METROPOLITAN EDISON v. PEOPLE VS. NUCLEAR ENERGY

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ORAL ARGUMENT OF PAUL M. BATOR, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in Metropolitan Edison against People Against Nuclear Energy.

Mr. Bator, you may proceed whenever you are ready.

Mr. Bator: Mr. Chief Justice, and may it please the Court, this case involves Three Mile Island Unit 1 nuclear power reactor, TMI 1.

TMI 1 is one of two units at Three Mile Island.

It was in the other unit, TMI 2, that the Three Mile Island accident occurred in March of 1979.

When that accident occurred, TMI 1 happened to be shut down for routine refueling, and it has been shut down ever since, and this case involves its restart.

The question before the Court is whether the Nuclear Regulatory Commission, before it may begin... before it may permit TMI 1 to restart, is required by the National Environmental Policy Act, NEPA, is required to make an inquiry in order to predict whether and to what extent psychological stress will occur on restart because of the fear and anxiety of neighboring residents that there may be a second accident at Three Mile Island.

The government's central contention is that NEPA does not require administrative agencies to conduct an inquiry for the purpose of predicting fears that their proposed actions may engender.

The central purpose of NEPA is to require the government to take a hard look at the impact of its proposed actions on the natural environment, and on the direct consequence of those interventions, and we argue that stress caused by fear and anxiety that government action may be harmful to you is not an environmental impact, and is therefore not cognizant.

Now, I may give a humble example to the Court.

If the government proposes to put massive amounts of fluoride into the water, of course, the government must make a scrupulous inquiry whether the fluoridation will be harmful or helpful to health.

But our contention is that Congress did not contemplate that a separate and distinct inquiry be made into whether fluoridation will cause popular anxiety.

Unidentified Justice: Well, isn't the question here whether the Act of Congress and Congress itself intended that that be a subject of the inquiry, rather than whether in fact anxiety is aroused by these problems?

Mr. Bator: Yes, Mr. Chief Justice.

Our contention is that the statute, properly read, does not require the Commission to make such a subsidiary and distinct inquiry into the question of stress.

On the other hand, the Court of Appeals of the District of Columbia in this case held that it is not enough to do what the Commission in this case did, which is to engage in an extensive, an exhaustive inquiry into the question of the safety of restart, taking into account for that inquiry the painful lessons of TMI 2.

Rather, the Court ruled that apart from the actual safety issue, stress resulting from fears about safety is an independent factor.

Unidentified Justice: Mr. Bator, can I ask you about your hypothetical?

It seems to me that is different from this case, because there you are assuming an environmental impact, namely, the fluoridation, and psychological impairment of health as a result of an environmental impact.

Is that correct?

Are you saying that wouldn't be something you would look at?

Mr. Bator: We are saying--

Unidentified Justice: Then you are arguing that psychological health is not health.

Mr. Bator: --No, Your Honor.

We readily concede that psychological health is health.

Unidentified Justice: And you are saying you don't have to look at it even if it's caused by a change in the environment?

That's a different argument than your brief makes.

Mr. Bator: No, our argument, Justice Stevens, is that there are two sorts of health impairments, including mental health impairments, that must be kept distinct.

If the government intervenes in the environment, and the intervention itself directly causes health effects, including mental health effects, then that consequential impact must be considered in the NEPA process.

Unidentified Justice: Well, that is your fluoride case.

It seems to me that's your fluoride case.

I think you may have picked a bad hypothetical.

Mr. Bator: No, our argument, Your Honor, is that the... maybe I... maybe another illustration would help.

Unidentified Justice: I think maybe--

Mr. Bator: Because the role in which mental health can come in is if there is a direct, almost a traumatic consequence.

That is, if the government proposes to build an airport, and there would be a tremendous amount of noise which would drive people mad, or if the government licenses an emission of lead that will cause retardation among children, then it seems to us that that kind of mental health effect is like other health effects.

The crucial distinction between that and this case and the fluoridation case is the proposition about fear and anxiety.

We don't think that anxiety produced by the fear of an environmental impact counts as an environmental impact.

Unidentified Justice: --What you are saying, I take it, is that you don't need committees and parades and pickets to draw attention to the vibration and the noise of an airplane going over at 300, 400, 500 feet or 1,000 feet, and that that is quite a different thing.

Mr. Bator: Yes, we believe it is quite a different thing really for a number of very, we submit, very profound reasons.

I would like to take it back to the statute, because it seems to me that the key to this case is to ask the question, what was the central concern, what was the central focus of this statute.

