for purposes of NEPA, that the
permanent storage of certain nuclear wastes would have no
significant environmental impact (the so-called "zero release"
assumption), and thus should not affect the decision whether to
license a particular nuclear powerplant. At the heart of each rule
is Table S-3, a numerical compilation of the estimated resources
used and effluents released by fuel cycle activities supporting a
year's operation of a typical light-water reactor. Challenges to
the rules ultimately resulted in a decision by the Court of
Appeals, on a petition for review of the final version of the
rules, that the rules were arbitrary and capricious and
inconsistent with NEPA because the NRC had not factored the
consideration of uncertainties surrounding the zero release
assumption into the licensing process in such a manner that the
uncertainties could potentially affect the outcome of any decision
to license a plant.
Held: The NRC complied with NEPA, and its decision is
not arbitrary or capricious within the meaning of § 10(e) of the
Administrative Procedure Act (APA). Pp.
462 U. S.
97-108.
(a) The zero release assumption, which was designed for the
limited purpose of individual licensing decisions and which is but
a single figure in Table S-3, is within the bounds of reasoned
decisionmaking required by the APA. The NRC, in its statement
announcing the final Table S-3 rule, summarized the major
uncertainties of long-term storage of nuclear wastes, noted that
the probability of intrusion was small, and found the evidence
"tentative but favorable" that an appropriate storage site
Page 462 U. S. 88
could be found. Table S-3 refers interested persons to staff
studies that discuss the uncertainties in greater detail. In these
circumstances, the NRC complied with NEPA's requirements of
consideration and disclosure of the environmental impacts of its
licensing decisions. It is not the task of this Court to determine
what decision it would have reached if it had been the NRC. The
Court's only task is to determine whether the NRC had considered
the relevant factors and articulated a rational connection between
the facts found and the choice made. Under this standard, the zero
release assumption, within the context of Table S-3 as a whole, was
not arbitrary or capricious. Pp.
462 U. S.
97-106.
(b) It is inappropriate to cast doubt on the licensing
proceedings simply because of a minor ambiguity in the language of
an earlier rule as to whether licensing boards were required to
consider health effects, socioeconomic effects, or cumulative
impacts, where there is no evidence that this ambiguity prevented
any party from making as full a presentation as desired or ever
affected the decision to license a plant. Pp.
462 U.S. 106-108.
222 U.S.App.D.C. 9, 685 F.2d 459, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which all
other Members joined, except POWELL, J., who took no part in the
consideration or decision of the cases.
Page 462 U. S. 89
JUSTICE O'CONNOR delivered the opinion of the Court.
Section 102(2)(C) of the National Environmental Policy Act of
1969, 83 Stat. 853, 42 U.S.C. § 4332(2)(C) (NEPA), requires federal
agencies to consider the environmental impact of any major federal
action. [
Footnote 1] As part of
its generic rulemaking proceedings to evaluate the environmental
effects of the nuclear fuel cycle for nuclear powerplants, the
Nuclear
Page 462 U. S. 90
Regulatory Commission (Commission) [
Footnote 2] decided that licensing boards should assume,
for purposes of NEPA, that the permanent storage of certain nuclear
wastes would have no significant environmental impact, and thus
should not affect the decision whether to license a particular
nuclear powerplant. We conclude that the Commission complied with
NEPA, and that its decision is not arbitrary or capricious within
the meaning of § 10(e) of the Administrative Procedure Act (APA), 5
U.S.C. § 706. [
Footnote 3]
I
The environmental impact of operating a light-water nuclear
powerplant [
Footnote 4]includes
the effects of off-site activities necessary to provide fuel for
the plant ("front end" activities), and of off-site activities
necessary to dispose of the highly toxic and long-lived nuclear
wastes generated by the plant ("back end" activities). The dispute
in these cases concerns
Page 462 U. S. 91
the Commission's adoption of a series of generic rules to
evaluate the environmental effects of a nuclear powerplant's fuel
cycle. At the heart of each rule is Table S-3, a numerical
compilation of the estimated resources used and effluents released
by fuel cycle activities supporting a year's operation of a typical
light-water reactor. [
Footnote
5] The three versions of Table S-3 contained similar numerical
values, although the supporting documentation has been amplified
during the course of the proceedings.
The Commission first adopted Table S-3 in 1974, after extensive
informal rulemaking proceedings. 39 Fed.Reg. 14188
et seq.
(1974). This "original" rule, as it later came to be described,
declared that in environmental reports and impact statements for
individual licensing proceedings the environmental costs of the
fuel cycle "shall be as set forth" in Table S-3, and that "[n]o
further discussion of such environmental effects shall be
required."
Id. at 14191. [
Footnote 6] The original Table S-3 contained no numerical
entry for the long-term
Page 462 U. S. 92
environmental effects of storing solidified transuranic and
high-level wastes, [
Footnote 7]
because the Commission staff believed that technology would be
developed to isolate the wastes from the environment. The
Commission and the parties have later termed this assumption of
complete repository integrity as the "zero release" assumption: the
reasonableness of this assumption is at the core of the present
controversy.
