ML19353A392
| ML19353A392 | |
| Person / Time | |
|---|---|
| Issue date: | 12/16/1980 |
| From: | Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Kennedy R NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8101080350 | |
| Download: ML19353A392 (13) | |
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MEMORANDUM FOR:
Mr. Richard T. Kennedy 3
Leader, NRC Transition Team
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-) ya arlton Stoiber FROM:
V Deputy General Counsel
SUBJECT:
STATUS OF PHILIPPINE LAWSUIT AND EXECUTIVE ORDER 12114 This is in response to your request for a status report concerning two matters arising in the area of nuclear exports:
the pending court of appeals case challenging the Commission's issuance of an excort license for a nuclear reactor to be constructed in the Ph'ilippines; and the implementation of Executiv'e Order 12114, entitled " Environmental Effects Abroad of Major Federal Actions".
As part of the status report, you asked for an evaluation of the effects of the court's decision on the U.S. nuclear export process.
Of course, until the court renders its decision, and we know the precise holding, any evaluation we may make will be rather speculative.
However, the general impact of a decision upholding or overturning the Commission's licensing determination can be outlined.
The attachment addr$:sses separately the two matters you have raised.
At tachmen t :
Status Report 8101080350
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PHILIPPINE REACTOR CASE Status Reoort I.
Backcround The lengthy history of the Philippine reactor proceeding before the NRC.and the Court of Appeals is summarized in the attached chronology.
It extends, in a formal sense, over the past four years, in which various agencies of the federal govern-ment and the courts have reviewed a license application by the Westinghouse Electric Company to export a power reactor to the Philippines.
After a lengthy interagency review of the pending license, on both nonproliferation and health / safety / environmental issues, the NRC issued the license in May of 19'80.
The Petitioners in the Commission's licensing proceeding, who have unsuccessfully argued that the NRC must consider and make a finding on the health /
safety / environmental impacts of the facility in the Philippines, immediately sought review of the Commission's order in the Court
.s of Appeals for the District of Columbia Circuit.
The case was extensively briefed by all the parties (including the filing of i
n " friend of the court": brief by the Government of the Philippines),
I and the Court heard oral argument on September 26, 1980.
Although l
a final decision has not yet been rendered, it is of some signifi-cance that the Court (on December 10) denied Petitioners' motion for a partial stay of the NRC order, which sought to prevent certain major reactor components from leaving the United States prior to
2 a decision on the merits.
Although caution should be shown in interpreting the meaning of this denial, it suggests that the Court did not find Petitioners' arguments on the merits so persuasive that extraordinary judicial relief was warranted.
Of course, the Court also recognized that other major reactor components would not be. shipped for several months, and may just not have believed that a stay motion was necessary to maintain its jurisdiction.
No safe prediction can be made about when the Court might announce its. decision.
Typically, cases such as the present one, which raises important and novel issues, have required several months for preparation of an opinion by the Court.
i II.
Issues I
A.
Atomic Energy Act of 1954 The primary argument of Petitioners is that Section 103(d) of the Atomic Energy Act required that the Commission review the Philippine reactor to determine whether it would have unacceptable impacts on the public.
health and safety in the Philippines.
Both the AEC and NRC have consistently held that the health and safety requirement in the Atomic Energy Act does not apply to export licensing matters [see Edlow International Company, 5 NRC 1358 (1977) and Babcock &
Wilcox, 5 NRC 1332 (1977)].
In attempting to determine whether Congress contemplated health and safety reviews for exported reactors, the plurality opinion in the NRC's Philippine decision
3 noted that Congress was well aware of the NRC's consistent administrative practice and yet had taken no steps to alter that approach.
This has been viewed as particularly significant in view of repeated amendments to the Atomic Energ'y Act (most recently in the NNPA, which established a comprehensive framework for U.S. nuclear export licensing).
The Commission also based its decision on the legal principle that U.S.
domestic laws will not be,given an extra-territorial application unless.the relevant statute clearly provides for such application.
Petitioners argued that the review they seek does not constitute such an extra-territorial application, but merely involves tha exercise by NRC of its domestic regulatory authority.
The Commission noted that much of the information and review required for a meaningful health and safety analysis of an exported reactor would have to be conducted or obtained in the foreign country.
Another issue in the lawsuit is whether the Commission was obligated to consider potential safety and health impacts on U.S.
citizens residing in the Philippines near the reactor site.
A majority of NRC Commissioners decided that, although U.S.
law did not prohibit such an analysis, NRC would not conduct such a discretionary review as part of the licensing process because to do so would
l essentially duplicate responsibilities of the government of the Philippines with regard to its own citizens'.
B.
National Environmental Policy Act The Philippine decision was the last in a series of NRC decis. ions which discussed the controversial issue of whether and how the NEPA of 1969 should be applied to nuclear exports.