This statute instructed the government to pay more attention than it had heretofore done to the impacts that governmental action has on the natural environment.

Now, that's not because Congress was in some abstract way worried about the land and the water and the air and plant life and animal life.

Of course, the ultimate purpose in worrying about those phenomena was to safeguard human health and human welfare.

But the central finding of NEPA was that insensitivity to the natural environment was dangerous, might produce dangers to man's health and welfare.

And Congress created a statutory structure that rather insistently says that you must focus your attention on the environmental impact of what it is you do.

The statutory structure, as it were, puts two hurdles before the agency.

It says that the impact statement is required only if the proposed action has a significant impact on the human environment, and then, importantly, the statute does not just stop there.

It doesn't say that all the effects of that impact must be studied, only the environmental impact effects of that action must be studied.

Now, we concede, Your Honors, that there is a sense in which the restart of TMI 1 changes the environment, and Respondent in this case argues from that, well, they will restart TMI 1, and that is an impact... that is a change in the environment, and that causes stress, but there is, we submit, a very critical muzzle in that argument, because the stress is produced not by the harmful consequences of the environmental impact.

There is no argument here that there will be a change in the water or the air which then produces stress in any kind of traumatic way.

The point that is being made is that the stress is a product of people's anxiety and fear that there may be a second accident here.

That is the impact that they are worried about.

Now, we think that the statute does not require for the government to make this separate and subsidiary inquiry, and we think it would be extremely undesirable from the viewpoint of the purposes of the statute to require this subsidiary impact.

We submit that it would really dilute and confuse the environmental impact process if this second order, rather confusing question... see, you go through the first inquiry, and you say, is this plant safe?

Unidentified Justice: There is no question, is there, that the impact statement would have to consider the possibility of another accident?

Mr. Bator: Yes, and in fact, did.

If Your Honors will look at the impact assessment that was conducted in connection with this restart in the joint appendix, there was an elaborate inquiry made into the question of risk.

That is, it is not our argument that only certain impacts count.

They have to, and we do consider the question of whether restart creates the possibility of a second accident, and that counts, because if there is such an accident, there would be a dreadful impact on the environment.

But we sharply distinguish between that inquiry and the question whether on restart people will be simply frightened of that accident, whatever actual risks there are.

That is, our submission, Your Honor, is that the intelligent way to deal with anxiety about accidents is to do everything possible under the sun to prevent them from happening, that is, that the rational way to deal with anxiety is to make this unit safe beyond a reasonable doubt, and to do it as openly as possible so that everybody understands the facts.

But to underlay that inquiry with a separate inquiry into the question of what people's subjective perceptions with respect to safety are seems to us to dilute the central inquiry, and we further submit that it really has very little to do with the environment.

That is, anxieties are not... about safety are not identical with, they are not even necessarily parallel with concerns about the environment.

There are human anxieties about government interventions that are relatively benign environmentally.

And there may be huge human anxieties about interventions that are not at all benign.

In other words, there isn't a tracking between the anxiety issue and the environmental issue.

Furthermore, the very process of the rule announced by the Court of Appeals in this case, that there must be... that there is a legal rule that administrative agencies must make a formal inquiry in order to predict stress seems to us to create a confusing and diluting side issue into the real business of these agencies, including their concern for the environment.

That is to say that what will happen here is a fiercely controversial struggle about proper methodologies.

We don't make the point that stress can't be measured, but it is difficult, and it is controversial, and the methodologies for doing it are extremely controversial, and what will happen here as the opinion of the Court of Appeals stands, Your Honors, we believe, is that there will be very, very elaborate batteries of experts quarreling here, and a very rich opportunity for complicated procedures and complicated litigation about whether the proper methodologies were used, and whether the predicted stress was correctly and fairly measured.

Your Honor, I will take only one more minute of your time.

I want to draw the attention of the Court to the actual procedural history of this case.

This is not a case where shortly after the accident the Nuclear Regulatory Commission said, well, let's start up this other plant.

That plant shut down in 1979.

Since that time, there has been an immense administrative proceeding devoted to the question whether it is safe to start it again.

There were hearings, interventions, written submissions.

The oral hearings themselves took nine months.

They generated a 26,000-page transcript.

These hearings were devoted to the central problems of this case, the questions whether it is safe to restart TMI 1.

These were questions of the design, of management, of technical capabilities, of emergency planning, all the other questions which the accident raised for TMI 1.

It was in connection with these proceedings that the Commission did... was quite aware that it had to... take account of compliance with NEPA, and it was clear from the beginning that the stress question would be a question here.

