feasibility

In 1967 the Atomic Energy Commission granted Vermont Yankee a construction permit for a nuclear power plant in Vernon, Vermont, after the required adjudicatory hearing and reviews. Vermont Yankee later applied for an operating license; NRDC intervened and objected to exclusion of fuel-reprocessing and waste-disposal impacts from the hearing. In November 1972 the Commission opened a separate rulemaking proceeding on those fuel-cycle issues, noticed two alternative approaches based on its Environmental Survey, and conducted a February 1973 hearing at which more than forty participants submitted comments but no discovery or cross-examination occurred. In April 1974 the Commission adopted a rule assigning numerical values to fuel-cycle impacts and applied it prospectively. In January 1969 Consumers Power applied for permits to build two nuclear reactors in Midland, Michigan. After staff and ACRS review, Saginaw and Mapleton intervened and raised 119 environmental contentions, including seventeen on energy conservation. The Licensing Board held hearings on radiological issues, the staff issued a final environmental impact statement in March 1972, and further hearings occurred in May and June 1972; Saginaw declined to participate in the later hearings or submit proposed findings. The Licensing Board granted the construction permit, the Appeal Board affirmed, and the Commission declined further review. In November 1973 the Commission ruled in another case that energy-conservation evidence meeting threshold tests could be considered, but it later refused Saginaw's motion to reopen the Consumers Power record. NRDC appealed the Vermont Yankee license and rule to the D.C. Circuit; Saginaw and others appealed the Consumers Power permit. In 1976 the Court of Appeals remanded both matters, holding the fuel-cycle rulemaking procedures inadequate, the Consumers Power environmental impact statement defective for omitting energy conservation, and the ACRS report insufficiently explained. The Supreme Court granted certiorari in 1977. The Commission is the successor agency to the Atomic Energy Commission under the Energy Reorganization Act of 1974. All licensing proceedings followed the two-stage process of construction permit followed by operating license under the Atomic Energy Act of 1954, with NEPA environmental reviews added after 1969.

The cases involve two nuclear power projects regulated by the Atomic Energy Commission. In December 1967, the Commission granted Vermont Yankee Nuclear Power Corp. a permit to build a nuclear power plant in Vernon, Vermont. Vermont Yankee subsequently applied for an operating license, prompting an adjudicatory hearing in August 1971 at which the Natural Resources Defense Council participated and objected to the exclusion of fuel reprocessing and waste disposal environmental effects. In November 1972 the Commission began informal rulemaking to address the environmental effects of the uranium fuel cycle for light water reactors, publishing notice of two proposed alternatives based on its Environmental Survey. Hearings occurred in February 1973 with over forty participants submitting written comments; the Commission allowed oral statements but prohibited discovery and cross-examination, instead permitting questioning by the Commission itself. The Commission adopted the second alternative in April 1974, incorporating numerical values into a table for cost-benefit analyses. In January 1969 Consumers Power Co. applied for a construction permit for two nuclear reactors in Midland, Michigan. Intervenors including Saginaw and Mapleton submitted numerous environmental contentions and discovery requests, which the Licensing Board largely denied before holding hearings in 1972. Although Saginaw raised energy conservation issues in comments on the draft environmental impact statement, it did not present evidence at the hearings or participate further after the final statement issued. The Court of Appeals for the District of Columbia Circuit in 1976 remanded both the Vermont Yankee operating license and the Consumers Power construction permit. It found the fuel cycle rulemaking procedurally inadequate and required consideration of energy conservation alternatives as well as further development of the Advisory Committee on Reactor Safeguards report. The Supreme Court granted certiorari in 1977.

By the late 1970s, spent nuclear fuel had accumulated at reactor sites across the country, totaling some 8,000 metric tons with projections of 72,000 metric tons by the year 2000. Government studies indicated that several reactors could be forced to shut down in the near future due to insufficient storage capacity in on-site pools. California responded to these concerns and the absence of a permanent disposal method by amending its energy laws in 1976. In 1974 California had enacted the Warren-Alquist State Energy Resources Conservation and Development Act. The Act requires any utility seeking to construct an electric power generating plant, including a nuclear facility, to obtain certification from the State Energy Resources Conservation and Development Commission after a multi-stage review process. The Warren-Alquist Act was amended in 1976 to provide additional state regulation of new nuclear powerplant construction. This section directs the Commission to determine on a case-by-case basis that adequate storage capacity for spent fuel rods will exist when needed. Each utility must also maintain continuous on-site full core reserve storage capacity. Section 25524.2 established a moratorium on the certification of new nuclear plants. Certification is barred until the Commission finds that a demonstrated technology or means for the permanent disposal of high-level nuclear waste has been developed and approved by the United States. In 1978 petitioners Pacific Gas & Electric Co. and Southern California Edison Co. filed suit in the United States District Court for the Eastern District of California. They sought a declaratory judgment that the two sections and other provisions of the Warren-Alquist Act were pre-empted by the Atomic Energy Act of 1954. The District Court held that the petitioners had standing, that the challenges were ripe, and that both sections were invalid as pre-empted. The Court of Appeals for the Ninth Circuit affirmed standing and ripeness as to section 25524.2 but held the challenge to section 25524.1(b) unripe. On the merits, the court held that the nuclear moratorium provisions of § 25524.2 were not pre-empted because §§ 271 and 274(k) of the Atomic Energy Act constitute a congressional authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The Supreme Court granted certiorari limited to the ripeness of the challenges to both sections and the pre-emption of section 25524.2.