ML20057B568

Partially Withheld Commission Paper Re Review of Present Status of Pane Litigation & to Advise Commission of Options

ML20057B568
Person / Time
Site:	Three Mile Island
Issue date:	01/07/1983
From:	Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
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References
FOIA-92-436 SECY-83-010, SECY-83-10, NUDOCS 9309220242
Download: ML20057B568 (30)

Text

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Y January 7, 1983 e....

SECY-83-10 ADJUDICATORY ISSUE

- (Notation Vote) i For:

The Commissioners

{ hrtin G. Malsch From:

Deput-/ Ceneral Counsel i

Subject:

'Iit!-l PSYCHOLOGICAL STRESS:

LITIGATION STRATEGY, PANE v. NRC D.'.s cussio n :

Or. December 27, 1982, the staff sent

~ SECT-82-500.to the Cor21ssion.

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' present statues of the PANE litigationpurpose W this p t

and to advise the Coc: mission of its options.

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. The Government'a brief in the PANE case was filed in late December, and followed the approach set forth in the petition for certiorari filed in September.

PANE's b'ief is now in preparation and the Government will have an oppo,rtunity to file a reply.

'Ihe Government's initial brief is attached to this paper.

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Reco:::mendation:

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c Comissioners' connnents or consant should be provided directly I

to the Office of the Secretary by c.o.b. Monday, January 24, 1983, unless the Comission acts at the meeting scheduled for discussion of this item.)

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'i This paper is tentatively scheduled for discussion at a Closed Heeting on Wednesday, January 12,_1983.,

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No. 81-2399 Mera0pottTAN EDISON COMPANY, ET AL, PElm0NERS l

v.

PEOPLE AGAINST hoCtEAR ENERGY, ET AL '

'82-358 I

UNITED STATES NucizAm REGtH.ATORY CANON AND THE UNITED STATES OF Avenrh PETm0NERS i-v.

ProPII AGAINST Nor7 rao ENERGY, ET AL t

ON WRITS 0' F CERTIORARI1D THE UNITED STATES COURT OF APPEAE.S FOR THE DISTRICT OF COIUMBIA CIRCUlt BRIEF FOR THE UNITED STATES AND THE UNITED STATES hTCLEAR REGULATORY COMMISSION OPINIONS BELOW s

The opinion of the cdhrt of appeals (812399 Pet. App.

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la-76a) is reported at 678 F.2d 222.5 ne orders of the No.

j clear Regulatory Commi4n reviewed by the court of sp.

peals (Pet. App. 77a-78a,101a-102a) and swillary opinions (Pet. App. 79a-100a) are reported at 12 N.R.C. 607 and 14 N.R.C.'393. The opiglon of the Atornie Safety and Lieensing' Board G.A. 29-47) is reported at 11 N.R.C. 297.

8 Beesuse the petition appdadh la No. 812399. reg-A.; aD elthe materkls nquind by Rule 21(k). these materials were not dupBested in the petition la No.82-358.'Accordingly, we refer hen to the petition appendix la No. 81-2399 (hereafter

• Pet. App.").

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JUltl8 DICTION the aftermath of the accident, ths Commitsion directed the R

licensee to keep TMI-1 shut down pending further ordar of The amended judgment of the court of appeals (Pet. App.

the Commission and announced that it would condu'et a 103a-104a) was entered (without supporting opimons) on hearing to determine whether, ami under what circumJ April 1,1982.8 A modified version of the amended judg-stances, the licensco should be allowed to resume operathm

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ment (Pet. App. 20a-30a) was entered on May 14,1082, at of the plant. 44 Fed. Reg. 4 ngl (1979)(J. A. 8).

i the time opinions were Issued. On June 23,1982, the Chief l

[ll By further order, the Commission specified the issues to Justico extended 1ho Limo for filing a petition for a writ of i

certiorari to and including August 20,1982. On August 12, be addressed by the Atomic Safety and Licensing Boant.

A 1982, the Chief Justice further extended the time for fi!!ng designated to conduct the " restart" proceeding. All related I

such a petition to and including August 30,1982. The peti-to concerns which the accident at TMI-2 had raised about f

tion in No. 81-2309 was filed on July 1,1982, and the peti-the safety of TMI-1. In ra Afetropolitan Edison Co.,10 '

t tion in No.82-358 was filed on August 30,1082. The peti-I N.R.C.141 (1970) (J.A. 0-25). These included: deficiencies -

tions wero granted and the cases consolidated on November in the design common to the two reactors, the potential for I,1982. The jurisdiction of this Court rests on 28 U.S.C.

Interaction betwcon the plants, the possib!o effect on TMI-1

,6,,.,mof,the decontamination of TMI-2, the management capabill-

• -1254(1).

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ty of ih'e'lleonsee, and deficiencies in the'lleeseo's operat-f[ !.

STATUTESINVOLVED Ing procedures smi emergency plans..The*Dommission Ii'

, Sections 2,101 and 102 of the National Environmenta!

added that although aceklont-related psychological distrosa Policy Act of 1969, 42 U.S.C. 4321,4331 and 4332, are re.

on tho part of members of the pub!!c IIving nearTMI that f

P W33 " unrelated dlncil t io e.cposure la mdialfun",tras the i '\\,

producyd In the appendlx to this brief.

i subject cf"real and substantial conectn," It had not yet de-i STATEMENT I

termined whether such Issues "c[ould] be Icgally relevant to j

I the pmaUnN. 2, emphash addW.D,e Conuh

1. This case involves the Three Mlle Island Unit I nuclear si n ace rdingly invited parties wishing to raise such con-power reactor ("TMI-1"), located near Harrisburg, Penn-tenti na to address the pertinent Icgal lasues in briefs flied

- -sylvania. After preparing draft and fins: environmental multh the Atomic Safety and Lleensing Bosniconducting the statements and conducting an extensive' aarety revie'w, the n sw pmmung.

.a Boant was, in Wrn, h4to Atomic Energy Commission, in 1974, granted the private cuty the lasue to the Commis4on for decision, wu or y

petitioners, Metrapolitan Edison Company et al. ("the utill-without its own recommemiation.

ties"), a licenso to operate TMI-1, and the unit entered j

service. Four years later, the utilitics received a license Respondent, Peopio Against Nuclear Energy (" PANE"),

i from the successor agency, the Nuclear Regulatory Ccm-an organization composed of resklents of the Harrisburg mission, to operate a se. md facility at the sito ("TMI 2").

area that had intervened in the restart proceeding, m On March 28, 1979, a signifiennt accident affacting the spondc<l to the Commission's invitation, submitting two TMI-2 reactor took placo. At the time of the TMI.2 acci-draft contentions (Pet. App. Il5a-116a) for consklerution, dent, TMI.1 was not in operution, having been shut down along with argumenta that their consideration was legally by the licenaco for routine maintenance and refueling. In mandated by both the Atomic Energy Act of 1954, 42 U.S.C. (& Supp. IV) 2011 et sry., and the National Envi-

• % April 2 judgment. rept.eed an interian Judgment (Pet. App.

Tonmental Policy Act of 1969 ("NEPA"), 42 U.S.C. (&

105a-lo7s) lasued by the court of appeals, also without opintens, ori January 7.198:3.

Supp. IV) 4321 et nry.

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PANE, claimed, first, that the resumed o;lcration oh

. should consider psychological stress and community fears I

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. under NEPA for the purpose of mitigating the effects of fis iMI.1 would exacerbato the nevero psychological stress, TMI.1 licensing activity" U.A. 29,47).4 Rejecting the Com '

L which its members and other residents of tho "IMI area had miss! n staffa contention that stress and community fears 0

allegedly suffered as a result of tho accident at TMI 2.

S PANE asserted that the prevailing strean took the form of are not cognizablo under NEPA becauno unquantifiabic, 3

-increased anxiety, tension and fear, fundi a senso of help.

the Board found "a suffic!cnt prehearing basis for the prem-Icuness," accompanied by physical symptoms such as skin Ise that the effects are measurable," stressing that "[pire-

)N' rashes, aggravated ulecrs, und skeletal and muscular prob.

ciso numerical quantification is not neccanary" (fd. at 36 &

k lems. Respondent alleged that continuing injury to the

n. 8).* Acknowledging that thoro was no evidence before it

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health of the reshlents of the area would result"(als long as th[el possibility [that TMI Unit I will reopen) exists" and

• N Llan4ing Burd njuted the Comm!rAn staffs contenth th't P'Y(h*I***3 *ff* cts of restart authorizath are not cognl:4hle that it was accordingly " impossible * *

• to operato TMI 1 undu NWA beesuu nd tranaNe to a"JInd Imput upon the phyd.

r without endangering the public health and safety" (Pet.

d cal environment" U.A. 84). Accep(Ing the staffs premise that such a b

NE* I nesus wse requireu*, the Doard reasoned, however, that U.A.15):

g For its accond contention, PANE asserted that resump-It:he p yehotogkal senes s!!.pd by kterrenors here is relatea 1

<m1100 of Operallons at TM[-l Would cauSo Communillc5 in the

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.m--to a signifkant physical environmental impact: the. operation ed':_f i

vicinity of TMI to be pereelved as undesirabic, thoroby WI 1 coup: 4 with neldeal erruts of the secuent at Txi 2.2 H

exacerbating damage to their economic and social "stabili-N v ry t.ct that an Era aw coetn> nerlt balmnelagIwere

" " I" b'f tI, cohesiveness and Well being" caused by "a loss of citizen tion of the fact that the operation cf TM 1 lavolves a signlSca gj confklenco in the ability of[communityj institutions to func-physteal banet up.o the outre==wn.

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• Lion properly and in a helpful manner during a crists".ro-

• N Ucard distingutshed esses Ig whkh the courts of appests haram sulting from the aftermath of the 1970 TMI-2 aceklenL beu psychotorint and noewenocale effects of soney action to Be wt-f.

PANE urgod that for th!s addllional reason, TMI-1 should sue the seeps of NcPA aaslysts. See, e.g., llamIp y. AflicAtll, 4G0f, never again be allowod to operato (Pet. App.11Ga).

P.2d c40 (24 C*r.), cert. denied 409 U.S. 990 (1972); llawfyv.$

2. On February 22,1980, the Licensing Board lasued its KIdadfeest. 471 F.2d 823 (2d Cir.1972), cert, dented, 412 U.S. 903c 0873h #"F 8"'Na'bal CdPual rart a planning commission vf, l

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" Certification to the Commission on Psychological Distress U""'d

s rastal

<<s4ce, ts7 r.2d 1029,103710 a (O.c. Ctr.

I Issues."- In re hieltvpolitan Edison Co.,11 N.R.C. 2:ff

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(19S0) U.A. 29-47). The Board concluded that the a!!cEed 1375 (7th Cir.1973): Nucleus of CAicago /femtowwers Assocloflow v.

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" psychological stress is probably not cognIrablo under the ty==. s24 P.2d 225 (7th ctr.197s), cert. dented,424 U.S. 967 0976);

Atomic Energy Act" because such effects are not radiation no.l co r.%. coaster,.,. p,portm,,r of towr, 4c3 r, supp, huards U.A. 31, 32).* On the other hand, the Board con-s,0. as7 n.2 to.141n. 1978), afra, eoo P.2d 342 (sth Cir. la79). cert.

cluded that "the Commission, within its discretion, may and deniad. 4to U.s. 934 098o).The Board senseed that none of these de-cisions prceludse sgency consideration of mental health or socL w n m e effute associated with federal action. % Board meteel,

• ND d ad. led that "the Comminalen enight conclude to the con.

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.inry for nosons not discuned by the partles" U. A. 31). N Board

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• " I sppanntly roesnt to suggest that the Commission itself had suffklent "I

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discretion la conclude (kat PANE *e stierations of a rnental Leith er.

I f.ct rested in part up2n "redl logical haarde associated with aceLJent I

argument with unacceptable evertones of racial and class dIwrimlan-conditLuns" sad wero enordingly cogninsu under the Atomic Energy I"* h **

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Act. W Board thought that eitbr :=eltlun adopted by the Commis-verrLding national polkles preventing the frank seknow!cdgewst sion on this queellun uf tnterprs-tation of its governing statute would be

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entitle.1 to out.etantial deference om.1 wout.I withtand judkla) nelew

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U. A. 32 33h

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3, On December 5,1980, tha Commission issued an crder J

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that methods existed timt "would permit the measurement (Pet. App. 77a-78a) directing that respondent's contentions '

q based on " psychological stress" be excluded from the re-g cf the psychological stress phenomenon well enough for use i

start proceedings. % onfer reflected that the four Com. ",

E in a full scalo cost / benefit balancing in un * *

• EIS," and missioners then holding office were evenly divided as to g

suggesting that it was within the Commission's discretion whether the stress issue should be considered by the !!cens-to determine whether or not its staff should be directed to Ing board, and that the procedural effect of the tio vote was U

develop the necessary mothmtology, the Doant nonetheless to exclude the stress issue from the proceeding. The onfer g

U ccncluded that NEPA permitted consideration of the al.

Indicated further that the issue would be reconsidered h

irged stress in some fashion, even though preparation of a when the vacant fifth seat on the Commission had been y

formal environmental impact statement (EIS) or even a filled.

y threshold environmental impact appraisal (EI A) miilrcssing No opinion for the Commission was issued. Instead, each j

this subject might not be required or even possible U.A.

Commissioner wrote separately setting forth his reasoning.

32, 40-43).