Respondent in this case, a group of residents near Three Mile Island, called People Against Nuclear Energy, was the principal party pressing the submission that stress and anxiety was an independent issue in this case, and they made contentions before the Commission, and they were the ones that took the case to the Court of Appeals in the District of Columbia.

So, what we have here is this curious parallel affair, the Commission engaging in this tremendously complicated and scrupulous process devoted to the question of whether this plant can safely be started up, keeping in mind all the time that we think that that kind of proceeding conducted fully in the open is the most rational way to deal also with the question of anxiety.

And then we have had this subsidiary, complicated litigation devoted to the question whether this other issue, this issue devoted entirely to people's subjective perceptions with respect to safety, is an independent issue, and that there is a legal right to have that made an independent, formal subject of inquiry.

Unidentified Justice: Mr. Bator, I think that I am having some difficulty understanding the line that you want to draw here.

If you concede that psychological concerns could be the proper subject of an inquiry in the case of fluoridation of water or a lead poisoning situation, how do you differentiate that from this situation?

What is the line that you draw in saying that it should be considered in some instances but not others?

Is it because in this instance you argue that it has been concluded that it it safe to physical health to restart it, and therefore it is only the anxiety factor?

What is--

Mr. Bator: Justice O'Connor, the line we would seek to draw and that we hope to persuade the Court to draw is really the line that is given to us by the statute.

The statute says, the environmental impact statement must consider the environmental impact of government interventions.

If health consequences are a direct product of an adverse change in the environment as a result of government intervention... that is our airplane case, that is our lead poisoning case... then health effects come in.

On the other hand, we would argue fiercely that the fluoridation anxiety is not the kind of health effect that has independent status, because a stress effect that is produced simply by anxiety about the environment is not directly caused, as the statute requires, by an impact on the environment.

In other words, we really think that the statute contemplates the wise policy that this strung-out subsidiary mental health effect be restricted to those situations where it is pretty clear that there is an actual change in the water, or the land, or in the air, that directly propagates some kind of mental health change.

Unidentified Justice: --I take it that your... the other side urges that without proving any change whatsoever in the environment, or any threatened change, that anxiety is--

Mr. Bator: Yes, there are many, many government actions that create anxiety.

If the government licenses a dangerous drug, that creates not only anxiety, it creates an actual health danger, but the danger to health is not a product of an environmental intervention, and therefore it isn't under NEPA that those dangers must be considered.

If the government closes an Air Force base and people are worried about unemployment, that is an anxiety.

If the government raises the tax rate, people might go crazy with worry and fear as a result.

There are a million ways in which the government affects the anxiety level, but NEPA is a special statute.

It really deals with only one form of threat to man's welfare.

It is not an all-purpose welfare statute.

Unidentified Justice: --You would analogize this, I guess, to building a prison.

Neighbors are afraid there might be escapes and the like, but that is not an environmental hazard.

Mr. Bator: We believe that people's anxieties about the crime rate and about prison escapes are not an environmental impact.

That is our submission.

Unidentified Justice: Well, is the fact of escapes, the possibility of escapes from a prison an environmental impact?

Mr. Bator: The... there is at least one Court of Appeals opinion that has indicated, at least, that that may be.

Unidentified Justice: What is the government's position?

Mr. Bator: The government is not absolutely overjoyed by that proposition, but we think that in any event it is wholly distinguishable from this one.

There is a... There is a body of rather intricate law under NEPA that deals with socioeconomic and other actual consequences that are called secondary consequences.

Even with respect to those, Your Honor, we would think that the statute requires that that kind of socioeconomic effect come in only if it can be traced direct to the environmental impact of the government action, and that is why we have trouble in the case that you gave, we have a hard time seeing exactly how it is that there has been an adverse change in the natural environment, but it is, I suppose, a case that one can confound oneself with.

Unidentified Justice: Well, the line that you stated in response to Justice O'Connor's question like, I suppose, most other lines, kind of blurs in places.

Mr. Bator: Yes.

The government concedes that there are hard cases, but we don't think this is one, Mr. Justice Rehnquist.

Mr. Chief Justice, if I may, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Jordan.

ORAL ARGUMENT OF WILLIAM S. JORDAN, III, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Jordan: Thank you, Mr. Chief Justice.

May it please the Court, quoting to the Presidential Commission on the Accident at Three Mile Island,

"That accident was the worst crisis yet experienced by the nation's nuclear power industry. "

"It resulted in the evacuation of tens of thousands of people who lived in the area surrounding Three Mile Island. "

And the President's Commission found that the most serious health effect of that accident was severe mental stress to that population.

