G.R. No.

131442 July 10, 2003

BANGUS FRY FISHERFOLK, DIWATA MAGBUHOS, ANGELITA BINAY, ELMA GARCIA, VIRGILIO PANGUIO,
ARSENIO CASTILLO, ARIEL PANGUIO, ANTONIO PANGUIO, ANTONIO BUNQUIN, GENEROSO BUNQUIN,
CHARLIE DIMAYACYAC, RENATO PANGUIO, ATILANO BUNQUIN, CARLOS CHAVEZ, JUAN DIMAYACYAC,
FILEMON BUNQUIN, MARIO MAGBUHOS, MAURO MAGBUHOS, NORA MAGBUHOS, JEOVILYN, GENALYN
and JORVAN QUIMUEL, minors, represented by their parents FELICIANA and SABINO QUIMUEL, MARICAR
MAGBUHOS, minor, represented by her parents CARMELITA and ANTONIO MAGBUHOS, MARLO BINAY,
minor, represented by his parents EFRENITA and CHARLITO BINAY, and the BANGUS, BANGUS FRY and
other MARINE LIFE OF MINOLO COVE, petitioners,
vs.
THE HONORABLE ENRICO LANZANAS as Judge of the Regional Trial Court of Manila, Branch VII, THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES — Region IV, represented by its Regional
Executive Director and its Regional Director for Environment, THE NATIONAL POWER CORPORATION,
ORIENTAL MINDORO ELECTRIC COOPERATIVE, PROVINCIAL GOVERNMENT OF ORIENTAL MINDORO,
herein represented by GOVERNOR RODOLFO VALENCIA, PUERTO GALERA MAYOR GREGORIO DELGADO,
VICE MAYOR ARISTEO ATIENZA, and MEMBERS OF THE SANGGUNIANG BAYAN OF PUERTO GALERA,
JUAN ASCAN, JR., RAFAEL ROMEY, CENON SALCEDO, JERRY DALISAY, SIMON BALITAAN, RENATO
CATAQUIS, MARCELINO BANAAG, DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN, MUNICIPAL
ENGINEER RODEL RUBIO, and MUNICIPAL PLANNING and DEVELOPMENT COORDINATOR WILHELMINA
LINESES, respondents.

CARPIO, J.:

The Case

This is a petition for review 1 of the Order2 dated 7 November 1997 of the Regional Trial Court of Manila, Branch 7
("Manila RTC"), dismissing petitioners' complaint for lack of cause of action and lack of jurisdiction.

The Facts

On 30 June 1997, Regional Executive Director Antonio G. Principe ("RED Principe") of Region IV, Department of
Environment and Natural Resources ("DENR"), issued an Environmental Clearance Certificate ("ECC") in favor of
respondent National Power Corporation ("NAPOCOR"). The ECC authorized NAPOCOR to construct a temporary
mooring facility in Minolo Cove, Sitio Minolo, Barangay San Isidro, Puerto Galera, Oriental Mindoro. The Sangguniang
Bayan of Puerto Galera has declared Minolo Cove, a mangrove area and breeding ground for bangus fry, an eco-
tourist zone.3

The mooring facility would serve as the temporary docking site of NAPOCOR's power barge, which, due to turbulent
waters at its former mooring site in Calapan, Oriental Mindoro, required relocation to a safer site like Minolo Cove. The
14.4 megawatts power barge would provide the main source of power for the entire province of Oriental Mindoro
pending the construction of a land-based power plant in Calapan, Oriental Mindoro. The ECC for the mooring facility
was valid for two years counted from its date of issuance or until 30 June 1999. 4

Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto Galera, 5 sought reconsideration of the ECC
issuance. RED Principe, however, denied petitioners' plea on 15 July 1997. On 21 July 1997, petitioners filed a
complaint with the Regional Trial Court of Manila, Branch 7, for the cancellation of the ECC and for the issuance of a
writ of injunction to stop the construction of the mooring facility. Impleaded as defendants were the following: (1)
NAPOCOR, (2) RED Principe, (3) DENR Region IV Technical Director for Environment Oscar Dominguez, (4) Oriental
Mindoro Electric Cooperative ("ORMECO"), which is engaged in the distribution of electricity in Oriental Mindoro, and
(5) certain officials of Puerto Galera. 6 Petitioners subsequently amended their complaint to include as additional
defendants the elective officials of Oriental Mindoro represented by then Governor Rodolfo G. Valencia. Petitioners
further prayed for the demolition of mooring structures that respondents had already built.

On 28 July 1997, prior to the filing of the amended complaint, the trial court issued a 20-day temporary restraining
order enjoining the construction of the mooring facility. However, the trial court lifted the same on 6 August 1997 on
NAPOCOR's manifestation that the provincial government of Oriental Mindoro was the one undertaking the
construction of the mooring facility.7

On 28 August 1997, before filing their answers, respondents ORMECO and the provincial officials of Oriental Mindoro
moved to dismiss the complaint. These respondents claimed that petitioners failed to exhaust administrative remedies,
rendering the complaint without cause of action. They also asserted that the Manila RTC has no jurisdiction to enjoin
the construction of the mooring facility in Oriental Mindoro, which lies outside the Manila RTC's territorial jurisdiction.
Petitioners opposed the motion on the ground that there was no need to exhaust administrative remedies. They
argued that the issuance of the ECC was in patent violation of Presidential Decree No. 1605, 8 Sections 26 and 27 of
Republic Act No. 7160,9 and the provisions of DENR Department Administrative Order No. 96-37 ("DAO 96-37") on the
documentation of ECC applications. Petitioners also claimed that the implementation of the ECC was in patent
violation of its terms.

In its order of 7 November 1997, the trial court granted the motion and dismissed petitioners' complaint.

Hence, this petition.

The Ruling of the Trial Court

The trial court's order dismissing the complaint reads in part:

After careful evaluation and analysis, this Court finds the Motion to Dismiss tenable and meritorious.

Petitioners have clearly failed to exhaust all administrative remedies before taking this legal action in Court x x
x.

It is x x x worth mentioning that the decision of the Regional Director may still be x x x elevated to the Office of
the Secretary of the DENR to fully comply with the process of exhaustion of administrative remedies. And well
settled is the rule in our jurisdiction that before bringing an action in or resorting to the Courts of Justice, all
remedies of administrative character affecting or determinative of the controversy at that level should first be
exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786, February 27, 1978). And petitioners' failure to
exhaust administrative remedies renders his [sic] petition dismissible (Chia vs. Acting Collector of Customs,
177 SCRA 755). And a dismissal on the ground of failure to exhaust administrative remedies is tantamount to
a dismissal based on lack of cause of action (Baguiro vs. Basa, Jr., 214 SCRA 437; Pineda vs. CFI of Davao,
111 Phil. 643; Sarabia vs. Secretary of Agriculture & Natural Resources, L-16002, May 23, 1961; Gone, et al.
vs. District Engineer, et. al., L-22782, August 29, 1975; Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31,
1979) although it does not affect the jurisdiction of the court over the subject matter (Mun. of La Trinidad, et al.
vs. CFI of Baguio-Benguet, et al., L-33889, June 28, 1983).

Moreover, this Court finds the Opposition of the Petitioners highly untenable and bereft of merits that the
controverted act in question is patently illegal and there was an immediate need for judicial intervention.

The ECC in question was issued by the Regional Office of the DENR which has jurisdiction and authority over
the same . . .. And corollary to this, the issue as to whether or not the Minolo Cove is within the enclosed
coves and waters embraced by Puerto Galera bay and protected by Medio island is a clear question of fact
which the DENR may appropriately resolve before resorting to [the] Court[s].

This Court is likewise aware and cognizant of its territorial jurisdiction in the enforcement of Writ of Injunction.
That truly, [a] writ of injunction can only be enforced within [the] territorial jurisdiction of this Court but not for
acts which are being or about to be committed outside its territorial jurisdiction. Thus, in Philippine National
Bank vs. Pineda, 197 SCRA 1, the Honorable Supreme Court ruled: "Regional Trial Courts can only enforce
their writs of injunction within their respective designated territories. Furthermore, we find the issuance of the
preliminary injunction directed against the Provincial Sheriff of Negros Occidental a jurisdictional paux [sic]
pas (from Black Dictionary means jurisdictional falsity) as the Courts of First Instance now Regional Trial
Court[s], can only enforce their writs of injunction within their respective designated territories.

And finally, this Court is not unmindful of the relevant and square application in the case at bar of Presidential
Decree No. 1818, Executive Order No. 380 dated November 27, 1989, and Circular No. 2-91 of the Supreme
Court that the National Power Corporation (NPC) is a public utility, created under special legislation, engaged
in the generation and distribution of electric power and energy. The mooring site of NPC in Puerto Galera,
Oriental Mindoro is one of its infrastructure projects falling within the mantle of Executive Order No. 380,
November 27, 1989 x x x.

And as held by the Supreme Court in the case of National Power Corporation vs. Honorable Abraham P. Vera,
et al., 170 SCRA 721, courts are without jurisdiction to issue injunctive writs against [the] National Power
Corporation. The latter enjoys the protective mantle of P.D. 1818, (Circular No. 2-91).

xxx xxx xxx

 Injunction in this case is not a mere ancillary [sic] writ but the main action itself together with the Annulment of
the Environmental Clearance Certificate (ECC). Even assuming arguendo that the court [can] annul the ECC
how can the latter enforce the same against the Provincial Government of Oriental Mindoro which was
impleaded by the petitioners as a necessary party together with the Oriental Mindoro Electric Cooperative and
the government officials of Puerto Galera, Oriental Mindoro, whose acts and functions are being performed
outside the territorial jurisdiction of this court? x x x Indisputably, the injunction and annulment of ECC as
prayed for in the petition are inseparable x x x.

The conclusion, therefore, is inescapable that petitioners have failed to exhaust all the available administrative
remedies and this Court has no jurisdiction to issue the injunctive writ prayed for in the Amended
[Complaint].10

The Issue

The issue is whether the trial court erred in dismissing petitioners' complaint for lack of cause action and lack of
jurisdiction.

The Ruling of the Court

The petition has no merit.

Jurisdiction of the Manila RTC over the Case

Jurisdiction over the subject matter of a case is conferred by law. Such jurisdiction is determined by the allegations in
the complaint, irrespective of whether the plaintiff is entitled to all or some of the reliefs sought. 11

A perusal of the allegations in the complaint shows that petitioners' principal cause of action is the alleged illegality of
the issuance of the ECC. The violation of laws on environmental protection and on local government participation in
the implementation of environmentally critical projects is an issue that involves the validity of NAPOCOR's ECC. If the
ECC is void, then as a necessary consequence, NAPOCOR or the provincial government of Oriental Mindoro could
not construct the mooring facility. The subsidiary issue of non-compliance with pertinent local ordinances in the
construction of the mooring facility becomes immaterial for purposes of granting petitioners' main prayer, which is the
annulment of the ECC. Thus, if the court has jurisdiction to determine the validity of the issuance of the ECC, then it
has jurisdiction to hear and decide petitioners' complaint.

