COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

UNITED STATES

United States - EIA, Environmental Protection, Procedural Issues

CALVERT CLIFFS' COORDINATING COMMITTEE v. ATOMATIC ENERGY COMMISSION

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA 449 F.2D 1109 (1971) J. SKELLY WRIGHT. CIRCUIT JUDGE

Introduction

In 1969 the United States Congress passed, and President Nixon signed, the National Environmental Policy Act (NEPA), to protect natural resources in the United States. Section l01 of NEPA requires the federal government to "use all practicable means and measures" to protect the environment, and to consider environmental costs and benefits in government decisions.

Calvert Cliffs' Coordinating Committee (Calvert Cliff) brought this action against the Atomic Energy Commission, alleging that its recently adopted procedural rules failed to satisfy the demands of NEPA that this commission give consideration to environmental factors.

Legislative Framework

National Environmental Policy Act of 1969.

Held

The Atomic Energy Commission's procedural rules do not comply with Congressional policy enunciated in NEPA. These cases are remanded for further rule-making consistent with this opinion.

NEPA makes environmental protection a part of the mandate of every federal agency and department; federal agencies and departments must "consider" environmental issues just as theg consider other matters within their mandates.

Section 102(2)(A) and (B) require a balancing process between environmental amenities and economic and technical considerations. Section 102(2)(C) requires responsible officials to prepare a detailed statement covering the environmental impact of major federal projects, and to develop appropriate alternatives. These procedural duties must be performed "to the fullest extent possible."

Section 102 mandates a particular sort of careful and informed decision making process and creates judicially enforceable duties. Unlike the requirement for agencies to "use all practicable means consistent with other essential considerations" set forth for substantive duties under Section 101, and which would probably not allow reviewing courts to reverse a substantive decision unless it was shown that the actual balance of costs and benefits was arbitrary, if a decision was reached procedurally without individualised consideration and balancing of environmental factors, it is the court's responsibility to reverse.

In this case, the court must review the Atomic Energy Commission's rules governing its consideration of environmental values. The Commission's rules allow its NEPA responsibilities to "be carried out in toto outside the hearing process" and the environmental records to "accompany the application through the Commission's review processes" when no party to a proceeding raises any environmental issue.

These rules make a mockery of NEPA's procedural requirements. Environmental factors must be considered through the agency review processes, and not merely accompany other records through the federal bureaucracy. In uncontested hearings the Atomic Safety and Licensing Board need not necessarily go over the same ground covered in its staff's statements, but it must determine if review by the staff has been adequate.

Cases Cited

State of New Hampshire v. Atomic Energy Commission 406 F.2d 170 (lst. Cir.), cert. denied, 395 U.S. 962, 89 S.Ct. 2100 (1969)
Zabel v. Tabb 430 F.2d 199 (Sth Cir. 1970)