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courts should not allow that language to be significantly undercut. In cases such as this one, the most we should do to interpret clear statutory wording is to see that the overriding purpose behind the wording supports its plain meaning. We have done that here. And we conclude that Section 104 of NEPA does not permit the sort of total abdication of responsibility practiced by the Atomic Energy Commission.

V

Petitioners' final attack on the Commission's rules governing a particular set of nuclear facilities: those for which construction permits were granted without consideration of environmental issues, but for which operating licenses have yet to be issued. These facilities, still in varying stages of construction, include the one of most immediate concern to one of the petitioners: the Calvert Cliffs nuclear power plant on Chesapeake Bay in Maryland.

The Commission's rules recognize that the granting of a construction permit before NEPA's effective date does not justify bland inattention to environmental consequences until the operating license proceedings, perhaps far in the future. The rules requires that measures be taken now for environmental protection. Specifically, the Commission has provided for three such measures during the pre-operating license stage. First, it has required that a condition be added to all construction permits, "whenever issued," which would oblige the holders of the permits to observe all applicable environmental standards imposed by federal or state law. Second, it has required permit holders to submit their own environmental report on the facility under construction. And third, it has initiated procedures for the drafting of its staff's "detailed environmental statement" in advance of operating license proceedings.41

The one thing the Commission has refused to do is take any independent action based upon the material in the environmental reports and "detailed statements." Whatever environmental damage the reports and statements may reveal, the Commission will allow construction to proceed on the original plans. It will not even consider requiring alterations in those plans (beyond compliance with external standards which would be binding in any event), though the "detailed statements" must contain an analysis of possible alternatives and may suggest relatively inexpensive but highly beneficial changes. Moreover, the Commission has, as a blanket policy, refused to consider the possibility of temporarily halting construction in particular cases pending a full study of a facility's environmental impact. It has also refused to weigh the pros and cons of "backfitting" for particular facilities (alteration of already constructed portions of the facilities in order to incorporate new technological developments designed to protect the environment). Thus reports and statements will be produced, but nothing will be done with them. Once again, the Commission seems to believe that the mere drafting and filing of papers is enough to satisfy NEPA.

The Commission appears to recognize the severe limitation which its rules impose on environmental protection. Yet it argues that full NEPA consideration of alternatives and independent action would

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41 10 C.F.R. § 50, App. D. ¶ ¶ 1, 14.

cause too much delay at the pre-operating license stage. It justifies its rules as the most that is "practicable, in the light of environmental needs and 'other essential considerations of national policy'." 42 It cites, in particular, the "national power crisis" as a consideration of national policy militating against delay in construction of nuclear power facilities.

The Commission relies upon the flexible NEPA mandate to "use all practicable means consistent with other essential considerations of national policy." As we have previously pointed out, however, that mandate applies only to the substantive guidelines set forth in Section 101 of the Act. See pages 9-10 supra. The procedural duties, the duties to give full consideration to environmental protection, are subject to a much more strict standard of compliance. By now, the applicable principle should be absolutely clear. NEPA requires that an agency must to the fullest extent possible under its other statutory obligations consider alternatives to its actions which would reduce environmental damage. That principle establishes that consideration of environmental matters must be more than a pro forma ritual. Clearly, it is pointless to "consider" environmental costs without also seriously considering action to avoid them. Such a full exercise of substantive discretion is required at every important, appropriate and nonduplicative stage of an agency's proceedings. See text at pages 16-17 supra. The special importance of the pre-operating license stage is not difficult to fathom. In cases where environmental costs were not considered in granting a construction permit, it is very likely that the planned facility will include some features which do significant damage to the environment and which could not have survived a rigorous balancing of costs and benefits. At the later operating license proceedings, this environmental damage will have to be fully considered. But by that time the situation will have changed radically. Once a facility has been completely constructed, the economic cost of any alteration may be very great. In the language of NEPA, there is likely to be an "irreversible and irretrievable commitment of resources," which will inevitably restrict the Commission's options. Either the licensee will have to undergo a major expense in making alterations in a completed facility or the environmental harm will have to be tolerated. It is all too probable that the latter result would come to pass.

By refusing to consider requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection desired by Congress. It may also foreclose rigorous consideration of environmental factors at the eventual operating license proceedings. If "irreversible and irretrievable commitment[s] of resources" have already been made, the license hearing (and any public intervention therein) may become a hollow exercise. This hardly amounts to consideration of environmental values "to the fullest extent possible."

A full NEPA consideration of alterations in the original plans of a facility, then, is both important and appropriate well before the operating license proceedings. It is not duplicative if environmental issues were not considered in granting the construction permit. And it need not be duplicated, absent new information or new developments, at the operating license stage. In order that the pre-operating 42 Brief for respondents in No. 24,871 at 59.

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license review be as effective as possible, the Commission should consider very seriously the requirement of a temporary halt in construction pending its review and the "backfitting" of technological innovations. For no action which might minimize environmental damage may be dismissed out of hand. Of course, final operation of the facility may be delayed thereby. But some delay is inherent whenever the NEPA consideration is conducted-whether before or at the license proceedings. It is far more consistent with the purposes of the Act to delay operation at a stage where real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.