Petitioners' complaint is one that is not capable of pecuniary estimation. It falls within the exclusive and original
jurisdiction of the Regional Trial Courts under Section 19(1) of Batas Pambansa Blg. 129, as amended by Republic
Act No. 7691. The question of whether petitioners should file their complaint in the Regional Trial Court of Manila or
Oriental Mindoro then becomes a matter of venue, to be determined by the residence of the parties. 12

Petitioners' main prayer is the annulment of the ECC. The principal respondent, DENR Region IV, has its main office
at the L & S Building, Roxas Boulevard, Manila. Regional Executive Director Principe of the DENR Region IV, who
issued the ECC, holds office there. Plainly, the principal respondent resides in Manila, which is within the territorial
jurisdiction of the Manila RTC. Thus, petitioners filed their complaint in the proper venue.

On the other hand, the jurisdiction of Regional Trial Courts to issue injunctive writs is limited to acts committed or
about to be committed within their judicial region. 13 Moreover, Presidential Decree No. 1818 ("PD No. 1818")
prohibited14 courts from issuing injunctive writs against government infrastructure projects like the mooring facility in
the present case. Republic Act No. 8975 ("RA No. 8975"), which took effect on 26 November 2000, superseded PD
No. 1818 and delineates more clearly the coverage of the prohibition, reserves the power to issue such writs
exclusively with this Court, and provides penalties for its violation. 15 Obviously, neither the Manila RTC nor the Oriental
Mindoro RTC can issue an injunctive writ to stop the construction of the mooring facility. Only this Court can do so
under PD No. 1818 and later under RA No. 8975. Thus, the question of whether the Manila RTC has jurisdiction over
the complaint considering that its injunctive writ is not enforceable in Oriental Mindoro is academic.

Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC, although it could not
issue an injunctive writ against the DENR or NAPOCOR. However, since the construction of the mooring facility could
not proceed without a valid ECC, the validity of the ECC remains the determinative issue in resolving petitioners'
complaint.

Exhaustion of Administrative Remedies

The settled rule is before a party may seek the intervention of the courts, he should first avail of all the means afforded
by administrative processes. Hence, if a remedy within the administrative machinery is still available, with a procedure
prescribed pursuant to law for an administrative officer to decide the controversy, a party should first exhaust such
remedy before resorting to the courts. The premature invocation of a court's intervention renders the complaint without
cause of action and dismissible on such ground.16

RED Principe of the DENR Region IV Office issued the ECC based on (1) Presidential Decree No. 1586 ("PD No.
1586") and its implementing rules establishing the Environmental Impact Statement System, (2) DAO 96-37 17 and (3)
the Procedural Manual of DAO 96-37. Section 4 18 of PD No. 1586 requires a proponent of an environmentally critical
project, or a project located within an environmentally critical area as declared by the President, to secure an ECC
prior to the project's operation. 19 NAPOCOR thus secured the ECC because the mooring facility in Minolo Cove, while
not an environmentally critical project, is located within an environmentally critical area under Presidential
Proclamation No. 2146, issued on 14 December 1981.20

The rules on administrative appeals from rulings of the DENR Regional Directors on the implementation of PD No.
1586 are found in Article VI of DAO 96-37, which provides:

SECTION 1.0. Appeal to the Office of the Secretary. — Any party aggrieved by the final decision of the RED
may, within 15 days from receipt of such decision, file an appeal with the Office of the Secretary. The decision
of the Secretary shall be immediately executory.

SECTION 2.0. Grounds for Appeal. — The grounds for appeal shall be limited to grave abuse of discretion
and serious errors in the findings of fact which would cause grave or irreparable injury to the aggrieved party.
Frivolous appeals shall not be countenanced.

SECTION 3.0. Who May Appeal. — The proponent or any stakeholder, including but not limited to, the LGUs
concerned and affected communities, may file an appeal.

The DENR Procedural Manual for DAO 96-37 explains these provisions thus:

Final decisions of the RED may be appealed. These decisions include those relating to the issuance or non-
issuance of an ECC, and the imposition of fines and penalties. By inference, the decision of the Secretary on
the issuance or non-issuance of the ECC may also be appealed based on this provision. Resort to courts prior
to availing of this remedy would make the appellant's action dismissible on the ground of non-exhaustion of
administrative remedies.

The right to appeal must be exercised within 15 days from receipt by the aggrieved party of such decision.
Failure to file such appeal within the requisite period will result in the finality of the RED's or Secretary's
decision(s), which can no longer be disturbed.

An appeal shall not stay the effectivity of the RED's decision, unless the Secretary directs otherwise.

The right to appeal does not prevent the aggrieved party from first resorting to the filing of a motion for
reconsideration with the RED, to give the RED an opportunity to re-evaluate his decision. (Emphasis added)

Instead of following the foregoing procedure, petitioners bypassed the DENR Secretary and immediately filed their
complaint with the Manila RTC, depriving the DENR Secretary the opportunity to review the decision of his
subordinate, RED Principe. Under the Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners'
omission renders their complaint dismissible for lack of cause of action. 21 Consequently, the Manila RTC did not err in
dismissing petitioners' complaint for lack of cause of action.

On the Alleged Patent Illegality of the ECC

Petitioners nevertheless contend that they are exempt from filing an appeal with the DENR Secretary because the
issuance of the ECC was in patent violation of existing laws and regulations. These are (1) Section 1 of Presidential
Decree No. 1605, as amended, (2) Sections 26 and 27 of Republic Act No. 7160 (Local Government Code of 1991),
and (3) the provisions of DAO 96-37 on the documentary requirements for the zoning permit and social acceptability of
the mooring facility.

Petitioners' contention is without merit. While the patent illegality of an act exempts a party from complying with the
rule on exhaustion Of administrative remedies,22 this does not apply in the present case.

Presidential Decree No. 1605

Presidential Decree No. 1605 ("PD No. 1605"),23 as amended by Presidential Decrees Nos. 1605-A and 1805,
declares as ecologically threatened zone "the coves and waters embraced by Puerto Galera Bay as protected by
Medio Island." This decree provides in part:

Section 1. Any provision of law to the contrary notwithstanding, the construction of marinas, hotels,
restaurants, other commercial structures; commercial or semi-commercial wharfs [sic]; commercial docking
within the enclosed coves of Puerto Galera; the destruction of its mangrove stands; the devastation of its
corals and coastline by large barges, motorboats, tugboat propellers, and any form of destruction by other
human activities are hereby prohibited.

Section 2. x x x

No permit for the construction of any wharf, marina, hotel, restaurants and other commercial structures in
Puerto Galera shall be issued without prior approval of the Office of the President upon the recommendation
of the Philippine Tourism Authority. (Emphasis supplied)

NAPOCOR claims that since Minolo Cove lies outside of "Puerto Galera Bay as protected by Medio Island", 24 PD No.
1605 does not apply to this case. However, petitioners assert that Minolo Cove is one of the "enclosed coves of Puerto
Galera"25 and thus protected under PD No. 1605. This is a question of fact that the DENR Secretary should have first
resolved. In any event, there is no dispute that NAPOCOR will use the mooring facility for its power barge that will
supply 14.4 megawatts of electricity to the entire province of Oriental Mindoro, including Puerto Galera. The mooring
facility is obviously a government-owned public infrastructure intended to serve a basic need of the people of Oriental
Mindoro. The mooring facility is not a "commercial structure; commercial or semi-commercial wharf or commercial
docking" as contemplated in Section 1 of PD No. 1605. Therefore, the issuance of the ECC does not violate PD No.
1605 which applies only to commercial structures like wharves, marinas, hotels and restaurants.

Sections 26 and 27 of RA No. 7160

Congress introduced Sections 26 and 27 in the Local Government Code to emphasize the legislative concern "for the
maintenance of a sound ecology and clean environment." 26 These provisions require every national government
agency or government-owned and controlled corporation to hold prior consultations with the local government unit
concerned and to secure the prior approval of its sanggunian before implementing "any project or program that may
cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover
and extinction of animal or plant species." Sections 26 and 27 respectively provide:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. — It shall be
the duty of every national agency or government-owned or controlled corporation authorized or involved in the
planning and implementation of any project or program that may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, rangeland, or forest cover and extinction of animal or plant
species, to consult with the local government units, non-governmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. — No project or program shall be implemented by government
authorities unless the consultations mentioned in Section . . . 26 hereof are complied with, and prior approval
of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.

In Lina, Jr. v. Paño,27 the Court interpreted these provisions in this manner:

Section 27 of the Code should be read in conjunction with Section 26 thereof x x x.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Sections 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4)
may result in loss of crop land, rangeland, or forest cover; (5) may eradicate certain animal or plant species;
and (6) other projects or programs that may call for the eviction of a particular group of people residing in the
locality where these will be implemented.

Again, Sections 26 and 27 do not apply to this case because as petitioners admit, 28 the mooring facility itself is not
environmentally critical and hence does not belong to any of the six types of projects mentioned in the law. There is no
statutory requirement for the concerned sanggunian to approve the construction of the mooring facility. It is another
matter if the operation of the power barge is at issue. As an environmentally critical project that causes pollution, the
operation of the power barge needs the prior approval of the concerned sanggunian. However, what is before this
Court is only the construction of the mooring facility, not the operation of the power barge. Thus, the issuance of the
ECC does not violate Sections 26 and 27 of RA No. 7160.

Documentary Requirements for ECC Applications

Under DAO 96-37, an ECC applicant for a project located within an environmentally critical area is required to submit
an Initial Environment Examination, which must contain a brief description of the environmental setting and a
documentation of the consultative process undertaken, when appropriate. 29 As part of the description of the
environmental setting, the ECC applicant must submit a certificate of locational clearance or zoning certificate.

Petitioners further contend that NAPOCOR, in applying for the ECC, did not submit to the DENR Region IV Office the
documents proving the holding of consultations and the issuance of a locational clearance or zoning certificate.
Petitioners assert that this omission renders the issuance of the ECC patently illegal.

