Transcript

IN THE SUPREME COURT OF THE UNITED STATES

BALTIMORE GAS AND ELECTRIC CO., ET AL., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC.; UNITED STATES NUCLEAR REGULATORY COMMISSION, ET AL., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.; and COMMONWEALTH EDISON COMPANY, ET AL., Petitioners v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

No. 82-524, No. 82-545, No. 82-551

April 19, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:12 p.m.

APPEARANCES:

DAVID A. STRAUSS, ESQ., Office of the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioners.

TIMOTHY B. ATKESON, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: Mr. Strauss, you may proceed whenever you are ready.

ORAL ARGUMENT OF DAVID A. STRAUSS, ESQ. ON BEHALF OF THE PETITIONERS

MR. STRAUSS: Thank you, Mr. Chief Justice, and may it please the Court.

The issue in this case is whether the Nuclear Regulatory Commission adequately considered the impact that disposing of the spent fuel from nuclear power plants will have on the environment. In 1972, the Commission began an informal rulemaking proceeding to consider this and other associated environmental impacts and the effect they should have on applications for licenses to build or operate nuclear reactors.

Seven years later the Commission adopted the final version of the rule that is at issue here. In the interim the Commission had conducted two extensive staff studies, three informal rulemaking proceedings in which literally thousands of pages of comments were exchanged, and a total of over two weeks of hearings. The rule itself went through four versions that differed in detail.

The rule specifies in a table the amount of radioactivity that will be released to the environment in the course of disposing of various kinds of nuclear wastes, and it provides that this table is to be included in the environmental impact statements that are prepared in connection with each individual reactor license.

The licensing boards that consider individual applications are then not to receive additional evidence on the amount of radiation released. The reason for precluding the boards from reconsidering the radiation releases in individual cases is that these releases are entirely generic, that is to say they are always the same for a reactor of a given size no matter where or when the reactor is built.

Many aspects of this rule are not at issue here. For example, the Commission made the very pessimistic assumption that all of the radioactive gases would escape from the wastes, and it listed in the table the resulting amounts of radioactivity that would be released.

The aspect of the rule that is at issue here concerns high-level solid wastes, many of which remain radioactive for thousands of years. The Commission's conclusion reflected in the rule is that these wastes can be buried in a certain geologic formation of a kind that is found in 24 of the 50 states in such a way that they will not release a significant amount of radiation to the environment.

The Commission studied a number of events, natural or man-made that might cause radiation to escape from such a repository. For example, the Commission concluded that a direct hit by a meteorite a mile and a quarter in diameter would release radiation sufficient to contaminate the area within roughly an 11-mile radius of the repository. But such a meteorite --

QUESTION: Does the record show how many meteors there are that big they planned around?

MR. STRAUSS: Well, the record shows that such a meteorite hit could be expected on the average once every ten trillion years.

QUESTION: So they do not have any record of the most recent one?

(Laughter)

MR. STRAUSS: An earthquake fault, the Commission estimated, would occur at a typical site every 25 billion years. A more likely although still unlikely occurrence is that ground water would penetrate the repository, but ground water usually moves very slowly and the Commission calculated that by the time the radioactive materials in the groundwater reached the surface they would be so diluted and they would have decayed to such a degree that a person receiving the maximum exposure to that ground water would be subject to radiation roughly equal to the background radiation of the atmosphere and the soil.

The Commission accordingly concluded that so far as science could determine the chances of a substantial release of radiation from the repository are minimal to the point of being banishing, and the more likely occurrences would not release significant amounts of radiation. Now, the Court of Appeals did not question that conclusion.

At the same time the Commission acknowledged explicitly and, in fact, repeatedly that there is, of course, a certain irreducible and imponderable uncertainty involved in predicting what will happen so far into the future and in making predictions about a repository site that has not yet been specifically designated. But the Commission concluded that although these uncertainties exist, a reasonable working assumption that the licensing boards are to use is that there will be no releases of radiation from the solid wastes once the repository has been sealed.

The Court of Appeals had invalidated an earlier version of the rule on the ground that the Commission did not follow sufficiently elaborate procedures in assessing the impacts of nuclear wastes. This Court reversed.