The Natural Resources Defense Council (NRDC), a respondent in
the present cases, challenged the original rule and a license
issued under the rule to the Vermont Yankee Nuclear Power Corp. The
Court of Appeals for the District of Columbia Circuit affirmed
Table S-3's treatment of the "front end" of the fuel cycle, but
vacated and remanded the portion of the rule relating to the "back
end" because of perceived inadequacies in the rulemaking
procedures.
Natural Resources Defense Council, Inc. v.
NRC, 178 U.S.App.D.C. 336, 547 F.2d 633 (1976). Judge Tamm
disagreed that the procedures were inadequate, but concurred on the
ground that the record on waste storage was inadequate to support
the zero release assumption.
Id. at 361, 547 F.2d at
658.
In
Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U. S. 519
(1978), this Court unanimously reversed the Court of Appeals'
decision that the Commission had used inadequate procedures,
finding that the Commission had done all that was required by NEPA
and the APA and determining that courts generally lack the
authority to impose "hybrid" procedures greater than those
contemplated by the governing statutes. We remanded for review of
whether the original rule was adequately supported by the
administrative record, specifically
Page 462 U. S. 93
stating that the court was free to agree or disagree with Judge
Tamm's conclusion that the rule pertaining to the "back end" of the
fuel cycle was arbitrary and capricious within the meaning of §
10(e) of the APA, 5 U.S.C. § 706.
Id. at 536, n. 14.
While
Vermont Yankee was pending in this Court, the
Commission proposed a new "interim" rulemaking proceeding to
determine whether to adopt a revised Table S-3. The proposal
explicitly acknowledged that the risks from long-term repository
failure were uncertain, but suggested that research should resolve
most of those uncertainties in the near future. 41 Fed.Reg.
45850-45851 (1976). After further proceedings, the Commission
promulgated the interim rule in March 1977. Table S-3 now
explicitly stated that solidified high-level and transuranic wastes
would remain buried in a federal repository, and therefore would
have no effect on the environment. 42 Fed.Reg. 13807 (1977). Like
its predecessor, the interim rule stated that "[n]o further
discussion of such environmental effects shall be required."
Id. at 13806. The NRDC petitioned for review of the
interim rule, challenging the zero release assumption and faulting
the Table S-3 rule for failing to consider the health, cumulative,
and socioeconomic effects of the fuel cycle activities. The Court
of Appeals stayed proceedings while awaiting this Court's decision
in
Vermont Yankee. In April, 1978, the Commission amended
the interim rule to clarify that health effects were not covered by
Table S-3 and could be litigated in individual licensing
proceedings. 43 Fed.Reg. 15613
et seq. (1978).
In 1979, following further hearings, the Commission adopted the
"final" Table S-3 rule. 44 Fed.Reg. 45362
et seq. (1979).
Like the amended interim rule, the final rule expressly stated that
Table S-3 should be supplemented in individual proceedings by
evidence about the health, socioeconomic, and cumulative aspects of
fuel cycle activities. The Commission also continued to adhere to
the zero release
Page 462 U. S. 94
assumption that the solidified waste would not escape and harm
the environment once the repository was sealed. It acknowledged
that this assumption was uncertain because of the remote
possibility that water might enter the repository, dissolve the
radioactive materials, and transport them to the biosphere.
Nevertheless, the Commission predicted that a bedded-salt
repository would maintain its integrity, and found the evidence
"tentative but favorable" that an appropriate site would be found.
Id. at 45368. The Commission ultimately determined that
any undue optimism in the assumption of appropriate selection and
perfect performance of the repository is offset by the cautious
assumption, reflected in other parts of the Table, that all
radioactive gases in the spent fuel would escape during the initial
6- to 20-year period that the repository remained open,
ibid., and thus did not significantly reduce the overall
conservatism of Table S-3.
Id. at 45369.
The Commission rejected the option of expressing the
uncertainties in Table S-3 or permitting licensing boards, in
performing the NEPA analysis for individual nuclear plants, to
consider those uncertainties. It saw no advantage in reassessing
the significance of the uncertainties in individual licensing
proceedings:
"In view of the uncertainties noted regarding waste disposal,
the question then arises whether these uncertainties can or should
be reflected explicitly in the fuel cycle rule. The Commission has
concluded that the rule should not be so modified. On the
individual reactor licensing level, where the proceedings deal with
fuel cycle issues only peripherally, the Commission sees no
advantage in having licensing boards repeatedly weigh for
themselves the effect of uncertainties on the selection of fuel
cycle impacts for use in cost-benefit balancing. This is a generic
question properly dealt with in the rulemaking as part of choosing
what impact values should go into the fuel cycle rule. The
Commission concludes, having
Page 462 U. S. 95
noted that uncertainties exist, that, for the limited purpose of
the fuel cycle rule, it is reasonable to base impacts on the
assumption which the Commission believes the probabilities favor,
i.e., that bedded-salt repository sites can be found which
will provide effective isolation of radioactive waste from the
biosphere."