The contention is also without merit. While such documents are part of the submissions required from a project
proponent, their mere absence does not render the issuance of the ECC patently illegal. To justify non-exhaustion of
administrative remedies due to the patent illegality of the ECC, the public officer must have issued the ECC "[without
any] semblance of compliance, or even an attempt to comply, with the pertinent laws; when manifestly, the officer has
acted without jurisdiction or has exceeded his jurisdiction, or has committed a grave abuse of discretion; or when his
act is clearly and obviously devoid of any color of authority." 30

RED Principe, as chief of DENR Region IV, is the officer duly authorized under DAO 96-37 31 to issue ECCs for
projects located within environmentally critical areas. RED Principe issued the ECC on the recommendation of Amelia
Supetran, the Director of the Environmental Management Bureau. Thus, RED Principe acted with full authority
pursuant to DENR regulations. Moreover, the legal presumption is that he acted with the requisite authority. 32 This
clothes RED Principe's acts with presumptive validity and negates any claim that his actions are patently illegal or that
he gravely abused his discretion. While petitioners may present proof to the contrary, they must do so before the
proper administrative forum before resorting to judicial remedies.

On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in immediately seeking judicial recourse because NAPOCOR is guilty of
violating the conditions of the ECC, which requires it to secure a separate ECC for the operation of the power barge.
The ECC also mandates NAPOCOR to secure the usual local government permits, like zoning and building permits,
from the municipal government of Puerto Galera.

The contention is similarly without merit. The fact that NAPOCOR's ECC is subject to cancellation for non-compliance
with its conditions does not justify petitioners' conduct in ignoring the procedure prescribed in DAO 96-37 on appeals
from the decision of the DENR Executive Director. Petitioners vigorously insist that NAPOCOR should comply with the
requirements of consultation and locational clearance prescribed in DAO 96-37. Ironically, petitioners themselves
refuse to abide with the procedure for filing complaints and appealing decisions laid down in DAO 96-37.

DAO 96-37 provides for a separate administrative proceeding to address complaints for the cancellation of an ECC.
Under Article IX of DAO 96-37, complaints to nullify an ECC must undergo an administrative investigation, after which
the hearing officer will submit his report to the EMB Director or the Regional Executive Director, who will then render
his decision. The aggrieved party may file an appeal to the DENR Secretary, who has authority to issue cease and
desist orders. Article IX also classifies the types of violations covered under DAO 96-37, including projects operating
without an ECC or violating the conditions of the ECC. This is the applicable procedure to address petitioners'
complaint on NAPOCOR's alleged violations and not the filing of the instant case in court.

A Final Word

The Court commends petitioners for their courageous efforts to safeguard and maintain the ecological balance of
Minolo Cove. This Court recognizes the utmost importance of protecting the environment. 33 Indeed, we have called for
the vigorous prosecution of violators of environmental laws. 34 Legal actions to achieve this end, however, must be
done in accordance with established rules of procedure that were intended, in the first place, to achieve orderly and
efficient administration of justice.

WHEREFORE, we DENY the petition for lack of merit.

SO ORDERED.
Baltimore G. & E. Co. v. NRDC, 462 U.S. 87 (1983)

Baltimore Gas & Electric Co. v.

Natural Resources Defense Council, Inc.

No. 82-524

Argued April 19, 1983

Decided June 6, 1983*

462 U.S. 87

Syllabus

Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal agencies to consider the
environmental impact of any major federal action. The dispute in these cases concerns the adoption by the Nuclear
Regulatory Commission (NRC) of a series of generic rules to evaluate the environmental effects of a nuclear
powerplant's fuel cycle. In these rules, the NRC decided that licensing boards should assume, for purposes of NEPA,
that the permanent storage of certain nuclear wastes would have no significant environmental impact (the so-called
"zero release" assumption), and thus should not affect the decision whether to license a particular nuclear powerplant.
At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released
by fuel cycle activities supporting a year's operation of a typical light-water reactor. Challenges to the rules ultimately
resulted in a decision by the Court of Appeals, on a petition for review of the final version of the rules, that the rules
were arbitrary and capricious and inconsistent with NEPA because the NRC had not factored the consideration of
uncertainties surrounding the zero release assumption into the licensing process in such a manner that the
uncertainties could potentially affect the outcome of any decision to license a plant.

Held: The NRC complied with NEPA, and its decision is not arbitrary or capricious within the meaning of § 10(e) of the
Administrative Procedure Act (APA). Pp. 462 U. S. 97-108.

(a) The zero release assumption, which was designed for the limited purpose of individual licensing decisions and
which is but a single figure in Table S-3, is within the bounds of reasoned decisionmaking required by the APA. The
NRC, in its statement announcing the final Table S-3 rule, summarized the major uncertainties of long-term storage of
nuclear wastes, noted that the probability of intrusion was small, and found the evidence "tentative but favorable" that
an appropriate storage site

Page 462 U. S. 88

could be found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. In
these circumstances, the NRC complied with NEPA's requirements of consideration and disclosure of the
environmental impacts of its licensing decisions. It is not the task of this Court to determine what decision it would
have reached if it had been the NRC. The Court's only task is to determine whether the NRC had considered the
relevant factors and articulated a rational connection between the facts found and the choice made. Under this
standard, the zero release assumption, within the context of Table S-3 as a whole, was not arbitrary or capricious.
Pp. 462 U. S. 97-106.

(b) It is inappropriate to cast doubt on the licensing proceedings simply because of a minor ambiguity in the language
of an earlier rule as to whether licensing boards were required to consider health effects, socioeconomic effects, or
cumulative impacts, where there is no evidence that this ambiguity prevented any party from making as full a
presentation as desired or ever affected the decision to license a plant. Pp. 462 U. S. 106-108.

222 U.S.App.D.C. 9, 685 F.2d 459, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took
no part in the consideration or decision of the cases.

Page 462 U. S. 89
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U.S. Supreme Court

Baltimore G. & E. Co. v. NRDC, 462 U.S. 87 (1983)

Baltimore Gas & Electric Co. v.

Natural Resources Defense Council, Inc.

No. 82-524

Argued April 19, 1983

Decided June 6, 1983*

462 U.S. 87

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal agencies to consider the
environmental impact of any major federal action. The dispute in these cases concerns the adoption by the Nuclear
Regulatory Commission (NRC) of a series of generic rules to evaluate the environmental effects of a nuclear
powerplant's fuel cycle. In these rules, the NRC decided that licensing boards should assume, for purposes of NEPA,
that the permanent storage of certain nuclear wastes would have no significant environmental impact (the so-called
"zero release" assumption), and thus should not affect the decision whether to license a particular nuclear powerplant.
At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released
by fuel cycle activities supporting a year's operation of a typical light-water reactor. Challenges to the rules ultimately
resulted in a decision by the Court of Appeals, on a petition for review of the final version of the rules, that the rules
were arbitrary and capricious and inconsistent with NEPA because the NRC had not factored the consideration of
uncertainties surrounding the zero release assumption into the licensing process in such a manner that the
uncertainties could potentially affect the outcome of any decision to license a plant.

Held: The NRC complied with NEPA, and its decision is not arbitrary or capricious within the meaning of § 10(e) of the
Administrative Procedure Act (APA). Pp. 462 U. S. 97-108.

(a) The zero release assumption, which was designed for the limited purpose of individual licensing decisions and
which is but a single figure in Table S-3, is within the bounds of reasoned decisionmaking required by the APA. The
NRC, in its statement announcing the final Table S-3 rule, summarized the major uncertainties of long-term storage of
nuclear wastes, noted that the probability of intrusion was small, and found the evidence "tentative but favorable" that
an appropriate storage site

Page 462 U. S. 88

could be found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. In
these circumstances, the NRC complied with NEPA's requirements of consideration and disclosure of the
environmental impacts of its licensing decisions. It is not the task of this Court to determine what decision it would
have reached if it had been the NRC. The Court's only task is to determine whether the NRC had considered the
relevant factors and articulated a rational connection between the facts found and the choice made. Under this
standard, the zero release assumption, within the context of Table S-3 as a whole, was not arbitrary or capricious.
Pp. 462 U. S. 97-106.

(b) It is inappropriate to cast doubt on the licensing proceedings simply because of a minor ambiguity in the language
of an earlier rule as to whether licensing boards were required to consider health effects, socioeconomic effects, or
cumulative impacts, where there is no evidence that this ambiguity prevented any party from making as full a
presentation as desired or ever affected the decision to license a plant. Pp. 462 U. S. 106-108.

222 U.S.App.D.C. 9, 685 F.2d 459, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took
no part in the consideration or decision of the cases.

Page 462 U. S. 89

JUSTICE O'CONNOR delivered the opinion of the Court.

Section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U.S.C. § 4332(2)(C) (NEPA),
requires federal agencies to consider the environmental impact of any major federal action. [Footnote 1] As part of its
generic rulemaking proceedings to evaluate the environmental effects of the nuclear fuel cycle for nuclear
powerplants, the Nuclear

Page 462 U. S. 90

Regulatory Commission (Commission) [Footnote 2] decided that licensing boards should assume, for purposes of
NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact, and thus
should not affect the decision whether to license a particular nuclear powerplant. We conclude that the Commission
complied with NEPA, and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the
Administrative Procedure Act (APA), 5 U.S.C. § 706. [Footnote 3]

The environmental impact of operating a light-water nuclear powerplant [Footnote 4]includes the effects of off-site
activities necessary to provide fuel for the plant ("front end" activities), and of off-site activities necessary to dispose of
the highly toxic and long-lived nuclear wastes generated by the plant ("back end" activities). The dispute in these
cases concerns

Page 462 U. S. 91

the Commission's adoption of a series of generic rules to evaluate the environmental effects of a nuclear powerplant's
fuel cycle. At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and
effluents released by fuel cycle activities supporting a year's operation of a typical light-water reactor. [Footnote 5] The
three versions of Table S-3 contained similar numerical values, although the supporting documentation has been
amplified during the course of the proceedings.

The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking proceedings. 39 Fed.Reg.
14188 et seq. (1974). This "original" rule, as it later came to be described, declared that in environmental reports and
impact statements for individual licensing proceedings the environmental costs of the fuel cycle "shall be as set forth"
in Table S-3, and that "[n]o further discussion of such environmental effects shall be required." Id. at 14191. [Footnote
6] The original Table S-3 contained no numerical entry for the long-term

Page 462 U. S. 92

environmental effects of storing solidified transuranic and high-level wastes, [Footnote 7] because the Commission
staff believed that technology would be developed to isolate the wastes from the environment. The Commission and
the parties have later termed this assumption of complete repository integrity as the "zero release" assumption: the
reasonableness of this assumption is at the core of the present controversy.

The Natural Resources Defense Council (NRDC), a respondent in the present cases, challenged the original rule and
a license issued under the rule to the Vermont Yankee Nuclear Power Corp. The Court of Appeals for the District of
Columbia Circuit affirmed Table S-3's treatment of the "front end" of the fuel cycle, but vacated and remanded the
portion of the rule relating to the "back end" because of perceived inadequacies in the rulemaking procedures. Natural
Resources Defense Council, Inc. v. NRC, 178 U.S.App.D.C. 336, 547 F.2d 633 (1976). Judge Tamm disagreed that
the procedures were inadequate, but concurred on the ground that the record on waste storage was inadequate to
support the zero release assumption. Id. at 361, 547 F.2d at 658.

