ML19256F949
| ML19256F949 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 12/10/1979 |
| From: | Deale V Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7912270106 | |
| Download: ML19256F949 (3) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ggG 101979 E.
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD t
In the Matter of
)
PUGET SOUND POWER & LIGHT
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Docket Nos. 50-522 COMPANY, et al.
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50-523
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(Skagit Nuclear Power Project,
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Units 1 and 2)
)
Denial of SCANP's Motion re Executive Order 12114 1.
By motion dated October 17, 1979, SCANP moved, in effect, that the Board direct the NRC Staff to implement Executive Order 12114, executed by President Carter cn January 4,1979, with respect to the proposed Skagit project. 'Ibe Executive Orhr is entitled, " Environmental Effects Abroad of Major Federal Actions. "
2.
The Applicants and the NRC Staff filed their respective answers to SCANP's motion on November 1 and November 6,1979. Both answers opposed the motion.
3.
SCANP's motion errs as a matter of law in assuming that the Commission is subject to Executive Order 12114. Under the Energy Reorganization Act of 1974, at 42 USCA 5841(a)(1), the Nuclear Regulatory Commission is established by an Act of Congress as "an independent regulatory commission. " It is not an agency or department within the Executive Branch, like, for example, the Department of Energy (42 USCA 7131). As the Supreme Court said of the Federal Trade Commission, the 1645 189 mmo /Ch&
... Nuclear Regulatory Commission "cannot in any proper sense be character-ized as an arm or an eye of the executive. " Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935).
4.
While Executive Order 12114 states that it furthers the purpose of the National Envi:unmental Policy Act (NEPA) and the Marine Protection Research and Sanctuaries Act and the Deepwater Port Act consistent with the foreign policy and national security policy of the United States, the Order recognizes that it is " based on iniependent authority", that is, it is not based on any statute. The Executive Order cites the President's authority " vested in me by the Constitution and the laws of the United States... " and the Constitution at Article II, Section 3 provides that the President "shall take care that the laws be faithfully executed. " This "take care" language of the Constitution, however, does not authorize the President to act as a law-maker. In the absence of authority from the Constitution or from a statu-tory mandate or delegation of authority from Congress, a Presidential proclamation or order does not have the force and effect of law. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587-589 (1952), Independent Meat Packers Assn. v. Butz, 526 F. 2d 228, 235 (8th Cir.1975), cert. denied, 424 U.S. 966 (1976). In brief, Executive Order 12114 does not reach the Nuclear Regulatory Commission.
5.
Further, by its very terms, the Executive Order at Section 3-1 forecloses the right of anyone to make an effective legal demand growing out 1645 190
. of the terms of the Order. Thus, regardless of other considerations, SCANP has no standing to press a claim before this Board as though SCANP had a legitimate cause of action arising out of the Order itself.
The restrictive provision of Section 3-1 reads as follows:
" Rights of Action. This Order is solely for the purpose of establishing internal procedures for Federal agencies to consider the significant effects of their actions on the environment outside the United States, its territories and possessions, and nothing in this Order shall be construed to create a cause of action. "
6.
Accordingly, SCANP's motion to require any implementation by the Commission of Executive Order 12114 is denied.
Done this [/ day of December 1979 at Washington, D.C.
ATOMIC SAFETY AND LICENSING BOARD By
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/ (/[
Valentine B. Deale, Chairman 1645 191