As in the argument on health and safety, the Commission ~
has taken the view that the presumption against extra-territorial application of domestic' statutes is persuasive evidence that reviews were not contemplated under NEPA.
i The use of terms, such as " man", " human", and " biosphere" in NEPA have been asserted as evidence of congressional intent to apply the statute to U.S.
activities in foreign coun tries.
However, the Commission found these terms too vague to support a jurisdictional reach for the statute.
It was noted that the terms " worldwide" and "world environment", which seem to have a more definite geographical character were only used in Section 102(2)',F),
which provides for cooperative efforts to address trans-national environmental problems.
In examining the legislative history the Commission also found no persuasive evidence that Congress intended environmental impact statements to be prepared on foreign activities.
It has been noted that post-enactment state-ments by proponents of a certain interpretation of a
5 statute are typically given little weight by reviewing courts.
Although numerous judicial decisions have flirted with the issue of NEPA's international reach, the Commission noted that no conclusive precedent on this question has yet been established.
See Sierra Club v. Adams, 188 U.S.
App. D.C.
197, 578 F.2d 389, 391-92, n. 14 (1978).
In the Philippine decision the Commission determined that it would review potential environmental impacts of the U.S. reactor exports on U.S.
territories and the global commons (high seas, Antarctica, and international air space).
The Commission noted NRC's extensive contacts with the Philippine Atomic Energy Commission and affirmed that these cooperative measures fully implemented the agency's NEPA obligations.
III. Potential Effects of Court of Appeals Decision l
.To repeat the cautionary note made at the outset, it is difficult to predict which particular issues the Court will address in its decision; and therefore, the following comments on the possible i
I effects of the decision are speculative.
However, in very general terms, the impacts are likely to have some of the following dimensions.
A.
If the Court rules for Petitioners, NRC and other agencies will need to develop more detailed case-by-case analyses l
l l
l l
6 of exported reactors on health / safety / environmental. issues.
However, in view of NNPA time limits and the constraints in gathering information, it is not clear how detailed an analysis the NRC can prepare and what the nature of the Commission's health, safety or environmental finding could be.
If the Court adopts a view which gives the AEA and NEPA a broad foreign reach, legislative clarifi-cation of this issue would be desirable.
B.
If the Court sustains the approach advocated by the Executive Branch and the Commission, further health, safety and environmental reviews of reactor exports will be based primarily on generic studies and analyses.
No detailed site-specific impacts would have to be addressed; and the information required for the analysis could be of generic, design basis.
In this regard substantial reli-
~'
ance could be placed on generic documents, such as ERDA
_ _ _ _ _ _ _ _. _ _ Nuclear Power Export Activities", which might
- 1542, "U.S.
be periodically updated to reflect current developments.
1
7 EXECUTIVE ORDER 12114 Status Report I.
Background
A significant development in the Carter Administration's policy toward international environmental matters occurred in January 1979 when the President (after protracted interagency debate) issued E.O.
12114 entitled " Environmental Effects Abroad of Major Federal Actions".
The order establishes a special process of evaluating major federa' actions which may have environmental impacts in foreign nations, which does not necessarily involve preparation of the domestic-style environmental. impact statement (EIS).
Instead, agencies may develop so-called " concise environ-mental reviews", to take into account environmental matters, but tailor the process to reflect foreign policy considerations, limita-tions on information and timing matters (among other considerations).
Differing interpretations of the order have been offered, particu-larly about whether the language of Section 2-5(a)(v) exempts NRC export licensing decisions from the scope of the order.
The Council on Environmental Quality takes the view that the order was intended to cover NRC licensing actions, while the Department of State argues that the only aspect of the nuclear reactor export process which is covered (fuel and minor component exports are excluded from coverage of the order) is the Executive Branch review process which precedes an NRC licensing determination.
An entirely separate legal issue
8 is the controversial one of whether the President may bind inde-pendent regulatory agencies on issues arising from their substantive legal responsibilities.
In the Philippine case, the Executive Branch submitted a concise environmental review consistent with E.O.
12114 as part of its ' submission to the NRC recommending issuance of the reactor export license.
Petitioners in the Court of Appeals case, however, do not concede that preparation of this document relieves the Commission of the responsibility of preparing a full EIS under NEPA.
II.
Implementation of Executive Order 12114 As lead agency for the implementation of the Executive Order on foreign environmental impacts, the Department of State issued procedures for evaluating such impacts which were published in the Federal Register in November 1979.
See 44 Fed. Reg. 67004-67008 (November 21, 1979); subsequently revised at 45 Fed. Reg.
59469-59470 (September 9, 1980).
In the reactor licensing context there has been insuf ficient experience with these procedures to be able to determine precisely what effect they are likely to have on the Commission's conduct of export functions.
The order states that its purpose is to enable responsible officials both to be informed of pertinent environmental consid-erations "and to take such considerations into account, with other pertinent considerations of national policy, in making decisions l
l regarding such actions."