Chairman Ahearne concluded that "an NRC IIconsing ac-d The Licensing Board rejected the contention, advanced tion is not an appropriate forum for psychological stress Is-

s. by the licensco and the Commission staff, that stress is not nues" (Pot. App. 79a). He maintained that stress is not cog-E-,mcognizable-under NEPA in the setting of this case becauso nizable under the Atomic Energy Act, and described "the _.

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f whether NEPA provkles sufficient authority to N} the fears that am alleged to occasion it are acI. ratio'nally I

Issu imp se mitigation measures on the !!censee in the context of the restart pmeeeding" as "problematies1* (fd

) grounded U.A. 3849). Tho Boant noted that the TMI-2 ac-cidgnt,menIy underscores tho ibulamental pmmise of the He concluded that the Commission's only obligation re-d g g f( Atomic Energy Act that nuclear power improperly con-.

specting stress [s to mitigate any'such effects by ensuring g

trolled is a source of danger, and " urge [d] the Commission p

that TMI-1 is safe before restart is authorized.

4 4 y to reject out-of-hand" thIs contention, suggesting ihat Emphas! zing that "the psychological stress at issue j "Icgra of TMI 1 operation" are cognizable under NEPA be-that associated with actual exposure to radiation-but the

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, c:use "they are * *

• amenable to mitigation" U.A. 39).

stress caused by the possibility that (petitioner) and others The Donn! acknowledged that "the best way to minimizo might be so exposed by fbture operation," and that"[t]here

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-cny psychological stress in '.he communities around TMI 1

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~~~7 no Msy to allay that fear except not to build or operate j

is to make the plant safe or not a!!ow it to operato" U.A.

the reactor"(Pet. App. 82a), Commissioner IIendrie agreed 44). The Boan! nonetheless suggested that evon if the licen.

that neither the Atomic Energy Act nor NEPA requ! red see hat met the requirements of the Atomic Energy Act, for instance those requiring monitoring of rm!!allon re.

l consideration of respondents' contentions respecting stress, as such, and that the Commission's obligation was, instead,

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leases from the plant, conskleration under NEPA of stress to ensure that TMI-1 la operated safely, and that the publie J

cffects might prompt the Commission in require the fleen-is adequately informed of the relevant facts (fd. at 82-91a).

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• sco to install m511tionut monitoring dovices to reduco pubtle Commissioner IIendrie concluded that Congress d;d not in-

"I epprehension U.A. 44 45). The flount further reas.med that

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I giving plant neightmru the opportunity to voice their fears in the reaturt proceeding would in amt of itself constitute a Respecting NEPA, Commission Hemlrie re!!ed upon the

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signifiennt e trm mitiotion mirategy U. A. 45)~

weight of federal imlicial authority (see page 5 note 5, supra) placing psychological effects outskle the scopo of the h

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required environmental enalysis. Ilo rejected respondenes i asked to consider cffects spart from any effect upon'

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suggestion that the alleged prcsonco of physieni manifesta-the environment.

Intervenor's argument is essentially that oven if we

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tions of stress served to distingu!=h this caso, explaining are satistled that the environmental impact is minimal,

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(Pet. App. 89a):

we nmst mmtWess Mar eWdence on, ami consMe b

Presumably, gmychological distress will always be ac-in our dcctslon, their fears that wo are wrong and the i

companied by physical symptoms in a certain proper-stnsa Gus ongendemi % sM answer b men 8

tion of the persons arrected. As a legal matter' I sco no that Congress has already decided that the country is i"

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basis for differentiating between psychological stress t have a nuclear power program even if it fnakes that luis physical symptoms and that which la without l

some pcopio unasy.

physical symptoms * * *. In either caso, the prob!cmm i

of quantincation and proof would be such as to make Commissioners Gilinsky and Bradford would have di-rational factfinding extremely difficult * * *.

rected the Licensing Board to hear evidence respecting L

stress effects. Commissioner Gillnsky relled primarily upon f

Commissioner Hendrie argued that the nature of the al-the Licensing Board's analysis (Pet. App. 91a-92a), and dkl 3

leged effects of the restart decision upon montal health not address the question whether NEPA (or the Atomic rendered consideration of mitigation possibilitics, man-Energy Act) required consideration of such evidence. Com-

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dated by NEPA' inapE *ite (Ibfd*).

missioner Bradfont argued (kl. at 93a-IO0s) that the TMI-2 K

If snxletics are rationally based, the corrective meau.

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see! dent made the TMI-1 restart hearing ah!que oissndW q

h urcs wh!ch would allovlate the stress would presuma*

that, under the circumstances, an important means df alle-'

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y bly be justinable in terms of protecting phystest health vlating stress that might be occasioned by the Comm

. und safety sunder the Atomic Energy Act]~Irro-(2 0"*"

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spectivo of their effect on psychological stress. If ths su Wom the IJessing Board. Because he escW that d{

anxietics are irrationally based, on the other band the Commission should, in the exerciso of its discretion consider respondenfa contentions respect then they are by definl tion not likely to be alleviated by a demonstration that somo additional anfety feature missioner Bradford declined to decide whether NEPA row hrs been added.

I quires such consideration (fd. at 94a n.3).

if Finally, Commlasloner Hendrio underscored that stress

4. a. On February 3,1981, pursuant to 28 U.S.C. (Supp. g k

occasioned by fear of operation of TMI-I was unrelated to IV) 2342(c) and 42 U.S.C. 2239(b), respondent Dicd a peti-f_

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cny environmental impact of operation and was accontingly ti n fe m CommMn's onler excWg the b entirely outside the interuloit scopo of NEPA (Pet. APP' sues it sought to raise from the restart hearing.* In the 90s-dis; emphasis in original):

NEPA !s a very broad statuto ar d has had, as it was i

p intervied to have, a pmfuurul offect u n agency (!cci-septembn 17. mi, snar the noney on the %mlalen had bna an.d and whue the p.thlon re new was pednr. the Om*

sIon making. But unless it is to disp ace the political slon by a majuhy ute namn=d ks ductin that the nnes be k l

. process it must have some limits. It cannot be read to ded rum the neut pmendng Ret. Am ms N W W ne require that all conceivably relevant factors be hoant lon for the Commlaston was tasuel.

j by an agency including those aircady considered by ou+g the restart pnanaHngs s.nrel pertta ergued that papre,

Congress. It was intenslod arul must be so constr ted to stun of an EIS was required before may deelslan respecting rntart deal with enalmumrutut degnulution. To be sure if could be made. The Commlaton staff disagrud. but, pursuant to Cman-one of a pmjecCs effcets on tho environment causes miulon ngulations. prepared an environmental innpmet assessment health pmblems, the ansociated mental impacts are in (EI A) to support that determination. The EIA LJ.A. 4&&5) was 5=eued j

un appropriate considerution; but here we are bcIng en Warth 27,1981, en.1 supplemented tJ. A. Co-87) on May 11,1981, but

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I operation of a nucle:r power pirnt was not en cffect re-l court of appeals, respondent argued that both NEPA and quired to bo evaluated in an environmental impact state,

the Atomic Energy Act required the Commission to consid.

l ment. Similarly, the Comm6 ton contended that its duty-er the psychological *treu contentions in the restart pro-under Section 103(d) of the Atomic Energy Act,42 U.S.C.

e;eding. Specifically, respondent asserted that whether tho l

213361), to deny any lleense the Issuance of which "would

major federal actkn" in question was considered to bo the be inimical to * *

• tho benlth and safety of the ptiblic" restart df TMI-I considered in isolation or the criginal comprehended the physical hazards assoelnted with nuelcar licensing of TMI-1, coupled with continued NRC regulntion materials but not psychological effecta arising from fears of of the plant, psychological stress and community deterio a-nuc! car technology. The utilitica, which had intervened in tion were impacts of federal action that were required to be the court of appeals, took essentially the same position.

cvaluated in an environmental impact statement (Pot. App.

b. A panel of the court of appeals, Circuit Judges Wright 30a). Respondent argued as well that the Commission's ro.

aponsibility under the Atomic Energy Act to protect " pub-l and Wilkey and Sonfor Circuit Judge McGowan, heard oral argument on respondent's petition for revlow on November ne health and safety" encompassed psychological health.

On January 7,1982, the court lasued an interim 17, 1981.

The Commission responded that the projected restart of judgment (Pet. App.105a-107a), unaccompanied by an TMI-1 did not require further environmental analysts under opinion for the court. That judgment, from which Judge L sNEPA because an EIS had been prepared when operation

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l Wilkey"dth3nted. vacated the Commission's order and di w 4

cf the TMI-1 plant first was authorized, and that the rected the Commission to prepare an environmental assess $

I restart decision itself did not reprerent a proposal for fed-cral act!on wit!dn the meaning of NEPA, because It would ment regarding tho effect of the proposed restart of TMI-1 on the " psychological hon!th of neighboring res! dents and

, restory the status quo as it existed before the Commission on the well-bcIng of the surrounding communitics"((d. at took enforcement action requiring that the plant remain

• 10Ga). The Commission was further ordered to determino, shut down pending investigation of the accident at TMI-2 on the basis of this environmental assessment, whether to and its imp!!r*ttans. Even if there were a proposal for fod-pmpara a full environmental impcct statement. The Com enl action, the Commission argued, stress occasioned by mission was erdoIned from making any dec!sica to mstart TMI-1 until it had complied with these require i'

m!*r document addrema e anered streu eff.ets or & rntut

._ _ dition, the Commission was directed ((bid.) to submit a propo+st. Amoas the terlee addr>=d in N gr A u, m physical im.

statement of its reasons for "its determination that psycho - -

Pset of any additional construction upoa W alt, wrmal and chemical logleal health is not cognizable under the Atomic Energy effects er ik;uld efnuents upo. m rmi,tng wet,,s, effuts of cooling water tatske and dischstre upon squatie organisms la the adjacent Agg,w?

Susquehanas Rinr, & effect of evaporstion of coollag water upon stream flow la the Susquehanns and upon local fogging eenditions, por.

' On March 30, 1982. W Commission lasued a " Memorandum and ms! sad possible sceldental releases of radiation, futuding the health Onfer" responding to the court's directlee. In rr Jferrupolite= #disus Effects, if any, of redistlos relsenes incid.pt to almuttaneous operation 6.,16 N.it.C. 407. Relying en the test and legis!stive blatory of the of TMI I and decontaminatlea of THI I, the noise sesociated with Atamle Energy Act, so well as pertinent judicial deelslons N Cum-maintensnee of a network of emergency warning sirens in the eres sur.

miss!on set furth its view that in s.lmledstering the Aturale Energy roundkg W plant, and W visual impset of the plant and appurtenant Act, Congress intended that the CommLssion s I,Iress itself only to the physical har.srds associateo with nuclear materials and activities. The facilities.

Os December 15, 1931, while this esse ws.s under submisslun to the Cammission s. bled that eevn if its statutory autharity unster N Art caurt of appeals, % t.icensing Board rendered a deelsion that the El A werv brusd enough to permit the discretionary consLierstion of mental was sJequate and that no EIS was required. The Commission itself has health effects. strong polley consklerations counssted against delar sa.

yet to take fiss! setton respecting HEPA compilance. See page la &

Th, M,moran lum and Oriter was adopted by a 31 vote, with Cummle-sete 13, deps.

l On April 2,1982, the court of appeals issued an amended Judge McGowen, with Judge Wright dissenting, upheld ar.

judgment (Pet. App.103a.10ta), promising opinions to fol.

reasonabio the Commission's interpretetion ofits duties un-low, egain over Judge Wilkey's dissent. The amended judg-der the Atomic Energy Act, which excluded from consider-ment differed from the priorjudgment in several respects.

ation in licensing actions " stress a!!egedly resulting from First, tho. Commission was no longer directed to preparo an fear of a nuclear accident"(id. at 67a).

environmental assessment, but was instead ordered to de-On the NEPA issue Judge Wright declared that "[b}oth termine, by whatever procedures It deemed appropriate.

[of PANE *al contentions allego environmental effects with-whether since the preparation of the original environmental In the meaning of NEPA"(Pet. App.10a). Ife deemed it in-impact statement on TMI 1, "significant now circumstaneca conceivable that all mental health effects, no matter how f

or information have arlson with respect to tho; potential severe, of proposed federal action, whatever its naturo, sto psychological health effects of operating the TMI-I facility" outside the scope of NEPA (id. at 11a,17s). !!o reasoned p

(id. at 10ta). If the Commission answercil that question in that mental health effects of proposed federal actions are the affirmativo, it was to prepare a supplemental environ-cognizable under NEPA because ofrects on health have mental impact statement addressing both psychological Evnerally been regarded as within the scope of NEPA, and health effects on Individuals and effects on the wc!!-being of because of "the simple fact that effects on psychological

.the surrounding communities of operating TMI 1. Second, health are effects on the health of human beings"(Id. at '

the court of sppeals vacated the previously issued injune-11a IZs). The court of appeals distinguished cases holdingi tion sgsinst restart, explaining that because of" operating that the social fears and anxieties of persons residi

. difficytttes" at TMI 2 of which it took notice (discovery of a proposed federal projects are not onvironments!,ng nearp effects: ;

corroaton problem in the plant's steam generators that no.

