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Show 1116 449 FEDERAL REPORTER, 2d SERIES the Atomic Energy Commission granting a construction permit or an operating license. Rather, we must review the Commission's recently promulgated rules which govern consideration of environmental values in all such individual decisions. 14 The rules were devised strictly in order to comply with the NEPA procedural requirements--but petitioners argue that they fall far short of the congressional mandate. The period of the rules' gestation does not indicate overenthusiasm on the Commission's part. NEPA went into effect on January 1, 1970. On April 2, 1970- three months later-the Commission issued its first, short policy statement on implementation of the Act's procedural provisions.13 After another span of two months, the Commission published a notice of proposed rule making in the Federal Register.16 Petitioners submitted substantial comments critical of the proposed rules. Finally, on December 3, 1970, the Commission terminated its long rule making proceeding by issuing a formal amendment, labelled Appendix D, to its governing regulations.17 Appendix D is a somewhat revised version of the earlier proposal and, at last, commits the Commission to consider environmental impact in its decision making process. The procedure for environmental study and consideration set up by the Appendix D rules is as follows: Each applicant for an initial construction permit must submit to the Commission his L.Rev. 231 (1970) ; Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum. L.Rev. 612, 643-650 (1970) ; Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 Envir.L.Rptr. 50035 (1971) ; Yannacone, National Environmental Policy Act of 1969, 1 Envir.Law 8 (1970) ; Note, The National Environmental Policy Act: A Sheep in Wolf's Clothing?, 37 Brooklyn L.Rev. 139 (1970). !4. In Case No. 24,-871, petitioners attack four aspects of the Commission's rules, which are outlined in text. In Case No. 24,839, they challenge a particular application of the rules in the granting of a particular construction permit-that for own "environmental report," presenting his assessment of the environmental impact of the planned facility and possible alternatives which would alter the impact. When construction is completed and the applicant applies for a license to operate the new facility, he must again submit an "environmental report" noting any factors which have changed since the original report. At each stage, the Commission's regulatory staff must take the applicant's report and prepare its own "detailed statement" of environmental costs, benefits and alternatives. The statement will then be circulated to other interested and responsible agencies and made available to the public. After comments are received from those sources, the staff must prepare a final "detailed statement" and make a final recommendation on the application for a construction permit or operating license. Up to this point in the Appendix D rules petitioners have raised no challenge. However, they do attack four other, specific parts of the rules which, they say, violate the requirements of Section 102 of NEPA. Each of these parts in some way limits full consideration and individualized balancing of environmental values in the Commission's decision making process. (1) Although environmental factors must be considered by the agency's regulatory staff under the rules, such factors need not be considered by the hearing board conducting an independent review of staff recommenda-the Calvert Cliffs Nuclear Power Plant. However, their challenge consists largely of an attack on the substance of one aspect of the rules also attacked in Case No. 24.S71. Thus we are able to resolve both cases together, and our remand to the Commission for further rule making includes a remand for further consideration relating to the Calvert Cliffs Plant in Case No. 24,839. See Part V of this opinion, infra. 15. 35 Fed.Reg. 5463 (April 2, 1970). 16. 35 Fed.Reg. S594 (June 3, 1970). 17. 35 Fed.Reg. 18469 (December 4, 1970). The version of the rules finally adopted is now printed in 10 C.F.R. § 50, App. D, pp. 240-250 (1971). |
