Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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1128 449 FEDERAL REPORTER, 2d SERIES f n^l ^ L f ^ tion of national policy militating against delay in construction of nuclear power facilities. [11] The Commission relies upon the flexible NEPA mandate to "use all prac­ticable means consistent with other es­sential considerations of national policy." As we have previously pointed out, how­ever, that mandate applies only to the substantive guidelines set forth in Sec­tion 101 of the Act. See page 1114 upra. The procedural duties, the duties to give full consideration to environ­mental protection, are subject to a much more strict standard of compliance. By now, the applicable principle should be absolutely clear. NEPA requires that an agency must-to the fullest extent possible under its other statutory obli­gations- consider alternatives to its ac­tions which would reduce environmental -damage. T/faat principle establishes that consideration of environmental matters. must be more than a pro forma .ritual-jCkarJx it is pointless to "consider" en­vironmental costs without also seriously considering action to avoid them. Such_ a full exercise of substantive discretion is required at every important, appropri­ate and nonduplicative stage of an agen­cy's proceedings. See text at page 1114 supra. The special importance of the pre-op-erating license stage is not difficult to fathom. In cases where environmental costs were not considered in granting a construction permit, it is very likely that the planned facility will include some features which do significant dam­age to the environment and which could not have survived a rigorous balancing of costs and benefits. At the later oper­ating license proceedings, this environ­mental damage will have to be fully con­sidered. But by that time the situation will have changed radically. Once a fa­cility has been completely constructed, the economic cost of any alteration may be very great. JjcuJthe^Janguage qf. NEPA, there is likely to be an "irrevers­ible and irretrievable commitment of re^ sou fee s >" wh i ch will inevitably restrict the Commission's options. Either the licensee will have to undergo a major ex­pense in making alterations in a com­pleted facility or the environmental harm will have to be tolerated. It is all too probable that the latter result would come to pass. By refusing to consider requirement of alterations until construction is com­pleted, the Commission may effectively foreclose the environmental protection desired by Congress. It may also fore­close rigorous consideration of environ­mental factors at the eventual operating license proceedings. If "irreversible and irretrievable commitment[s] of resourc­es" have already been made, the license hearing (and any public intervention therein) may become a hollow exercise. This hardly amounts to consideration of environmental values "to the fullest ex­tent possible." A full NEPA consideration of alter­ations in the original plans of a facility, then, is both important and appropriate well before the operating license proceed­ings. It is not duplicative if environ mental issues were not considered in granting the construction permit. And it need not be duplicated, absent new in­formation or new developments, at the operating license stage. In order that the pre-operating license review be as ef­fective as possible, the Commission should consider very seriously the re­quirement of a temporary halt in con­struction pending its review and the "backfitting" of technological innova­tions. For no action which might min­imize environmental damage may be dis­missed out of hand. Of course, final op­eration of the facility may be delay. : thereby. But some delay is inhered whenever the NEPA consideration i* conducted-whether before or at the in­cense proceedings. It is far more con­sistent with the purposes of the Act t delay operation at a stage where real environmental protection may conv about than at a stage where correct iv*1' action may be so costly as to be im; " sible. [12] Thus we conclude that the C mission must go farther than it ha •