On remand, the Court of Appeals, now working with a rulemaking record that had been greatly supplemented by the Commission, invalidated all versions of the rule on the ground that the Commission violated the National Environmental Policy Act when it determined not to allow licensing boards to reconsider in individual proceedings the uncertainties associated with the disposal of high-level wastes. We then sought certiorari.

Although the Court of Appeals based its decision squarely on NEPA, the National Environmental Policy Act, it never identified the language in NEPA or in any decision of this Court that prohibits the Commission from doing what it did here. As this Court has said several times, what NEPA requires is that an agency consider the environmental consequences of its actions and ordinarily disclose them to the public.

The Commission did consider the uncertainties associated with high-level waste disposal, and it made those uncertainties fully explicit. In fact, the Court of Appeals did not suggest otherwise. On the contrary, both the Court of Appeals and Respondents quote at some length from the Commission's own statements in attempting to show what we freely concede, that there are inevitably uncertainties associated with an inquiry of this sort, nor was the Commission's consideration of these issues not meaningful or only abstract as the Court of Appeals suggested.

For several years the Commission has been on record as saying that it would not continue to license reactors at all if it did not have reasonable assurance that wastes could be disposed of safely. If the ultimate outcome of the Commission's investigation of the waste disposal problem had been that the risks associated with any category of wastes are unacceptably great or if that is ever the outcome because the Commission's investigation of this matter is continuing, the Commission would halt all reactor licensing.

If the Commission were to conclude that the risks associated with waste disposal, while not that severe, are still grave it would be open to it to decide, for example, to permit reactors to be built or operated only where the need for power is particularly exigent. But the Commission concluded instead that the ascertainable risks are minimal, and as I said the Court of Appeals did not question that conclusion on this rulemaking record and that the unavoidable uncertainties should not affect the rate at which reactors are licensed.

Since that conclusion was reached after thorough, explicit and candid consideration, it simply cannot violate NEPA.

QUESTION: Mr. Strauss, my feeling about reading the briefs was that it was very much like two ships passing in the night, that apparently each party wanted to follow its own line of analysis and there wasn't too much interaction between them. What exactly do you think the Court of Appeals did wrong in saying that NEPA could make this -- that NRC couldn't make this a generic rule?

MR. STRAUSS: I think the Court of Appeals relied on NEPA for a requirement that is simply not found in NEPA.

QUESTION: Do you understand the Court of Appeals to have had any broader rationale, perhaps I should say more precise rationale, than just the generalized provisions of NEPA?

MR. STRAUSS: I don't, Justice Rehnquist. The Court of Appeals relied on NEPA to a great extent. It also nominally said that the Commission's action violated the arbitrary and capricious standard, but every time it said that it right away said and we find the standards to inform the arbitrary and capricious rule in NEPA.

I think what is going on in the Court of Appeals' opinion and in Respondent's brief as well is, because they do not object to the thoroughness or the candor of the Commission's discussions which is the stuff of NEPA. What they seem to be doing is operating with an assumption that NEPA requires that environmental impacts not only be considered by the Commission itself but be considered and reconsidered and perhaps relitigated at every subsequent stage of the agency's decision-making process where it might possibly affect a subordinate official's decision.

QUESTION: Did the Court of Appeals say that in so many words?

MR. STRAUSS: No, it did not say that in so many words. It used phrases like the NEPA decision-making process, a phrase Respondents use as well.

QUESTION: Perhaps my questions would be better addressed to them.

QUESTION: May I ask you a question since you have been interrupted? Would you agree that the NEPA requires the preparation of an environmental impact statement at some stage in the proceedings which discloses in a meaningful way that there is some uncertainty about the permanent storage of nuclear wastes?

MR. STRAUSS: Yes.

QUESTION: In your view, where will that disclosure be made in the environmental impact statements that may be made consistently with the rule?

MR. STRAUSS: The environmental impact statement at each licensing stage, at both the construction license and the operating license stage, incorporate --

QUESTION: Table S-3?

MR. STRAUSS: -- Table S-3 and the references it incorporates which --

QUESTION: Well, does that mean that the disclosure we are talking about then, in future environmental impact statements is that which we can find in Table S-3?

MR. STRAUSS: In Table S-3 and the references it makes incorporating --

QUESTION: Then isn't the legal question whether the incorporation by reference of all these other documents is an adequate compliance with the statute?

MR. STRAUSS: Well, that is a possible legal question. That is not the ground on which the Court of Appeals asserted.

