Page images

an order issued by the Commission in such proceedings may obtain a review of such order...." This language, unlike those provisions limiting review to "final orders," see, e.g., Section 10(f) of the National Labor Relations Act, 29 U.S.C. $ 160(f), seemingly would allow review of all Commission orders. But the courts, sensitive to the policies underlying the requirement of exhaustion of administrative remedies, have declined jurisdiction where the issues raised could be disposed of in review of a final Commission order without serious detriment to the rights of the parties. See, e.g., Federal Power Commission v. Metropolitan Edison Co., 304 Ú.S. 375, 383–84 (1938); Mid-American Pipeline Co. v. Federal Power Commission, 299 F.2d 126 (D.C. Cir. 1962). Review is available, however, where an interlocutory order has "an impact upon rights and [is] of such a nature as will cause irreparable injury if not challenged." Amerada Petroleum Corp. v. Federal Power Commission, 285 F.2d 737, 739 (10th Cir. 1960) (interpreting the review provision of the Natural Gas Act, identical to Section 313 (b) of the Federal Power Act). In Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971), the District of Columbia Circuit, considering the Federal Insecticide, Fungicide, and Rodenticide Act, which provides for judicial review “[i]n a case of actual controversy as to the validity of any order” of the Secretary of Agriculture, stated that the applicable test is not whether there are further administrative proceedings available, but “whether the impact of the order is sufficiently 'final' to warrant review in the context of the particular case." Id. at 591. See also Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098-99 (D.C. Cir. 1970). In light of the new congressional mandates in NEPA, this test is particularly appropriate when agency action affects the environment.

In accordance with these precepts we find that the petitions are reviewable. Despite the Commission's argument that petitioners have made an inadequate showing of financial hardship, it is clear to us that a refusal to award petitioners expenses as they are incurred, particularly expenses related to production of expert witnesses, may significantly hamper a petitioner's efforts to represent the public interest before the Commission." And, a retroactive award of experts' fees would be small consolation to a petitioner if the hearings are finished, the record is complete and these experts were not called because of inadequate funds.

Having determined that the petition for review is timely, we find ourselves in agreement with the Commission's position that at this posture of the proceedings and under current circumstances, without a clearer congressional mandate we should not order the Commission or PASNY to pay the expenses and fees of petitioners, either as they are incurred or at the close of the proceedings.

Petitioners rely on two provisions of the Federal Power Act-Sections 309 and 314(c), 16 U.S.C. $$ 825h, 825m(c)- and buttress their interpretations of those sections with the mandate in Section 102 (1) of NEPA that all public laws, “to the fullest extent possible," should be interpreted in accordance with national environmental policies.

[blocks in formation]

Section 309 empowers the Commission "to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of the Federal Power Act)." Although this section, which carries the title “Administrative powers of Commission; rules, regulations, and orders," is not restricted to "procedural minutiae," Niagara Mohawk Power Corporation v. Federal Power Commission, 379 F.2d 153, 158 (D.C. Cir. 1967) (FPC empowered to backdate a license), we perceive no basis in the terms of the provision to extend the Commission's power to include paying or awarding the expenses or fees of intervenors. We would need a far clearer congressional mandate to afford the relief requested, especially in dealing with counsel fees, when Congress has not hesitated in other circumstances explicitly to provide for them when to do so was in the public interest. See Clayton Act, 15 U.S.C. $ 15; Communications Act of 1934, 47 U.S.C. $ 206; Interstate Commerce Act, 49 U.S.C. $ 16(2).

Nor is there any basis for reaching a different conclusion with respect to counsel fees under Section 317(c) of the Federal Power Act. It provides that "[t]he Commission may employ such attorneys as it finds necessary for proper legal aid and service of the Commission.... The legislative history bears out the only reasonable interpretation so clear on the face of the statute: “Subsection (c) authorizes the Commission to employ such attorneys as it needs for its legal work.” H.R. Rep. No. 1318, 74th Cong., 1st Sess. 34 (emphasis added).

Finally, petitioners rely on the Supreme Court's decision in Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), which held that plaintiffs who successfully brought a derivative action under Section 14(a) of the Securities Exchange Act of 1934 were entitled to an award of costs, including counsel fees, against the corporation, even if the corporation recovered no money as a result of the action. Noting that the Securities Exchange Act did not provide for counsel fees, the Court based its decision on its equitable power to enforce the policies of the Act and to prevent unjust enrichment: “The dissemination of misleading proxy solicitations was a 'deceit practiced on the stockholders as a group,'}. 1. Case Co. v. Borak, 377 U.S., at 432, and the expenses of petitioners' lawsuit have been incurred for the benefit of the corporation and the other shareholders." 396 U.S. at 392. Whether or not Mills could support such an award as petitioners seek without a more specific congressional mandate, we do not find compelling need for it at this point, in view of our direction as to the role required of the Commission here.