In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), this Court
unanimously reversed the Court of Appeals' decision that the Commission had used inadequate procedures, finding
that the Commission had done all that was required by NEPA and the APA and determining that courts generally lack
the authority to impose "hybrid" procedures greater than those contemplated by the governing statutes. We remanded
for review of whether the original rule was adequately supported by the administrative record, specifically

Page 462 U. S. 93

stating that the court was free to agree or disagree with Judge Tamm's conclusion that the rule pertaining to the "back
end" of the fuel cycle was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U.S.C. § 706. Id. at 536,
n. 14.

While Vermont Yankee was pending in this Court, the Commission proposed a new "interim" rulemaking proceeding to
determine whether to adopt a revised Table S-3. The proposal explicitly acknowledged that the risks from long-term
repository failure were uncertain, but suggested that research should resolve most of those uncertainties in the near
future. 41 Fed.Reg. 45850-45851 (1976). After further proceedings, the Commission promulgated the interim rule in
March 1977. Table S-3 now explicitly stated that solidified high-level and transuranic wastes would remain buried in a
federal repository, and therefore would have no effect on the environment. 42 Fed.Reg. 13807 (1977). Like its
predecessor, the interim rule stated that "[n]o further discussion of such environmental effects shall be required." Id. at
13806. The NRDC petitioned for review of the interim rule, challenging the zero release assumption and faulting the
Table S-3 rule for failing to consider the health, cumulative, and socioeconomic effects of the fuel cycle activities. The
Court of Appeals stayed proceedings while awaiting this Court's decision in Vermont Yankee. In April, 1978, the
Commission amended the interim rule to clarify that health effects were not covered by Table S-3 and could be
litigated in individual licensing proceedings. 43 Fed.Reg. 15613 et seq. (1978).

In 1979, following further hearings, the Commission adopted the "final" Table S-3 rule. 44 Fed.Reg. 45362 et
seq. (1979). Like the amended interim rule, the final rule expressly stated that Table S-3 should be supplemented in
individual proceedings by evidence about the health, socioeconomic, and cumulative aspects of fuel cycle activities.
The Commission also continued to adhere to the zero release

Page 462 U. S. 94

assumption that the solidified waste would not escape and harm the environment once the repository was sealed. It
acknowledged that this assumption was uncertain because of the remote possibility that water might enter the
repository, dissolve the radioactive materials, and transport them to the biosphere. Nevertheless, the Commission
predicted that a bedded-salt repository would maintain its integrity, and found the evidence "tentative but favorable"
that an appropriate site would be found. Id. at 45368. The Commission ultimately determined that any undue optimism
in the assumption of appropriate selection and perfect performance of the repository is offset by the cautious
assumption, reflected in other parts of the Table, that all radioactive gases in the spent fuel would escape during the
initial 6- to 20-year period that the repository remained open, ibid., and thus did not significantly reduce the overall
conservatism of Table S-3. Id. at 45369.

The Commission rejected the option of expressing the uncertainties in Table S-3 or permitting licensing boards, in
performing the NEPA analysis for individual nuclear plants, to consider those uncertainties. It saw no advantage in
reassessing the significance of the uncertainties in individual licensing proceedings:

"In view of the uncertainties noted regarding waste disposal, the question then arises whether these uncertainties can
or should be reflected explicitly in the fuel cycle rule. The Commission has concluded that the rule should not be so
modified. On the individual reactor licensing level, where the proceedings deal with fuel cycle issues only peripherally,
the Commission sees no advantage in having licensing boards repeatedly weigh for themselves the effect of
uncertainties on the selection of fuel cycle impacts for use in cost-benefit balancing. This is a generic question
properly dealt with in the rulemaking as part of choosing what impact values should go into the fuel cycle rule. The
Commission concludes, having

Page 462 U. S. 95

noted that uncertainties exist, that, for the limited purpose of the fuel cycle rule, it is reasonable to base impacts on the
assumption which the Commission believes the probabilities favor, i.e., that bedded-salt repository sites can be found
which will provide effective isolation of radioactive waste from the biosphere."
Id. at 45369.

The NRDC and respondent State of New York petitioned for review of the final rule. The Court of Appeals consolidated
these petitions for all purposes with the pending challenges to the initial and interim rules. [Footnote 8] By a divided
panel, [Footnote 9] the court concluded that the Table S-3 rules were arbitrary and capricious and inconsistent with
NEPA because the Commission had not factored the consideration of uncertainties surrounding the zero release
assumption into the licensing process in such a manner that the uncertainties could potentially affect the outcome of
any decision to license a particular plant. Natural Resources Defense Council, Inc. v. NRC, 222 U.S.App.D.C. 9, 685
F.2d 459 (1982). The court first reasoned that NEPA requires an agency to consider all significant environmental risks
from its proposed action. If the zero release assumption is taken as a finding that long-term storage poses no
significant environmental

Page 462 U. S. 96

risk, which the court acknowledged may not have been the Commission's intent, it found that the assumption
represents a self-evident error in judgment, and is thus arbitrary and capricious. As the evidence in the record reveals
and the Commission itself acknowledged, the zero release assumption is surrounded with uncertainty.

Alternatively, reasoned the Court of Appeals, the zero release assumption could be characterized as a decisionmaking
device whereby the Commission, rather than individual licensing boards, would have sole responsibility for
considering the risk that long-lived wastes will not be disposed of with complete success. The court recognized that
the Commission could use generic rulemaking to evaluate environmental costs common to all licensing decisions.
Indeed, the Commission could use generic rulemaking to balance generic costs and benefits to produce a generic "net
value." These generic evaluations could then be considered together with case-specific costs and benefits in individual
proceedings. The key requirement of NEPA, however, is that the agency consider and disclose the actual
environmental effects in a manner that will ensure that the overall process, including both the generic rulemaking and
the individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect
the environment. The Court of Appeals concluded that the zero release assumption was not in accordance with this
NEPA requirement, because the assumption prevented the uncertainties -- which were not found to be insignificant or
outweighed by other generic benefits -- from affecting any individual licensing decision. Alternatively, by requiring that
the licensing decision ignore factors that are relevant under NEPA, the zero release assumption is a clear error in
judgment, and thus arbitrary and capricious.

We granted certiorari. 459 U.S. 1034 (1982). We reverse.

Page 462 U. S. 97

II

We are acutely aware that the extent to which this Nation should rely on nuclear power as a source of energy is an
important and sensitive issue. Much of the debate focuses on whether development of nuclear generation facilities
should proceed in the face of uncertainties about their long-term effects on the environment. Resolution of these
fundamental policy questions lies, however, with Congress and the agencies to which Congress has delegated
authority, as well as with state legislatures and, ultimately, the populace as a whole. Congress has assigned the courts
only the limited, albeit important, task of reviewing agency action to determine whether the agency conformed with
controlling statutes. As we emphasized in our earlier encounter with these very proceedings,

"[a]dministrative decisions should be set aside in this context, as in every other, only for substantial procedural or
substantive reasons as mandated by statute . . . , not simply because the court is unhappy with the result reached."

Vermont Yankee, 435 U.S. at 435 U. S. 558.

The controlling statute at issue here is NEPA. NEPA has twin aims. First, it "places upon an agency the obligation to
consider every significant aspect of the environmental impact of a proposed action." Vermont Yankee, supra, at 435 U.
S. 553. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns
in its decisionmaking process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U. S. 139, 454
U. S. 143 (1981). Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns
over other appropriate considerations. See Stryckers' Bay Neighborhood Council v. Karlen, 444 U. S. 223, 444 U. S.
227 (1980) (per curiam). Rather, it required only that the agency take a "hard look" at the environmental
consequences before taking a major action. See Kleppe v. Sierra Club, 427 U. S. 390, 427 U. S. 410, n. 21 (1976).
The role of the courts is simply to ensure that the

Page 462 U. S. 98
agency has adequately considered and disclosed the environmental impact of its actions, and that its decision is not
arbitrary or capricious. See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 401 U. S. 415-
417 (1971).

In its Table S-3 rule here, the Commission has determined that the probabilities favor the zero release assumption,
because the Nation is likely to develop methods to store the wastes with no leakage to the environment. The NRDC
did not challenge, and the Court of Appeals did not decide, the reasonableness of this determination, 222
U.S.App.D.C. at 28, n. 96, 685 F.2d at 478, n. 96, and no party seriously challenges it here. The Commission
recognized, however, that the geological, chemical, physical, and other data it relied on in making this prediction were
based, in part, on assumptions which involve substantial uncertainties. Again, no one suggests that the uncertainties
are trivial or the potential effects insignificant if time proves the zero release assumption to have been seriously wrong.
After confronting the issue, though, the Commission has determined that the uncertainties concerning the
development of nuclear waste storage facilities are not sufficient to affect the outcome of any individual licensing
decision. [Footnote 10]

It is clear that the Commission, in making this determination, has made the careful consideration and disclosure
required by NEPA. The sheer volume of proceedings before the Commission is impressive. [ Footnote 11] Of far
greater importance,

Page 462 U. S. 99

the Commission's Statement of Consideration announcing the final Table S-3 rule shows that it has digested this mass
of material and disclosed all substantial risks. 44 Fed.Reg. 45367-45369 (1979). The Statement summarizes the major
uncertainty of long-term storage in bedded-salt repositories, which is that water could infiltrate the repository as a
result of such diverse factors as geologic faulting, a meteor strike, or accidental or deliberate intrusion by man. The
Commission noted that the probability of intrusion was small, and that the plasticity of salt would tend to heal some
types of intrusions. The Commission also found the evidence "tentative but favorable" that an appropriate site could be
found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. [ Footnote 12]
Given this record

Page 462 U. S. 100

and the Commission's statement, it simply cannot be said that the Commission ignored or failed to disclose the
uncertainties surrounding its zero release assumption.

Congress did not enact NEPA, of course, so that an agency would contemplate the environmental impact of an action
as an abstract exercise. Rather, Congress intended that the "hard look" be incorporated as part of the agency's
process of deciding whether to pursue a particular federal action. It was on this ground that the Court of Appeals
faulted the Commission's action, for failing to allow the uncertainties potentially to "tip the balance" in a particular
licensing decision. As a general proposition, we can agree with the Court of Appeals' determination that an agency
must allow all significant environmental risks to be factored into the decision whether to undertake a proposed action.
We think, however, that the Court of Appeals erred in concluding that the Commission had not complied with this
standard.