Id. at 45369.
The NRDC and respondent State of New York petitioned for review
of the final rule. The Court of Appeals consolidated these
petitions for all purposes with the pending challenges to the
initial and interim rules. [
Footnote 8] By a divided panel, [
Footnote 9] the court concluded that the Table S-3
rules were arbitrary and capricious and inconsistent with NEPA
because the Commission had not factored the consideration of
uncertainties surrounding the zero release assumption into the
licensing process in such a manner that the uncertainties could
potentially affect the outcome of any decision to license a
particular plant.
Natural Resources Defense Council, Inc. v.
NRC, 222 U.S.App.D.C. 9, 685 F.2d 459 (1982). The court first
reasoned that NEPA requires an agency to consider all significant
environmental risks from its proposed action. If the zero release
assumption is taken as a finding that long-term storage poses no
significant environmental
Page 462 U. S. 96
risk, which the court acknowledged may not have been the
Commission's intent, it found that the assumption represents a
self-evident error in judgment, and is thus arbitrary and
capricious. As the evidence in the record reveals and the
Commission itself acknowledged, the zero release assumption is
surrounded with uncertainty.
Alternatively, reasoned the Court of Appeals, the zero release
assumption could be characterized as a decisionmaking device
whereby the Commission, rather than individual licensing boards,
would have sole responsibility for considering the risk that
long-lived wastes will not be disposed of with complete success.
The court recognized that the Commission could use generic
rulemaking to evaluate environmental costs common to all licensing
decisions. Indeed, the Commission could use generic rulemaking to
balance generic costs and benefits to produce a generic "net
value." These generic evaluations could then be considered together
with case-specific costs and benefits in individual proceedings.
The key requirement of NEPA, however, is that the agency consider
and disclose the actual environmental effects in a manner that will
ensure that the overall process, including both the generic
rulemaking and the individual proceedings, brings those effects to
bear on decisions to take particular actions that significantly
affect the environment. The Court of Appeals concluded that the
zero release assumption was not in accordance with this NEPA
requirement, because the assumption prevented the uncertainties --
which were not found to be insignificant or outweighed by other
generic benefits -- from affecting any individual licensing
decision. Alternatively, by requiring that the licensing decision
ignore factors that are relevant under NEPA, the zero release
assumption is a clear error in judgment, and thus arbitrary and
capricious.
We granted certiorari. 459 U.S. 1034 (1982). We reverse.
Page 462 U. S. 97
II
We are acutely aware that the extent to which this Nation should
rely on nuclear power as a source of energy is an important and
sensitive issue. Much of the debate focuses on whether development
of nuclear generation facilities should proceed in the face of
uncertainties about their long-term effects on the environment.
Resolution of these fundamental policy questions lies, however,
with Congress and the agencies to which Congress has delegated
authority, as well as with state legislatures and, ultimately, the
populace as a whole. Congress has assigned the courts only the
limited, albeit important, task of reviewing agency action to
determine whether the agency conformed with controlling statutes.
As we emphasized in our earlier encounter with these very
proceedings,
"[a]dministrative decisions should be set aside in this context,
as in every other, only for substantial procedural or substantive
reasons as mandated by statute . . . , not simply because the court
is unhappy with the result reached."
Vermont Yankee, 435 U.S. at
435 U. S.
558.
The controlling statute at issue here is NEPA. NEPA has twin
aims. First, it "places upon an agency the obligation to consider
every significant aspect of the environmental impact of a proposed
action."
Vermont Yankee, supra, at
435 U. S. 553.
Second, it ensures that the agency will inform the public that it
has indeed considered environmental concerns in its decisionmaking
process.
Weinberger v. Catholic Action of Hawaii/Peace
Education Project, 454 U. S. 139,
454 U. S. 143
(1981). Congress in enacting NEPA, however, did not require
agencies to elevate environmental concerns over other appropriate
considerations.
See Stryckers' Bay Neighborhood Council v.
Karlen, 444 U. S. 223,
444 U. S. 227
(1980) (per curiam). Rather, it required only that the agency take
a "hard look" at the environmental consequences before taking a
major action.
See Kleppe v. Sierra Club, 427 U.
S. 390,
427 U. S. 410,
n. 21 (1976). The role of the courts is simply to ensure that
the
Page 462 U. S. 98
agency has adequately considered and disclosed the environmental
impact of its actions, and that its decision is not arbitrary or
capricious.
See generally Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402,
401 U. S.
415-417 (1971).
In its Table S-3 rule here, the Commission has determined that
the probabilities favor the zero release assumption, because the
Nation is likely to develop methods to store the wastes with no
leakage to the environment. The NRDC did not challenge, and the
Court of Appeals did not decide, the reasonableness of this
determination, 222 U.S.App.D.C. at 28, n. 96, 685 F.2d at 478, n.