PANE, my clients here, is an organization of local citizens who have lived and worked in the Three Mile Island area for many years, often for generations.

PANE has alleged before the Nuclear Regulatory Commission that the restart of TMI 1 would cause further health damage to this traumatized, sensitized population.

The factual allegation has never been challenged.

The Court of Appeals ruled that NEPA requires the NRC to consider the health damage in the unique circumstances of Three Mile Island in reaching a decision on the restart of TMI 1.

Indeed, the Commission itself has issued a policy statement implementing the Court's decision in which the Commission interprets that decision to require consideration of psychological health damage only where there has been a nuclear accident, and where there has been a traumatized population, circumstances directly comparable to those now before the Court.

They are discussed at Page 42 of our brief.

We believe the Commission's interpretation and application of that lower court's decision is entirely reasonable.

In fact, we would be satisfied if the Commission would simply implement its policy statement here.

But this case turns on the language of Section 102(2)(c) of NEPA.

That section requires environmental... federal agencies to prepare environmental impact statements with respect to major federal actions significantly affecting the quality of the human environment.

That is the trigger for when an EIS must be prepared.

There is a two-part test.

First, there must be an effect on the quality of the human environment.

Second, that effect must be significant under the goals and the purposes of NEPA.

Unidentified Justice: Mr. Jordan, where is that statute set out?

Do you have a handy reference to it?

Mr. Jordan: Yes, Justice Rehnquist.

It is in the appendix at the end of our brief, I believe the first item in the appendix there.

And I believe it is on the second page of that appendix.

I am not... It is 102(2)(c).

This dispute, as you have just heard, is centered around the question of whether this health damage involves an effect on the quality of the human environment.

We believe it does.

Indeed, we believe we can accept the government's formulation of the applicable test as it did in its brief, its initial brief.

There must be an effect upon the environment or propagated through the environment.

I remind the Court that the Commission has just told you they do not dispute that psychological health damage is encompassed by NEPA if the environmental nexus test is met.

Of course, the environmental concern, the environmental impact that is of most concern here is the health damage, but that arises as what the Council on Environmental Quality regulations term an indirect effect.

That is in--

Unidentified Justice: Mr. Jordan, can you give me just an idea of what would alleviate the anxiety in this case?

Mr. Jordan: --Well, that, of course, would be a matter for the Commission when the case goes back there.

In our view, we believe that at least one thing that would alleviate the anxiety, in fact prevent the anxiety or... we don't think that anxiety is really the useful word here.

The question is psychological health.

It would prevent the psychological health from occurring if, in our view, TMI 1 is not restarted.

Now, there are a number of other possibilities.

Unidentified Justice: Is that forever?

Mr. Jordan: In our view, if you didn't start... if you never started TMI 1, the health damage would never occur.

It is certainly a question of fact as to what the best--

Unidentified Justice: So the only way that your clients can be satisfied is to just keep it shut down forever.

There is no other way.

Mr. Jordan: --Well, as a matter of law here, Justice Marshall, the question before the Commission in dealing with the facts will be what is... what should we do about this health damage that will occur?

Should we... what kind of mitigative action should we take?

And I suggest--

Unidentified Justice: Assuming that I am the Commission, and I am asking you, what would your answer be?

Mr. Jordan: --We would argue to the Commission as a matter of fact that the seriousness is so great that in fact the reactor should not be restarted, but I believe we would also argue to the Commission that if it did not reach that determination, there are a number of other mitigative actions that it might take, and those have been discussed by amicus... American Psychological Association in this case, for example.

Some of those involve treatment of individuals, or providing the health care that is necessary to deal with health damage.

And I might note to the Court that that is exactly like an action that the Nuclear Regulatory Commission is currently taking at two reactors with respect to the damage of possible radiation health damage.

They provide potassium iodide tablets to the population.

That is not making the reactor safer.

That is treating the individuals.

That is very similar to the kind of thing one might do here.

Unidentified Justice: But is it not so that psychiatrists or psychologist will tell you... they have written it, surely... that a subject like the placing of Pershing missiles in NATO countries in Europe causes great anxiety to some people, to the point where they can't cope with daily life as a result of the prospect of putting Pershing missiles in Germany and various other places.

Does is the rule of one psychiatrist about one or two or three patients control these things?

Mr. Jordan: No, I don't think it does at all.

The question--

Unidentified Justice: Your people don't want this plant at this site at all.

