ELR Citation: ELR 20346
No(s). s. 24839 & 24871 (D.C. Cir. Jul 23, 1971)

The regulations promulgated by the AEC to comply with the procedural obligations imposed upon federal agencies by the National Environmental Policy Act of 1969 violate the Act's requirements as follows: (1) the AEC's refusal to independently review the nonradiological environmental impact of nuclear power plant operations upon which state or other federal agencies have already passed conflicts with NEPA's mandate to the relevant agency to assess the complete environmental costs of its action on a case-by-case basis; (2) the AEC's failure to require hearing board review of nonradiological environmental factors unless affirmatively raised by outside parties or staff members violates the Commission's affirmative duty to consider environmental values at every stage of the decisionmaking process; (3) the AEC's refusal to consider nonradiological environmental factors at hearings officially noticed before March 4, 1971, violates NEPA's mandate that such factors be taken into account by each agency to the fullest extent possible from the time the act went into effect on January 1, 1970; (4) the AEC's refusal to consider alteration of plans, backfitting or construction halts for nuclear facilities which were granted construction permits prior to the effective date of NEPA but for which operating licenses have not yet been granted, so as to allow for interim modifications of these facilities consonant with environmental values, is inconsistent with the Commission's duty to fully consider action which will avoid environmental degradation. The case is therefore remanded to the AEC for proceedings consistent with the court's opinion. NEPA imposes a substantive duty upon every federal agency to consider the effects of each decision upon the environment and to use all practicable means, consistent with other essential considerations of national policy, to avoid environmental degradation. The act also imposes procedural obligations which assure that the substantive duty is properly performed. These procedural duties are not inherently flexible. They require agency compliance to the fullest extent unless there is a clear conflict with the agency's other statutory authority.

Counsel for Petitioners
Anthony Z. Roisman
Berlin, Roisman and Kessler
1910 N Street, NW
Washington, DC 20036
(202) 833-9070

Myron M. Cherry
Angus McBeth
Natural Resources Defense Council
1600 20th Street, NW
Washington, DC 20036
(202) 387-2855

Beatrice K. Bleicher
7th Floor, Toledo Trust Bldg.
Toledo, OH 43601

Lewis Drain
311 Waters Bldg.
Grand Rapids, MI 49501
(616) 451-2061

Peter Cooper
35 Elm Street
New Haven, CT 06510
(203) 787-5821

Robert Kennan
National Wildlife Federation
1412 16th Street, NW
Washington, DC 20013
(202) 483-1550

Counsel for Respondents
Joseph F. Hennessey General Counsel
Marcus A. Rowden Solicitor
Howard K. Shapar Asst. General Counsel
Licensing & Regulation
Atomic Energy Commission
Washington, DC 20545
(202) 973-7308

Shiro Kashiwa Asst. Attorney General
Edmund Clark Attorney
Department of Justice
Washington, DC 20530
(202) RE7-8200

Counsel for Consumers Power Company, Amicus Curiae
Robert Lowenstein
Jack R. Newman
Herome E. Sharfman
Lowenstein and Newman
1100 Connecticut Ave., NW
Washington, DC 20036
(202) 296-7585

Counsel for Duke Power Company, Long Island Company, Northeast Utilities, Pacific Gas and Electric Company, Rochester Gas and Electric Company, Virginia Electric and Power Company, Amici Curiae
George D. Gibson
George C. Freeman, jr.
W. Taylor Reveley III
Arnold H. Quint
Turner R. Smith, Jr.
Hinton, Williams, Gay, Powell & Gibson
P.O. Box 1535
Richmond, VA 23212
(703) 643-0141

Counsel for Indiana & Michigan Electric Company and Portland General Electric Company, Amici Curiae
H. Edward Dunkleberger, Jr.
Christopher M. Little
Peter M. Phillipes
Covington & Burling
888 16th Street, NW
Washington, DC 20006
(202) 293-3300

Before WRIGHT, TAMM, and ROBINSON, Circuit Judges.