96, and no party seriously challenges it here. The Commission
recognized, however, that the geological, chemical, physical, and
other data it relied on in making this prediction were based, in
part, on assumptions which involve substantial uncertainties.
Again, no one suggests that the uncertainties are trivial or the
potential effects insignificant if time proves the zero release
assumption to have been seriously wrong. After confronting the
issue, though, the Commission has determined that the uncertainties
concerning the development of nuclear waste storage facilities are
not sufficient to affect the outcome of any individual licensing
decision. [
Footnote 10]
It is clear that the Commission, in making this determination,
has made the careful consideration and disclosure required by NEPA.
The sheer volume of proceedings before the Commission is
impressive. [
Footnote 11] Of
far greater importance,
Page 462 U. S. 99
the Commission's Statement of Consideration announcing the final
Table S-3 rule shows that it has digested this mass of material and
disclosed all substantial risks. 44 Fed.Reg. 45367-45369 (1979).
The Statement summarizes the major uncertainty of long-term storage
in bedded-salt repositories, which is that water could infiltrate
the repository as a result of such diverse factors as geologic
faulting, a meteor strike, or accidental or deliberate intrusion by
man. The Commission noted that the probability of intrusion was
small, and that the plasticity of salt would tend to heal some
types of intrusions. The Commission also found the evidence
"tentative but favorable" that an appropriate site could be found.
Table S-3 refers interested persons to staff studies that discuss
the uncertainties in greater detail. [
Footnote 12] Given this record
Page 462 U. S. 100
and the Commission's statement, it simply cannot be said that
the Commission ignored or failed to disclose the uncertainties
surrounding its zero release assumption.
Congress did not enact NEPA, of course, so that an agency would
contemplate the environmental impact of an action as an abstract
exercise. Rather, Congress intended that the "hard look" be
incorporated as part of the agency's process of deciding whether to
pursue a particular federal action. It was on this ground that the
Court of Appeals faulted the Commission's action, for failing to
allow the uncertainties potentially to "tip the balance" in a
particular licensing decision. As a general proposition, we can
agree with the Court of Appeals' determination that an agency must
allow all significant environmental risks to be factored into the
decision whether to undertake a proposed action. We think, however,
that the Court of Appeals erred in concluding that the Commission
had not complied with this standard.
As Vermont Yankee made clear, NEPA does not require agencies to
adopt any particular internal decisionmaking structure. Here, the
agency has chosen to evaluate generically
Page 462 U. S. 101
the environmental impact of the fuel cycle and inform individual
licensing boards, through the Table S-3 rule, of its evaluation.
The generic method chosen by the agency is clearly an appropriate
method of conducting the "hard look" required by NEPA.
See
Vermont Yankee, 435 U.S. at
435 U. S. 535,
n. 13. The environmental effects of much of the fuel cycle are not
plant-specific, for any plant, regardless of its particular
attributes, will create additional wastes that must be stored in a
common long-term repository. Administrative efficiency and
consistency of decision are both furthered by a generic
determination of these effects without needless repetition of the
litigation in individual proceedings, which are subject to review
by the Commission in any event.
See generally Ecology Action v.
AEC, 492 F.2d 998, 1002, n. 5 (CA2 1974) (Friendly, J.)
(quoting Administrative Conference Proposed Recommendation
73-6).
The Court of Appeals recognized that the Commission has
discretion to evaluate generically the environmental effects of the
fuel cycle and require that these values be "plugged into"
individual licensing decisions. The court concluded that the
Commission nevertheless violated NEPA by failing to factor the
uncertainty surrounding long-term storage into Table S-3 and
precluding individual licensing decisionmakers from considering
it.
The Commission's decision to affix a zero value to the
environmental impact of long-term storage would violate NEPA,
however, only if the Commission acted arbitrarily and capriciously
in deciding generically that the uncertainty was insufficient to
affect any individual licensing decision. In assessing whether the
Commission's decision is arbitrary and capricious, it is crucial to
place the zero release assumption in context. Three factors are
particularly important. First is the Commission's repeated emphasis
that the zero release assumption -- and, indeed, all of the Table
S-3 rule -- was made for a limited purpose. The Commission
expressly noted its intention to supplement the rule with an
explanatory narrative. [
Footnote
13]
Page 462 U. S. 102
It also emphasized that the purpose of the rule was not to
evaluate or select the most effective long-term waste disposal
technology or develop site selection criteria. A separate an
comprehensive series of programs has been undertaken to serve these
broader purposes. [
Footnote
14] In the proceedings before us, the Commission's staff did
not attempt to evaluate the environmental effects of all possible
methods of disposing of waste. Rather, it chose to analyze
intensively the most probable long-term waste disposal method --
burial in a bedded-salt repository several hundred meters below
ground -- and then "estimate its impacts conservatively, based on
the best available information and analysis." 44 Fed.Reg. 45363
(1979). [
Footnote 15] The
zero release assumption cannot be evaluated in isolation. Rather,
it must be assessed in relation to the limited purpose for which
the Commission made the assumption.
