Calvert Cliffs

Beset with persistent issues concerning the safety of nuclear power-plant operation, nuclear-fuel management, and, of course, weapons testing, the Atomic Energy Commission was this year confronted with yet another challenge. The Commission is compelled by court order to determine a broad range of "conventional" environmental consequences arising from each nuclear power plant for which a construction permit or operating license is sought. In the Calvert Cliffs case (named after the site of a nuclear plant being built on Chesapeake Bay), the U.S. Circuit Court for the District of Columbia ruled in July 1971 that the AEC had seriously lagged in carrying out the intent of the National Environmental Policy Act (NEPA) of 1969, having until recently confined itself solely to the evaluation of radiological hazards while ignoring such environmental impacts as thermal pollution. The Calvert Cliffs decision (which the AEC decided not to appeal) may therefore greatly broaden the AEC's role in decisions affecting the environment.

Although NEPA's effective date was January 1, 1970, the AEC did not require consideration of broader environmental issues in processing permit or license applications before March 4, 1971, arguing that it had not had any formal responsibility for evaluation of ordinary environmental effects. The court did not claim that environmental questions were wholly ignored in AEC proceedings, but did maintain that they were examined casually and were a subordinate rather than an integral part of the process. Among other thing AEC rules failed to require consideration of environmental issues by Atomic Safety and Licensing Boards in their independent review of AEC staff recommendations unless the issues were raised by outside parties or staff members. In the words of the court, "We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act."

Compliance with NEPA therefore will force reconsideration of all pre-March 4, 1971 permit license applications going back January 1, 1970. A formidable number of nuclear power plants are involved: 97 reactors rated at 87,000-megawatt (mw) electrical capacity, for which 65 construction and operating license applications were pending. Late in the year, about a third of these were in various stages of construction, and a substantial portion of the reactors not yet under construction were well along in AEC processing. In addition, formal environmental preview will also be necessary for 5 operating licenses issued after January 1, 1970, for 3 fuel reprocessing facilities, and for 10 power reactors operating at reduced output under provisional licenses which must undergo full NEPA review when application is made for conversion to full power.

There is obvious concern about the immediate and longer-run implications of the Calvert Cliffs decision—how it will affect national and regional power supply during the next few years and what it may mean for future nuclear power plant decisions once a full array of environmental ramifications are factored into such plans. One of the more extreme options raised in the court decision was that the AEC "should consider very seriously the requirement of a temporary halt in construction pending [environmental] review and the 'backfitting of technological' innovations." Even if this path is not followed, anxiety has been expressed that electricity shortages may result from delays in bringing nuclear facilities online. In a letter to AEC Chairman Schlesinger in mid-October, FPC chairman John Nassikas cited data showing that 16 percent of the nation's reserve for the summer of 1972 (or about 3 percent of overall U.S. generating capacity at that time) would be from scheduled nuclear plants not yet on line and that the potential loss anticipated would exceed 40 percent in several regional cases. "In addition, in many cases we are concerned that the reserve appears to be dangerously low, even with the scheduled nuclear plants."

Despite consternation in the utility industry over the Calvert Cliffs decision, the AEC has moved swiftly to deal with its newly defined and broad-ranging environmental responsibilities in the field of civilian nuclear power. Chairman Schlesinger served notice of the change in a speech to utility executives: "The traditional ways of doing business seem preferable. A utility could get on with the job of installing a 100- or 200-mw fossil-fueled plant and nobody really to be consulted save for the property owners and the local authorities, who could be dealt with on a private basis. Nowadays every plant seems to be drawn into public controversy. I can understand the nostalgia. The old ways were neater and more efficient, at least in a limited sense. But this is 1971. We are more crowded. There is a heightened public sensitivity on environmental issues—an insistence by the public that it be consulted. We shall all have to learn to operate under these changed conditions." Clearly, we are in for a period of intense activity as new AEC environmental procedures designed to comply with the court decisions are defined and embodied in future permit and licensing processes.

The Calvert Cliffs decision held that for each proposed nuclear power project the particular economic and technical benefits of planned action must be assessed and weighed against environmental costs. It remains to be seen just how broadly this will be construed. For example, it is possible that, under future environmental reviews, cost-benefit analysis might compel resort to cooling towers to protect against thermal pollution. It is conceivable that the court's recommendations could extend into the area of transmission lines, to various aspects of the nuclear-fuel cycle, and even to weighing the advantages of nuclear vs. fossil-fueled electric generation, given the circumstances in question. On the other hand, would the cost of abandoning a 90 percent completed $300 million nuclear plant overwhelm any conceivable (non-radiological) environmental argument leveled against its operation? Perhaps the court had this situation in mind when it suggested the possibility of temporarily suspending plant construction pending the formulation of acceptable environmental impact assessments.

However, except for partial suspension of construction in a few cases—largely involving unresolved environmental questions regarding transmission lines—the AEC does not appear to be insisting on a plant construction moratorium. Thus, so far as the Calvert Cliffs nuclear plant is concerned, in November the Commission ruled that, pending the full-scale environmental review required by the court decision, construction could proceed. The AEC noted that continued construction would have minimal adverse environmental impact, while, in the light of past sunk costs, stoppage would be very expensive.

The Calvert Cliffs ruling may nonetheless turn out to be a truly landmark judicial decision in interpretation of legislative intent and public responsibility under the National Environmental Policy Act.