This could be read to imply that if the I
9 environmental document reveals unacceptable environmental conse-quences, NRC may be obliged to refuse the license.
On the other hand, CEQ stated repeatedly in the year preceding the issuance of the Order that all that was intended was that environmental f acts be made known to concerned decisionmakers -- i.e., " environ-mental. full disclosure".
Moreover, the Order states explicitly that its purpose is to establish internal procedures for Federal agencies, not to create a cause of action.
That suggests that the Order does not contemplate requiring particular results in particular situations:
if it did require particular outcomes, an agency's failure to comply would presumably give aggrieved persons a right to sue.
If the Executive Order indeed applies only to the Executive Branch process of reviewing export license applications for nuclear facilities, as the State Department argues, the Commission would not have to resolve this difficult issue.
However, if the Council on Environmental Quality's interpretation is correct, the failure of the Commission to conduct an independent assessment under the Executive Order could be grounds for a charge that NRC had failed to comply with applicable federal law.
However, as stated before, whether any court challenge of the Commission's f ailure to comply with the Executive Order could be mounted is unclear.
The Order seems to suggest that the procedures and agency actions under them are immune from judicial review.
However, no federal court has been called upon to review this question.
10 The eventual fate of the Executive Order regime also depends importantly on the result of the Philippine lawsuit.
If the Court were to hold that NEPA applies with full force in the export con-text, the Executive Order procedures would be rendered largely nugatory.
Agencies would then have to put into place a range of NEPA procedures which would comply with the Court's holding.
However, if the Court agrees with the Commission and the Executive Branch that NEPA does not require preparation of an EIS for foreign impacts, the Executive Order procedures assume a greater degree of importance because they represent the only formal government mechanism for assessing environmental impacts abroad.
In the final analysis, therefore, it will be important to carefully scrutinize the Court's discussion, if any, of the legal effect of the Executive Order procedures in the Philippine case.
Three general approaches seem most likely.
Firet, the Court could place some -- or even a great deal -- of reliance on the Executive Order procedures as grounds for relieving them of an obligation to comply with the NEPA EIS requirement.
Second, the ' Court might hold.
that the procedures are inadequate to implement the requirements of NEPA.
Or third, the Court might completely ignore the Erecutive Order and its accompanying procedures.
Each of these scenarios would put the Executive Order in a different light, for both supporters and opponents of a broadened look at foreign environ-mental impacts.
PHILIPPINE REACTOR EXPORT CHRONOLOGY 11/18/76 Westinghouse files application (XR-120) wit 5 the NRC s.eeking to export a nuclear power reactor to the Philippines.
NRC forwards the application to the Executive 3 ranch for its review.
12/12/77 Executive 3 ranch reco.mmends issuance of the
- reactor export license.
1/25/78 Executive Branch withdraws its earlier recem-mendation and requests Cc mission to defer censideration of the license pending a review.
3/10/78 Nuclear Non-Proliferation Act (NNPA) signed into law by the President.
5/78 IAEA safety Mission visits the Philippines to review the reactor site.
6/78 IAEA safety Mission submits report to the Philippine Atc=ic Energy Commission (PAEC).
8/3/78 Westinghouse files cc=ponent license (XCOM-0013 with the Cennission seeking export of certain major reactor ecmpenents.
11/3/78 Executive Branch reconnends issuance of the
~
cc=ponent license.
6/79 Philippine President Marcos creates the PUno Cenmission to review the reacter proj ect.
4/19/79 several U.S.
and Philippine interest groups file intervention retition with NEC seeking a i
hearing and a review of the health, safety and environmental aspects of the plant.
6/79 Westinghouse files a lawsuit against the NRC and Executive 3 ranch in District Court seek-ing to expedite consideration of the pending licenses.
8/31/79 Westinghouse lawsuit dismissed by the Federal District Court.
i
2 9/28/79 Executive Branch submits a concise environ :
mental review of the Philippine reactor to the NRC and recommends that the license be issued.
10/19/79 NRC orders public proceedings on the issue of whether the Cc=missio.n should consider health, safety and environnental aspects of the
~ pending reactor export.
1/29/80 In a public Cc= mission meeting the NRC tenta-tively determines that foreign health, safety and environmental issues will not be formally reviewed.
2/8/80 The Cc= mission issues an order requesting public comments on the potential effec,ts of the Philippine reactor on the global commons, U.S. territories, and the U.S.' connon defense and security.
I 5/6/80 The Cc= mission issues an opinicn detailing its reasons for not evaluating foreicn health, safety and environmental impacts, and auther-1:ing issuance of the reacter export license.
Petitioners file a lawsuit.in the D.C.
Circuit Coupt'of* Appeals' seeking review of t'he Com-mis,sion's decision.
9/26/80 ora.'
gument conducted on petitioners' laws before the D.C.
Circuit Court of Appe.
12/10/80 Court t appeals denies Petitioners' motion for a partial stay of the Commission's order granting the export license.
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