ELR Citation: ELR 20289
No(s). 73-1857 (2d Cir. Feb 21, 1974)

The U.S. Court of Appeals for the Second Circuit dismisses for lack of jurisdiction a petition to review an Atomic Energy Commission order excluding certain environmental, accident, and energy conservation issues from consideration in an application to construct a third nuclear power plant on the southern shore of Lake Ontario. The Commission's decision to exclude from consideration the environmental effects of uranium mining and of longterm storage of toxic radioactive wastes, consequences of a major accident with breach of containment, and possible means toward energy conservation, cannot be considered a final order and therefore is not reviewable under 28 U.S.C. §2342(4). The agency's exclusionary ruling is not so flagrantly erroneous as to make certain reversal on appeal should the ultimate licensing decision go against the petitioners. The ruling thus does not fall within the limited exception to 28 U.S.C. §2342(4) of orders, which, though actually interlocutory, are considered final for the purposes of judicial review. Considering the undesirable delays that now plague AEC licensing decisions, and the scant resources of environmental advocates, the court finds that the issues in question are better considered in generic proceedings rather than in each individual license application.

Counsel for Petitioners
Richard I. Goldsmith
Syracuse University School of Law
E.I. White Hall, Campus
Syracuse, NY 13210

Counsel for Respondent
Marcus A. Rowden General Counsel
Jerome Nelson Solicitor
Raymond M. Zimmet
Atomic Energy Commission
Washington, DC 20545

Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Raymond N. Zagone
Department of Justice
Washington, DC 20530

Counsel for Intervenor Niagara Mohawk Power Corporation
Lex K. Larson
Arvin E. Upton
David Doane
LeBoeuf, Lamb, Leiby & MacRae
1757 N Street, NW
Washington, DC 20036