As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular internal decisionmaking
structure. Here, the agency has chosen to evaluate generically

Page 462 U. S. 101

the environmental impact of the fuel cycle and inform individual licensing boards, through the Table S-3 rule, of its
evaluation. The generic method chosen by the agency is clearly an appropriate method of conducting the "hard look"
required by NEPA. See Vermont Yankee, 435 U.S. at 435 U. S. 535, n. 13. The environmental effects of much of the
fuel cycle are not plant-specific, for any plant, regardless of its particular attributes, will create additional wastes that
must be stored in a common long-term repository. Administrative efficiency and consistency of decision are both
furthered by a generic determination of these effects without needless repetition of the litigation in individual
proceedings, which are subject to review by the Commission in any event. See generally Ecology Action v. AEC, 492
F.2d 998, 1002, n. 5 (CA2 1974) (Friendly, J.) (quoting Administrative Conference Proposed Recommendation 73-6).

The Court of Appeals recognized that the Commission has discretion to evaluate generically the environmental effects
of the fuel cycle and require that these values be "plugged into" individual licensing decisions. The court concluded
that the Commission nevertheless violated NEPA by failing to factor the uncertainty surrounding long-term storage into
Table S-3 and precluding individual licensing decisionmakers from considering it.
The Commission's decision to affix a zero value to the environmental impact of long-term storage would violate NEPA,
however, only if the Commission acted arbitrarily and capriciously in deciding generically that the uncertainty was
insufficient to affect any individual licensing decision. In assessing whether the Commission's decision is arbitrary and
capricious, it is crucial to place the zero release assumption in context. Three factors are particularly important. First is
the Commission's repeated emphasis that the zero release assumption -- and, indeed, all of the Table S-3 rule -- was
made for a limited purpose. The Commission expressly noted its intention to supplement the rule with an explanatory
narrative. [Footnote 13]

Page 462 U. S. 102

It also emphasized that the purpose of the rule was not to evaluate or select the most effective long-term waste
disposal technology or develop site selection criteria. A separate an comprehensive series of programs has been
undertaken to serve these broader purposes. [Footnote 14] In the proceedings before us, the Commission's staff did
not attempt to evaluate the environmental effects of all possible methods of disposing of waste. Rather, it chose to
analyze intensively the most probable long-term waste disposal method -- burial in a bedded-salt repository several
hundred meters below ground -- and then "estimate its impacts conservatively, based on the best available information
and analysis." 44 Fed.Reg. 45363 (1979). [Footnote 15] The zero release assumption cannot be evaluated in
isolation. Rather, it must be assessed in relation to the limited purpose for which the Commission made the
assumption.

Second, the Commission emphasized that the zero release assumption is but a single figure in an entire Table, which
the

Page 462 U. S. 103

Commission expressly designed as a risk-averse estimate of the environmental impact of the fuel cycle. It noted that
Table S-3 assumed that the fuel storage canisters and the fuel rod cladding would be corroded before a repository is
closed, and that all volatile materials in the fuel would escape to the environment. [Footnote 16] Given that
assumption, and the improbability that materials would escape after sealing, the Commission determined that the
overall Table represented a conservative (i.e., inflated) statement of environmental impacts. It is not unreasonable for
the Commission to counteract the uncertainties in post-sealing releases by balancing them with an overestimate of
pre-sealing releases. [Footnote 17] A reviewing court should not magnify a single line item beyond its significance as
only part of a larger Table.

Third, a reviewing court must remember that the Commission is making predictions, within its area of special
expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple
findings of fact, a reviewing court must generally be at its most deferential. See, e.g., Industrial Union Dept. v.
American Petroleum Institute, 448 U. S. 607, 448 U. S. 656 (1980) (plurality opinion); id.at 448 U. S. 705-706
(MARSHALL, J., dissenting).

Page 462 U. S. 104

With these three guides in mind, we find the Commission's zero release assumption to be within the bounds of
reasoned decisionmaking required by the APA. We have already noted that the Commission's Statement of
Consideration detailed several areas of uncertainty, and discussed why they were insubstantial for purposes of an
individual licensing decision. The Table S-3 rule also refers to the staff reports, public documents that contain a more
expanded discussion of the uncertainties involved in concluding that long-term storage will have no environmental
effects. These staff reports recognize that rigorous verification of long-term risks for waste repositories is not possible,
but suggest that data and extrapolation of past experience allow the Commission to identify events that could produce
repository failure, estimate the probability of those events, and calculate the resulting consequences. NUREG-0116 at
4-86. [Footnote 18] The Commission staff also modeled the consequences of repository failure by tracing the flow of
contaminated water, and found them to be insignificant. Id. at 4-89 through 4-94. Ultimately, the staff concluded that

"[t]he radiotoxic hazard index analyses and the modeling studies that have been done indicate that consequences of
all but the most improbable events will be small.

Page 462 U. S. 105

Risks (probabilities times consequences) inherent in the long-term for geological disposal will therefore also be small."

Id. at 2-11.

We also find significant the separate views of Commissioners Bradford and Gilinsky. These Commissioners expressed
dissatisfaction with the zero release assumption, and yet emphasized the limited purpose of the assumption and the
overall conservatism of Table S-3. Commissioner Bradford characterized the bedded-salt repository as a responsible
working assumption for NEPA purposes, and concurred in the zero release figure because it does not appear to affect
Table S-3's overall conservatism. 44 Fed.Reg. 45372 (1979). Commissioner Gilinsky was more critical of the entire
Table, stating that the Commission should confront directly whether it should license any nuclear reactors in light of
the problems of waste disposal, rather than hide an affirmative conclusion to this issue behind a table of numbers. He
emphasized that the "waste confidence proceeding," see n 14, supra, should provide the Commission an appropriate
vehicle for a thorough evaluation of the problems involved in the Government's commitment to a waste disposal
solution. For the limited purpose of individual licensing proceedings, however, Commissioner Gilinsky found it "virtually
inconceivable" that the Table should affect the decision whether to license, and characterized as "naive" the notion
that the fuel cycle effluents could tip the balance in some cases and not in others. 44 Fed.Reg. 45374 (1979).

In sum, we think that the zero release assumption -- a policy judgment concerning one line in a conservative Table
designed for the limited purpose of individual licensing decisions -- is within the bounds of reasoned decisionmaking. It
is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine
whether the Commission has considered the relevant factors and articulated a rational connection between the facts
found and the choice made. Bowman Transportation, Inc. v.

Page 462 U. S. 106

Arkansas-Best Freight System, Inc., 419 U. S. 281, 419 U. S. 285-286 (1974); Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U. S. 402 (1971). Under this standard, we think the Commission's zero release assumption, within the
context of Table S-3 as a whole, was not arbitrary and capricious.

III

As we have noted, n 5, supra, Table S-3 describes effluents and other impacts in technical terms. The Table does not
convert that description into tangible effects on human health or other environmental variables. The original and
interim rules declared that

"the contribution of the environmental effects of . . . fuel cycle activities . . . shall be as set forth in the following Table
S-3 [and] [n]o further discussion of such environmental effects shall be required."

39 Fed.Reg. 14191 (1974); 42 Fed.Reg. 13806 (1977). Since the Table does not specifically mention health effects,
socioeconomic impacts, or cumulative impacts, this declaration does not clearly require or preclude their discussion.
The Commission later amended the interim rule to clarify that health effects were not covered by Table S-3 and could
be litigated in individual licensing proceedings. In the final rule, the Commission expressly required licensing boards to
consider the socioeconomic and cumulative effects in addition to the health effects of the releases projected in the
Table. 44 Fed.Reg. 45371 (1979). [Footnote 19]

The Court of Appeals held that the original and interim rules violated NEPA by precluding licensing boards from
considering the health, socioeconomic, and cumulative effects of the environmental impacts stated in technical terms.
As does the Commission, we agree with the Court of Appeals that NEPA requires an EIS to disclose the significant
health, socioeconomic, and cumulative consequences of the environmental

Page 462 U. S. 107

impact of a proposed action. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S.
766 (1983); Kleppe v. Sierra Club, 427 U.S. at 427 U. S. 410; 40 CFR §§ 1508.7, 1508.8 (1982). We find no basis,
however, for the Court of Appeals' conclusion that the Commission ever precluded a licensing board from considering
these effects.

It is true, as the Commission pointed out in explaining why it modified the language in the earlier rules, that the original
Table S-3 rule "at least initially was apparently interpreted as cutting off" discussion of the effects of effluent releases.
44 Fed.Reg. 45364 (1979). But even the notice accompanying the earlier versions stated that the Table was "to be
used as a basis for evaluating the environmental effects in a cost-benefit analysis for a reactor," 39 Fed.Reg. 14190
(1974) (emphasis added), suggesting that individual licensing boards were to assess the consequences of effluent
releases. And when, operating under the initial rule, the Atomic Safety and Licensing Appeal Board suggested the
desirability of discussing health effects for comparing nuclear with coal plants, In re Tennessee Valley Authority
(Hartsville Nuclear Plant Units), 5 N.R.C. 92, 103, n. 52 (1977), the Commission staff was allowed to introduce
evidence of public health consequences.Cf. In re Public Service Company of Indiana (Marble Hill Nuclear Generating
Station), 7 N.R.C. 179, 187 (1978).
Respondents have pointed to no case where evidence concerning health or other consequences of the data in Table
S-3 was excluded from licensing proceedings. We think our admonition in Vermont Yankee applies with equal force
here:

"[W]hile it is true that NEPA places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure
their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions."

435 U.S. at 435 U. S. 553.

Page 462 U. S. 108

In short, we find it totally inappropriate to cast doubt on licensing proceedings simply because of a minor ambiguity in
the language of the earlier rule under which the environmental impact statement was made, when there is no
evidence that this ambiguity prevented any party from making as full a presentation as desired, or ever affected the
decision to license the plant.

IV

For the foregoing reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is

Reversed.

JUSTICE POWELL took no part in the consideration or decision of these cases.

Page 462 U. S. 109

APPENDIX TO THE OPINION OF THE COURT

Table S-3 -- Table of Uranium Fuel Cycle Environmental Data[1]

[Normalized to model LWR annuel fuel requirement [WASH-1248]

or reference reactor year [NUREG-0116]]

[Table omitted]

* Together with No. 82-545, United States Nuclear Regulatory Commission et al. v. Natural Resources Defense
Council, Inc., et al.; and No. 82-551, Commonwealth Edison Co. et al. v. Natural Resources Defense Council, Inc., et
al., also on certiorari to the same court.