Second, the Commission emphasized that the zero release
assumption is but a single figure in an entire Table, which the
Page 462 U. S. 103
Commission expressly designed as a risk-averse estimate of the
environmental impact of the fuel cycle. It noted that Table S-3
assumed that the fuel storage canisters and the fuel rod cladding
would be corroded before a repository is closed, and that all
volatile materials in the fuel would escape to the environment.
[
Footnote 16] Given that
assumption, and the improbability that materials would escape after
sealing, the Commission determined that the overall Table
represented a conservative (
i.e., inflated) statement of
environmental impacts. It is not unreasonable for the Commission to
counteract the uncertainties in post-sealing releases by balancing
them with an overestimate of pre-sealing releases. [
Footnote 17] A reviewing court should not
magnify a single line item beyond its significance as only part of
a larger Table.
Third, a reviewing court must remember that the Commission is
making predictions, within its area of special expertise, at the
frontiers of science. When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing
court must generally be at its most deferential.
See, e.g.,
Industrial Union Dept. v. American Petroleum Institute,
448 U. S. 607,
448 U. S. 656
(1980) (plurality opinion);
id. at
448 U. S.
705-706 (MARSHALL, J., dissenting).
Page 462 U. S. 104
With these three guides in mind, we find the Commission's zero
release assumption to be within the bounds of reasoned
decisionmaking required by the APA. We have already noted that the
Commission's Statement of Consideration detailed several areas of
uncertainty, and discussed why they were insubstantial for purposes
of an individual licensing decision. The Table S-3 rule also refers
to the staff reports, public documents that contain a more expanded
discussion of the uncertainties involved in concluding that
long-term storage will have no environmental effects. These staff
reports recognize that rigorous verification of long-term risks for
waste repositories is not possible, but suggest that data and
extrapolation of past experience allow the Commission to identify
events that could produce repository failure, estimate the
probability of those events, and calculate the resulting
consequences. NUREG-0116 at 4-86. [
Footnote 18] The Commission staff also modeled the
consequences of repository failure by tracing the flow of
contaminated water, and found them to be insignificant.
Id. at 4-89 through 4-94. Ultimately, the staff concluded
that
"[t]he radiotoxic hazard index analyses and the modeling studies
that have been done indicate that consequences of all but the most
improbable events will be small.
Page 462 U. S. 105
Risks (probabilities times consequences) inherent in the
long-term for geological disposal will therefore also be
small."
Id. at 2-11.
We also find significant the separate views of Commissioners
Bradford and Gilinsky. These Commissioners expressed
dissatisfaction with the zero release assumption, and yet
emphasized the limited purpose of the assumption and the overall
conservatism of Table S-3. Commissioner Bradford characterized the
bedded-salt repository as a responsible working assumption for NEPA
purposes, and concurred in the zero release figure because it does
not appear to affect Table S-3's overall conservatism. 44 Fed.Reg.
45372 (1979). Commissioner Gilinsky was more critical of the entire
Table, stating that the Commission should confront directly whether
it should license any nuclear reactors in light of the problems of
waste disposal, rather than hide an affirmative conclusion to this
issue behind a table of numbers. He emphasized that the "waste
confidence proceeding,"
see n 14,
supra, should provide the Commission an
appropriate vehicle for a thorough evaluation of the problems
involved in the Government's commitment to a waste disposal
solution. For the limited purpose of individual licensing
proceedings, however, Commissioner Gilinsky found it "virtually
inconceivable" that the Table should affect the decision whether to
license, and characterized as "naive" the notion that the fuel
cycle effluents could tip the balance in some cases and not in
others. 44 Fed.Reg. 45374 (1979).
In sum, we think that the zero release assumption -- a policy
judgment concerning one line in a conservative Table designed for
the limited purpose of individual licensing decisions -- is within
the bounds of reasoned decisionmaking. It is not our task to
determine what decision we, as Commissioners, would have reached.
Our only task is to determine whether the Commission has considered
the relevant factors and articulated a rational connection between
the facts found and the choice made.
Bowman
Transportation, Inc. v.
Page 462 U. S. 106
Arkansas-Best Freight System, Inc., 419 U.
S. 281,
419 U. S.
285-286 (1974);
Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402
(1971). Under this standard, we think the Commission's zero release
assumption, within the context of Table S-3 as a whole, was not
arbitrary and capricious.
III
As we have noted,
n 5,
supra, Table S-3 describes effluents and other impacts in
technical terms. The Table does not convert that description into
tangible effects on human health or other environmental variables.
The original and interim rules declared that
"the contribution of the environmental effects of . . . fuel
cycle activities . . . shall be as set forth in the following Table
S-3 [and] [n]o further discussion of such environmental effects
shall be required."