Isn't that true?

Mr. Jordan: --That... My clients would prefer that this plant not restart, but that is not... that does not answer the question of whether the one or even ten psychiatrists who all believe the same thing control the outcome.

They don't.

That is very much up to the Nuclear Regulatory Commission, which... and in fact, I think... it has occurred to me that this is quite distinct from the cases of where psychiatrists are involved in court proceedings, such as in insanity defense or something of that sort.

This is an agency that has a great deal of discretion.

Unidentified Justice: My thought was directed at the Presidential Commission comments that you reported, widespread apprehension.

Was that apprehension any different from the widespread apprehension that was aroused by a campaign on fluoridation?

Mr. Jordan: I have never heard, Your Honor... That is a question of fact that I can't answer, but I have never heard of psychological health damage occurring as a result of widespread apprehension of fluoridation, but I think to take the fluoridation example it may be useful.

Assume that we have fluoridation in the water, and assume that it, like Three Mile Island Unit 1, the fluoridation has been ongoing.

Then it turns out that in fact fluoridation is dangerous, and perhaps like dioxin was dangerous at Times Beach, Missouri, and then the people are traumatized, and then we can see that there is psychological health damage in that population.

It seems to me that is the kind of situation we have here.

But I think it is important to understand why it is that this is an environmental impact.

It is not simply a federal action that causes health damage.

This is an action that changes the environment at Three Mile Island.

There will be the restart of the reactor, which has its own physical manifestations.

It has steam arising from the cooling towers, visible for miles.

It has low level radiation.

It has a number of visible aspects of its operations, those all physical manifestations.

Second--

Unidentified Justice: Mr. Jordan?

Mr. Jordan: --Sir.

Unidentified Justice: What if the government puts in an airport right adjacent to a city, and makes the environmental statement and so forth, and ultimately the airport is constructed, and there is considerable noise that would have required an environmental statement, and then the airport is shut down for, say, six months or a year.

Does the government have to file an environmental impact statement again when it decides to reactivate the airport?

Mr. Jordan: I... that is... we are assuming there are no changes in the way the airport is operated.

Unidentified Justice: Yes.

Mr. Jordan: The environmental effects are all the same.

And there is no change in the requirements related to the airport.

I would say not.

That is really the issue that is not... it is not here that the parties, as far as I can tell, have all agreed that there is a major federal action here involving this restart, and the reason that it is not comparable to the airport starting up with no changes in its requirements or its operations is that in this case, there were substantial license amendments as a result of the hearing.

There were changes to the operation of TMI 1 that resulted from the experience at TMI 2, the examination of TMI 1, and so on, and substantial license amendment changes, very similar to other license amendments, for which it is my understanding that the Commission routinely does an environmental assessment to determine whether there is an effect or not.

In fact, they did an environmental assessment here.

Unidentified Justice: Is an assessment the same as an EIS?

Mr. Jordan: No, Justice Rehnquist.

The assessment is, in effect, an initial look at the facts, and in this case, indeed, we are seeking, although it hasn't been called that, we are seeking what is in effect an assessment.

Unidentified Justice: Mr. Jordan.

Excuse me.

Mr. Jordan: Yes, Justice Marshall.

Unidentified Justice: Isn't the real difference that there was an accident here, and there wasn't an accident at the airport?

Mr. Jordan: Well, I think that--

Unidentified Justice: Isn't there any significance to the fact that there was an accident here?

Mr. Jordan: --Absolutely.

The fact that there was an accident here is crucial.

Unidentified Justice: Well, you've been hiding it.

Mr. Jordan: I'm sorry?

Unidentified Justice: You've been hiding it as the answer to this question.

Mr. Jordan: Not at all.

That was exactly the point I just wanted to get to.

Unidentified Justice: I see.

0 [Generallaughter.]

Mr. Jordan: The second--

Unidentified Justice: When you get to that, tell us how many people were injured and how many people were killed in that accident.

Mr. Jordan: --Yes, sir.

The next point, of course.

I have given you the first of the physical environmental changes, the restart with its physical manifestations.

The second is the fact that there... it is really combined, if you will.

There was an accident at Three Mile Island Unit 1, and Justice Burger has asked how many people were injured.

I don't know of any who were killed or who we know have any sort of radiation physical injury.

However, we do know from the President's Commission and indeed from later studies that there are a number of people who suffer from damage to their health, and that is what NEPA is about.

Now, the issue here, of course, is the restart, and the restart brings with it the physical reality of the potential for another accident.