[Footnote 1]

Section 102(2)(C) provides:

"The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal
Government shall -- "

****

"(c) include in every recommendation or report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- "

"(i) the environmental impact of the proposed action,"

"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and]"

****

"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action
should it be implemented."
[Footnote 2]

The original Table S-3 rule was promulgated by the Atomic Energy Commission (AEC). Congress abolished the AEC
in the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq., and transferred its licensing and regulatory
functions to the Nuclear Regulatory Commission (NRC). The interim and final rules were promulgated by the NRC.
This opinion will use the term "Commission" to refer to both the NRC and the predecessor AEC.

[Footnote 3]

Title 5 U.S.C. § 706 states in part:

"The reviewing court shall -- "

"(2) hold unlawful and set aside agency action, findings, and conclusions found to be -- "

"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

[Footnote 4]

A light-water nuclear powerplant is one that uses ordinary water (H^20), as opposed to heavy water (D^20), to remove
the heat generated in the nuclear core. See Van Nostrand's Scientific Encyclopedia 1998, 2008 (D. Considine & G.
Considine eds., 6th ed.1983). The bulk of the reactors in the United States are light-water nuclear reactors. NRC Ann.
Rep. Appendix 6 (1980).

[Footnote 5]

For example, the tabulated impacts include the acres of land committed to fuel cycle activities, the amount of water
discharged by such activities, fossil fuel consumption, and chemical and radiological effluents (measured in curies), all
normalized to the annual fuel requirement for a model 1,000 megawatt light-water reactor. See Table S-3, reprinted in
the Appendix, infra [omitted].

[Footnote 6]

Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq., a utility seeking to
construct and operate a nuclear powerplant must obtain a separate permit or license at both the construction and the
operation stage of the project. After the Commission's staff has examined the application for a construction license,
which includes a review of possible environmental effects as required by NEPA, a three-member Atomic Safety and
Licensing Board conducts a public adjudicatory hearing and reaches a decision which can be appealed to the Atomic
Safety and Licensing Appeal Board and, in the Commission's discretion, to the Commission itself. The final agency
decision may be appealed to the courts of appeals. A similar procedure occurs when the utility applies for an operating
license, except that a hearing need be held only in contested cases. See Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U. S. 519, 435 U. S. 526-527 (1978).

[Footnote 7]

High-level wastes, which are highly radioactive, are produced in liquid form when spent fuel is reprocessed.
Transuranic wastes, which are also highly toxic, are nuclides heavier than uranium that are produced in the reactor
fuel. See Natural Resources Defense Council, Inc. v. NRC, 222 U.S.App.D.C. 9, 16, n. 11, 685 F.2d 459, 466, n. 11
(1982).

[Footnote 8]

In Vermont Yankee, we indicated that the Court of Appeals could consider any additions made to the record by the
Commission, and could consolidate review of the initial review with review of later rules. 435 U.S. at 435 U. S. 537, n.
14. Consistent with this direction, the parties stipulated that all three versions of the rule could be reviewed on the
basis of the whole record. See 222 U.S.App.D.C. at 21, n. 39, 685 F.2d at 471, n. 39.

[Footnote 9]

Judge Bazelon wrote the opinion for the court. Judge Wilkey joined the section of the opinion that rejected New York's
argument that the waste disposal technology assumed for calculation of certain effluent release values was
economically infeasible. That issue is not before us. Judge Wilkey filed a dissenting opinion on the issues that are
under review here. Judge Edwards of the Court of Appeals for the Sixth Circuit, sitting by designation, joined these
sections of Judge Bazelon's opinion, and also filed a separate opinion concurring in part and dissenting on the
economic infeasibility issue.

[Footnote 10]

As the Court of Appeals recognized, 222 U.S.App.D.C. at 31, n. 118, 685 F.2d at 481, n. 118, the Commission became
increasingly candid in acknowledging the uncertainties underlying permanent waste disposal. Because all three
versions of Table S-3 use the same zero release assumption, and the parties stipulated that the entire record be used
in reviewing all three versions, see n 8, supra, we need review only the propriety of the final Table S-3 rule. We leave
for another day any general concern with an agency whose initial Environmental Impact Statement (EIS) is insufficient
but who later adequately supplements its consideration and disclosure of the environmental impact of its action.

[Footnote 11]

The record includes more than 1,100 pages of prepared direct testimony, two rounds of questions by participants and
several hundred pages of responses, 1,200 pages of oral hearings, participants' rebuttal testimony, concluding
statements, the 137-page report of the hearing board, further written statements from participants, and oral argument
before the Commission. The Commission staff has prepared three studies of the environmental effects of the fuel
cycle: Environmental Survey of the Uranium Fuel Cycle, WASH-1248 (Apr.1974); Environmental Survey of the
Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0116 (Supp. I to WASH-1248)
(Oct.1976) (hereinafter cited as NUREG-0116); and Public Comments and Task Force Responses Regarding the
Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0216
(Supp. 2 to WASH-1248) (Mar.1977).

[Footnote 12]

We are reviewing here only the Table S-3 rulemaking proceedings, and do not have before us an individual EIS that
incorporates Table S-3. It is clear that the Statement of Consideration supporting the Table S-3 rule adequately
discloses the environmental uncertainties considered by the Commission. However, Table S-3 itself refers to other
documents, but gives only brief descriptions of the environmental effects it encapsulates. There is some concern with
an EIS that relies too heavily on separate documents, rather than addressing the concerns directly. Although we do
not decide whether they have binding effect on an independent agency such as the Commission, it is worth noting that
the guidelines from the Council on Environmental Quality in effect during these proceedings required that

"care should be taken to ensure that the statement remains an essentially self-contained instrument, capable of being
understood by the reader without the need for undue cross reference."

38 Fed.Reg. 20554 (1973), 40 CFR § 1500.8(b) (1974). The present regulations state that incorporation by reference
is permissible if it will not "imped[e] agency and public review of the action. The incorporated material shall be cited in
the statement and its content briefly described." 40 CFR § 1502.21 (1982). The Court of Appeals noted that NEPA
"requires an agency to do more than to scatter its evaluation of environmental damage among various public
documents," 222 U.S.App.D.C. at 34, 685 F.2d at 484, but declined to find that the incorporation of other documents
by reference would invalidate an EIS that used Table S-3 to describe the environmental impact of the fuel cycle. The
parties here do not treat this insufficient disclosure argument as a separate argument and, like the Court of Appeals,
we decline to strike down the rule on this ground. We do not deny the value of an EIS that can be understood without
extensive cross-reference. The staff documents referred to in Table S-3 are public documents, however, and we note
that the Commission has proposed an explanatory narrative to accompany Table S-3, which would be included in an
individual EIS, that may alleviate some of the concerns of incorporation. See n 13, infra.

[Footnote 13]

In March 1981, the Commission submitted a version of the explanatory narrative for public comment as a proposed
amendment to the final fuel cycle rule. 46 Fed.Reg. 15154 (1981). The Commission has not yet adopted a final
narrative.

[Footnote 14]

In response to Minnesota v. NRC, 195 U.S.App.D.C. 234, 602 F.2d 412 (1979), the Commission has initiated a "waste
confidence" proceeding to consider the most recent evidence regarding the likelihood that nuclear waste can be safely
disposed of and when that, or some other off-site storage solution, can be accomplished. 44 Fed.Reg. 61372 et
seq. (1979). See id. at 45363. The recently enacted Nuclear Waste Policy Act of 1982, Pub.L. 97-425, 96 Stat. 2201,
42 U.S.C. § 10101 et seq. (1982 ed.), has set up a schedule for identifying site locations and a funding mechanism for
development of permanent waste repositories. The Environmental Protection Agency has also proposed standards for
future waste repositories, 47 Fed.Reg. 58196 et seq. (1982).
[Footnote 15]

For example, Table S-3 assumes that plutonium will not be recycled. The Commission noted that, in response to a
Presidential directive, it had terminated separate proceedings concerning the possibility of recycling plutonium in
mixed oxide fuel. 44 Fed.Reg. 45369, n. 28 (1979). See In re Mixed Oxide Fuel, 6 N.R.C. 861 (1977); In re Mixed
Oxide Fuel, 7 N.R.C. 711 (1978).

[Footnote 16]

The Commission also increased the overall conservatism of the Table by overestimating the amount of fuel consumed
by a reactor, underestimating the amount of electricity produced, and then underestimating the efficiency of filters and
other protective devices. See Conclusions and Recommendations of the Hearing Board Regarding the Environmental
Effects of the Uranium Fuel Cycle, Docket No. Rm 50-3, App. to Pet. for Cert. in No. 82-524, pp. 282a-293a.
Additionally, Table S-3, which analyzes both a uranium-recycle and no-recycle system, conservatively lists, for each
effluent, the highest of the two releases that would be expected under each cycle. 41 Fed.Reg. 45849, 45850 (1976).

[Footnote 17]

The Court of Appeals recognized that the Commission could weigh certain generic costs and benefits of reactors
against each other to produce a generic "net value" to be used in individual licensing proceedings. 222 U.S.App.D.C.
at 32, 685 F.2d at 482. We see no reason why the Commission does not have equal discretion to evaluate certain
environmental costs together to produce a generic net cost.

[Footnote 18]

For example, using this approach, the staff estimated that a meteor the size necessary to damage a repository would
hit a given square kilometer of the earth's surface only once every 50 trillion years, and that geologic faulting through
the Delaware Basin in southeast New Mexico (assuming that were the site of the repository) would occur once in 25
billion years. NUREG-0116 at 4-87. The staff determined that a surface burst of a 50 megaton nuclear weapon, far
larger than any currently deployed, would not breach the repository. Ibid. The staff also recognized the possibility that
heat generated by the waste would damage the repository, but suggested this problem could be alleviated by
decreasing the density of the stored waste. In recognition that this suggestion would increase the size of the
repository, the Commission amended Table S-3 to reflect the greater acreage required under these
assumptions. See 44 Fed.Reg. 45369 (1979).

[Footnote 19]

Of course, just as the Commission has discretion to evaluate generically aspects of the environmental impact of the
fuel cycle, it has discretion to have other aspects of the issue decided in individual licensing decisions.
 449 F.2d 1109
CALVERT CLIFFS' COORDINATING COMMITTEE, INC., et al., Petitioners,
v.
UNITED STATES ATOMIC ENERGY COMMISSION and United States of America, Respondents,
Baltimore Gas and Electric Company, Intervenor.
CALVERT CLIFFS' COORDINATING COMMITTEE, INC., et al., Petitioners,
v.
UNITED STATES ATOMIC ENERGY COMMISSION and United States of America, Respondents.
No. 24839.
No. 24871.
United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 1971.