I cognizablo under NEPA (see page 5, note 5, supm), ob-] !

cessitates mador repairs befom restart), the ihjunction serving that *[n]one of these cases * *

• presents the holoy I

cgainst restart was unnecessary. The court directed tho enust potential of an errant nticlear reactor"((d. at 15a).8y Commisalon, however, to glvo it 30 days' notice if it intend-l Eschewing any general rule, the court acknowledged thatj j ed to permit renewod operation " prior to complying with its "NEPA does not encompass mero disantinfsetions arising [

e cbligations under NEPA" (IMd.) as declared by the court, from social opin!ons, oconomic concerns, or political disa,l @

Sea page 18, (qfra. The amended judgment made no refer-greements with agency polic!cs"((d. at 16a), but held thaty cnce to the Atomic Enorgy Act. -

NEPA does apply to the " post traumatic anxieties, accome;

c. On May 14, 1982, the court of appeals issued its opin-panied by physical effects and ciused by fears of recurring b lons (Pet. App. la "Ga).* Judge Wright, joined by Judge catastrophe" allegod by respondent (Id. at 16a-17s). With-McCowan, with Judgn Wilkey dissenting, held that NEPA out attempting to locate the line between the two classes of requires consk!cration in the restart pmecoding of petition-effects recognized, the court simply concluded (IMd.):

cr's contentions respecting psychological stress. At the anme time, a different majority, Judge Wilkey, joined by l

' Distinguishing earlier court of appeals dectelons excluding frons NI?PA analysis etsims that federal projects would Induce taf!uses of l

cloner GlHnsky dissen;N and one cent on the (bomission ogsin undesirable persons into impacted melghborhoods the court proclaissed VII-(Pet. App.16sh 8 A sno.IISed versloe of the amended ju<fgment (Pet In this esse, la contrast PANI;Is not as11ng the agency to evale.

. App. 29sh )

replag upon the opdal no for the eewrt was als. I u.d.

ste the eIfect of" people pollution" on the en,Ironment, but rath-er the effect of a governmental deelslon on human hesith.

w 14 stress resulting from fears triggered by federal ection, an We cannot believe that the psychological aftermath of offcet that is not traceable to the actual environmsnt:1 Im.

the March 20 aceklont falls outsido the broad scopo of pact of the privato activity authorir.cd by the pertinent fed-the National Environmental Policy Act**

crn! lleensing deelslon (Id. at 3Ga-38a; footnotes omitted; The court of appeats also rejected the Commission's al-ternativo argument that the restart proceeding involved no cmphasis in original):

propimal for federal action subject to NEPA (Pet. App.

Judge Wright's opin!on cites soveral cases holding 18ae.3a). Disavowing any reliance upon "the happenstance that agencies must prepare an EIS when there [s a po-tential effect on human health. What the opinion does that TMI-I was shut down for refueling at the timo of the i

not acknowledge is that in each of these cases the ef-cechient," the court instead stated that "the extent of the I

fcct on health was caused by the federal action itself, Commission's statutory responsibilitics over licensed nucle.

not by individual'afcars of the federal action. * *

• cr power facilities creates a continuing obilgation to comply (Olperation of a nuclear power plant may cause harm with NEPA" and that "[Llho ' major federal action' in the to human health-for exam?!e, due to the potential for ecse of TMI-I is not solely the initial licensing decision, but exposure to radiation-and the NRC must therefore the Commission's continuod excrefae cf supervisory respon.

Prepare an EIS and consider these potential harms be-l cibility over its operation and maintenance" (fd. at fom IIcensing the plant. * *

• Ica-19a). Treating NRC's regulation ofits lleensee as a con-PANE's contention, however, Is not that operation c

tinuing proposal for major federal sc on significantly af.

of TMI 1 will affect human health because of the dan- /

d facting the envimnment, the court invoked the criteria for gers inhe ent in operation of a nuclear facilltf, but, supplementation or an EIS outlined in the Council on Envi-i impent Qual!1y's NEPA regulations (40 C.F.R.1502.D(c)),

g' I$ "of -

i n

directing the Commission to prepare a supplemental EIS -

lead to an extension of the chological stress a!!e addressing respomient's stress contentions (as well as tho edly caused by the TMI.2 sec ent. It is ntly obv ous that this alleged effect is antfrviri (/forent fmm ?

socioeconomie issues raised by respondent (see note 10, those health effects st, Issue in any NEPA case relled supru)), if the Commission determined that "significant.

new circumstances or information" regarding the mental upon by the majority. Instead of being required to as-seas the risk of a proposed activlt * *

• the agency is hecith effects of operating TMI I had arisen since compte.

~

~

now required to assess Ame peop a parreive and rwaci tion of the EIS prepared at the time of initial lleonsing to the risk. PANE's pr{ mary purpose is to force the (Pet. App. 23s-26a).

agency to determine whether pc.ople so fear renawed Judge.Wilkey d!aunted from the court's judgment on the perati n of TMI-1 that it should not go forward, even NEPA lasue (Pot. App. 31a.59a. 07a.cDa). lie stated that U the agency's anscasmd d b acM M maw the court had effected an unprocedented expanalon of the impact on W W nd k MWnL scope of NEPA obliguthms by requiring cunsideration of This takes NEPA far beyond its intemled purpose.

The environmental effccis ofafedent activity are nnw la include the views of the population itself an the very

" n.pa w ng VA n t:..u..s.n w.c e, - -se errns e, tw e.,,,,

desirability of the activily * * *.

.t appo.i.,, wr,i iw c..mu.i.

...,g

.in. tat ti,i. r,p,,

.i..

-tu.6<.i

<wc.

nic6 c.noug.

i.,yi u,oterr" Ju41go Wilkey noted that the majority's decision was con-th*L.la. e.o 1.s.mi el a tr twguere pavg.ar.ile. er supple nentailen or trary to de.ctstons of three other courts of appeals, as we as a prior dCCisIon of the D.C. Circuit (Pet. App. 39s-40a &

. 6:18. t,vt aich.. t

..i.in.

it.awr.ii r. r.i,,

,6 r.,.

n.si N t:PA.ulyes. tP.4 App.17.18.l. The cuart accordingly tk liw nn.19-21). lie argued as well that the mental health effects c= =umty.uen...u a.

. t w.ir.

too ro, p.,p.

or p<v.cnteing tw c

..a.

. n t:PA t."'d'"-

alleged by PANE are too ephemeral, speculative and l

I 4

-7 e,-

c--,

F 10 deference is duo to the Commission's Interpretation of th'o -

subjective to be measured for purposes of NEPA analysts

' Atomic Energy Act, its governing statute (/d. at G0a-61s).

(

(id. at 40a.42a). l'inally, Jutige Wilkey founel insupportable The court approved the conclusion of the First Circuit in the majority *n efforts (nec guges 1:1-14 & noto 9, supru) to New IlamPshire v. Atomic Energy Commission, 400 F.2d contino its ruling to the facts of thin enac exp!nining that 170, cert, denied,395 U.S. 0G2 (IDGO), based upon pertinent

[

the alleged ecrity in a particular case of un effcet cf a I

partieurar type relate, only to the naturo and catent of the legislative history, administrative interpretation, and cen-

?

analyst. rc<guired by N EPA. If any, but hun no bearing on gressional oversight, that in enjoining the Commission to

" protect the health ami safety of f he pub!!c (42 U.S.C.

f the threshohl <guention whether the class of effects involved 2012(d); sco also 42 U.S.C. 213. 'ds) " Congress 'had in constitutes environmental impnets within the scopo of NEPA (id, at 42a.48a).

mind only tho special hazards of radioactivity' and that the i

Ju.lge Wilkey ulno rejected the mujurity's vlow that the Commission's responsibility is ' confined to scrutiny of and i

Initial licensing um! ensuing oversight regulation of the protection against hazards from radiat'on'"(Pot. App. 62s, j

TMI I faellity constituted for NEPA purpoacs a ninglo con-81uoting New Hampshire v. Atomie Energy Commission, tinuing major federal action (Pet. App. 48a.60a). llo noted 8"Pra, 40G F.2d at 174,175). The court of appeals con-that under the majority's analysis "the fact that * *

• the cluded that Congress' concern was "'tha ela~;or from explo.

sion, radlonctivity, and other harmful or toxic effects incl.

NltC la proposing to restart the plant is Irrolovant." That

^ '

"~ ~

dent to the presence of such materials" (P.A. App. 63s,,-

1 raelysis, Judge Wilkey exp!sined, is inconsistent with the f

requirements of NEPA, which guverns only proposed ac.

quoting 8. Rep. No.1211,79th Cong.,2d Sesw.1335,

(1940))-

tions. Jtalgo Wilkey appears to have concluded, however, The court of appeals also rejected respamtont's thate bocause Tt.f t-1 was shut down, the Commission's ro-start decision itself constituted federal action for NEPA tivo contention that stress Induced in neighbors by oporn h tion of a nuclear power plant,1s, in an'y event, a apeela! $

purposes (id. at 50a) On Ihe other hand, he stressed that the majority's analys,ts was overly broad aml wouh! effect a

' hazard of radiosetivity" within this definition (Pet. App. 9jl q

substantial amt unwvranted inercase in the NEPA ob!!ga.

c42 6ca). Tha court explained (Id. at. G4n, quoting In re 1

tions of NRC and sll other foderul agencies. For instance, y,tropolitan Edison Co.,15 N.R.C. 407,412 f.1982)):

ho explained (id. at 49s):

I

[Uj. uter the majority's interpmtstion, the NRC la en.

" Presumably, every hazardous technology gives rise to fears associated with it: fear of being Inundated by fall - -

f gaged in * * * "nction" lab}ect to NEPA] every acc.

ing h!L by debris from a crashing airplane.po um f a newly constructed dam, for exam omi of every.iny. I'. thu. w ill be f>ossibin for N EPA to Indivkfuals I

apply even when a nuclcar plant a nperating pursuant may experienco psych logical trauma from the occur-to un N!tC licem.o und ths NP.C propnans to tuko no rence of acchlents or disasters such as these * * *. It ucthm to utwet this stulue <{uo.

la t,bvious, therafore, that "pos', traumatic psychologi-

d. On the Mom.ic onergy Act lxsuo, the court of appeal

• eut stress un result from any traumatic event amt is (Jm!ge Wilkey julms! by Ju.ir.' McGowan) uphcht the Com-not so peculiar to nuclear energy that Congress can be misalon,a concluslot. thut co. ideration of respondent's con.

deemed to have considero<l it a special hazard of l

tentions was not inani nted by statuto (Pet. App.

radioactivity.

SDa.G7a).8' The cour1L of uppo ds olwerved that mulwtantini l

Judge Wright dissented from the judgment of the court l

of appeals on the Atomic Energy Act issuo (Pet. App.

" Mr. ucc.... a.: n.

.r u p.,.i.af g.:., w.

,.g 70a.7Ga). lie complained that the court hmt given umlue v1... i w t.. t

. : e..i.,i i.,i w r.,o,1,.r.p r.t..

deference to the Commission's interpretation of the Act ami l

1

SUAI5!AltY OF AltGU5ti',NT asserted that the plain meaning of the statutory directivo

• A.I. This casa presents a fundamsnts! question of inter -

j to protect tho health end safety of the public dictates that pretation of the National Environmental Policy Act. In re-((d. st 70a) *[Ilf operation of a nuclear fucility would bo in-quiring the Nuclear Regulatory Commission to consk!cr e i

imical to the psychological health of the public, the Com-stress induced by the prnposal to authorize restart of tho mission must not approve the operation."8' TMI.1 facility, the court of appents lost sight of the terms

5. Subsequent to entry of the court of appeats' decision' of Section 102(2XC) of NEPA which establishes the oblign-en October 6,1982, the Commission lasued an order an tion to prepara a "detalleil statement" to accompany "every nouncing its intention to decide, after conducting publie recommendation or report on proposals for * *

• major haarings, whether to lift the immediato ofroctiveness of the Federal actions significantly affecting the quality of the hu.

two 1979 orders that required that TMI.I facility romain man environment." Rather than directing a survey of all chut down pending further order of the Commfasion (see effects of such an action, the statutory requiremont is to pages 3-4, supra). A decision la presently anticipated in canvass "the environmentnl impact of the pmposed actlan."

Jcnuary 1983. However, as the October 6 order makes The court of appeals' analys!s, discarding this limitation, clear, other barriers to operation of TMI-I remain, includ-and extending the NEPK obilgation to encompass all ef-ing the resolution of the steam generator corrosion problem i

fccts upon the welfare of mankind that may be plausthly as-noted by the court of appeals (Pot. App.104s), and any noe.

I signed the label " health," imposes a substantial burden.

--.essary agency revlew of the licensee's repstra to the steam generators. For this reason, it is the Commission's vlag updiiall federal agencies and-does not advance the.objec-tives of the Nations! Environmental Policy Act.

that a decision to !!ft the Immodfate effoetiveness of the

2. Rospontlant has not altoged that the Comm!ssion has. '

i shtgdown orders wouki not constitute "a final decision re-l failed adequately to consk!ct any species of onvironmental j garding the restart ofTMI-1" within the terms of the judg -

degradation, such as r.,dlation, that will or may flow farm '

i snent of the court of appeals requiring advanco notico to tho the renewed operst!on of the TMI-1 ptsnts arul has not 4,,

c urt of such a decialon (Pet. App. 30s; see pago 12, claimed that such phenomena are the cause of the stress M I

supra). The Commission has nonetheless p'rovided notice to cited by respondent. The court of appeals has ponotholess I the court of appeals of its inttntion to reach a decision ro.

held the alleged mental health effects of restart are them-l specting the 1979 shutdown orders.es solves environmental Impacts of Commission s.ction, be-

• • Out!!ning the arpuentloa of thts standard MJge wright add,d

-- cause they relate to human health. But contrary to the court of appeals' ylow, nothing in the statuto requires con ~_~-

(Pet. app. 'los):

sideration under NEPA of all effects on human hostth of Not s!! fears and worries, of courn, are psycklogical As!th er.

j fests within the dettaltions cf en.dlest selence. The adverse psy.

chologicallinpact of restarting TMI.I may or may not rise to tb level of a bes!th problem; even if it doee, the same might not be Proeniling itself, hv.rever, will remsla pending, for it la only the im-true of the fears sad ashletles of neighbors of other power meellste effectiveness of the shutdown urder that the Commisslan le l

pisats. Drewing these lines. on the basis of the facts, is the task l

of th* Corsmlutoa. * * * [1}f havestlgstion shows that the s!!egs.

conslilering revoking at this time. In the restart proceeding itself, on l

tions of psychologleg!,,es*fa effects are unfounded or that the ef.