Fully mindful that petitioners invoke our equitable powers, we cannot ignore parallel developments in this rapidly changing area of administrative law. As recently as December 7, 1971, the Administrative Conference of the United States refused to adopt a recommendation which would have endorsed the principle of reimbursing the legal expenses incurred by intervenors in administrative proceedings. The Conference, however, did adopt a recommendation which would oblige agencies to minimize filing and distribution requirements, to minimize the costs of obtaining transcripts, to make available the agency's technical files and to experiment with allowing access to their staff as advisers and witnesses. Recommendation 28, Public Participation in Administrative Hearings $D, adopted December 7, 1971. Without a showing of compelling need, it would be premature for us to inject the federal courts into this area of administrative discretion, perhaps foreclosing more flexible approaches through agency action or rules.


89 See Note, The Allocation of Attorneys Fees after Mills V. Electric Auto-Lite, 38 T. Chi. L. Rev. 316, 329-30 (1971).

The petitions for review are granted in part and denied in part, and the case is remanded for further proceedings in accordance with this opinion.





Washington, D.C., January 13, 1972. Hon. JAMES R. SCHLESINGER, Chairman, U.S. Atomic Energy Commission, Washington, D.C.

DEAR DR. SCHLESINGER: I understand that the Department of Justice has decided to appeal the Quad Cities opinion and accompanying order rendered in December by the United States District Court for the District of Columbia. (The Izaak Walton League of America, et al v. James Schlesinger, et al, Civil action Nos. 2207-71 and 2208– 71.)

The Committee is very interested in receiving the Commission's responses to the following questions at an early date:

a. What is the best estimate of the date on which an appellate decision will be rendered ?

b. What is the impact of the District Court opinion and order on the licensing process pending the appeal, specifically in terms of the delays in the licensing schedules for individual plants which have to comply with post Calvert Cliffs procedures? Consider both the impact pending a decision by the U.S. Court of Appeals and the additional impact if subsequent review is sought before the United States Supreme Court.

c. What effect would such delays in the licensing schedules have on regional power supply situations considered in correspondence between AEC and FPC prior to the Quad Cities order?

d. Assuming that the lower court's opinion and order are affirmed on appeal, what effect will the decision have on post-Calvert Cliffs licensing schedules considered in AEC-FPC correspondence prior to the Quad Cities order? Please include in the response each plant which would be affected and the best estimate of the change in the licensing schedule and the impact of that change in the availability of power.

I am sending a copy of this letter to Chairman Nassikas. A copy of my letter to him is enclosed.

Your assistance and cooperation in providing a prompt response are appreciated. Please in your response take the liberty of providing all data relevant to the question of the impact of the Quad Cities orderduring the appellate process and if it is substained on appeal. The complete background in that regard is what is sought by this request. Sincerely yours,


Executive Director.



Washington, D.C., January 28, 1972. Mr. EDWARD J. BAUSER, Executive Director, Joint Committee on Atomic Energy, Congress of

the United States. DEAR MR. BAUSER: Your letter of January 13, 1972, requested responses to a number of questions regarding the Quad Cities decision (Izaak Walton League of America, et al. v. James Schlesinger, et al., and a companion case, Illinois v. U.S. Atomic Energy Commission, et al., civil actions 2207-71 and 2208-71, U.S. District Court for the District of Columbia, December 13, 1971).

We are pleased to provide the enclosed responses, which are keyed to your specific questions a through d. In addition, we are enclosing a copy of a related letter to Senator Jackson, Chairman of the Senate Committee on Interior and Insular Affairs. If we can be of further assistance, please let us know, Sincerely,


Chairman. [Enclosures]


Response to questions contained in January 13, 1972, letter from Edward J. Bauser, Es cuti Director, Joint Committee on Atomic Energy.

Question Q. What is the best estimate of the date on which an appellate decision will be rendered?

Answer. Based on expedited consideration by the court, the earliest time for decision on review would be during March 1972.

Question b. What is the impact of the District Court opinion and order on the licensing process pending the appeal, specifically in terms of the delays in the licensing schedules for individual plants which have to comply with post Calvert Cliffs procedures? Consider both the impact pending a decision by the U.S. Court of Appeals and the additional impact if subsequent review is sougtht before the United States Supreme Court.

Answer. The Quad Cities decision enjoins the issuance of any interim testing or low power operating license for the Quad Cities units prior to completion of those procedural steps which would be associated with the preparation and issuance of a detailed statement on environmental considerations under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 USC 4321 et seq. ("NEPA"). A NEPA detailed statement is required under the Commission's rules (Appendix D to 10 CFR Part 50) as a condition precedent to issuance of any final, full power license for a nuclear power facility, including the Quad Cities units.

Those rules further provide that during the course of the ongoing full NEPA review for already completed facilities (such as Quad Cities), the Commission may authorize interim operation for limited periods, for purposes of testing or partial power output, after considering and balancing specified environmental and public interest factors (Section D of Appendix D, supra).

In further explanation of the foregoing, under AEC rules (as revised in light of the Calvert Cliffs decision) the steps associated with development and issuance of a full NEPA detailed statement for already constructed facilities involve the following: receipt of supplemental environmental information from the applicant; preparation of a draft impact statement (including the newly required benefit-cost analysis); a period for Federal and State agencies and the public to comment; preparation of a final impact statement; and, per the guidelines of the Council on Environmental Quality and our own regulations for implementation of NEPA, a period following issuance of the final statement prior to licensing action. This process, of course, takes time; but the Commission has

« PreviousContinue »