QUESTION: I know, but don't we have to be satisfied on that in order to be sure that the statute has been complied with?

MR. STRAUSS: That could be a potential challenge raised to this rule or certainly to a subsequent environmental impact statement, but the standards for incorporation by reference in environmental impact statements are necessarily flexible. There is really no point in sort of trying to come up with a capsule phrasing of these uncertainties instead of referring people to the fuller discussions.

QUESTION: Your opponent ends his brief by saying that all that has to be done is to attach a rather short summary that there are, in fact, some risks associated with this. Do you understand that the rule would preclude such a summary from being attached to individual environmental impact statements that may be made with respect to particular licensing applications?

MR. STRAUSS: The rule does not require any summary to be attached.

QUESTION: My question is does it forbid it. It forbids the individual decision to reexamine the basic problem, as I understand it --

MR. STRAUSS: That is right.

QUESTION: -- but does it also forbid the EIS that is issued in connection with a particular license application from including a short summary saying well, the Table S-3 should be understood to reflect certain risks associated with the long-term storage of wastes?

MR. STRAUSS: My understanding is that the EISs in individual cases are prepared in accordance with Commission regulations and there would now not be any specific regulation telling the staff to summarize --

QUESTION: I understand there is nothing telling them to do it. I am asking if there is anything prohibiting them from doing it.

MR. STRAUSS: I do not know of anything specifically prohibiting them from doing it if they did it off their own bat, as it were. I think it is worth trying to think about what advantage would be gained by trying to summarize these uncertainties. I do not know that a summary could say any more than what I just said.

QUESTION: Yes, but the thing is that what you have just said is a lot plainer to the ordinary layman than ever what one would get out of reading Table S-3 if he was not as well informed as you are.

MR. STRAUSS: Well, I think that is right. The Table S-3 came with a statement of consideration. The statement of --

QUESTION: And a lot of cross references.

MR. STRAUSS: Well, there were cross references in quotations, but I think that accompanying statement lays it out quite clearly, about as clearly as I have laid it out to the Court that there are uncertainties associated here. That is the language that the Court of Appeals quoted from at such length.

QUESTION: I understand, but that is something you have to go to another document to find.

MR. STRAUSS: That is right, but that, I think, there are two points to be made about that. The CEQ guidelines that were in effect at the time this Council of Environmental Quality got them as they were in effect at the time the rule was issued specifically envision incorporation by reference of other documents.

QUESTION: To this extent? Do you think to this extent?

MR. STRAUSS: Well, they are flexible. They do not specify the extent, and it is just pointless to a large extent to require the documents be attached to an environmental impact statement instead of simply saying if you are interested in this problem further the NRC --

QUESTION: You do not even say that. That is the point. You do not even say if you are interested in this problem further this is what you will find.

MR. STRAUSS: Well, I doubt very much that anyone who is interested in this problem would not know what to do when he looked at that Table S-3.

I think actually, Justice Stevens, you brought out another point about what the Commission has done here as opposed to what Respondents and apparently the Court of Appeals would have them do. The Commission has made a very clear and visible and public focused decision on a matter of no small importance, the question whether reactor licensing is to continue at the same pace despite these imponderable and irreducible uncertainties.

The Commission made its decision, made it visibly, and that is exactly the sort of thing that NEPA is supposed to encourage. The Respondent's solution would have the effect of scattering the decision on this question among a multitude of very low visibility decisions made by licensing boards in particular cases, decisions that because these uncertainties are really inherently unquantifiable would necessarily be kind of inscrutable, and it cannot be the case that NEPA requires a less visible decision that members of the public would have a more difficult time appreciating than what the Commission did here.

I should say that we are not suggesting that there are no limits at all on an agency's ability to organize its internal affairs and to allocate decision-making responsibility between the agency itself and its subordinate bodies, but the question is one of the overall reasonableness of what the agency has done. It is not a specific inflexible mandate from NEPA, and I think in order to best understand the reasonableness of what the Commission did here, reasonableness deriving from the arbitrary and capricious test, the best way to understand it is to think about what the alternatives might have been in as concrete terms as possible.

Respondents and the Court of Appeals are somewhat vague on this and understandably so. For example, it appears that they would want the licensing board to reconsider these uncertainties in a somewhat plenary fashion. They would want to be able to try to explain to the licensing boards that these uncertainties should persuade them not to license a particular reactor.