December 10. 1982 the Atomic Safety and 1,1cens{pg Appeal Doan!

I ts are de mainf asts, the Act does not prohlblt grant of a upheld the I,1 censing Duants determination (see page 10, note 6 supris) that no full sesle environmental Impset statement need be pre-pared. l= re Afrirupolitaw Ndia,,e Co. f TArte Afile / stand Nnrfrer 88 The effect of a decialoa to lift the shutdown orders wl!! lie to so.

Pa.cer Staf fu= f/ wit 11. Docket No.60-283 ( A LAD.7oS). *Ilme for ming thorise restart e,n en Interim basis et such time es the ut!!!tles cum.

of a request for Cummission revk w of the Appeal flosnte deelslon es.

plete repatra to the TMI.I steam generator, and secure the necessary j

spproval of the Commiselve or its staff for th repairs. The " restart-pires January 3. IEl.

l l

b federal cetion; rather NEPA requires examination only of l

.cognir.able under the statuto cnly to tha extent that they l

9 those health effects (or any other class of effects) that are

'aro rooted in the condition of the natural or physical enn.

ronment. Thus " human environment" is taken to mean "the" attributable to environmental causes. And the cases cited

{h by the court of appeals in support ofits judgment are innp.

natural and physical environment and the reInfionship of l

posite because they embody no broader or different ru!c.

peoph with that environment." 40 C.F.R.1508.14 (empha-

{y

3. In an effort to escapo the restrictivo effect of the stat.

sia added).

utory dircetivo to consider only " environmental impact [s),"

4. Ours Is not a novel interpretation of NEPA. On the p

respondents noto that the statutory language and legista.

contrary the decialon of the court of appeals is inconsistent f

tivo h! story express concern with thd " human environ-with decisions of six other courts of appeals, and another

f ment." Ilut wo do not arguo that NEPA excludes the ef-decision of the District of Columbia Circult-all of the fcets of federal action on human beings from thd mandated courts of appeals that have consk!cred the question wheth-i enalys's; rati.er, our submission is simply that the consh!cr-er non-environmentally caused effects of federal action are i

ction mandated by NEPA extends only to thoso influences subject to the requirements of NEPA. The court below i

on mankind's intorests that are environmentally props-thought to distinguish these decIslons by reference to the gated. Indeed, any other rulo would render NEPA a noble,

' holocaust potential of an errant nuclear reactor" and k

but utterly ineffectivo, call for advancing the human condi-stressing that the alleged stress impinges upon human

[

-tlon in all ofits facets. -

-~

tr6alth7 Dut the court of appals almply ignored the umfer-f ;!

The legislative history of NEPA confirms that Congress lying rationslo of the conflicting deelslons-1.e.", that t

[g }

was aware of the importance of man in the environment.

NEPA requires only the analysis of environmentalimpsets ]

But the legislative history equally reflects that preelsely,

5. The decision of the court of appeals is also at odds withil

} because Congress appreciated that man's hon!th and wel-the firmly estab!!shed principle (tco Klappa v. Sfsrra Club,3

[

fare depended upon the continuing vitality of his natural 427 U.S. 200, 410 n.21 (1976)) that an agoney satisfies its)

j environment, it directed that fodoral decision makers enro-obligations under NEPA by taking a "hard look" at the en-3 L

M!y consider the effects of contemplated federal action vironmental consequences or gency action, If fear of enVM a

upon that natural environment. Solicitudo for human health ronmental consequances that are themselves fully ap '

cnd welfare was thus in a sense a motive for the legisla-praised in appropriate environmental analysis must be

_,.tlon;.but in NEPA Congress addressed only a specific set of treated as an independent environmental Impact of agency f

pmblems, deemed thorotofore to have boon insufficiently action, however, then contrary to this Court's tedng, recognized, impinging upon that health and welfaro: the i

Strycker's Bay Neighborhood Conneif Inc. v. Karfs., 444 degradation of the natural environment. The decision of tho U.S. 223, 227 (1080), the agenclos are no longer free to de-court of appeals and respondent's argument in support ofit termine what action ultimately to take after appraising the confuso the general Icgtsi-tivo objective with the specific pertinent environmental consequences.

remedial measures actually adopted.

D. The decishn of the court of appeals is founded upon The decision of the court of appouls is also contrary to tho.

the erroneous premise that all effects upon human health ruthoritative regulations of the Council on Environmental cro environmental impacts for NEPA purposes even if they Quality implementing NEPA. Theso regulations do not pur-are not environmentally caused or propogated. Respon-i port to define the statutory term " environmental impact."

dents have argued in this Court, however, that the alleged They do, however, define the related term " human environ.

stress effects of restart of TMI-I are environmentally ment"in a manner that makes clear that effects of federal caused. But close scrutiny of respondent's original stress action upon human health and other human concerns are contention, as well as its belated argument in this Court, 1

u.

1 ARGUMENT i

. reveals that respondents are engaged in a word game that i EPA DOES NOT REQUIRE ANALYSIS OF EMOTIONAL.

g cannot bring that strean contention within the ambit of STRESS ALLEGEDLY FLOWING FROM FEAlt OF Tile. -

N EPA.

CONSEQUENCES OP OPERATION OF A NUCLEAR

[,

Stripped to its essentials, respondent's argument is sim-POWER PLANT ply that both routino operation of TMI-1 and the ucch!cnt at A. NEPA Requires Considerntion Only Of The Envi-

%p TMI-2 entailed somo lovel of environmental effects, and ronmental Effects Of Major Env!ronmentally Sir-

[

could, if all safeguants failed, have produced much more nificant Federal Actions

1. The question presented in this case is one of statutory

[

substantial envirdnmental criccts. Decuuso the TMI-2 acci-

[

dent allegedly generated stress and fear among persons interpretation, and thus ultimately of discerning congres-t residing in the surrounding region, and because restart of sional intent. As in other contexts, questions of statutory TMI-I may renew those effects, respondent claims that interpretation under the National Environmental Policy

[g stress Is an environmental effect of TMI-1 operation. But Act must begin with the pertinent statutory language. The

[

respondent's argument cannot supply the essential ingredi-duty of federal agencies to file environmental impact state-f ent: an environmental cause for the alleged stress. Without ments arises from Section 102 of NEPA,42 U.S.C. 4332, such a nexus, that stress cannot be considered an environ-which provides, in pertinent part:

[h The Congress authorizes and directs Nt, to the full.

---mental effect Respondent demonstrates only that environ.

[

me.tst effects and the alleged stress have a common est extent possible: * * * (2) all agencks of the Feder

• source-Zho very fact of TMb1 operation. That coinchlence al Government shall-0 i

1

"

• is not a causal relationship, such as !s required by Section (C) include in overy recommendation or report on pro-1}

i i 10g(2XC) of NEPA. Plainly, most, if not all, environmor.tal.

posals for legislation and other msjor Federal actions b ly-sign 1 Scant federal actions have significant non-envi.

signmcan@ a&cung Go quah d W han ene i ronmental effects. To swcop uuch effects into 'the dreadY ronment' a detallod statement by the responsible offb d o

i 4

broad ambit of NEPA analysis would impose a stubstant!al c!al on~

burden upon all federal agencIcs that (Inds no warrant in (i) the onvironmental Impact of the proposed action

(

the plain language of the statute."

.. 4nj se As Indksted la our petitlan (Pet.17 n. It). If free to de so, wo a

woubt have presented for review the addittunal question whether beals that no EIS was required (see page 9, note 6, awpris). In thts set-(

NEPA Imposes upon the Nuctenr Itegulatory Comminston a continuing

• hc. the question whether such NEPA compliance was actustly r,-

sb!fgellae to reassess the environmental impacts of a licensing deelston quirea ::y law Ischs the general importance of the Issue that we ten-dered (or rot ew. And beesuse of the systlability of the narrower t

In light of ekanged clicumstances or informstlen even in the aboence of I

say contempleted further federal ution. The majority opin6en below ground suggested by Judge Wilkey, the question whether the court of

)

(Pet. App.18s 26c) appvers to give sa sfGrms.tive onewer that is irrec.

sppests' continuing obilgation analysis (which may be dictum)la sound ancilable with this Court's decision in Walu6 erne v. Caf&olic Arist is not presented in sharp focus here. Shoubt the Court disagree with l

Peace Educatime Prwint, 454 U.N.139.148 (1981); Klepp, v. sicrns this assessment. however. and conclude that the Issue to property pre-Cis&. 427 U.S. 390. 298-40s (Ils70): A6<rdum a R. R.R. v. SCRAP.

sented. the Court parfurce remains free to ad Iress it as necessary for 422 U.S. Z2J. 320,322 (ID'o). We do not teruler that lasue for review the proper disposithm of this esse. Cf. Piper Afrrrnft Co. v. Reyeo, only because Ihe rveult in this esse pr.hably shace not turn up..n its res.

454 U.S. 235,24G n.12 (19:41) olutt.-s. As Ju lge Wdkey observe.1 (see page 16. a n

.), th, spplies.

" The obilrations to piepare

.tr.... mental mese.amente. to uneler.

Llan of NEPA*la this esse ntsy rest up.t t hu for nors==cr grwund that take other forms of prelim 6 nary environmental anssysis less farmal the NI(C is herv enregni in fe.leral set L.n-.-tk re. tart proeve. ling. In.

than the full environmental impset statement contemplate I by Section deed. whether ruguirwl ta ele sa or ruet, the Commission staff actusHy loM2XC). and to prepare suppleinental enstronmental Impset state-prepared an envirwnenental lmpset apprslast here..letermining me, that I

ments have been Interpe.Iste.1 inta NEPA ny the courts. see, e.g..

t

y s

Jp As the statutory Irngumo plainly ro!!octs, tha duty im I Although tha preciso luue presented h;re has ncycr posed is not to assess all effects of proposals for federal cc.

been addressed by this Court-presumably because a negs-

[f Lion, or even all effects of the subclass of federal actions that are " major Federal actions significantly affceting tho tivo answer to tho generle question presented has been -

[p quality of the hnman environment." Ruther, the obligation self-evident-the decisions rendered by the Court in this created is to consi fer tho envirmamental impacts of the lat-I fic!d reflect the exclusively environmental focus of the as.

y ter subclass of federal actions. Thus, the criterion of envi.

sessment duties imposed by NEPA. Thus, for Instance, the ronmental impact must be satisfied in two respects beforo a l

Court has described NEPA as "ono of the recent major fed.

"l' particular offect of a federal action triggers asacssment ob-cral efforts at reversing the deterioration of the country's ligations under NEPA. First, thoro must be a proposal for environment * * *." United States v. SCRAP, 412 U.S.

federal action that has an impact of the requialto signifi-GGD, G03 (1973). And this Court has explained that "NEPA cance upon man's environment. Dut oven when such as

• *

• creat4=] a discreto procedural obligation on Govern-j environmentally-sonsitivo proposal has been identified, the ment agencies to give written consideration of environmen-casessment obligation extends only to those impacts of tho tal issues in connection with certain major federal actions,"

federal action that are themselves onvironmental."

Aberdeen & R. R.R. v. SCRAP, 423 U.S. 289,319 (1975);

Flint Ridge Development Co. v. Scenic Rivers Associa-9 j

^

tion, 426 U.S. 776, 787 (1976). Typical environmental consed p

quences noted by th~e Court include Increnaed soII6asta

~

~

c flenty v. Kilendienst. 471 F.2d 823 (2d Cir.1972). cert. denied, 412 disposal and accelerated depletion of natural resources, k

. 'i, U.8. sos (Im): suetery far Antwel Rio te, lar, v. srAtralager. st2 Abenleen & R. R.R. v. SCRAP, supra, 423 U.8; at 327 g n

1 u F.2J nftp. 917 315 (D.C. Cir.1976), and have been confirmed and elues.

? dated la the regulatlans prwaufgnted by the Council on Environmental see also fd. at 331 (Douglas J., dissenting)("NEPA * *

• Is<t

~

i. Quality, see 40 C.F.It.1501.3. ISol.4(b) and (c), and 1602.D(c). as a a commitment to the preservatfort of our natural enVITO b

i a sness of enforcing the underlying statutory requirement of prepars-mont")."

4 y g th et environawatalImpset statements. la this case the court of sp.

The EIS Itscif, the fonnal record of NEPA analysis,~

! N eYtr en=st2Np.7sNatYr I N N

• N *sI.;

been characterized as a" data!!ed statement of environmen-I s

i havlas PMPered u origlaal EIS en TMI.I licemins in Im. Decause tal conscquences," Risppe v. Sisrra Club. 427 U.S. 390,3 Secdea lo2(2XC) previales tb laats for s!! farms of environments!