39 Fed.Reg. 14191 (1974); 42 Fed.Reg. 13806 (1977). Since the
Table does not specifically mention health effects, socioeconomic
impacts, or cumulative impacts, this declaration does not clearly
require or preclude their discussion. The Commission later amended
the interim rule to clarify that health effects were not covered by
Table S-3 and could be litigated in individual licensing
proceedings. In the final rule, the Commission expressly required
licensing boards to consider the socioeconomic and cumulative
effects in addition to the health effects of the releases projected
in the Table. 44 Fed.Reg. 45371 (1979). [
Footnote 19]
The Court of Appeals held that the original and interim rules
violated NEPA by precluding licensing boards from considering the
health, socioeconomic, and cumulative effects of the environmental
impacts stated in technical terms. As does the Commission, we agree
with the Court of Appeals that NEPA requires an EIS to disclose the
significant health, socioeconomic, and cumulative consequences of
the environmental
Page 462 U. S. 107
impact of a proposed action.
See Metropolitan Edison Co. v.
People Against Nuclear Energy, 460 U.
S. 766 (1983);
Kleppe v. Sierra Club, 427 U.S.
at
427 U. S. 410;
40 CFR §§ 1508.7, 1508.8 (1982). We find no basis, however, for the
Court of Appeals' conclusion that the Commission ever precluded a
licensing board from considering these effects.
It is true, as the Commission pointed out in explaining why it
modified the language in the earlier rules, that the original Table
S-3 rule "at least initially was apparently interpreted as cutting
off" discussion of the effects of effluent releases. 44 Fed.Reg.
45364 (1979). But even the notice accompanying the earlier versions
stated that the Table was "to be used as a basis for
evaluating the environmental effects in a cost-benefit
analysis for a reactor," 39 Fed.Reg. 14190 (1974) (emphasis added),
suggesting that individual licensing boards were to assess the
consequences of effluent releases. And when, operating under the
initial rule, the Atomic Safety and Licensing Appeal Board
suggested the desirability of discussing health effects for
comparing nuclear with coal plants,
In re Tennessee Valley
Authority (Hartsville Nuclear Plant Units), 5 N.R.C. 92, 103,
n. 52 (1977), the Commission staff was allowed to introduce
evidence of public health consequences.
Cf. In re Public
Service Company of Indiana (Marble Hill Nuclear Generating
Station), 7 N.R.C. 179, 187 (1978).
Respondents have pointed to no case where evidence concerning
health or other consequences of the data in Table S-3 was excluded
from licensing proceedings. We think our admonition in
Vermont
Yankee applies with equal force here:
"[W]hile 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."
435 U.S. at
435 U. S.
553.
Page 462 U. S. 108
In short, we find it totally inappropriate to cast doubt on
licensing proceedings simply because of a minor ambiguity in the
language of the earlier rule under which the environmental impact
statement was made, when there is no evidence that this ambiguity
prevented any party from making as full a presentation as desired,
or ever affected the decision to license the plant.
IV
For the foregoing reasons, the judgment of the Court of Appeals
for the District of Columbia Circuit is
Reversed.
JUSTICE POWELL took no part in the consideration or decision of
these cases.
Page 462 U. S. 109
APPENDIX TO THE OPINION OF THE COURT
Table S-3 -- Table of Uranium Fuel Cycle Environmental
Data[1]
[Normalized to model LWR annuel fuel requirement
[WASH-1248]
or reference reactor year [NUREG-0116]]
[Table omitted]
* Together with No. 82-545,
United States Nuclear Regulatory
Commission et al. v. Natural Resources Defense Council, Inc., et
al.; and No. 82-551,
Commonwealth Edison Co. et al. v.
Natural Resources Defense Council, Inc., et al., also on
certiorari to the same court.
[
Footnote 1]
Section 102(2)(C) provides:
"The Congress authorizes and directs that, to the fullest extent
possible . . . (2) all agencies of the Federal Government shall --
"
* * * *
"(c) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official on -- "
"(i) the environmental impact of the proposed action,"
"(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented, [and]"
* * * *
"(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented."
[
Footnote 2]
The original Table S-3 rule was promulgated by the Atomic Energy
Commission (AEC). Congress abolished the AEC in the Energy
Reorganization Act of 1974, 42 U.S.C. § 5801
et seq., and
transferred its licensing and regulatory functions to the Nuclear
Regulatory Commission (NRC). The interim and final rules were
promulgated by the NRC. This opinion will use the term "Commission"
to refer to both the NRC and the predecessor AEC.
[
Footnote 3]
Title 5 U.S.C. § 706 states in part:
"The reviewing court shall -- "
"(2) hold unlawful and set aside agency action, findings, and
conclusions found to be -- "
"(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law."
[
Footnote 4]
A light-water nuclear powerplant is one that uses ordinary water
(H^20), as opposed to heavy water (D^20), to remove the heat
generated in the nuclear core.
