Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) Strategic Delay in Derailing Public Policy

Modern Administrative Law The story of Adlaw post-1970 is the limitation of individual liberties in favor of efficient government. The DC Circuit was still in the Warren Court era when this case was decided. Why was the lower court suspicious of agency rulemaking in this case? What did it want to require to provide greater public protections? 2

3 Nuclear Power Plant Regulation Originally regulated by the Atomic Energy Commission Regulated and promoted nuclear power Regulation was split off to the Nuclear Regulatory Commission because of conflicts of interest Environmental impact analysis was added through NEPA after the initial permitting of this plant. Greatly complicates permitting.

4 The Permit History for Vermont Yankee Permitting is an adjudication Specific party, specific facts The agency makes a decision as to whether it will grant the permit. In 1967 Vermont Yankee is granted a construction permit. In 1971, post-NEPA, it applies for an operating permit. Why is it politically difficult to deny an operating permit?

The Permit Fight Who is the NRDC? Why does it oppose the operating permit? The EIS Because of NEPA, the NRC must prepare an environmental impact statement (EIS) The adjudication must deal with problems with the EIS, and the sufficiency of the EIS can be challenged in court. This the vehicle for a lot of environmental litigation. 5

Nuclear Waste and the EIS Why is nuclear waste disposal a big issue for NEPA? Does the NRC or the nuclear industry have a good solution in 1971? What would this mean about the completeness of the EIS? Why does the NRDC want the agency to explain in the EIS about the long term environmental impact of the reactor? 6

Avoiding the Issue What does the NRC do to avoid making this a subject of the hearing? Why does it not want this discussed in the public hearing? How will making a rule on waste disposal remove it from the hearing process? Classic narrowing of adjudication issues by rulemaking 7

The Rulemaking What additional process was provided beyond the usual APA notice and comment? Were there limits on the public participation? Which alternative did the NRC adopt after the public comment?..specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. Why is the NRDC unhappy with this alternative? No requirement of a plan for disposing of fuel 8

9 DC Circuit What does the DC circuit want the NRC to do to improve the due process in their rulemaking? “it likewise clearly thought it entirely appropriate to "scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided” Did it specify exactly what procedures should have been used?

The Role of the APA Did the rulemaking comply with the APA? What is the lower court's theory about the APA requirements? Floor or ceiling? Who does the court think should decide on the appropriate procedures? Does this look like Goldberg or Matthews ? 10

11 The Substantive Issue What is the DC court's real problem with the rulemaking on waste management? What is the NRC’s plan? Did the technology exist at the time to dispose of the waste? Can an agency put off a problem by assuming that a solution will be found in the future? What about requiring a technology that does not exist? We are 35+ years latter - who was right about the technology?

Energy Conservation What is the energy conservation issue? Why is energy conservation a NEPA environmental impact issue? What event precipitated this concern? Is it fair to apply it to the operating permit for a reactor that has already been built? Did the lower court accept the agency’s finding on energy conservation? 12

13 The United States Supreme Court What does the United States Supreme Court think about the role of the APA in setting process? Who gets to make the call - agency or courts? In the court's view, what is the real issue? "The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. “ Why is this critical for the political control of agencies?