394 (197G), and the Court has explained (A?.drus v. Sforns 4 sulysis required by the c. orts under HEPA. tia questw whether a..

Club, 442 U.S. 347,350 (1979)) that:

particular clus f errats is <=galsable is to be rs==Ived by the refer-cnce te swtw lon2xC). Irrapective of tw stag of environmental The thrust of i 102(2XC)is * *

• that environmen-sulysis lavolved er the label situh d to a particular document.

tal concerns be integrated into the very process of a The enervus b plic tlom of neglecting the two-fmeeted environ.

agency decisionmaking. The " detailed statement" It re-meatst trigger bullt into the statute is readily apparent. For Instance, quires is the outwa Tl Sign that environmCntal Values the suretary or Transportatw*e deels!.n t..II.w tk Angle. French l

und consequences have been considered " *.

Concorde supersaale transport to land at slesignated United States sir.

purts was regarded as sa setlen subject to NEPA. See Karir=werentel.

l Ikfense Faust, lur. v. Ikportwrul 4 Transportation. 6 Enstl. I Itep. (Enytt. l last.) 20181 (D.C. Cir.1976). That dectelun. however, had impilestlans for foreign tvlattuna and International commercial re-

,, ee mise Nansed /=dirfdmel Ales =&ns oflAe See Anronie Comair.

"" #" 'I ** IM88 M A#*F @fastwt. @o U.S. 968. m (IM)

(Disch. J., ' diner.*Ing frore dental of certioruri)(NEPA is a a f

lattunships, as well as the nelse level la cwnmunities surrown.Ilng the clrports la queellus, l4ce #rillah Alrnese Baent v. l'u,1 Anta.rity.

55: F.2d 71(Ed Cir. INT 7). Yet it was never suggested. nor could it be.

'I"'**'dI^'ted leglafstion designed to protect.or Hatton's envirue.

that the Heervtsry's NEl'A manlysis abilgations eateeule.1 to Lb farmer mental from destruellun by water po!!ution, alr pnllutloa. and nelse as well as the letter.

1"*llut lon").

L

Sc2 clso Weinberger v. Catholic Action / Peace Education I

mentul health concern 3 from the ambit cf PEPA, end peri:

• iving in tha statuto o solicitud for the cvsr:Il w;ll-being y

Project, 454 U.S.139,143 (1081). Although "NEPA does cc of mankind (id. at,13a), the court concluded that "in the, e

S creato * *

• a right of action in adversely affected parties f

to enforco" its requirements (Aberdeen & R. R.R. v.

context of NEPA, health encompasses psychological'..

6 SCRAP, supra, 422 U.S. at 319), the Court has repeatedly health" (ibid.). Finally, the court reasoned that because the k

emphasize I that the rolo entrusted to the courts is strictly

" governmental decision" involved-the Commission's re-

-I delimited:"once an agency has mado a deels!on subject to start decision-Is allege <l to affect " human health" In this 0

NEPA's procedural requirements, the only role for a court respect, the stress effect of restart upon tho surrounding is to ensure that the agency has conskfered the environ-community is ar. environmental impact requiring assess-mental consequences * * *." Strycker's Batt Neighborhood ment under NEPA (id. at 16a).

Council, Inc. v. Karten, 444 U.S. 223, 227 (1080) (empha-This sylic,gism is seriously flawed. Contrary to the court sls added); soo also Vermont Yankee Nuclear Power Corp.

of appeals' first premise there is no general rule that effects E

v. NRDC, 435 U.S. 619,658 (1978); Kleppe v. Sienn Club, of " governmental decisions" upon human health are env!-

p supm, 427 U.S. at 410 n.21.

ronmental impacts subject to NEPA analysis. Rather, such cffects are cognizable under NEPA only if the twin require-I

egn. As Judge Wilkey and Commisioner Hendrie each ree-2 monts of the statute are present

a proposal fur significant b

ized (sco pages 7-9 & 14-16 supm; Pet. App. 3Ga-38a, environmenta!!y-sensitive federal action, and an environ E *D0a 91a), the consideration of stress allegedly induced by montal impact. Iruteed, as Judge Wilkey noted in his dis.

k h,the fear of operation of TMI-1 (and, indeed by the ver'y sont (Pet. App. 36a), the few authorities cited by the court f i, pendency of the matart proposal and the mere possibility of D restarUsee page 4, supm)), is radically inconsistent with of appeals (fd. at 13a & n.8) are fully consistent with this g reading; they tend no support to.the court of appeals'judgq b p the above described limiting principle. Significantly, tho ment.** Thus health offcets, like any other class of effects y:

[ d$ gravamen of PANE's allegations is not that the Commis-f federal action that may be cognirable under NEPA, are f slon has fa!!cd adequately to consider some kind of environ-so only to the extent that they are prox!mately traceable to y; E mental degradation in angform. Nor is it that some Impact tho impact of the federal action upon the natural or physical V dof TMI 1 operation upon the natural environment-such as cornible variable, such as hest, radiation, nolso, p environment, or flow from a physically measurable or dis- :

/ radiation-will cause Irdury to the health (whether mental fcr physiological)_of its. members that has.not been ade- -

or odors, in that environment. -

I Iquately consk!cred. Compare Weinberger v. Catholic Ac-j (fon, supm, 454 U.S. at 142. Rather, respondent's allega-j tion is that the existence of the plant itself, spart from any

• • Us. of toile herbici.fes. partleutarly throuch sertal spraying, to environmental impact it might creato, will causo emotional control unw.rrsntet (or ut rst) vegetation p..tenu=Hy arrects human hc.ith through an.nviron

.t.try pr=paratet sactium. se,..r., Na-j hdury to TMI-l's neighbors. Yet is la proc! soly that conten.

".""'d "'#"" U"""" I" "" "'I"'"' "I 'f* 'U"* "a L. r. v. un unt

$,f $,[, 3,,7,",',$l,fi,'3),,$,*f,)f,$,,3"",* [gh,$[pp tion that the court of appeals concluded "allegels) environ.

u

• mental effects within the meaning of NEPA" (Pet. App.

r

,,f 10ah trz7 (p. or.1977). Anit when the ine.tenvery or provision for precipit..

p f

'"k'"8 fa'lHtr I* 'laime ta "'at' a 'faa' '

""" ""*"I"

• • P"'m"a'"'Har. We Wu wl.e canaut ute. =

The logic of the court of appeals is deceptively simpic.

ter af H rentalar l

h Effects of federal action upon i.uman health, the court of montal thr.st to human life nn.1 health, properly n.rnital>le umler p

appeals reus<med, have been recognized in previous cases n g p A. 3t,, sr..,s.,t.N uri....a res,itat r.rr6.e rin..., r..

as environmental imimets for NEPA purposes (Pet. App.

si... v.

• unite.t starr. Ntni ser,,,c. orr r.y.i inne. soa s e n c. cir.

l su7at 12a.13a). Finding no warrant for a blanket exclusion of l-J

28

.1 s

The range of poss!blo influences upon human health of l

cral action simply does not qualify as an "environmentalim; I

federal action la potentially unlimited. Ilringing all of these pact" required to be analyzed under NEPA.

A within NEPA would radically chango that law from ono di.

Thus, while effects of federal action upon human healthJ recting special attention to environmental concerns to one may occasion NEPA analysis, the statutory requirement is O

dealing generally with human health and wc!farc. For in.

necessanly limited to environmenta!!y generated health i

stance, it~ has never heretofora been suggested that the effcets-a fundamental !!mitation upon agency responsibill-If Food and Drug Administration must filo environmentalim.

ty under NEPA that was entirely disreganled by the court 0

pact statements per'tulning to drug approval and disapproval of appeals. The issuo for NEPA purposes, was not, as the 3

f actions-actions that unquestionably have a powerful bn.

court of appeals assumed, whether NEPA requires consid-pact on human health. Indeed, the pertinent regulations re.

eration of environmentally-generated mental health effects L

flect the recognition that drug approval ordinarily is not of federal actions. Itather, the relevant inquiry is whether u

subject to environmental Impact analysis. 21 C.F.II.

stress that allegedly arises from the very fact that TMI-1 f-25.1(0. The reason is simply that the hea!Lh effects of such exists and that the Commission has authority delegated by federal actions are not propagated through federal action Congress to licenso its renewed operation-a cause entirely upon the natural or physical environment. Other exampics distinct from the radiation or accident potential associated

, cbound. Proposals for the addition, or termination of gov.

with plant operatloa-is cognizable under NEPA.** The h;.h ernmental hen!th services, welfare programs and other in "" "N+r -

plain statutory Isnguage requires a negative answer.

~;+

d I como maintenanco schemes surely have as direct a bearing

3. In order to escape from the plain meaning of Section..',

b U upon human health as the restart of a nuc! car power plant.

102(2XCXO as ou' ined above, respondents have In this 3 J

j MAlthotigh we trust that no one would seriously arguo that Court solzed upon the use of the term " human envircre J' g h these proposals entall environmental impacts within the -

ment" In Section 102(2XC), arguing that an effect upon the i E D fncaning of NEPA, the court of appeals' reasoning, treating natural or physical environment is not needed to estab!!shI

{ (cny and all health effects as environmental Impacts, elimi-hy or otherwtu, are outside the scope of the mandated NEPA analysis for M

[y nstes the principled basis for this !!m!tation.

z The range of possible causes of stress !s likewise virtually thIs ruson. Cf. Verment Yamare Nuefear Pomvr Corp. v. NRDC.

3 unlimited. Bringing all such causes with NEPA would supru. US U.S. at 551.

transform that statuto from a mandate for. environmental

" The court of appeits' miscone.ption of the gasue pruented perme.

f sensitivity in federal administration to an amorphous, and stes the decielon. For Instance, it reas simply irrelevant that the court thus ultimately inofrectual, spotlight on human emotions.

of appest. f und it dimeurt to benen that triersrdins of the severity of psychologleal hes!th effects * *

• lthey] would (bel exclude (d) from Assuming that psychological ofrects are reached by NEPA,

,onalderation at any stare of the NEPA procedures relattag to any only thoso that are caused by environmental factors are propoud federal action- (Pet. App, lis). This ca.e does not present covered.8' Absent such a causal nexus, the effect of fed-that broad quentlene, but the narrower one whether perchotoriest health effcets that are woi attributable to an environmental cauw can be environmental impacts within the meaning of Section IO32XC) of

Detausa the court of appesta* deelslon completely disregarde this N EPA. Equally misplaced was the mabrity's rellance (fd. at 13s) upon fundamental limitation upon the senpe of the analysis required by language of Section 1032XA) of NEPA,42 U.S.C. C32(2XA). requir.

NEPA, we have not pursued here the question whether the particular log use of a "systematte, interdiscip!! nary approach which w111 Insure

)

montal health effnets alleged by PAN E are outside the scope of NEPA the Integrated use of the naturnt and social sciences and the environ-for the imiependent reason that the chain of causatlan between the fed.

mental design arts." The court of appests ignored the purpose which eral act on and the alleged effects is so lengthy and attenuated.,amt the this interdisciplinary approach was to serve, stated in the statutory i

effect no speculative as to remier NEPA snelysis unnecessary. Clear.

language that immediately follows the quoted phrase "In planning ly, there are situations in which effcets of federal action, peychological smi decisionmaking which may have an impset on man's environmest."

-a 30 3

3 Insting the requirement th:t th2 ofrects of fed:ral action a

h cn environmental impact sufficient to trigger NEPA as. '

addressed be environmentally caused, y,

4 sessment obligations amt that the court of appenis acconl-y ingly correctly treated the alleged stress effect as such an To be sure, if pulled away from its statutory context the.

y impact (Dr. In Opp. 47-54). Seeking support in the legisla-term " environmental impacts" could theoretically be read in -

b tivo history of NEPA uml the Council on Environmental conjunction with the term " human environment" In Section d

Quality heguh.tions, respondents now' arguo that the "hu-102(2XC) to include impacts upon man's " psychological con-y man environmen,t" guanled by NEPA la affected by the text" as respondent suggests. For that matter, NEPA h

restart of TMI-1 because restart "would significantly affect could in that manner equally be construed to require con.