Thus we conclude that the Commission must go farther than it has in its present rules. It must consider action, as well as file reports and papers, at the pre-operating license stage. As the Commission candidly admits, such consideration does not amount to a retroactive application of NEPA. Although the projects in question may have been commenced and initially approved before January 1, 1970, the Act clearly applies to them since they must still pass muster before going into full operation. All we demand is that the environmental review be as full and fruitful as possible.

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VI

We hold that, in the four respects detailed above, the Commission must revise its rules governing consideration of environmental issues. We do not impose a harsh burden on the Commission. For we require only an exercise of substantive discretion which will protect the environment "to the fullest extent possible." No less is required if the grand congressional purposes underlying NEPA are to become a reality.

Remanded for proceedings consistent with this opinion.

48 The courts which have held NEPA to be nonretroactive have not faced situations like the one before us here situations where there are two, distinct stages of federal approval, one occurring before the Act's effective date and one after that date. See Note, supra Note 25.

The guidelines issued by the Council on Environmental Quality urge agencies to employ NEPA procedures to minimize environmental damage, even when approval of particular projects was given before January 1, 1970: "To the maximum extent practicable the section 102(2)(C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to enactment of [NEPA] on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further Incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program." 36 FED. REG. at 7727.

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AEC SUMMARY AND RELATED JUDICIAL DECISIONS

AEC SUMMARY ANALYSIS OF CALVERT CLIFFS DECISION

On July 23, 1971, the U.S. Court of Appeals for the District of Columbia Circuit rendered a consolidated decision in two suits jointly filed against the AEC by the Calvert Cliff's Coordinating Committee, Inc., the National Wildlife Federation and the Sierra Club. The suits sought review of: (a) regulations adopted by the Commission for implementation of the National Environmental Policy Act of 1969 (NEPA) in AEC licensing proceedings; and (b) the application of those regulations to the Calvert Cliffs Nuclear Power Plant, a facility licensed for construction prior to NEPA's enactment. The Commission regulations in question (Appendix D to 10 CFR Part 50) were published in the Federal Register on December 4, 1970, and became effective 30 days thereafter.

Petitioners challenged four aspects of the Commission's NEPA regulations as improperly limiting consideration of environmental values in the Commission's decisionmaking process. They asserted as follows:

1. The Commission's regulations wrongfully excluded licensing board consideration of NEPA matters in construction permit hearings where such matters were not affirmatively raised by the license applicant, an intervenor or the regulatory staff.

2. The regulations invalidly prohibited independent licensing consideration of those non-radiological environmental effects (including thermal effects of facility discharges) which were acceptable under standards or requirements established by other governmental agencies. 3. The regulations improperly prohibited any party from raising non-radiological environmental issues at a licensing hearing if the notice for that hearing appeared in the Federal Register before March 4, 1971.

4. The regulations improperly provided that when a construction permit for a facility had been issued prior to NEPA's enactment (January 1, 1970) the AEC would not conduct a full NEPA review (including a hearing on the basis of that review) until the time of issuance of the operating license.

The Court's decision of July 23, 1971, upheld the petitioners' contentions in each of the above respects. The Court ruled as follows:

1. The AEC was wrong in providing that in uncontested licensing proceedings consideration need not be given to non-radiological environmental issues. The Court held that environmental issues must be considered at every important decisionmaking stage; and that at each stage of the process there must be a case-by-case balancing (through

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a cost-benefit assessment) of environmental and non-environmental factors with alterations made in the facility which would minimize environmental costs. In uncontested cases the licensing board must examine the staff's environmental statement to determine whether the latter's review was adequate and the board must independently consider the final balance among conflicting factors that is struck in the ultimate staff recommendation.

2. In its implementation of NEPA, AEC must make an independent assessment of water quality and other non-radiological environmental factors. The Commission cannot rely on certification by Federal or State agencies of compliance with water quality standards established under the Federal Water Pollution Control Act or on Federal or State standards in other environmental areas. The Commission must be prepared to set more stringent requirements of its own in light of the overall balance of project benefits and environmental costs resulting from the NEPA cost-benefit assessment.

3. The AEC was tardy in its implementation of NEPA following the statute's enactment. Even if a delay in implementing the statute was necessary for administrative reasons, the AEC was not relieved of responsibility to consider, and hold public hearings on, the environmental consequences of licensing actions taken between January 1, 1970, and the final adoption of the Commission's NEPA regulations. AEC must thus give prompt NEPA consideration to facilities for which permits and licenses were issued after January 1, 1970, where NEPA matters were not substantively considered in the original licensing determination.

4. With respect to construction permits issued before January 1, 1970 (e.g., the Calvert Cliffs Nuclear Power Plant), AEC must promptly consider, on its own initiative, any significant non-radiological environmental impact and order such facility alterations as may be indicated thereby. This NEPA consideration, including a hearing thereon, may not be deferred until the operating license review.

The Court did not direct suspension of any permits or licenses already issued by the Commission. Suspension was left to AEC's discretion, the Court stating that the agency "should consider very seriously the requirement of a temporary halt in construction pending review and 'backfitting' of technological innovations."

The Calvert Cliffs decision remanded the proceedings to the Commission for further rulemaking consistent with the Court's opinion.

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