PETITIONS FOR REVIEW OF ORDER OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION NRC; Nos. 70-1432 & RM 50-5
Before Aldisert, Adams and Higginbotham, Circuit Judges.
On December 23, 1977, the United States Nuclear Regulatory Commission (NRC) suspended for approximately two years its decisionmaking process regarding proposals for the recycling of spent nuclear fuel and the use in nuclear reactors of plutonium recovered from that fuel. This suspension was announced in an order terminating informal rulemaking and related licensing proceedings concerning this subject. In part, the decision to place a moratorium upon these deliberations was taken in deference to President Carter's stated objective of deferring domestic plutonium recycling while the United States initiated a multinational evaluation of alternative fuel cycles that would pose a lesser risk of international proliferation of nuclear weapons. Petitions for review were filed requesting us to set aside and enjoin the NRC's order on the grounds that, in terminating these proceedings, the NRC violated the Atomic Energy Act (AEA)*fn1 and the National Environmental Policy Act (NEPA).*fn2 Because we conclude that the NRC acted within the scope of its authority and that there is no requirement to have a NEPA statement at this time, the petitions for review will be denied.
For over two decades, the federal government, initially through the Atomic Energy Commission (AEC) and later through the NRC, a successor agency to the AEC,*fn3 has been exploring, together with the private sector, the feasibility of reprocessing spent nuclear fuel and employing the plutonium recovered from such fuel in nuclear reactors utilized to generate electricity.*fn4 Commercial implementation of the plutonium recycling process would have the advantages of conserving uranium resources and of alleviating the problem of disposing of radioactive wastes, but might also pose the dangers of a proliferation of nuclear weapons and the possible sabotage of reprocessing facilities. This is so because, unlike the slightly "enriched" uranium currently used in nuclear reactors, plutonium can be employed in the production of nuclear explosives and might be diverted to that end by foreign governments or by terrorists.*fn5
Recognizing that a decision to implement a wide-scale program for the commercial recycling of plutonium constitutes a major federal action significantly affecting the environment, and thereby necessitating an environmental impact statement (EIS) in order to comply with § 102(2)(C) of NEPA,*fn6 the AEC in 1974 commenced work on a Generic Environmental Statement on the Use of Recycle Plutonium in Mixed Oxide Fuel in Light Water Cooled Reactors (GESMO).*fn7 Concomitant with the GESMO informal rulemaking proceeding, the Commission (this term will be used to include both the AEC and the NRC) conducted adjudicatory licensing proceedings on applications by private companies dealing with the construction and operation of nuclear fuel reprocessing plants, some of which were already pending when GESMO was undertaken. Among the applications before the Commission were those of Allied-General Nuclear Services (Allied-General) for a license to operate the nearly-completed fuel reprocessing plant that it had permission to construct at Barnwell, South Carolina, and of Westinghouse Electric Corp. (Westinghouse) for a license to construct a similar plant at Anderson, South Carolina.
One of the concerns expressed while the rulemaking and adjudicatory proceedings were progressing was that dangers to world security might ensue from the commercial reprocessing of nuclear fuel. For example, the AEC staff's first draft of GESMO, which was published on August 21, 1974,*fn8 prompted a number of critical comments by the public. These included a letter from the President's Council on Environmental Quality that was directed at GESMO's failure (a) to address the proliferation dangers, (b) to explore what safeguards were available, and (c) to weigh the possibility of developing alternative sources of energy.*fn9 In response to this criticism, the staff undertook to reassess its study and to supplement the draft GESMO with an analysis of proliferation risks and safeguards.*fn10 And, on October 28, 1976, President Ford discussed the risks entailed in plutonium recycling in a statement on nuclear policy. He declared that the nation "should pursue reprocessing and recycling in the future only if they are found to be consistent with our international (non-proliferation) objectives."*fn11
President Carter disclosed his administration's policy concerning plutonium recycling on April 7, 1977. Noting with alarm the serious proliferation risks of plutonium recycling, the President stated that part of the government's response would be to "defer indefinitely the commercial reprocessing and recycling of plutonium produced in the U.S. nuclear power programs," and to sponsor an international nuclear fuel cycle evaluation (INFCE) program aimed at developing alternative processes with lower proliferation risks.*fn12
Almost immediately thereafter, a motion was filed to terminate the GESMO proceeding, and the NRC's GESMO Hearing Board postponed further hearings.*fn13 On May 3, 1977, the NRC announced its intention to reassess "the future course and scope of GESMO, the review of recycle-related applications, and the matter of interim licensing," and invited GESMO participants, the Executive Branch, and other interested persons to submit their views on the subject.*fn14 President Carter's position was explained on October 4, 1977, in a letter by Stuart Eizenstat, Assistant to the President for Domestic Affairs and Policy.*fn15 The NRC then solicited further public comment on the President's position and on several alternative courses of action.*fn16
Thereafter, on December 23, 1977, the NRC issued an order terminating the GESMO proceeding as well as most proceedings relating to pending or future plutonium-recycle license applications. Among other things, the order also committed the NRC "to re-examine the above matter after the completion of the ongoing alternative fuel cycle studies, now expected to take about two years," and to publish shortly after the decision a statement of the reasons underlying the decision.*fn17 That statement, in the form of a Memorandum of Decision, was issued on May 8, 1978.*fn18
Petitioners sought judicial review within the prescribed period of sixty days*fn19 following entry of the December 23 Order. Westinghouse filed petitions in this Court, which were assigned docket numbers 78-1188 and 78-1189, challenging the termination of both GESMO and the licensing proceedings with respect to its Anderson, South Carolina facility. Four days later, Allied-General (together with Allied Chemical Nuclear Products, Inc., and General Atomic Company) filed a similar petition in the United States Court of Appeals for the district of Columbia objecting to the cessation of GESMO and licensing proceedings concerning its Barnwell plant. On the same day, Scientists and Engineers for Secure Energy, Mid-Atlantic Legal Foundation, and Capital Legal Foundation (Scientists), filed a petition in this Court, which was assigned docket number 78-1204, seeking review only of the NRC's termination of GESMO.