E the human environment of Ithe surrcunding) area by signif-sideration of all sorts of federal action affecting a host of icantly altering the psychological context for, local resi-other " contexts" impinging upon man's existence-his po-k dents" (Dr. In Opp. 63; emphasis mided). Like the court of

!!tical, social, moral, economic, and spiritual environments.

h appeals' underlying rensoning, respondenfs novel interpre-Such an interpretation, however, would render meaning.

tation of the term " human environment" is entirely di-Icss the critical statutory terms," human environment" smi j

vorced from the partinent legislative intenti respondenes

" environmental impact," rendering them synonymous, re-overall interpretation of NEPA flmis no support ir. the leg-spectively, with " human affaira" aml " effects on people?

g islative history or the regulations of the Council on Envi-Thus construed, NEPA would require preparation of anL

'('1 inconsistent with respondenfs contention and the ec"rt of

~

ronmental Quality cited. Indcod, the materials are entirely

" environmental ** Impact statement en all aspects of overy h -

major federal action affecting human bcIngs. But such looso t

} sppeals' decision.

statutory construction based ontirely upon creative use of.

j 4

the dictionary and thesaurus does not constitute an approo

s. Contrary to respondent's suggestion, it is ngt our sub-d hk Q'w' th b Wl e

g mission that effects upon human beings of federal action are States v. Bacto.Unidisk, 894 U.S. 784,708-799 (10G9); soy j

f, for that reason excluded fmm the scope of analysis under also New Hampshirs v. Atomic Enargy Commission.h g

NEPA. Rather, the point of our argument is simply that supm, 40G F.2d at 173. As Judge Leventhal, writing for a' NEPA covers only thoso offects of environmenta!!y sig-panel of the D.C. Circuit explained, rejecting the claim that 1

]7 nificant federal action upon man that are propagated an influx oflow-income workers into a more affluent subur-

. through environmental variables.Thus, contrary to respon-ban community could constitute an environmental impact L

denes assertion (Ilr. In Opp. 47-49), our argument in no re-

.within the contemplation of NEPA (Afaryland Natfowat spect detracts from the contral focus of NEPA upon the Capital Parx & Planning Commission v. United States

" human environment"(42 U.S.C. 4332(2XC)). A major fod-Postal Service, 487 P.2.! 1029,1037 (1973))-

eral action signifienntly affecting the quality of man a envi-Concerned persons might fashion a claim, supported ronment is assuredly the statutory trigger for preparation by linguistics amt otymology, that there la an impact J

l b

of an environmer.tul impact statement. Ibid. Ilut it is equal.

from people pollution on " environment,"if the term be d

ly clear that the statement requintd need only address the "tretched to its maximum. * *

• ITlhis type of effect i

" environmental impact of the proposed act!on" (42 U.S.C.

cannot fairly be projected as having been within the I

4332(2)(C)(l))-and thus that it need not uddress e ntem;dadon omnguss.

l nonenvironmental effects of federal action whether upon human beings or otherwise. In short, our submlaston would

b. The legislative history of NEPA ch arly demonstrates not, as charged, r end out of the statute the intended focus that Congress intemled to require eyatematic asnessment upon the humun environment; it is respomtent amt the only of the effects of federal uction (on human beings or court of uppeuls that have rewritten the statute by clim-otherwise) that are expressed in or propagated through the I

natural or phycleal environment. Conversely, the legista. !

. Senator Jackson's definition cf the term " hum n enviro tive history pruvielce no nupport for the court of appeult mont": "!The environm2ntal) mnvamsnt is concerned with 4

the Integrity of man's life support system [s!-the human (I

view that n!! human health effects ure within the ambit of NEPA, or for respondents' niill moro for-renching su::ge.

environment" 115 Cong. Rec. 40417 (IDG9); 115 Cong. Rec.

L tion (Dr. in Opp. 49 n.43) that all fe deral action that effects 19009 (19G9). Similarly, Senator Jackson described the terms " environment" and " ecology" as part of"a now set of hum.in beings is soldect the NEPA.

w nls an<l concepts Ithat] have come into wide public use in The legislative history of NEPA underscoren that Con-

~

<llscussing the Nation's irrepinecablo natural resourca gress intended to require consideration only of the effects b se." 115 Cong. Rec. 290G6 (1908) (emphasis supp!!ed).88

[4 of environmental impacts of federal netion-l.c., of those The Senate Report on the bill that supp!!cd the pertinent

.h effects traceable to somo measurublo or physically discern!-

language of NEPA also reflects congressional intent to di-I ble influence upon, or alteration of, the physic:d environ-rect attention to the effects of federal actions on the natural b

ment. Senator Jackson, the " father" of NEPA, and the environment, and the impact upon man of these effects. S.

[

Senior Manager on the part of the Senato in the conference Rep. No.91-290,91st Cong.,1st Sess. 6, IG (1969)(empha-r committee that produced NEPA, explained this nexus and its relevance to human health in presenting the Conference sis suppued):

Tho ultimate Issue posed by shortsighted, conflicting.

b Report (115 Cong. Rec. 4041G (1060)):

amt often selfish demands and pressures upon the f}-

.gg What la involved is a congressional declaration that wo nite resources of the earth are clear.

~

~

g do not intemt as a government or as a peoplo to initiato actions which endanger the continued existence or the The expression ' environmental quality" symbollzes the j

t 9

health of mankind: That we will not intentionally initi-complex and interrelated a,spects of nmns,dependener, E

ate actions which will do irreparablo damage to the air' up n Hs enWmumsut. * *

• The Nation han in many b

land ami water which support life on earth.

areas overdrawn its bank account in f(fe sustainfug q

s

- See also 115 Cong. Rec. 40924 (19G9) (remarks of Senior natural elements. For these elementa-alt, water /

y liouse manager Rep. Dingell)("we can now move forwant soll, and living space-technology at present provides F

no substitutes.

I

'. to preserve and enhance our air, equatic, and terrestrial

%I environments, and * *

• pmvide ench citizen of this great See also H.R. Rep. No.91-378, 91st Cong.,1st Sesa. 8 k

. country a healthful envimnment"). The legislativo history

_ (10G9) (quoting from a N.Y. Times, May 3,10G9, editorial).

thus makes it c! car that Congress' motive for protecting ~

Both the Senate Report on the legislation (S. Rep Nor.-

4 air, land, water and natural resources was, in largo meas-91-200, supm at 4) amt Senator Jackson's remarks presant-7 ure, to pmtect the health amt welfare of mankiml. It is ing the Conference Report (115 Cong. Rec. 40417 (19G9))

erlually clear, however, that the method adopted for contain a revealing listing of porceived environmental qual-schloving that emt in NEPA was to direct special attention Ity problems:

to effects of federal decisions upon the natural and physleal estvironment. The court of appeals has thus effectively sub.

stituted one of Congres/ brvad general ends-advance.

" iMPA's leglstative history is replete with elmt!=r statements rv.

ment of human welfaro-for the quite speclile means of U"itng concern with the natural envimnment sn 1 man's depentlene, t nupon fa eunin!. Sn H6 Cong. Rw. W6 Up (mmarks of advancing it actus!!y prescribed by law-the environmental Itep. Rogers); M. et 26577 (remarks of Rep. Feighan); M. at 26579 (rv.

u Impact statement.

marks of Rep. Yates); M. at 26581 (remarks of Rep. Good!!ng); M. et This rtlallonship betwcon environmental protection and 2c581 (remarks of iter. Obey); M st 2c583 (rvmarks of Rep. C4heten);

j human welfare that underlies NEPA is also reflected in M. at m.a (remarks af Rep. Frey).

m m

abla b:rmrny between m:n cnd his envir:nment; y h:phazani urban end suburb:n grswth; crouvling, enn-to prem:ts eff:rts which will prev:nt cr climinate gestion and cunditions within our centml citics which damage to the environment and biosph;re cnd a

N result in civil unrest and detmet from man's social stimulate the health and welfare of man; to enrich J.

Q and psychological well.being; the tons of valuablo open the understamling of the ecological systems ami' i

s;mces; inconalstent und, often, incoherent rural and natural resources important to the Nation * * *.

s urban laml uso pollctos; critical ulr and water pollution h

prob! cms; diminishing reerentional opportimity; con

• Congress chose its wonta carefully; " stimulat [lon) of the tlnuing soll cr.osion; the declino and extinction of fish health und welfare of man" is adopted as a purpose-but y

and wikilife species; faltering and poorly designed only to the extent nehtovable by " prevent [lon) or elimina-g transportation systems; poor architectual design and tion [lon of) damage to the environment and blosphero."

[!

ugliness in public aml 7rivato structures; rising levels Similarly, in Section 101(a) of NEPA, 42 li.S.C. 4331(s),

d of nolso; the continued proliferation of pesticides and Congress "recogniz[ed] the profound impact of man's activi-chemicals without adequate conskioration of the conso-ty on * *

• the natural environment (and] the critical Im-i quences; radiation hazants; thermal pollution; an in-portance of restoring amt maintaining environmental quall-creasingly ugly landscapo cluttered with billbonnis, ty to the overall welfare and development of man."

f powerlines, amt junkynnts * * *.

Signincantly each of the errocts !!sted is rooted in a discern-Protection of human henith and welfare was thus a mo-i

_, ibla impact upon the natural or physical environment. Ro-tive for adoption of a particular procedural mechanism" to -

spondent's effort (Dr. In Opp. 49 n.43) to lind support for advance that end, tho environmental impact statement. But

. y the judgment of the court of appeals in the Italleizod lan' refereneo to that general motive provkica no basis for shoe-l W guago,la unavalling. As Judge Wilkey observed (Pot. App.

horning any measuru that might be thought to advanco the human condition into NEPA unalysts. The dec!slon of the k 37a n.17), that langungo reflects only that the un,derlying *

k cnvironments) causes of social and psychological malaiso court of appen!s thus loses sight entirely of the means se.

h should be considered. SenatorJackson dkl not even suggest lected by Congress to achiavo its ends.

j that the social and psychological effects of physical crowd-

c. The court of appeals' conclusion that, beesuse it re-g p ing were, in their own right, environmental quality prob-lates to human health, stress allegedly Associated with a

t lema. A fortiori, there is no suggestion that social or mental restart of TATI 11s an environmental impact for NEPA pur-i l

ills that are not environmentally gmunded are nonetheless pones Is also contrary to the regulations promulgated by the Counell 6~n Envirunmental Quality, 40 C.F.R;1500.<t-1 - cnWannwntal impacts f r NWA purposesE :

J Congress' umlerttamling of the relationship between pro-scy. Substantial deference is due to these authoritative reg-tection of human health aml that of the natural environ-ulations. Andrus v. Sierra Clnh, supra, 442 U.S. at ment is also conveyed by the introductory language of 357'358~

NEPA proclaiming the legislativo limlings ami purpose. As The CEQ regulationa repeatedly describe the portion of l

th!s Court has recognized (Andrus v. Sicem Club, supm, an environmental impact statement that fulfills the require-h 442 U.S. at 349, quoting 42 U.S.C. 4321):

menta of Section 102(2XCXI) of NEPA as n statement of NEpA sets furth its purposes in bold strokes:

dus "teluvimunwnlal (cloneguences" of the proposett ac-1 The purposes of this Act are:To decture a national tion. 40 C.P.It.1502.10(g),1602.1G. Although the CEQ reg-hl policy which will encouruge productive ami enjoy.

ulations contain no definition of the term " environmental,"

employed in 42 U.S.C. 4xt2(2XCXi) (requiring "a detailed Y

• • Unace n,s.nutn v. www. (.,irr..rtw.rterting vrie comti.

statement * *

• on the environmental impnet of tho tu..".ori....verty r.Irvs..i taw.=11.i.e.rrnaly rmoir, for.

proposed action"), they provide lluit Ihe related statntury m.1.n.ty.i. umter NHl'A.

1

. i__

- - =

e w

w

term " hum:n environment" (" major Federci actions signifi-l rola portrayal in uno cf dependency: m:nkind's relianca f:rE

(

cantly affecting tha qu:lity of the human environment )

survival upon tha surrounding n:tural w:rld. Nothing in 6

embrsecs "the untumi and physical environenent and the Section 101 suggests that the " psychological context" Iden-.

?

relationship of people with that envircnment." 40 C.F.R.

tified by respondent-in which man stands isolated from'~ -

(g4 1508.14 (emphasis.uhled). The CEQ regulations thus make the natural and physical environment-of which fears in-clear that the " human environment" for NEPA purposes in-duced by nuc! car power plant operation are said to be a cludes human affairs only the extent that they are affectcel part, is within the scope of the environment that is the sub.

1 h

by forces expressed in the " natural and physical environ-

, lect of the analysts required by NEPA.

l ment." Plainly, the term "onvironmontal Impact" can havo Respondent also urges in this Court (Dr. In Opp. Si n.44) j

{[

no broader ambit than that assigned the term " human that the express relegation of scelal and economic effects of federal netion to a sceondary, mio under the CEQ reguia-environment."

Respondent, however, seeks support for tho decision bo-tions, Indicates that mental hesith effects such as those at low in the Council's explanatory comment (43 Fed. Reg.

Issuo here must receive fult analysis under NEPA On the 55088 (1978)) that it was not the Council's intention by its contrary, the pertinont regulation, set out in the margin **,

i l

definition of human environment to limit that term to "the actually renects the fundamental principle we have iden-natural ami physical aspects of the environment." Read in lined. Social and economie effects are explicitly assigned.a e

d context, however, this comment morely rearnrms that tho sceondary rolo, not merely_bocause the_CEQ has,,dctern e

j i statutory mandata to conskler the effects of federal action mined that they are, in any event, too remoto fmm any en-F

~ [

. extends to poople, as well as plants, animals and inanimato vironmental cause to warant preparation of an EIS that is j

objde,ts, as long as the operative cause is environmental, not otherwise necessary (ces page 2d note 19, supru), but ;

) g Thus the Council's comment goes on to call attention to th'a primarily in consequence of the fundamental rulo app!! cable -

i y definition of the term " effects"-employed in the regula-cause expressed in the natural'or phyalcal envirodmen to all classes of" impacts": that absent some enytronmental ~

p tions an a synonym for the statutcry term " impact"-

"ofTect" simply cannot prope'ly'bo classified as environd.4 which provkles that"offocts"" Includes ecological * *

• ses-

E r

l tholle, historic, cultural, economic, social or health, wheth-montal for N EPA purposca. Signincantly, even saan prep %

er direct, indirect or cumulative." Of course, beenuso 40 aration of an environmental Impact statement is required. I i

C.P.R.1503.8 merely dennes the tenn impact, without by the presence of other, environmental, effects of federal 3 -denning the term environmental, the. inclusiveness of this._.._. _ _ _._ - ~ action, the regulathn directs coverage of social or economic

• donnition renects only that the rango of" effects" and "Im-effects only to the extent that such effects are related to pacts" to be consklorm! Is broad; it does not purport to the natural or physical environmental effects. 40 C.P.R.

ethninste the scrarate statutory directive that the impacts to be surveyed under NEPA be environmentally. grounded.