Decided July 23, 1971.
COPYRIGHT MATERIAL OMITTED Mr. Anthony Z. Roisman, Washington, D. C., with whom Messrs. Myron M.
Cherry, Chicago, Ill., and Lewis Drain, Grand Rapids, Mich., were on the brief, for petitioners.
1

Mr. Marcus A. Rowden, Solicitor, Atomic Energy Commission, with whom Messrs. Howard K. Shapar, Asst. Gen.
Counsel, Licensing and Regulation, Atomic Energy Commission, and Edmund Clark, Atty., Department of Justice,
were on the brief, for respondents. Mr. William C. Parler, Atty., Atomic Energy Commission, also entered an
appearance for respondent Atomic Energy Commission.

Mr. George F. Trowbridge, Washington, D. C., with whom Mr. Jay E. Silberg, Washington, D. C., was on the brief,
for intervenor in No. 24,839.

Messrs. George D. Gibson and Arnold H. Quint, Washington, D. C., filed a brief on behalf of Duke Power Company
et al. as amici curiae in No. 24,871.

Mr. Roy B. Snapp, Washington, D. C., filed a brief on behalf of Arkansas Power and Light Company as amicus
curiae in No. 24,871.

Messrs. Arvin E. Upton, Leonard M. Trosten and Henry V. Nickel, Washington, D. C., filed a brief on behalf of
Consolidated Edison Company as amicus curiae in No. 24,871.

Mr. Jerome E. Sharfman, Washington, D. C., filed a brief on behalf of Consumers Power Company as amicus
curiae in No. 24,871.

Messrs. H. Edward Dunkelberger, Jr., Christopher M. Little and Peter M. Phillipes, Washington, D. C., filed a brief
on behalf of Indiana and Michigan Electric Company and Portland General Electric Company as amici curiae in No.
24,871.

Before WRIGHT, TAMM and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

9
These cases are only the beginning of what promises to become a flood of new litigation — litigation seeking
judicial assistance in protecting our natural environment. Several recently enacted statutes attest to the commitment of
the Government to control, at long last, the destructive engine of material "progress."1But it remains to be seen
whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for
the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental
Policy Act of 1969 (NEPA).2 We must assess claims that one of the agencies charged with its administration has failed
to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in
the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.
10

NEPA, like so much other reform legislation of the last 40 years, is cast in terms of a general mandate and broad
delegation of authority to new and old administrative agencies. It takes the major step of requiring all federal agencies
to consider values of environmental preservation in their spheres of activity, and it prescribes certain procedural
measures to ensure that those values are in fact fully respected. Petitioners argue that rules recently adopted by the
Atomic Energy Commission to govern consideration of environmental matters fail to satisfy the rigor demanded by
NEPA. The Commission, on the other hand, contends that the vagueness of the NEPA mandate and delegation leaves
much room for discretion and that the rules challenged by petitioners fall well within the broad scope of the Act. We
find the policies embodied in NEPA to be a good deal clearer and more demanding than does the Commission. We
conclude that the Commission's procedural rules do not comply with the congressional policy. Hence we remand
these cases for further rule making.

11
* We begin our analysis with an examination of NEPA's structure and approach and of the Atomic Energy
Commission rules which are said to conflict with the requirements of the Act. The relevant portion of NEPA is Title I,
consisting of five sections.3 Section 101 sets forth the Act's basic substantive policy: that the federal government "use
all practicable means and measures" to protect environmental values. Congress did not establish environmental
protection as an exclusive goal; rather, it desired a reordering of priorities, so that environmental costs and benefits
will assume their proper place along with other considerations. In Section 101(b), imposing an explicit duty on federal
officials, the Act provides that "it is the continuing responsibility of the Federal Government to use all practicable
means, consistent with other essential considerations of national policy," to avoid environmental degradation, preserve
"historic, cultural, and natural" resources, and promote "the widest range of beneficial uses of the environment without
* * * undesirable and unintended consequences."
12

Thus the general substantive policy of the Act is a flexible one. It leaves room for a responsible exercise of
discretion and may not require particular substantive results in particular problematic instances. However, the Act also
contains very important "procedural" provisions — provisions which are designed to see that all federal agencies do in
fact exercise the substantive discretion given them. These provisions are not highly flexible. Indeed, they establish a
strict standard of compliance.

13
NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department.
The Atomic Energy Commission, for example, had continually asserted, prior to NEPA, that it had no statutory
authority to concern itself with the adverse environmental effects of its actions.4 Now, however, its hands are no longer
tied. It is not only permitted, but compelled, to take environmental values into account. Perhaps the greatest
importance of NEPA is to require the Atomic Energy Commission and other agencies to consider environmental issues
just as they consider other matters within their mandates. This compulsion is most plainly stated in Section 102.
There, "Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public
laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act * *
*." Congress also "authorizes and directs" that "(2) all agencies of the Federal Government shall" follow certain
rigorous procedures in considering environmental values.5 Senator Jackson, NEPA's principal sponsor, stated that
"[n]o agency will [now] be able to maintain that it has no mandate or no requirement to consider the environmental
consequences of its actions."6 He characterized the requirements of Section 102 as "action-forcing" and stated that
"[o]therwise, these lofty declarations [in Section 101] are nothing more than that."7
14
The sort of consideration of environmental values which NEPA compels is clarified in Section 102(2) (A) and (B). In
general, all agencies must use a "systematic, interdisciplinary approach" to environmental planning and evaluation "in
decisionmaking which may have an impact on man's environment." In order to include all possible environmental
factors in the decisional equation, agencies must "identify and develop methods and procedures * * * which will insure
that presently unquantified environmental amenities and values may be given appropriate consideration in
decisionmaking along with economic and technical considerations."8"Environmental amenities" will often be in conflict
with "economic and technical considerations." To "consider" the former "along with" the latter must involve a balancing
process. In some instances environmental costs may outweigh economic and technical benefits and in other instances
they may not. But NEPA mandates a rather finely tuned and "systematic" balancing analysis in each instance.9
15

To ensure that the balancing analysis is carried out and given full effect, Section 102(2) (C) requires that
responsible officials of all agencies prepare a "detailed statement" covering the impact of particular actions on the
environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-
benefit equation. The apparent purpose of the "detailed statement" is to aid in the agencies' own decision making
process and to advise other interested agencies and the public of the environmental consequences of planned federal
action. Beyond the "detailed statement," Section 102(2) (D) requires all agencies specifically to "study, develop, and
describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources." This requirement, like the "detailed statement"
requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all
possible approaches to a particular project (including total abandonment of the project) which would alter the
environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally
beneficial decision will ultimately be made. Moreover, by compelling a formal "detailed statement" and a description of
alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place and, most
importantly, allows those removed from the initial process to evaluate and balance the factors on their own.

16

Of course, all of these Section 102 duties are qualified by the phrase "to the fullest extent possible." We must stress
as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not
make NEPA's procedural requirements somehow "discretionary." Congress did not intend the Act to be such a paper
tiger. Indeed, the requirement of environmental consideration "to the fullest extent possible" sets a high standard for
the agencies, a standard which must be rigorously enforced by the reviewing courts.

17
Unlike the substantive duties of Section 101(b), which require agencies to "use all practicable means consistent
with other essential considerations," the procedural duties of Section 102 must be fulfilled to the "fullest extent
possible."10 This contrast, in itself, is revealing. But the dispositive factor in our interpretation is the expressed views
of the Senate and House conferees who wrote the "fullest extent possible" language into NEPA. They stated:11
18

"* * * The purpose of the new language is to make it clear that each agency of the Federal Government shall
comply with the directives set out in * * * [Section 102(2)] unless the existing law applicable to such agency's
operations expressly prohibits or makes full compliance with one of the directives impossible. * * * Thus, it is the intent
of the conferees that the provision `to the fullest extent possible' shall not be used by any Federal agency as a means
of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to
assure that all agencies of the Federal Government shall comply with the directives set out in said section `to the
fullest extent possible' under their statutory authorizations and that no agency shall utilize an excessively narrow
construction of its existing statutory authorizations to avoid compliance."

19
Thus the Section 102 duties are not inherently flexible. They must be complied with to the fullest extent, unless
there is a clear conflict of statutory authority.12Considerations of administrative difficulty, delay or economic cost will
not suffice to strip the section of its fundamental importance.
20
We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking
process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive
decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was
struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached
procedurally without individualized consideration and balancing of environmental factors — conducted fully and in
good faith — it is the responsibility of the courts to reverse. As one District Court has said of Section 102
requirements: "It is hard to imagine a clearer or stronger mandate to the Courts."13
21
In the cases before us now, we do not have to review a particular decision by the Atomic Energy Commission
granting a construction permit or an operating license. Rather, we must review the Commission's recently promulgated
rules which govern consideration of environmental values in all such individual decisions. 14 The rules were devised
strictly in order to comply with the NEPA procedural requirements — but petitioners argue that they fall far short of the
congressional mandate.
22
The period of the rules' gestation does not indicate overenthusiasm on the Commission's part. NEPA went into
effect on January 1, 1970. On April 2, 1970 — three months later — the Commission issued its first, short policy
statement on implementation of the Act's procedural provisions.15 After another span of two months, the Commission
published a notice of proposed rule making in the Federal Register.16 Petitioners submitted substantial comments
critical of the proposed rules. Finally, on December 3, 1970, the Commission terminated its long rule making
proceeding by issuing a formal amendment, labelled Appendix D, to its governing regulations.17 Appendix D is a
somewhat revised version of the earlier proposal and, at last, commits the Commission to consider environmental
impact in its decision making process.
23

The procedure for environmental study and consideration set up by the Appendix D rules is as follows: Each
applicant for an initial construction permit must submit to the Commission his own "environmental report," presenting
his assessment of the environmental impact of the planned facility and possible alternatives which would alter the
impact. When construction is completed and the applicant applies for a license to operate the new facility, he must
again submit an "environmental report" noting any factors which have changed since the original report. At each
stage, the Commission's regulatory staff must take the applicant's report and prepare its own "detailed statement" of
environmental costs, benefits and alternatives. The statement will then be circulated to other interested and
responsible agencies and made available to the public. After comments are received from those sources, the staff
must prepare a final "detailed statement" and make a final recommendation on the application for a construction
permit or operating license.