That is a change to the environment at Three Mile Island.

It applies no where else, and it is inherent in the environment there.

That is what is really the source for the health damage.

Of course, we have a traumatized population now facing the possibility of another nuclear accident in their environment, and under the CEQ regulations, I will cite for you 40 CFR 1508.8(b) here, this is an indirect effect of those first two environmental changes.

As such, it is an environmental change.

I would suggest it is cognizable under NEPA exactly as the potential for cancer from some federal action within an environment is cognizable under NEPA.

There was a federal action.

It results in a change within the environment, and health damage is the result, and there is no question whatsoever that any federal agency would have to examine not only... not only the radiation or the amount of radiation that spewed forth from the facility, but the resulting health damage.

Unidentified Justice: But how about in your drug that might cause cancer example?

You say that there would have to be a statement with respect to the cancer causing potential.

Would there also have to be a statement as to the psychological fear that by taking the drug you might get cancer?

Mr. Jordan: You may have misread my example, Justice Rehnquist.

I was not referring to a drug that might cause cancer, but to a federal facility that might cause cancer.

I don't think that distributing a drug causes an environmental effect.

It is entirely different for the reasons that we have addressed.

Unidentified Justice: Well, let's take the environmental impact, and the potential for causing cancer.

Mr. Jordan: Yes.

Unidentified Justice: Would the environmental impact statement also have to cover the psychological fear that cancer might be caused?

Mr. Jordan: Again, I think it is important to make the distinction.

We are not talking about covering fear.

We don't care about fears, rational or irrational, that do not constitute damage to health.

So the question is--

Unidentified Justice: Well, but the damage to health you are talking about--

Mr. Jordan: --Yes.

Unidentified Justice: --comes from fear, doesn't it?

I mean, it is quite amorphous, really.

Mr. Jordan: Really, that's a question for a scientist to answer.

My understanding is that fear is a component of it, and the fear arises from the physical change to the environment with the result of health damage, and I want to answer your example about whether... when there is a possibility for cancer one must examine psychological health damage.

And I think the answer is, as with any environmental issue, an agency need not examine it unless there is a reason to examine it.

The agency may say, we know of no reason to believe that the mere fact that cancer is a possibility from this operation will cause psychological health damage.

If someone wants us to consider it, it must make a threshold showing that in fact there is a likelihood, a reasonable likelihood that it would occur here.

That is really what I think Vermont Yankee clearly authorizes an agency to do.

Unidentified Justice: So you say if a threshold showing were made that psychological damage resulting in fear of the cancer were made, the environmental impact statement would have to cover not only the potential for causing cancer, but the psychological effect of fear of cancer?

Mr. Jordan: If people will be psychologically... their health will be damaged by a federal action affecting their environment, and there is a real... a basis for that showing, and the agency has established... and in fact, I think the agency here has established a threshold showing requirement of the pre-existing... a previous accident, of pre-existing traumatic population.

That is a fact situation within the state of the art in which reasonable predictions can be made about the likely psychological health.

That is the kind of threshold showing that an agency could establish.

Unidentified Justice: Well, the... I take it... you said the agency has to respond to a showing by a group such as yours since the agency certainly didn't try to establish the thing.

It was more or less pushed on it by your group.

Mr. Jordan: Well, and we believe in fact if that... if the showing is made--

Unidentified Justice: The agency has to respond.

Mr. Jordan: --the agency has to respond, but it does have the authority to set that threshold.

Unidentified Justice: Supposing that the government is contemplating a public housing development in a neighborhood where a great many neighbors oppose public housing, and genuinely fear what the effect of public housing is going to be on the value of their houses, their neighborhood, and the like.

Now, could they come into the agency that was responsible for that development and make a showing from... say a doctor testifies that there are genuine psychological problems here.

These people are so obsessed with their dislike of public housing that they are going to have psychological damage if it goes through.

And say the agency has to consider that kind of thing?

Mr. Jordan: No, and in fact I think that gives us a good place to see the distinction.

You go back to the statute.

Is there an effect on the environment?

That is the question.

NEPA is not about the relationships among human beings.

It is about the effect that the environment has upon human beings.

Unidentified Justice: Well, but that is certainly a change in the environment, and the change is thought by some... is feared by some people, and you can get a doctor to testify that there is psychological damage.

Mr. Jordan: I would suggest that that in fact is not, and we have argued in the brief that that is not a change in the environment under NEPA.

Unidentified Justice: Well, where is the bright line, or at least a gray line?

Mr. Jordan: Well, I think there is... the bright line can be drawn between that example and the case before you now.

