ELR Citation: ELR 20546
No(s). 81-1331 (D.C. Cir. May 14, 1982)

The court rules thatthe Nuclear Regulatory Commission (NRC), before authorizing resumption of electric power production at the sister unit to the damaged Three Mile Island nuclear reactor, is required by the National Environmental Policy Act (NEPA) to consider potential harm to the psychological health of local residents. On review of an interlocutory order of NRC, which excluded psychological stress from the issues to be considered in a pending licensing proceeding concerning the restart of the reactor, the court concludes that under NEPA psychological health is entitled to the same recognition as other aspects of human health. Impacts on psychological health are to be distinguished from socioeconomic impacts, which cannot independently trigger an agency's obligation to prepare an environmental impact statement (EIS) but nevertheless must be discussed within impact statements without other environmental effects. The court rejects the Commission's argument that, having licensed the reactor once, its continued involvement with the reactor is so attenuated that the decision to allow the restart is not a "major federal action." NRC's continuing regulation of the reactor falls squarely within the meaning of the term "major federal action" subject to §102(2)(C) of NEPA. The court adds that if NRC determines that the restart of the reactor involves significant new circumstances or information with respect to the original licensing decision, a supplemental EIS will be required.

Judge Wilkey, in Part I of his opinion, dissents from the majority's interpretation of NEPA. In his view the application of NEPA to actions causing psychological stress is contrary to the intent of Congress and judicial interpretations of the Act. Moreover, the majority's decision will require NRC to address the public's fears and anxieties in all future licensig proceedings, thus giving the opponents of any particular power plant an opportunity for blocking it by stirring up public sentiment. In Part II of his opinion Judge Wilkey is joined by Judge McGowan, making it the opinion of the court. The court upholds the Commission's determination that it is not required by the Atomic Energy Act (AEA) to consider psychological stress before permitting the restart of the reactor. The term "health and safety" as used in §103(d) of the AEA concerns only the health risks posed by direct human exposure to radiation.

Judge Wright, who wrote the opinion for the court on the NEPA issue, dissents from the court's treatment of the AEA issue. He would not defer to NRC's limited construction of the term "health and safety," and would construe it to include psychological health.

Counsel for Petitioner
William S. Jordan
Harmon & Weiss
1725 I St. NW, Washington DC 20006
(202) 833-9070

Counsel for Respondents
Peter G. Crane; Stephen F. Eilperin, Solicitor
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3288

Peter R. Steenland, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

James B. Hamlin, George F. Trowbridge, Mark Augenblick
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Before WRIGHT, Circuit Judge, McGOWAN, Senior Circuit Judge, and WILKEY, Circuit Judge.

Senior Circuit Judge McGOWAN concurs in Part II of Circuit Judge WILKEY'S opinion, thereby making that Part the opinion of the court on the Atomic Energy Act issue. Circuit Judge WRIGHT dissents on the Atomic Energy Act issue and files an opinion.

Per Curiam: Circuit Judge Wilkey dissents for the reasons stated in his dissenting opinion filed this day.