,* 40 c.P.II. Isoa.14 provi.ie.:

Thus, it follows from the Council's regulations that the ef-gg,,,,,,,,,,,,,,,,

focts upon human health of federal action are cognizable un-

.igom,,,,,i,,,,,,t sha!! be inteTrenment and the rela reted comprehensively to der NEPA If and only if environmentally caused, inclua the n.tural saa physics env shio orpeople with that environment. * *

• TAIs meewa that eco.

I The Council also declared that "Itlho MI scopo of the en-minie er soet.: errects ar. not intenaed by the mselm to require vironment is set out in Section 101 of NEPA." 43 Fed. Reg.

prep.r.tton or en envirwnmentst trnp.et statement when en e+

65088 (1978). As we have seen ([mges 34-35, supeu), Sec.

vironmental imp.et statement is prepared erwl ee namie or soci.I tion 101,42 U.S.C. 4331. like other introdutory Innguage in

'["'g',"'J',Pf,'j,*i, jl,%"'"'$,28 * '"j*r ib h

8 '"

NEPA, reflects the ndo of man in tlw environment. But the errect..n the ham.n en<ironment. ::mpo.i 44,a.3 A

18 1978); Como-Falcon Coalitius, Inc. v. Department of La 1508.14 thus cmtalles and imptomento the requirement of

bor, 609 F.2d 342,345-346-(8th Cir.1978), cert d:nled,44G I

environmental causation that is prescribcil by Section U.S. 93G (1080);" Goodman Group, Inc. v. Dishroont, G79e g

1 102(2 M )."

F.2d 182,184185 (9th Cir.1982); Citisens Committee"

4. Ours la not a novel interpretation of NEPA. On th Against Interstate Route 675 v. Lewis, 542 F. Supp. 496, contrary, the deciolon of the court of appeals nere is incon.

531-537 (S.D. Ohio 1982). And several courts of uppeale g

sistent with the decisions of every other court of appeals have specifically rejected the dalm that social fears and e

that har enaldered the lasue, ns well as a wc!!. reasoned de.

anxietics arising from federal actic.n must be addressed un.

q of the District of Columbia Circuit itself. Theno der NEPA, in the absence of an environmental effect. See, i

('d.t j

courts of appeals havo uniformly rocognir.cd that psycholog-c.g., Nucleus of Chicago Homeowners Association v.

lent and socioeconomic effects that are not environmentally Lynn, 524 F.2d 225,231 (7th Cir.1975), cert denied,424 grounded are outsido the scope of the analysis required by U.S. DG7 (1976); First National Bank of Chicago v.

NEPA.

Richardson, 484 F.2d 1369,1380 n.13 (7th Cir.1973); see As indicated above (page 31), in Afaryland.Nattunal also Como-Falcon Coalition, Inc. v. Department of Labor.

Capital Park & Planning Commission v. United States 465 F. Supp. 850, 8618G2 (D. Minn.1973), aft'd 609 F.2d Postal Servics, supra, the District of Columbia Circuit re-342, 345-34G (8th Cir.1979), cert denied. 440 U.S. 936 jocted the claim that an innux of low income workers into (1980).** Sco also Hanly v. Kliandrinst,471 F.2d 823,833 (2d Cir.- 1972), cort. denied, 412 U.S. 908 (1973) ("llanley_

'"animiWnt' neighborhood could be regarded-as an environ- ----

rnental Impact subject to analysis under NEPA. To Imilar U"); compare Hanley v. Afftchaft, 4G0 F.2d 640, 647 (2d*

cffect is Breckinridge v. Rumgreld, 537 F.2d 8G4,865 800 Cir.), cert. dented, 409 U.S. 990 (1972) ("Hanly I").88 6th*Clr.1976), cert. dentod, 42D U.S. 2001 (1977). There

{ (the Court rcjected tho Claim that imomployment. caused by a nespondent sugrests car. to opi. ss) that iw decisi = ra this esse f

rests upon a ractual Itnding that the soetoeconomie efreets la questlosi closing of s' military base was an environmental Impset cog.

h*" " I"'Is"Ifksnt. on the contrary, sithugh the district court I

i nir.abla under NEPA: exp!alnIng that alhugh "NEPA had made such a findlag (*** 609 F.L! st 345). the court er appesta es.

goca beyond * *

• the ' physical environment' * *

• factors pressly hek! that the " district court erred" in consLlering these issuce, other than the physical environment [are to be consideredl and that they were as a matter er1sw outskie NEPA.14. at 345-346.

• *

• only when there exist (s) a primary impact on the a The rute or thne esas la conststent with CEQ regulations. See physical environment." Accord: Image.of Greater San page 37, supre. As explcIned above those regutations do not require analysis or non-environmentstly-groumted wloeconomie errects ur red.

Antonio, Texas v. #romu, 570 F.2d 517, 522 (5th Cir.

eral setton. Similarly. r,ose of the etted esses suggest that if propers.

tion or an EIS is required fur trulependent reasens. social and eevaumic s' Responde=L wout! spparently read Sectbn If,o3.14 to reyulre in-efreets of faleral action ruust be eenvaswd unless they are pro Imstely ciudam of all suelst and ee.co,ste efrects of federal action la en enviren-treceable to natural er phystest environmental effvets of the setta t.

mental impset statement if any aspect of the setlan is environmentally

" The court of appests' rellance (Pet. App.13s) on CAriste NelpA.

significant, even if the social end economic effects are unreistal ta the f urAoud Assoclaffees v. l'estal Serelce. $1C F.2d 378, Sha (LI Cir.

envirvnmental efrects. irer instance. en envirvanwntal impmet atst**

197tel, is mispisced. beesume the court blee overlooked this !!mitstlen.

i.

ment on the constructba or a ent!! ary base would be required te in*

In CAstare Naip46arAumi Anac(stfuus. the court of appeste merely elude not only the social sad ecunamic evnsequences of depletLa of a held that an EIS that had been prepared was inadequate because it sestre water supply, but the 3.urely ecuemmte effects of the base en th' (slied to address socist an.1 psychologksl effvets upon reallents of a surrounding regba. This laterpretstlos le contra.iteted, however. l'Y hau=Ing pruject alleged to arise,Ilrectly from the unique phyales) fueno the Isoguage of BectLa 160el.14 re fGr, ming that social snel eevnemie of the project.

effects need never to be s.l.Invened uneler NEPA unless caussity con-

" While requiring, in llanly 1. that a federal agency take cogni.

nected to the Itupset er federal setLa ea pressed in the natural or phys-

.ance of a broad range of art,an environmental effects. Including n.. lee leal eartreament.

}

t l

a-m

~

~.;

escapo notice that the decision of the court of appeals im

• The court of appests recognized the forco of the above.

mentioned decisions. but thought to dlatinguish them by p sing a n n statutory obHgation is not a mm barnacle.

stressing the.;mela!" holocaust potential of un errant nucle-upon the statute. Rather it directly um!creuts the legisin ~.

ar reactor" (l'et. App. ITM. atriving to couch ita holding in th commands embmHel in NEPA, frustrating the statuto.

ry schemo.

ciuw specific terms. Ilut there la no logical bnsis for confin-Ing the court's hohling to the facts of thlm enno; the cogniza.

It lu well estab!!shed that NEPA imposes upon the con-t bility of a class of effecta under NEPA cannot turn upon cerned federal agency ultimate responsibility for determin.

their alleged soverity (or mildness) in,a particular caso.

Ing what action to take after taking a "hant look" at the en-And the court of appeats' cryptic explanation (id, at iga) vIronmental consequences of contemplated action, that "In contrast (to the foregoing cascal PANE is not ask.

Strucker's llay Neighborhood Council, Inc. v. Karlen, Ing the sgency to evaluate the effect of'pcoplo pollution

• on supra, 444 U.S. at 227; Vermont Yankee Nuclear Pour the environment, but rather the effect of a governmental Corp. v. NRDC, supra, 435 U.S. at 558; Kleppe v. Starra decision of human health" simply ignores the rationale of Club. supra, 427 U.S. at 410 n.21. In taking that "hard the conflicting decIslons, l.a. that NEPA requires only the look" wo appreciate that tho agency may be required to f'

analysis of environmental impacts. Nothing in the court of consider oventualities that are not cortain to arise; remote appeals' decision expirJns why the principio recognized by and spectulativo poss!b!!!tter,, however, need not be ad.

the-other-courts that have addressed this issue is not con-- -- --

dressed. Cf. Vermont Yankea Nuclear Power Corp.rv.b NRDC, supra, 435 U.S. at 551. But to treat imlivkluals' i

trolling here.

fears respecting the environmental consequences of agency

5. Thus far our argument has boon that the decision of the c6unt of appeals requires consklernt!< ' of matters that action (amt stress occasioned by those fears) as environ cro outsk!e the scope of the environmeral analyses com.'

montal effects of the federal act!on in their own right, na missioned by Congress. Because this additional obligation the court of appeals has done here, threatens the "hard j is a " creature ofjudicial cloth, not legis? tivo cloth"(Wein.

look" principle. Under the court of appeals' analysis, an a berger v. CatAolic Action, supm, 454 U.S. at 141), and bo-agency's (s!!ure to treat these fears as an Independens.~m-1 cause NEPA provkles no sanction for such judicial law sk!cration militating against approval of a proposed fedord 9 making (Verntant Yankee Nuclear Power Corp. v. NRDC, action would be ground for invalklallon of agency action i

supm, 435 U.S. at 548), it esanot stami. But it should not oven though the agency hal fully sppraised the facts under-lying the fears in question. In short, under the court of ap.

i ct t,4 wkh e.

tructLa.r r der.i d. tent 6. c.nter an cio pr..

peats' analysts, it is not enough to take a hard look at the isay to a re.Lientt.1 tting. tb 8=.a.1 circuit m.d h iu Ily et. r.

environmental consequences of agency action and to conskt.

la II nry II. that the re,tuired e.mla rst6. d. not es tend t..trat.

er the views ofinterestod partics; an agency must also as-e perable t. tw 11, sed herv m r.za st s33h certain if public diangrooment with the agency's decIslon

(*,'q'[j*g7,'[*g" (*,'i,,$I7 ;' T,"i, N ",*,[,#' y will ongem!cr stress in the affected population. Nothing in

. pert =nts * * *. It is doutgrul whetkr psyck6 steel and socio.

NEPA requires this result; indeed, such an analysis can w ie.i.trut. up n.Ishb r. con.tuut. Ih. typ. or f.et.r. ist only detract from the intomled focus of NEPA analysis, the e

may be comWered (under NEPAL-effects of federal action upon the natural and physical

'rk, r..

srticut ted by the e.urt or en-t= r..e hl enclu.6n It la environment.

ir.. th dirtkuity.r

...r,=nt oriw.trute (sW.1. As n t.

ed.b.v. (e.g. rs n.4. tu). we k v. n.4 par.

,1 t6t arruea at krv.

The buntens imposed ulmn federal agencies by the court Neverthte.e, th distinction h,4weco purely p.ycktorleel errnte snel of uppenin' decision nro sulmtantial. To bo sure, the decision envirvamient.1 vari tdre ren.gnirna by tk t=. declabas or tb Muond of the court of appouln nominally went no further than to (3rcuk ek.d. le tar the tv

=*e we have.tsted.. valW on..

~. ~. _ _ _

w

y 42 hohl NEPA app!!cublo to " post traumalle anxiellen, necom-l

.We havo u!so explained that the stress that is the subject of l

~

panied by physical ofrects ami caused by fears of recurring respondent's contentions is not recognizable as an cnviron,

mental effect (page 20 supm). In this Court, however, re t

• catastropo " 11ut us we have explained, there la no princi-pled basis for thia limitation. The court of appeals' decision

,ipondents have argued (Ilr. In Opp. 414G) that even if, as has clear imp!! cations for activitien lleenned or conducted by we contend, NEPA requires consideration of human henith the Commission and other federal ugoncles. If agencies effecta only to the extent that they are cuuned by un impact must iske secourt of stress that is not proximately tracca-up m the natural envirnnment or a discernible or measur-l ble to an environmentul offect of aguncy action uncler ablo physical phenomen, the alleged stress satisfics that l

NEPA, funne of stress other than " post traumatic stresa" test." Closo examination of respondent's actual stress con-l may also be eognizablo, un may stress which is not accom-tes.tlon, along with the arguments m:ido in this Court, l

panied by physleal symptoms or which is caused;by factors merely confirms that respondent cannot bring these conten-other than " fears or recurring catastrophe."

tions within the scopo of the analysis required by NEPA.

Psychological stress contentions are not unique to TMI-1.