Concerned that the December 23 Order might not be deemed final, the parties also took several protective actions after the May 8, 1978, Memorandum of Decision was issued. First, Allied-General petitioned the District of Columbia Court of Appeals for review. Subsequently, Westinghouse and Scientists filed new petitions for relief before this Court, docketed respectively as numbers 78-1895, 78-1894 and 78-1892. Allied-General's petitions are before us following their transfer from the Court of Appeals of the District of Columbia,*fn20 and have been assigned docket numbers 78-1993 and 78-1994.
To complete the Dramatis personae of the immediate controversy, the National Resources Defense Council, Inc. (NRDC) and the States of New York, Texas and Wisconsin have intervened in support of the NRC's decision, while a group of twenty electric utility companies led by Baltimore Electric and Gas Company have filed an amicus curiae brief urging that the order of the NRC be vacated and remanded for further consideration.
NRDC has moved to dismiss for want of jurisdiction those petitions that seek review of the December 23 Order, primarily on the ground that that order is not a reviewable "final order."*fn21 At oral argument it was conceded that granting NRDC's motion would not affect the entitlement of any party to secure judicial review of the NRC's decision to terminate the GESMO and related licensing proceedings. This is so because every party that sought review of the December 23 Order also filed a timely petition from the May 8 Memorandum, either in this Court or in the Court of Appeals for the District of Columbia, and if it were determined that the December 23 Order is not "final," the May 8 Memorandum would perforce constitute such a "final order." Consequently, no matter which pronouncement is the "final order," this Court has jurisdiction to review the NRC's action.*fn22
Apparently, then, what NRDC hopes to achieve by its motions is to have this controversy transferred to the Court of Appeals for the District of Columbia pursuant to 28 U.S.C. § 2112(a). That section specifies which court is the proper forum for review of an administrative decision when petitions are filed in more than one court of appeals. It states in pertinent part:
If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency . . . shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.
Presumably, NRDC believes that if it is concluded that the December 23 Order is not the NRC's "final order" and that therefore we are not the court "in which a proceeding with respect to such order was first instituted," we must necessarily transfer all the petitions to the District of Columbia Circuit, which would then decide whether to adjudicate the controversy or perhaps transfer it again to another forum.
Section 2112(a), however, is not jurisdictional in nature, but rather, is a somewhat unusual venue statute.*fn23 It directs that when petitions from "the same order" are filed in different circuits, thereby vesting each of them with jurisdiction, the choice of the appropriate forum for review of that order is to be made by the court in which a petition was filed first. Although it is presumed that that court will retain jurisdiction,*fn24 it remains free to transfer the controversy elsewhere, "(f)or the convenience of the parties in the interest of justice." The purpose of § 2112(a) is "to provide a mechanical rule easy of application to avoid confusion and duplication by the courts."*fn25 By eliminating the earlier practice whereby the agency selected the forum from among the courts in which petitions had been filed, and by requiring the transfer of all petitions to one court,
"(t)his provision contemplates judicial review of particular agency action by the same court. The parties are spared simultaneous participation in proceedings in more than one circuit, and forum shopping is discouraged.*fn26
Although this salutary provision does not by its terms provide a solution for every conceivable situation in which review of the same administrative action is sought in more than one circuit, courts have freely relied on its underlying principles to fashion appropriate approaches to related problems and "(t)o prevent unseemly conflicts that could result should sister circuits ...