Well, it is easy to see how that could quickly turn each licensing proceeding into a rerun of this monumental rulemaking. These issues are very complex, very technologically difficult. The scientific learning on them is found in many sources, and many arguments and considerations could be brought to bear if this question, to what extent should these uncertainties affect the decision to license a reactor, if that question were tossed open in individual licensing proceedings.

If that question were not tossed open, if as Respondents sometime seem to suggest the licensing boards are just supposed to be given a little package that will explain to them exactly what these uncertainties are and this package is somehow to be inserted in the ledger that licensing boards are thought to draw up, if that and no further inquiry at the licensing board stage is to be permitted, if that is what Respondents have in mind, then you have to wonder just what will be accomplished by that. The package is unlikely to give them any better sense of the uncertainties than what I have said to the Court, as I said, Justice Stevens, or than what the Commission has said, and the result would be that a licensing board would engage in the process of balancing these unquantifiable, imponderable uncertainties against such things as the need for nuclear power. The Commission could --

QUESTION: Is it your understanding, Mr. Strauss, that in these individual licensing proceedings it is a hearing in which people may be heard, I take it, in opposition to licensing, that one is permitted to argue that this established amount of uncertainty is a reason for not granting the license. There is nothing in the Commission's policy that would prevent that, is there?

MR. STRAUSS: Well, it would be -- The values that are established in the table can be argued about.

QUESTION: Yes, you cannot relitigate, so to speak, the values in the table, but you can argue that the established figures in the table show sufficient uncertainty that this particular plant ought not to be licensed.

MR. STRAUSS: Well, the values in the table reflect such uncertainties that exist usually by, as I said in the case of the gases, by saying we will assume everything is released simply by assuming the worst case and to that extent they already have taken into account the uncertainties, and you would be entitled to say, look, licensing this will cause the release of so many curies of such and such a gas and that will have damaging effects on health and --

QUESTION: And that to me is a ground that I urge upon you for not granting the license.

MR. STRAUSS: That is right. You would be able to make that argument.

QUESTION: Mr. Strauss, is that a fair portrayal of the portion of S-3 that relates to long-term storage of waste? As I understood the order, the licensing boards are told not to base any decision on this at all, that that has been decided on a generic basis which in turn would mean that there would be no purpose in an individual opponent of a licensing application rearguing this point. I think this in effect is like a pre-trial order saying this issue has been decided.

MR. STRAUSS: Well, the values in the table are to be taken --

QUESTION: And one of the values in the table is you shall not consider the risk of release from permanent storage.

MR. STRAUSS: The working assumption, that is right, is that solid waste --

QUESTION: So the answer to Justice Rehnquist's question is that argument would not be open in an individual proceeding.

MR. STRAUSS: You would not be able to argue. The Commission has decided that the assumption is to be that solid wastes will not release --

QUESTION: Correct.

MR. STRAUSS: -- radioactivity in the environment. You would not be able to --

QUESTION: Your point is that you have made that ruling on a generic basis, and it is to be excluded from the individual proceeding.

MR. STRAUSS: That is right, that ruling, that is right.

QUESTION: How about the wastes other than the solid wastes?

MR. STRAUSS: Oh, no. What you have to assume there is that the values reflected in the table accurately reflect how much radioactivity will be released.

QUESTION: So and one could still argue for the licensing board the worst case hypothesis that however unlikely it is to occur it is still a reason not to license?

MR. STRAUSS: Well, the worst case hypothesis is built right into the table. The Commission in the case of these gases has already done it, and you would be able without even arguing that the licensing board should adopt the worst case hypothesis say our working assumption is that all the gases will be released. This will have a severe health affect. You could argue that. I mean, in fact, I think the Commission has said this, although it has not bound the licensing boards to it. In fact, these gaseous releases are not large enough to have a major health affect, but in the current state of affairs you could argue otherwise to a licensing board.

I will save the rest of my time for rebuttal. Thank you.

CHIEF JUSTICE BURGER: Mr. Atkeson.

ORAL ARGUMENT OF TIMOTHY B. ATKESON, ESQ., ON BEHALF OF THE RESPONDENTS

MR. ATKESON: Mr. Chief Justice, and may it please the Court.