In this case, we do not have the relationships among people that is at issue.

We have a physical change within the area where these people live.

A physical, not a social--

Unidentified Justice: Why isn't the construction of housing a physical change?

I just don't follow your argument at all.

Mr. Jordan: --Well, I think the construction of housing... construction of housing is a physical change, but it has not the slightest relationship by itself to the effect of the psychological damage.

That is--

Unidentified Justice: Well, I know, but the doctor testifies it does.

Mr. Jordan: --I don't think the doctor would testify that constructing the housing is what causes the damage.

Unidentified Justice: Suppose instead of housing it were a prison for irreconcilables.

Mr. Jordan: Well, what was held in... assuming they were irreconcilables... I don't think they were... but in the Hanly v. Kleindienst case, the second of the two Hanly cases, the Court held there that the agency needed to examine the likelihood of an increase in crime in that neighborhood.

The increase in crime, as we read it, arises not from the... it arises not from the construction of the jail that was at issue there, by which I mean it doesn't arise from the bricks and the mortar and the actual physical construction of the building.

Rather, it arises from the change in the character of the neighborhood that for some reason promotes the crime, and crime is a significant concern under NEPA in the urban environment, and so that is what the Court there held has to be... the Court held there that that potential increase had to be considered.

Now, here, we have--

Unidentified Justice: Does NEPA specify crime?

Mr. Jordan: --I believe NEPA... Certainly the legislative history does, and there is no question of that.

Unidentified Justice: How do we know just from the language of the statute that crime must be considered where you suggest other things need not be considered?

Mr. Jordan: If I recall correctly, Section 101... I'm sorry, Section 2, the introductory section, refers to crime.

I could be incorrect.

But there is no doubt from the legislative history that crime was a concern of the statute, speaking in particular of the urban environment.

But we have a case here that is even more physical, if you will, more environmental than the Hanly 2, the jail character of the neighborhood case.

We have a case where there is a change in the environment.

Unidentified Justice: Mr. Jordan, may I move away from crime, back to nuclear energy?

Mr. Jordan: Certainly.

Unidentified Justice: Let's assume that a new nuclear plant is proposed to be located 25 miles from Three Mile Island.

What would your position be with respect to it?

Or move it ten, or move it--

Mr. Jordan: Okay, it's a new--

Unidentified Justice: --It's a brand new plant.

Mr. Jordan: --nuclear plant?

I think then the question... you are doing a very much similar thing to restarting TMI 1.

Let's assume it is right on Three Mile Island, on the island itself.

It seems to me that probably the example is the same.

You have to examine... you are taking... you are doing exactly the same physical change to the environment.

Unidentified Justice: So your short answer is that you would oppose the construction of one 25 miles away?

Mr. Jordan: I can't tell you whether my clients would oppose the construction of one 25 miles away or not.

Unidentified Justice: Is there a limiting principle to your position?

Is it mileage?

Is it new plants versus old plants?

Mr. Jordan: No, I... it is whether the environment--

Unidentified Justice: Is it--

Mr. Jordan: --It is whether psychological health damage can be expected to occur within that environment, and I think the question here would be, it would really be a matter of fact as to whether that had the effect on these... this population that TMI 1 has.

You have given the one example that no one else has to me, which is, what if you do the same thing to the same population, but not with Three Mile Island Unit 1.

Unidentified Justice: --Even apart from the same population, Mr. Jordan, in view of all of the publicity that the accident had in Three Island, do you think the people of the United States would have any substantially less apprehension... I am not talking about all the people, but some people... about a new plant that is proposed, or indeed about existing plants?

Mr. Jordan: Well, in fact, I suspect that generalized concern is greater than it was before Three Mile Island... the Three Mile Island accident occurred, but the question is not one of apprehension or even fear.

The question is psychological health damage.

And I don't think there's another community... someone living in Chicago or somewhere else--

Unidentified Justice: I thought you--

Mr. Jordan: --there is no showing they would be traumatized.

Unidentified Justice: --I thought you had argued initially that this health damage comes from anxiety, apprehension, and fear.

Mr. Jordan: The health damage arises as a result of the physical change to that environment, and there is... fear is one aspect of the cause of--

Unidentified Justice: What evidence is there that this physical change has occurred independent of what you had argued initially, that it is anxiety, apprehension, and fear generated by the fact of the accident?

Mr. Jordan: --No, I'm sorry.

I may have lost you.

It is not... we are not... we are talking about two--

Unidentified Justice: Well, you said that was your argument.