See Van Nostrand's
Scientific Encyclopedia 1998, 2008 (D. Considine & G. Considine
eds., 6th ed.1983). The bulk of the reactors in the United States
are light-water nuclear reactors. NRC Ann. Rep. Appendix 6
(1980).
[
Footnote 5]
For example, the tabulated impacts include the acres of land
committed to fuel cycle activities, the amount of water discharged
by such activities, fossil fuel consumption, and chemical and
radiological effluents (measured in curies), all normalized to the
annual fuel requirement for a model 1,000 megawatt light-water
reactor.
See Table S-3, reprinted in the Appendix,
infra [omitted].
[
Footnote 6]
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended,
42 U.S.C. § 2011
et seq., a utility seeking to construct
and operate a nuclear powerplant must obtain a separate permit or
license at both the construction and the operation stage of the
project. After the Commission's staff has examined the application
for a construction license, which includes a review of possible
environmental effects as required by NEPA, a three-member Atomic
Safety and Licensing Board conducts a public adjudicatory hearing
and reaches a decision which can be appealed to the Atomic Safety
and Licensing Appeal Board and, in the Commission's discretion, to
the Commission itself. The final agency decision may be appealed to
the courts of appeals. A similar procedure occurs when the utility
applies for an operating license, except that a hearing need be
held only in contested cases.
See Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.
S. 519,
435 U. S.
526-527 (1978).
[
Footnote 7]
High-level wastes, which are highly radioactive, are produced in
liquid form when spent fuel is reprocessed. Transuranic wastes,
which are also highly toxic, are nuclides heavier than uranium that
are produced in the reactor fuel.
See Natural Resources Defense
Council, Inc. v. NRC, 222 U.S.App.D.C. 9, 16, n. 11, 685 F.2d
459, 466, n. 11 (1982).
[
Footnote 8]
In
Vermont Yankee, we indicated that the Court of
Appeals could consider any additions made to the record by the
Commission, and could consolidate review of the initial review with
review of later rules. 435 U.S. at
435 U. S. 537,
n. 14. Consistent with this direction, the parties stipulated that
all three versions of the rule could be reviewed on the basis of
the whole record.
See 222 U.S.App.D.C. at 21, n. 39, 685
F.2d at 471, n. 39.
[
Footnote 9]
Judge Bazelon wrote the opinion for the court. Judge Wilkey
joined the section of the opinion that rejected New York's argument
that the waste disposal technology assumed for calculation of
certain effluent release values was economically infeasible. That
issue is not before us. Judge Wilkey filed a dissenting opinion on
the issues that are under review here. Judge Edwards of the Court
of Appeals for the Sixth Circuit, sitting by designation, joined
these sections of Judge Bazelon's opinion, and also filed a
separate opinion concurring in part and dissenting on the economic
infeasibility issue.
[
Footnote 10]
As the Court of Appeals recognized, 222 U.S.App.D.C. at 31, n.
118, 685 F.2d at 481, n. 118, the Commission became increasingly
candid in acknowledging the uncertainties underlying permanent
waste disposal. Because all three versions of Table S-3 use the
same zero release assumption, and the parties stipulated that the
entire record be used in reviewing all three versions,
see
n 8,
supra, we need
review only the propriety of the final Table S-3 rule. We leave for
another day any general concern with an agency whose initial
Environmental Impact Statement (EIS) is insufficient but who later
adequately supplements its consideration and disclosure of the
environmental impact of its action.
[
Footnote 11]
The record includes more than 1,100 pages of prepared direct
testimony, two rounds of questions by participants and several
hundred pages of responses, 1,200 pages of oral hearings,
participants' rebuttal testimony, concluding statements, the
137-page report of the hearing board, further written statements
from participants, and oral argument before the Commission. The
Commission staff has prepared three studies of the environmental
effects of the fuel cycle: Environmental Survey of the Uranium Fuel
Cycle, WASH-1248 (Apr.1974); Environmental Survey of the
Reprocessing and Waste Management Portions of the LWR Fuel Cycle,
NUREG-0116 (Supp. I to WASH-1248) (Oct.1976) (hereinafter cited as
NUREG-0116); and Public Comments and Task Force Responses Regarding
the Environmental Survey of the Reprocessing and Waste Management
Portions of the LWR Fuel Cycle, NUREG-0216 (Supp. 2 to WASH-1248)
(Mar.1977).
[
Footnote 12]
We are reviewing here only the Table S-3 rulemaking proceedings,
and do not have before us an individual EIS that incorporates Table
S-3. It is clear that the Statement of Consideration supporting the
Table S-3 rule adequately discloses the environmental uncertainties
considered by the Commission. However, Table S-3 itself refers to
other documents, but gives only brief descriptions of the
environmental effects it encapsulates. There is some concern with
an EIS that relies too heavily on separate documents, rather than
addressing the concerns directly. Although we do not decide whether
they have binding effect on an independent agency such as the
Commission, it is worth noting that the guidelines from the Council
on Environmental Quality in effect during these proceedings
required that
"care should be taken to ensure that the statement remains an
essentially self-contained instrument, capable of being understood
by the reader without the need for undue cross reference."