We represent Respondent, Natural Resources Defense Council, and we are joined by a Respondent, the State of New York, and by 15 other states and several citizens groups as amicae.

The issue in the case before us is the integrity of the review process by which environmental review is given to the licensing of individual nuclear power plants under the National Environmental Policy Act. Mr. Strauss has identified the S-3 rulemaking under which the Nuclear Regulatory Commission analyzed the impacts of the nuclear fuel cycle and developed the S-3 table which is attached to Respondent NRC's brief. If the Court would care to examine what the table looks like.

In this table the Nuclear Regulatory Commission sets out what is deemed to be the environmental impact at various parts of the nuclear fuel cycle, and if the Court would look down towards the bottom of the table there is a highlighted item referred to as TRU and HLW (deep) which turns out to be transuranic and high-level waste deep, and it is followed by a cryptic number, which in this text is much too hard to read, but which says 1.1 times 10 to the seventh. When this is multiplied out it turns about to be 11 million curies, by far the highest amount --

QUESTION: Eleven million what?

MR. ATKESON: Excuse me, Your Honor?

QUESTION: Eleven million what?

MR. ATKESON: Eleven million curies, a measurement of radioactivity. Eleven million curies, by far the highest amount of radioactivity represented on this table.

In other words, in the S-3 table the Nuclear Regulatory Commission is instructing its licensing boards that this immense amount of radioactivity, which I would add is generated for each nuclear power plant per year, is to be regarded as having throughout the hundreds and thousands of years of its intense toxicity zero release to the environment.

This means that the licensing boards which must conduct the environmental review of nuclear power plants are being instructed that for all practical purposes the high-level waste disposal problem does not exist. We submit that in the context of this case what the government is arguing is that an agency may taken an environmental problem in advance, consider it generically in the abstract, and then for policy reasons eliminate it from consideration in subsequent actual decision making about actual nuclear power plants by setting a zero value on it.

It is conceded that the problems of the disposal of high-level waste are significant.

QUESTION: Mr. Atkeson, do you support the Court of Appeals reasoning for deciding that the Nuclear Regulatory Commission ought not to have done this on a generic basis?

MR. ATKESON: Mr. Justice Rehnquist, we contend that the Court of Appeals was correct in saying that it as a decision-making device this was improper, that the decision making involved here is the review of actual nuclear power plants and that the rule, if it had been made correctly, could have been reviewed and applied in that licensing. But since the Court arrived at the conclusion that the decision was a clear error of judgment, it could not be applied.

QUESTION: Well, what is it about NEPA that prevents a generic approach like this? What is it in the language? I read the Court of Appeals' opinion with some care, and I am inclined to agree with Mr. Strauss that the principle opinion never points to any section of the Act. It just refers to "NEPA." What section of the Act do you rely on?

MR. ATKESON: Mr. Justice Rehnquist, the problem here is, and I think this was said in the Court of Appeals' decision, that if the Regulatory Commission had arrived at an appropriate decision on the record about the impact of high-level waste disposal, I think the decision incorporates the thing that --

QUESTION: Did you understand my question?

MR. ATKESON: Yes, Your Honor, that if the Commission had correctly decided that the impact of high-level waste disposal was insignificant then that could have bound the licensing boards. What happened here --

QUESTION: I asked you what section of NEPA you were relying on to fault the generic approach of the NRC.

MR. ATKESON: Your Honor, the fault of the generic approach is that having arrived at a generic review of the problem, the Commission did not incorporate that generic review into the --

QUESTION: I take it from your answer you are simply unable to cite any section of NEPA that supports the result you are urging.

MR. ATKESON: Well, the problem here is the problem that the generic result that the Commission actually found in its acknowledged uncertainties and risks associated with high-level waste disposal were then not factored into the S-3 table.

QUESTION: Mr. Atkeson, in your view did the NRC consider all of the relevant evidence?

MR. ATKESON: Justice O'Connor, I think our view is that the record fulsome. In its final decision --

QUESTION: It did consider, in other words, the evidence that was available. You disagree with its conclusion?

MR. ATKESON: Well actually, Justice O'Connor, most of the grounds for questioning the decision of the NRC here are in statements made by the NRC itself or endorsed in the record. The Commission said, we agree with the interagency review group which was reporting to the President of the United States at the same time that there are uncertainties as to when and where the repositories will be constructed or whether they will perform as expected. Those are very basic uncertainties.