As noted above, the mental health effect that respomtent Indeed, virtually overy roderal activity arguably generates wouhl have the Commission consider is not the product of heat, radiation, liquhl or gaseous.cffluents, noise, odors, l

p::ychological impacts; such offects simply are not confined, smoko, or visual impacts associated with operation of the as the court of appouls suggested, to nuclear onorgy. Ex-cmples incitale management of air traffic control, operation TMI4 plant. Instead, the alleged offects are caused by of National Airport, management of federal prisons, eco-stress and fear Imluecd by the simple fact that the plant }s,

.tomic pmgrams with their ofrects on life ami livelihood, or rnay in the fbturo be, in operation. The most that can be leasing of fodoral lumts for coal mining, construetton of said is that respomtent's mo<ubers fear the environmental dr.ms, and construction amt operation of m!!!ary, facilities effects, such as low level radiation, usociated with routine The amorphous nature of swychological effects, moreover, plant operation, awl the poselbt!!ty of other gravor effects ronders their assesament in all of these circumstances espo-shouhl a serious nuclear acektont occur. These envimnmen-clally burdensome amt subjectivo. In discanling the ro-tal effects are not In dispute hem. But, as we have ex.

quirement of an envimnmental nexus that limits NEPA ob-plained, fear of an environmental effect such as these is not ligations, the court of appeals has effected an extraonlinary in itself an environmental effoet.

expansion of the task of assessment established by that statuto, potentially encompassing all of the non-environ-mental offects of federal actions that affect the environ.

"8""P8"'*"'""'"""8"'"'"""P'"*""*""h*h'"*'*

ment, as well as the houlth.nduted effects of nettons that do teilnl,u, meerv than a foetuat ellspute as to whether that was se (llr. In not affect the ouvironment ut all.

Opp. 45 40). As inilicate.1 in our reply brief, that suggestion le silmin-genuous. The L.4ue in this emme ;.ma been et all timte a purvly legal mac.

f II, Stress Caused liy Fear of Operation of Tati.1 is

. i,,,i..n.l nt aui not.,gu, in th, e.urt.f.pp..l. th.t a r.et I d,-

rmiasin m== acces==ry t eletermlae whether tw vi.leare it Not Environmentally Caused wished tu pruffer far considerall.m war. malerlst tu en tasue prw}sarly

1. As we have explained, the court of appeals' elecision twf..re the t ummins6..n. Th i~. ort af appests likewise trvstrelik laeve was foululed on the ernmeous promise that because some se purely legal in chararta-r. Mignificantly, its judgmcr.t was unc=ndi.

II"nal in chars <ter; it di.I,w.4 leave ik Commi.i.m any tiserrthw, tu cffects of fedurul uction on humun health sru caused by en-

"8" P'"'" n..ung., t o enint.in 5,t n..on..

.i r.

et.im.

virunmental factant, umi may thus be subject to NEPA TN in.uce left open far the C.anmie 6..n instes.1 w e,c w ktkr ik rwi.

unalysis, ull effects o.,feelend actism affecting human health de,we t l.c prieffer..I w.-.ufndently signene ent t rneserc.upplemen-cru (hemselves environmental effects (psges 26-29, suprit h i.i.,,n,,g iv >:13.

4f3 3w lentee.l. t he w oe h.onni hy t he t 'ommission at t he ont -

The foregoing premixen, however, are insufficient to estab-t 3.ca uf t he pi..ren hng. th.a Inl in tio-rase w as wlmthes lish that any stress that may be occasioned by the restatt, p,y. In,logn.il ihst o.-

.r mes.O nl u it h s e.t.o i that was ih iision ii trarcable to the environmental offerts. [mtential *

" o u e rlo t..I.in.. O-6.

'r" m " '"

'a h.di "i was wit h"'

..r re rt on that woubt he attributable to restart. l(engmn.

t,.

1 pon.h.f... e.' r t a n.n w a s eh.nt sienply ilenmnst rate

• that Imtential envirornnental ef-

.u,n,

#. a

.d.n mat o e.o,.mneni un t he le ferts anel enent;l In alth effects flow froin a rnintnon sources gal asne t has b.onal, u il hout any sugg.o.t enn t hat t he run-Ifut, a3 we have explaiiwel almve, that cirrmn +

m.t

• ention shouh; he run oeten cil n i e.pn t n e of t lm (:o mim a gn,,onb tn s center the allegni mental imah h ef tJt s we bion *n ruhng itesinonient t hu. ele 6ncil its st res runtent ua' o.mnental unpartsis!" of the fetteral artinn "

n anc that woubt he outanh tim scope of NMl'A shoubt itn l(,, pan gent.

ollwr efforis to portray stress allegal to 3

legal contention. he rejecteil M.n cover, s copomical ilot no'.

result from fear of opi ration of TMI.1 as an environmental argee in the court of appeals that t he (:.nmneconn wa. n' impart are cigually unpersuasive. Noting that the Coremia.

any event rntuired to take eviilem e on its enntention. l("

nn recogniwa that it must consider the environmental ngannient's atten siative p.moinn ni ibis ('s.ur t is tlwri furi in yo,ny,inenten inf plant opration, inrimling tinnae that might consintent with its priei. dance m t hm utigat mn '"

2. In u iy event, there sa no incrit to reng.ontent's argo Thew from a major accialent, und latwling the possibility of a rn :nt timt the f.*ar generawil alic*n they woubt have th" m4,r ureident "hohicaunt gotential." rengmndent reusems (ltr. in Opp. 4f,):

Comm%nion censiiler in ca.vuonmentally groumled. leulced-rnepm tent's effm t tih. in Opp 'l24t:1. 12 ifs) to iteman-That holocaunt potential * * ' la precisely the nort of nnpnet on ihn amtural *r physical environment that the atraty ' Se necennary ran=al nc=un nimply uenlernroren the I:onunhinion argues must be the proximate cause of

)

6'ne.we of th< reiguired ionnection. l(capoulent argues any psychological health dam: ige to be considered un-t tFut NMI'A mumluten n8nenament of the mental henith cf eier N MI'A.

l

.'wtm of restart bernune:

Itcap.mientn thun iilentify "hoh>caunt potentini" ns the en-

1) the TM I.2 archlent en u ne.1 relenaen of vironmental cause of the mental health problemn they ten.

rmliation-an envir mmental effect; sier for ana;ysin under NHl'A. Quod crut demonstmndum.

21 the TMI 2 necialent threatened tu cause ut her.

Ilut t his is no more than a play uimn words.

nmre wrinun, environmental effectn.

Of course. 'MPA muy require the consideration of

l) spprehen.o.m caused by the TMI 2 necioent en events.-such as a major nuclear accident-that are quite gendered mental health effects; unkkely to ucrur but that wouhl entail substantial environ.

O rentuit of TMI-I createn p.tential (or fuime rmh ution teleanen or even a nerioun nuclear ari s. lent en Iailing esivironmental ciferta; and f>) reat m t of TMi i may emares hate Ihe stresse

" r..r..nni.e n a...n.. ihr Ur. n.ing it.eard whwh merrpint al-run-ratised by the TMI 2 nernh nt i.-.o.... t h.t N 1.I'A rnenrr runt e.lcratie,n un'y. uf t he e nvironmental

. ffr. t,..f f -.tre al art o.n U A 3St. went astray in suggesting that "the

... h..l..ri al st e r== mitr gn Isy the intervasu.M here is rel.*tc l tu a seg.

• • 'ingnifer.ent ly, s r.punden. ". t t tv.l se r in... e.t that t h.

alle r..!

,,. t altres O..w a fe n.n.an suspa. : e. pun s ta n.a ut l.a pb y s.. el e n e n ue..n. n'

• . mano.w M unpart" t s6nt ; are page S noie v. s ospirie ). In o

, g g,j g

gy g,4 g 4

,gg,,,

s st e akingly eennt..e i.. n.. une r noon seen ic.I 1.y slo.nuet o f.r pp. a l '

.f I h i ae.o the mb nt ut 'Tht t Z pt de.1 m m.n M nt al e-ffa t e

( l'. t A pp re l.a.... p r. ii. m pu n r d.. a e. b ie.

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a

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e x

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7.

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t. c..-

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2

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--=; = s

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.: 3.! 7 d ; z' :,. a. -=;:.,

g

• a..= =

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=

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~:

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2

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=

w

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p"-

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r.

z

= t : E..,_^=.

=..."

=..i:

r

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7

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e,, g = g,,

,e

. 3.

s =.

.a m

- =

= = *.

=

=

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f.,,:

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= - = w D

t., = at Mr -

48 49 6-

'?

i taitigation measures implicit in resl=mdent'n stress conten. '

- Ifere, prior to authorizing restart, the Commission h s ' d, tion itself, and in itn argument, in thin Court. Resinmilent's undertaken a detailed ev.iluation of the safety of TMI-1 and,*,,

original contentum is niinply that because of nomitigable has required that narety incasures be take., prior to any ntrens (netors "it lisi impossible for the NRC to operate restart. See page 3, supra, in this manner, the subject of TMI-l without emlangoinn public health arnt safety" (Pet.

community fears-the safety of the operation a; TMI--has App. IlGa). See al3o lir. in Opp. 53 n.6 (eguoted at page H; heen athlressed by the Commission.

note 33, supro). Resinnulent's frankly stated view that init-In mhlition, in order to educate both itacif an6 the public.

igation of the alleged stress reipaires permanent closing of the Commission has gone to great lengths to involve the the TMI-I plant, rather than any net of mensures to im-public in its decisionmuking process (see, e.g., page 18, I

prove safety or control environmental effectn, is ehninent supra). The Atomic Energy Act, 42 U.S.C. 2239(a), pro-

}

testimony thut the alleged stresa is in no sense un environ-vides that upon the requent of interested persons the Com-l mental effect of operation of TMI.1.

mission must hold a public hearing as part of its proceed-ings on most significant determinations. Similarly, public in closing, we pause to emphasize timt although neither involvernent is a mainstay of the NEPA planning process.

NEPA nor the Atomic Energy Act requires consideration See 40 C.F.R. IS00.G. The legislative history of each of by the Cornmission of respondents

• allegations of connnuni-these ennetments reflects a strong congressional desire _to ty fears in deciding whether to authorize restart " it in our promote public confidence in federal decisionmaking by pro-view that these laws do serve effectively to n' o.te those viding for significant public participation. See S. Rep. No.

fears by assuring that any factual banis theren. i; mblicly IG77, 87th Cong.,2d Sens. 7-0 (1902)(Atomic Energy Act);

nirell and fully explored in the mont effective manner An S. Rep. No.91-290, suprn, at 5 (NEPA). This important recognized by Chairman Ahearne (Pc' App. Mh..Plu) -.in t aspect of the lutter statute moreover, has been emphasizeil most aptly'denerihed by Comminnioner llendr'e (Pet pp.

hy this Court most recently in Weinbeger v. Catholic Ac-83u, 87u):

tion of unwali, supra, 454 U.S. at 143. The District of Co-lT]he most uppropriate way for the Comm to lumbia Circuit has made the same point about the former

=

take account of fears related to TMI-I is, firrt.

statute: "In the Atomic Energy Act, [Congressl * * *, in 4.

mure that the technical decision ; o rectur'. is

• t the interest of pub!Ie confidence in the thoroughness of the and second, if the eleci< ion is t rmit rentm, to review process, invited public scrutiny * * *." Union of make sure that the public understanda. thiongh necu-

~

rate atul cornprehensible information, fully dissemisus.

Concerned Scientists v. Atumic Energy Commission, 409 ted, tne basis for the Cmnminnion a eleternu,natom tant g.'.2d 1069,1078 (D.C. Cir.1974)(citation omitted).

the plant can operate nnfely.

In the decision under review, the court of appeals has overlooked authoritative teachings on the role of public par-I Aln unnafe plant is not made nnfe by the fact that local ticipation under the statutes that govern nuclear licensing, citizens are unconcerned about it, any more than a safe as well as the clear meaning of Section 102(2)(C) of NEPA.

plant is mude unsafe by the fact that local senidents To be sure, there are those who fear the development und are deeply anxious alumt it.

utilir.ation of nuclear inwer. "But Congress has made a choice to at leant try nuclear energy, establishing a reason-able review process in which courts are to play only a limit-ed role * * *. Time may prove wrong the decision to devel-a He.p..n.seni. ha ve n..t...ughi t hi. cou, r. re vic...r o.c v..u i nr op nuclear energy, but it is Congress or the States within appe.t.' jo. ten. cut..n the Ainmir Energy A.

...u, their appropriate agencies which must eventually make

P,7

'..s.e.t e.i i

'er*s

}

-t

'l t

I!

1 i i,

50 e

thE)udgment." Veranont Yassee Nuclear Po <er Corp v

NRDC. supm. 435 U.S. at 557-555. NEPA does not pr >

vide the couns a means of second-guessing Cor.gress' cor..

l sidered judgment in the guise of mandatir.g consideration of l

allegec' psychological harm induced by individuals' disa.

greement with the implementation of congressi<,r.21 enact-ments by a federal agency. Once an agency has considered the "envirtnmental consequences" of its proposed federal action, it has satisfied its NEPA responsibilines.

1 i

CONCLt'SION For the foregoing reasons, the judgmer.t of the coun.)f appeals respecting the Commission's respor.nbilities ur. der NEPA should be revers.ed.

iir.x E. Ltc Solseitor Gene al CAROL E. DINxtss Assista nt Attor*sey G...< rni IAlitS F. Ct.A!BORNr Deputy Solscstor Generai JOSHL'A I. SCHW4RTZ

~~

Assistant to the Solsc::Or General J Axts.\\l. SPEARS JAcQtits B. GruN IUCHARD J. LAZARl'S LEONARD BICKWR. JR.

Genent Counsel MARTIN G. MALSCH I

l Deputy Genemi Counsel PETER G. CRANt i.

\\

Acting Assistant General Counsel Nuclear Regulatory Connonissson DEcotBER 1982 1

o l

1

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