38 Fed.Reg. 20554 (1973), 40 CFR § 1500.8(b) (1974). The present
regulations state that incorporation by reference is permissible if
it will not "imped[e] agency and public review of the action. The
incorporated material shall be cited in the statement and its
content briefly described." 40 CFR § 1502.21 (1982). The Court of
Appeals noted that NEPA "requires an agency to do more than to
scatter its evaluation of environmental damage among various public
documents," 222 U.S.App.D.C. at 34, 685 F.2d at 484, but declined
to find that the incorporation of other documents by reference
would invalidate an EIS that used Table S-3 to describe the
environmental impact of the fuel cycle. The parties here do not
treat this insufficient disclosure argument as a separate argument
and, like the Court of Appeals, we decline to strike down the rule
on this ground. We do not deny the value of an EIS that can be
understood without extensive cross-reference. The staff documents
referred to in Table S-3 are public documents, however, and we note
that the Commission has proposed an explanatory narrative to
accompany Table S-3, which would be included in an individual EIS,
that may alleviate some of the concerns of incorporation.
See n 13,
infra.
[
Footnote 13]
In March 1981, the Commission submitted a version of the
explanatory narrative for public comment as a proposed amendment to
the final fuel cycle rule. 46 Fed.Reg. 15154 (1981). The Commission
has not yet adopted a final narrative.
[
Footnote 14]
In response to
Minnesota v. NRC, 195 U.S.App.D.C. 234,
602 F.2d 412 (1979), the Commission has initiated a "waste
confidence" proceeding to consider the most recent evidence
regarding the likelihood that nuclear waste can be safely disposed
of and when that, or some other off-site storage solution, can be
accomplished. 44 Fed.Reg. 61372
et seq. (1979).
See
id. at 45363. The recently enacted Nuclear Waste Policy Act of
1982, Pub.L. 97-425, 96 Stat. 2201, 42 U.S.C. § 10101
et
seq. (1982 ed.), has set up a schedule for identifying site
locations and a funding mechanism for development of permanent
waste repositories. The Environmental Protection Agency has also
proposed standards for future waste repositories, 47 Fed.Reg. 58196
et seq. (1982).
[
Footnote 15]
For example, Table S-3 assumes that plutonium will not be
recycled. The Commission noted that, in response to a Presidential
directive, it had terminated separate proceedings concerning the
possibility of recycling plutonium in mixed oxide fuel. 44 Fed.Reg.
45369, n. 28 (1979).
See In re Mixed Oxide Fuel, 6 N.R.C.
861 (1977);
In re Mixed Oxide Fuel, 7 N.R.C. 711
(1978).
[
Footnote 16]
The Commission also increased the overall conservatism of the
Table by overestimating the amount of fuel consumed by a reactor,
underestimating the amount of electricity produced, and then
underestimating the efficiency of filters and other protective
devices.
See Conclusions and Recommendations of the
Hearing Board Regarding the Environmental Effects of the Uranium
Fuel Cycle, Docket No. Rm 50-3, App. to Pet. for Cert. in No.
82-524, pp. 282a-293a. Additionally, Table S-3, which analyzes both
a uranium-recycle and no-recycle system, conservatively lists, for
each effluent, the highest of the two releases that would be
expected under each cycle. 41 Fed.Reg. 45849, 45850 (1976).
[
Footnote 17]
The Court of Appeals recognized that the Commission could weigh
certain generic costs and benefits of reactors against each other
to produce a generic "net value" to be used in individual licensing
proceedings. 222 U.S.App.D.C. at 32, 685 F.2d at 482. We see no
reason why the Commission does not have equal discretion to
evaluate certain environmental costs together to produce a generic
net cost.
[
Footnote 18]
For example, using this approach, the staff estimated that a
meteor the size necessary to damage a repository would hit a given
square kilometer of the earth's surface only once every 50 trillion
years, and that geologic faulting through the Delaware Basin in
southeast New Mexico (assuming that were the site of the
repository) would occur once in 25 billion years. NUREG-0116 at
4-87. The staff determined that a surface burst of a 50 megaton
nuclear weapon, far larger than any currently deployed, would not
breach the repository.
Ibid. The staff also recognized the
possibility that heat generated by the waste would damage the
repository, but suggested this problem could be alleviated by
decreasing the density of the stored waste. In recognition that
this suggestion would increase the size of the repository, the
Commission amended Table S-3 to reflect the greater acreage
required under these assumptions.
See 44 Fed.Reg. 45369
(1979).
[
Footnote 19]
Of course, just as the Commission has discretion to evaluate
generically aspects of the environmental impact of the fuel cycle,
it has discretion to have other aspects of the issue decided in
individual licensing decisions.