QUESTION: Yes, but it did consider, in your view, the relevant evidence.

MR. ATKESON: I think on the whole, yes, they did.

QUESTION: Did it also adequately describe the environmental questions surrounding the back end of the fuel cycle?

MR. ATKESON: Justice O'Connor, they did identify all the major areas of uncertainty. What is involved, though, that on the one hand they would say we concede this, we concede this, we concede, but for policy reasons we reach this conclusion. What we are saying is that the concessions they made as to environmental uncertainty should have been incorporated in Table S-3. What you get in Table S-3 is merely the cryptic entry, buried at federal repository.

Mr. Strauss says that he is perfectly prepared to have some supplementing of this as he said in response to Justice Steven's question, but he is not prepared to allow the licensing boards to take account of that uncertainty and that is the basic problem here.

The National Environmental Policy Act --

QUESTION: Mr. Strauss, let me just interrupt if I may. I know Justice Rehnquist tried, and I would like to try again. What provision of what statute do you rely on to say they had the duty to do that?

MR. ATKESON: Mr. Justice Stevens, the provision of the statute involved is the provision of the National Environmental Policy Act, Section 1022(c) which says that the environmental impact of the end action is to be set out in the environmental impact statement and is to accompany the proposal through the agency review process. In this case, the agency review process starts with the licensing board. It is the licensing board that is the only entity in the Nuclear Regulatory Commission that considers the environmental impact statement.

In other words, if this issue is screened off from consideration by the nuclear licensing board, then nobody considers it in the context of an actual power plant licensing.

QUESTION: Do you by that argument then suggest that it would never be permissible to have a generic rule excluding any issue from individual consideration?

MR. ATKESON: As the lower --

QUESTION: Any issue affecting the environment, that is.

MR. ATKESON: As the lower court pointed out, if the record in this case has warranted a finding that there was zero environmental effect then the Commission would have been warranted in instructing the licensing board to take no account.

QUESTION: Well, if you say that then you are objecting to the substance of the decision rather than to the procedure?

MR. ATKESON: We are saying that the error of the Court can be considered in one way or the other, and I think that is the way the lower court put it. It said the Commission has made either a mistake of judgment in assessing the impact and setting it out, or it has made a procedural error in precluding the licensing boards from considering this factor.

The essence of the problem here is that the Commission conceded the uncertainties and risks. It then screened them out of the S-3 table on policy grounds. The result is that the mandate of NEPA for the licensing boards to consider all the environmental impacts in licensing nuclear power plants was not obeyed.

QUESTION: Well, that is not a mandate to all licensing boards. That is a mandate to the Nuclear Regulatory Commission, is it not, that presumably can be allotted to is subordinate bodies within reason as the NRC sees fit?

MR. ATKESON: Mr. Justice Rehnquist, the fact is, and this is reflected in the report on Nuclear Regulatory Commission procedures that in all instances the environmental impact statement is scrutinized by the licensing board. That is the only comprehensive review of the environmental impact statements that takes place. It could be changed, but it has not been changed.

QUESTION: I am a little confused as perhaps some of the rest of us are. Is it the fact of a risk that is the core of your position, the fact that there is a risk which is undetermined, cannot be identified, cannot be measured?

MR. ATKESON: Mr. Chief Justice, there is a great deal in the record that documents the risk. There is the risk while the high-level waste is on the surface of the earth. There is risk attendant on its being taken down to the repository if a repository is developed, and there is a risk documented in the record while it is in the repository. Incidentally, the Nuclear Waste Policy Act passed by Congress at the end of the last year provides that for a period of time the waste is to be retrievable while it is in the repository, which means it may be back on the surface.

QUESTION: Mr. Atkeson, in your view could an individual licensing agency adopt a generic rule to the effect that the long-term storage of waste would have no likely effect on the environment?

MR. ATKESON: It is possible that the Commission could argue that since it has authority under the Atomic Energy Act to license or not license a nuclear power plant that it could adopt such a rule under that Act, but it would seem to us on the basis of the record in this case that it would be arbitrary and capricious for it to say on the basis of the facts as they are here that those facts could never in any future licensing on a particular actual nuclear power plant be considered.