Mr. Jordan: --We are talking about really two points at which trauma occurs, has occurred and, we expect, will occur.

The first is when the accident itself happened.

There is evidence in that case, from the Presidential Commission and other studies, of psychological health damage.

Now I am talking--

Unidentified Justice: From what?

From what?

Mr. Jordan: --From what these people lived through when the accident occurred.

Unidentified Justice: Anxiety, apprehension, and fear.

Mr. Jordan: Anxiety, apprehension, and fear were doubtless among the causal relationships between the physical occurrence of the accident and their traumatization, and they may well have... in fact, they probably did have exposure to low level radiation.

Unidentified Justice: Let me change Justice Powell's hypothetical.

Not 25 miles away, but suppose they decide they are going to just make this Three Mile Island, that whole plant a museum, close it except as a museum, take all the dangerous materials out of it, and let visitors come, but right alongside of it they are going to build a new, presumably safer, modern plant.

Then, I put to you the question Justice Powell put to you.

Would you have the same objections to that new plant that you have to reopening the old one, when it is right next door, 200 yards away?

Mr. Jordan: I can't... what all the objections would be, I don't know, but if the... the question would be, would psychological health damage be caused, and I must say I expect that with this existing traumatized population, the answer would be, yes, there is a basis for saying in this case, as we see in no other, that the psychological health damage must be examined in that situation, but that's a unique case of Three Mile Island.

Unidentified Justice: May I ask you a question?

Mr. Jordan: Justice Stevens.

Unidentified Justice: Supposing you had... perhaps it is an unlikely situation... but a restart situation, you restart Three Mile Island, but assume that you could do it in a way that would cause no effect on the physical environment.

Say you had no smoke come out of the smokestacks, and no... the water discharge would be exactly like everything else.

No physical impact on the environment.

Would you have a case then?

Mr. Jordan: I think we would, and the reason that we would is, you have assumed no effect whatsoever.

I am afraid I will have to--

Unidentified Justice: See, the government is arguing no causal connection.

Mr. Jordan: --Yes.

Unidentified Justice: I say, well, let's take it one step further and say no impact at all on the physical environment.

Mr. Jordan: Okay.

Unidentified Justice: How do you get within the statute in that case?

Mr. Jordan: I gave you really a three-part test or a three-part showing of environmental impact here.

The first was the initial impacts of operation of the reactor.

Unidentified Justice: I am saying there are none.

Mr. Jordan: I think that is what you have just eliminated.

Unidentified Justice: Right.

Mr. Jordan: You remain in that environment with the potential for an accident.

Unless you have eliminated that from your hypothesis--

Unidentified Justice: Say you have analyzed the... say you conclude there is zero potential, just hypothetically.

Mr. Jordan: --I would--

Unidentified Justice: But your people don't believe it, you know.

Mr. Jordan: --Yes.

Unidentified Justice: But the statement says there is zero potential.

Mr. Jordan: Justice Stevens, we have addressed that in our brief in a footnote, because the... I believe it was the utilities claimed that we were making that argument.

Of course, in fact, we're not.

Our... the allegations that have to be considered as true here take into account the potential for the accident, so in fact that's not the case here, but assuming that it were in some way absolutely impossible for that to happen, I think that you still have the physical change to the environment by virtue of the existence--

Unidentified Justice: Well, that is my... my hypothesis is that you don't.

That's my hypothesis.

Mr. Jordan: --Um-hm.

Unidentified Justice: Is the mere--

Mr. Jordan: Nonetheless, I would have to answer that by saying there is still a physical change even within that reactor.

There is a difference, and it it locatable to Three Mile Island and no where else, and the environment in which these people live becomes unhealthy to them because there is a physical change in it, although it is certain to remain inside the reactor, because the question is going to be here psychological health damage, as we have shown, is cognizable under NEPA and was a concern of Congress.

In fact it was in virtually the second paragraph of Senator... statement.

Unidentified Justice: --Isn't that true as long as the plant is there?

Mr. Jordan: I'm sorry, Justice Marshall?

Unidentified Justice: Isn't that true as long as the plant exists, whether it is started up or not?

Mr. Jordan: That... I don't see a reason to say that.

There would be no... There would certainly be nothing... more trauma that had already happened as a result of the Unit 2 accident.

Again, we are, in that case, we are... not is the same as the allegations that we have made.

Thank you, Mr. Chief Justice.

Chief Justice Burger: Do you have anything further, Mr. Bator?

Mr. Bator: Not unless there are questions.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.