J. Skelly Wright

“ Any other approach to standing in the context of suits to ensure compliance with NEPA for long-range Government programs not yet resulting in injury to discrete economic, aesthetic or environmental interests would insulate administrative action from judicial review, prevent the public interest from being protected through the judicial process, and frustrate the policies Congress expressed in NEPA, a result clearly inconsistent with the Supreme Court's approach to standing. ”

“ Development of the technology serves as much to affect the environment as does a Commission decision granting a construction permit for a specific plant. Development of the technology is a necessary precondition of construction of any plants. ”

“ We thus tread firm ground in holding that NEPA requires impact statements for major federal research programs, such as the Commission's LMFBR program, aimed at development of new technologies which, when applied, will significantly affect the quality of the human environment. ”

“ General agreement has developed among most of the key energy community leaders in the cognizant agencies of the Government, in the Congress and in the nuclear community that the breeder reactor is the major long- term solution to the energy supply and related environmental problems. ”

“ Such fuel can be produced through the process of "breeding" within a "fast breeder reactor." The fast breeder reactor differs from the now common light water nuclear reactor in that the neutrons which split atoms in the fuel (thereby releasing new neutrons and heat energy) travel much faster than the neutrons in ordinary reactors. The reactor breeds new fuel through what has aptly been termed "a sort of modern alchemy." ”

“ Certainly NEPA does not require the Commission to forecast the deployment and effects of LMFBR power reactors in the year 2000 in the same detail or with the same degree of accuracy as another agency might have to forecast the increased traffic congestion likely to be caused by a proposed highway. Conversely, the Commission may well be expected to devote more resources toward preparation of an impact statement for its multi-billion-dollar program than it would for a project involving a federal investment many times smaller. ”

“ IV. CONCLUSION At this point it is appropriate that we emphasize the limited nature of the issue under review in this case. By our holding we do not intend in any way to question either the wisdom of the Commission's LMFBR program or the Commission's dedication to protection of the public health and safety. But as one commentator has noted:
"It is obvious that government programs for development of technology do not proceed in callous disregard of the public welfare. ”

“ Accordingly, if the Commission's environmental survey is prepared and issued in accordance with NEPA procedures, and if the Commission makes a good faith effort in the survey to describe the reasonably foreseeable environmental impact of the program, alternatives to the program and their reasonably foreseeable environmental impact, and the irreversible and irretrievable commitment of resources the program involves, we see no reason why the survey will not fully satisfy the requirements of Section 102 (C) . ”

“ Agency decisions in the environmental area touch on fundamental personal interests in life and health, and these interests have always had a special claim to judicial protection. [62]
The first function of judicial review in this area should be to require the agency to provide a framework for principled decision making. [63] Agencies engaging in long-term technology research and development programs should develop either formal or informal procedures for regular, perhaps annual, evaluation of whether the time for drafting a NEPA statement has arrived. ”

“ Alternatives to the LMFBR program have received serious national attention, study and debate. This reactor concept has been under continual review since its conception in the late 1940's. Alternative energy systems have been studied and compared by both governmental and private groups and the conclusion always has been that the LMFBR merits the highest priority within the nation's energy program. ”

“ The Commission itself admits that one of the results of this commitment has been to slow down development of other new technologies, such as alternative breeder reactor concepts, which would also require a large investment to move from the stage of technical and theoretical research into a stage of commercial feasibility. [77]
Finally, we cannot ignore the fact that the anticipated effects of the LMFBR program on the environment are among the most significant, and most controversial, of all federal programs. ”

“ In the words of then Chairman James Schlesinger: "These environmental statements are intended to deal with the particular facility or a particular project." [20] The Commission proposes two apparently inconsistent approaches to assess the overall environmental effects of and alternatives to its research and development program in light of the limitation it perceives in NEPA. First, it suggests that analysis of the broader aspects of the total program take place within statements on individual facilities. ”

“ It is clear that this commitment to provide an overall environmental assessment within individual facility impact statements was not carried out "to the fullest extent possible" in the impact statement on the first demonstration plant. Its analysis of the environmental implications of the overall program clearly does not present all available information, see note 78 infra, and its evaluation of alternative energy options is extremely superficial, even to untutored eyes. ”

“ That the effects will not begin to be felt for several years, perhaps over a decade, is not controlling, for the Act plainly contemplates consideration of "both the long-and short-range implications to man, his physical and social surroundings, and to nature, * * * in order to avoid to the fullest extent practicable undesirable consequences for the environment." ”

“ III. TIMING THE NEPA STATEMENT Whether a statement on the overall LMFBR program should be issued now or at some uncertain date in the future is the most difficult question presented by this case. It was especially troubling to the District Court, as reflected in the following colloquy with counsel for appellant:
"I say this: I say there comes a time, we start out with E equals MC<2>, we both agreed you don't have to have the impact statement then. Then there comes a time when there are a thousand of these breeder plants in existence all over the country. ”

“ Only a few, relatively rare, naturally occurring substances -- primarily Uranium-235 -- can maintain the nuclear fission chain reaction necessary for operation of these [p1083] reactors. There are thus severe constraints on the long run potential of nuclear energy for generating electricity unless new nuclear fuel is "artificially" produced. ”

“ Such a statement also appears appropriate in connection with * * * the development of a new program that contemplates a number of subsequent actions. * * * The program statement has a number of advantages. It provides an occasion for a more exhaustive consideration of effects and alternatives than would be practicable in a statement on an individual action. It ensures consideration of cumulative impacts that might [p1088] be slighted in a case-by-case analysis. ”

“ Volpe, supra note 67. See Hanly v. Kleindienst, supra, 471 F.2d at 828-830.
We think it largely irrelevant which standard of review is verbalized in the context of the instant case. Under Overton Park the court must first delineate the scope of the agency's authority and discretion under the governing statute and then determine "whether on the facts the [agency's] decision can reasonably be said to be within that range." 401 U.S. at 416. Under the rational basis test, the court would have to determine whether the agency's decision had "reasonable support in relation to the statutory purpose." ”

“ LIQUID METAL FAST BREEDER REACTOR DEMONSTRATION PLANT A-1 (April 1972) (hereinafter AEC, LMFBR Impact Statement) . See also NEPA Hearings, supra note 20, at 100 (Senator Gravel) : "I share their concern. I would like to know the environmental implications if we are going to launch a plutonium economy, and the time to know these problems is before we spend billions and billions of dollars, rather than after."↑ See Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 11, 458 F.2d 827, 833 (1972) ; Calvert Cliffs' Coordinating Committee v. ”