QUESTION: Mr. Atkeson, when airlines are licensed by the CAB or when they are built by airlines, no one would think that they should guarantee that no airplane would never fall and no accident would ever happen and no injury would ever follow. No one think that that should be done, would they seriously? And yet sometimes 200 or 300 people are killed at one time in an airplane accident. Is that not something of what we are dealing with in the broad picture here?

MR. ATKESON: I know that the question of how much risk is acceptable is constantly under consideration in our society, and I know that one of the purposes of this rulemaking was to quantify the risk as precisely as possible, and I think that the Commission has done a tremendous job in this respect in the seven years of the rulemaking. But what is left at the end is that the Commission acknowledges as a continuing area of uncertainty and risk, and it seems to us that it is incumbent on the Commission to set that out candidly in the S-3 table and if it is set out there at an appropriate time in the future in the case of a perhaps marginal plant that a decision is made not to go forward with that.

QUESTION: The first atomic power plant goes back a good deal more than seven years, though, does it not?

MR. ATKESON: Excuse me?

QUESTION: The first atomic power plant goes back considerably more than seven years.

MR. ATKESON: Licensing took place in the 1950s.

QUESTION: The first one was under the Power Reactor Development Corporation case decided by this Court almost twenty years ago, I would guess.

MR. ATKESON: Yes, at the outset of the 60s.

The question has been asked what level of risk is acceptable, what is an appropriate response to the requirement of NEPA that risks and uncertainties be set out in the environmental impact statement. I think I heard Mr. Strauss say that the Commission at this point is satisfied that the risk is not such as to preclude further licensing of nuclear power plants.

What he then added was that if the risk is deemed to be at some other point, the Commission might make the decision not to license in certain cases where there was not a clear need for power. Incidentally, the Nuclear Regulatory Commission has adopted subsequent to the S-3 rule a rule that the class nine reactor core meltdown accidents be considered in the context of environmental impact statements.

So in response to your question, Mr. Chief Justice, we are engaged in the activities of the Nuclear Regulatory Commission in some very fine assessments of what degree of risk is acceptable in the licensing of nuclear power plants, and those issues, as I say, are sent out to the licensing boards for review. We have drawn the Court's attention to the problem with the original and the interim rule in this case that the health, socio-economic and cumulative impacts of the fuel cycle are screened from review as those original and interim rules were phrased.

The Commission acknowledged this deficiency by amending the Table S-3 rule to make clear that these health, socio-economic and cumulative impacts could be considered. It is clear that these were appropriate to be considered and that they were improperly screened from review --

QUESTION: Did anyone ever try to have them considered, Mr. Atkeson? I had the impression at least as to the health effects no one ever asked to have them considered.

MR. ATKESON: Mr. Justice Rehnquist, the matter was drawn to the attention of the Commission at the time of the interim rulemaking, and it was not for two years that the Commission got around to amending the thing. So the matter was being litigated before the Commission for some time before the amendment took place.

This case is not about the propriety of generic rulemaking, nor about the wisdom of building nuclear power plants in the face of uncertainty regarding nuclear waste disposal. Essentially, it is a case about the Commission's prolonged attempted to isolate the problems of nuclear waste disposal from the problem of deciding whether it is worth it in any particular instance to license a plant that will create substantial amounts of additional waste.

Nothing in the Vermont Yankee decision of this Court which was explicit in its recognition of the problems of high-level waste disposal suggests that an agency has discretion under NEPA to exclude significant environmental uncertainties and risks from the NEPA decision-making process when it comes to licensing particular nuclear plants. The law requires disclosure of these uncertainties, and the Commission inexplicably refused to do so despite its recognition of their significant nature.

The issue here which Congress had made all the more important by its heavy reliance in the Nuclear Waste Policy Act on use of NEPA analysis is maintaining the integrity of the NEPA process based on clear, candid disclosure and consideration of the significant environmental risks of creating high-level waste in the licensing of particular nuclear power plants. For the reason stated today and as summarized in our brief, the judgment of the Court of Appeals should be affirmed.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Strauss?

MR. STRAUSS: Mr. Chief Justice, unless the Court has some questions, I have nothing further.

CHIEF JUSTICE BURGER: Thank you, gentlemen.

The case is submitted.

(Whereupon, at 2:57 p.m., the case in the above-entitled matter was submitted.)