24

Up to this point in the Appendix D rules petitioners have raised no challenge. However, they do attack four other,
specific parts of the rules which, they say, violate the requirements of Section 102 of NEPA. Each of these parts in
some way limits full consideration and individualized balancing of environmental values in the Commission's decision
making process. (1) Although environmental factors must be considered by the agency's regulatory staff under the
rules, such factors need not be considered by the hearing board conducting an independent review of staff
recommendations, unless affirmatively raised by outside parties or staff members. (2) Another part of the procedural
rules prohibits any such party from raising nonradiological environmental issues at any hearing if the notice for that
hearing appeared in the Federal Register before March 4, 1971. (3) Moreover, the hearing board is prohibited from
conducting an independent evaluation and balancing of certain environmental factors if other responsible agencies
have already certified that their own environmental standards are satisfied by the proposed federal action. (4) Finally,
the Commission's rules provide that when a construction permit for a facility has been issued before NEPA compliance
was required and when an operating license has yet to be issued, the agency will not formally consider environmental
factors or require modifications in the proposed facility until the time of the issuance of the operating license. Each of
these parts of the Commission's rules will be described at greater length and evaluated under NEPA in the following
sections of this opinion.

II

25

NEPA makes only one specific reference to consideration of environmental values in agency review processes.
Section 102(2) (C) provides that copies of the staff's "detailed statement" and comments thereon "shall accompany
the proposal through the existing agency review processes." The Atomic Energy Commission's rules may seem in
technical compliance with the letter of that provision. They state:

26

"12. If any party to a proceeding * * * raises any [environmental] issue * * * the Applicant's Environmental Report
and the Detailed Statement will be offered in evidence. The atomic safety and licensing board will make findings of
fact on, and resolve, the matters in controversy among the parties with regard to those issues. Depending on the
resolution of those issues, the permit or license may be granted, denied, or appropriately conditioned to protect
environmental values.

27
"13. When no party to a proceeding * * * raises any [environmental] issue * * * such issues will not be considered by
the atomic safety and licensing board. Under such circumstances, although the Applicant's Environmental Report,
comments thereon, and the Detailed Statement will accompany the application through the Commission's review
processes, they will not be received in evidence, and the Commission's responsibilities under the National
Environmental Policy Act of 1969 will be carried out in toto outside the hearing process."18
28

The question here is whether the Commission is correct in thinking that its NEPA responsibilities may "be carried
out in toto outside the hearing process" — whether it is enough that environmental data and evaluations merely
"accompany" an application through the review process, but receive no consideration whatever from the hearing
board.

29
We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act. What possible
purpose could there be in the Section 102 (2) (C) requirement (that the "detailed statement" accompany proposals
through agency review processes) if "accompany" means no more than physical proximity — mandating no more than
the physical act of passing certain folders and papers, unopened, to reviewing officials along with other folders and
papers? What possible purpose could there be in requiring the "detailed statement" to be before hearing boards, if the
boards are free to ignore entirely the contents of the statement? NEPA was meant to do more than regulate the flow of
papers in the federal bureaucracy. The word "accompany" in Section 102(2) (C) must not be read so narrowly as to
make the Act ludicrous. It must, rather, be read to indicate a congressional intent that environmental factors, as
compiled in the "detailed statement," be consideredthrough agency review processes.19
30

Beyond Section 102(2) (C), NEPA requires that agencies consider the environmental impact of their actions "to the
fullest extent possible." The Act is addressed to agencies as a whole, not only to their professional staffs. Compliance
to the "fullest" possible extent would seem to demand that environmental issues be considered at every important
stage in the decision making process concerning a particular action — at every stage where an overall balancing of
environmental and nonenvironmental factors is appropriate and where alterations might be made in the proposed
action to minimize environmental costs. Of course, consideration which is entirely duplicative is not necessarily
required. But independent review of staff proposals by hearing boards is hardly a duplicative function. A truly
independent review provides a crucial check on the staff's recommendations. The Commission's hearing boards
automatically consider nonenvironmental factors, even though they have been previously studied by the staff. Clearly,
the review process is an appropriate stage at which to balance conflicting factors against one another. And, just as
clearly, it provides an important opportunity to reject or significantly modify the staff's recommended action.
Environmental factors, therefore, should not be singled out and excluded, at this stage, from the proper balance of
values envisioned by NEPA.

31
The Commission's regulations provide that in an uncontested proceeding the hearing board shall on its own
"determine whether the application and the record of the proceeding contain sufficient information, and the review of
the application by the Commission's regulatory staff has been adequate, to support affirmative findings on" various
nonenvironmental factors.20 NEPA requires at least as much automatic consideration of environmental factors. In
uncontested hearings, the board need not necessarily go over the same ground covered in the "detailed statement."
But it must at least examine the statement carefully to determine whether "the review * * * by the Commission's
regulatory staff has been adequate." And it must independently consider the final balance among conflicting factors
that is struck in the staff's recommendation.
32
The rationale of the Commission's limitation of environmental issues to hearings in which parties affirmatively raise
those issues may have been one of economy. It may have been supposed that, whenever there are serious
environmental costs overlooked or uncorrected by the staff, some party will intervene to bring those costs to the
hearing board's attention. Of course, independent review of the "detailed statement" and independent balancing of
factors in an uncontested hearing will take some time. If it is done properly, it will take a significant amount of time. But
all of the NEPA procedures take time. Such administrative costs are not enough to undercut the Act's requirement that
environmental protection be considered "to the fullest extent possible," see text at page 1114, supra. It is, moreover,
unrealistic to assume that there will always be an intervenor with the information, energy and money required to
challenge a staff recommendation which ignores environmental costs. NEPA establishes environmental protection as
an integral part of the Atomic Energy Commission's basic mandate. The primary responsibility for fulfilling that
mandate lies with the Commission. Its responsibility is not simply to sit back, like an umpire, and resolve adversary
contentions at the hearing stage. Rather, it must itself take the initiative of considering environmental values at every
distinctive and comprehensive stage of the process beyond the staff's evaluation and recommendation.21

III

33
Congress passed the final version of NEPA in late 1969, and the Act went into full effect on January 1, 1970. Yet the
Atomic Energy Commission's rules prohibit any consideration of environmental issues by its hearing boards at
proceedings officially noticed before March 4, 1971.22 This is 14 months after the effective date of NEPA. And the
hearings affected may go on for as much as a year longer until final action is taken. The result is that major federal
actions having a significant environmental impact may be taken by the Commission, without full NEPA compliance,
more than two years after the Act's effective date. In view of the importance of environmental consideration during the
agency review process, see Part II supra, such a time lag is shocking.
34
The Commission explained that its very long time lag was intended "to provide an orderly period of transition in the
conduct of the Commission's regulatory proceedings and to avoid unreasonable delays in the construction and
operation of nuclear power plants urgently needed to meet the national requirements for electric power."23 Before this
court, it has claimed authority for its action, arguing that "the statute did not lay down detailed guidelines and inflexible
timetables for its implementation; and we find in it no bar to agency provisions which are designed to accommodate
transitional implementation problems."24
35
Again, the Commission's approach to statutory interpretation is strange indeed — so strange that it seems to reveal
a rather thoroughgoing reluctance to meet the NEPA procedural obligations in the agency review process, the stage at
which deliberation is most open to public examination and subject to the participation of public intervenors. The Act, it
is true, lacks an "inflexible timetable" for its implementation. But it does have a clear effective date, consistently
enforced by reviewing courts up to now. Every federal court having faced the issues has held that the procedural
requirements of NEPA must be met in order to uphold federal action taken after January 1, 1970. 25 The absence of a
"timetable" for compliance has never been held sufficient, in itself, to put off the date on which a congressional
mandate takes effect. The absence of a "timetable," rather, indicates that compliance is required forthwith.
36
 The only part of the Act which even implies that implementation may be subject, in some cases, to some significant
delay is Section 103. There, Congress provided that all agencies must review "their present statutory authority,
administrative regulations, and current policies and procedures for the purpose of determining whether there are any
deficiencies or inconsistencies therein which prohibit full compliance" with NEPA. Agencies finding some such
insuperable difficulty are obliged to "propose to the President not later than July 1, 1971, such measures as may be
necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this
Act."

37

The Commission, however, cannot justify its time lag under these Section 103 provisions. Indeed, it has not
attempted to do so; only intervenors have raised the argument. Section 103 could support a substantial delay only by
an agency which in fact discovered an insuperable barrier to compliance with the Act and required time to formulate
and propose the needed reformative measures. The actual review of existing statutory authority and regulations
cannot be a particularly lengthy process for experienced counsel of a federal agency. Of course, the Atomic Energy
Commission discovered no obstacle to NEPA implementation. Although it did not report its conclusion to the President
until October 2, 1970, that nine-month delay (January to October) cannot justify so long a period of noncompliance
with the Act. It certainly cannot justify a further delay of compliance until March 4, 1971.

38
No doubt the process formulating procedural rules to implement NEPA takes some time. Congress cannot have
expected that federal agencies would immediately begin considering environmental issues on January 1, 1970. But
the effective date of the Act does set a time for agencies to begin adopting rules and it demands that they strive, "to
the fullest extent possible," to be prompt in the process. The Atomic Energy Commission has failed in this
regard.26 Consideration of environmental issues in the agency review process, for example, is quite clearly compelled
by the Act.27 The Commission cannot justify its 11-month delay in adopting rules on this point as part of a difficult,
discretionary effort to decide whether or not its hearing boards should deal with environmental questions at all.
39
Even if the long delay had been necessary, however, the Commission would not be relieved of all NEPA
responsibility to hold public hearings on the environmental consequences of actions taken between January 1, 1970
and final adoption of the rules. Although the Act's effective date may not require instant compliance, it must at least
require that NEPA procedures, once established, be applied to consider prompt alterations in the plans or operations
of facilities approved without compliance.28 Yet the Commission's rules contain no such provision. Indeed, they do not
even apply to the hearings still being conducted at the time of their adoption on December 3, 1970 — or, for that
matter, to hearings initiated in the following three months. The delayed compliance date of March 4, 1971, then,
cannot be justified by the Commission's long drawn out rule making process.
40
Strangely, the Commission has principally relied on more pragmatic arguments. It seems an unfortunate affliction of
large organizations to resist new procedures and to envision massive roadblocks to their adoption. Hence the
Commission's talk of the need for an "orderly transition" to the NEPA procedures. It is difficult to credit the
Commission's argument that several months were needed to work the consideration of environmental values into its
review process. Before the enactment of NEPA, the Commission already had regulations requiring that hearings
include health, safety and radiological matters.29 The introduction of environmental matters cannot have presented a
radically unsettling problem. And, in any event, the obvious sense of urgency on the part of Congress should make
clear that a transition, however "orderly," must proceed at a pace faster than a funeral procession.
41

In the end, the Commission's long delay seems based upon what it believes to be a pressing national power crisis.
Inclusion of environmental issues in pre-March 4, 1971 hearings might have held up the licensing of some power
plants for a time. But the very purpose of NEPA was to tell federal agencies that environmental protection is as much a
part of their responsibility as is protection and promotion of the industries they regulate. Whether or not the spectre of
a national power crisis is as real as the Commission apparently believes, it must not be used to create a blackout of
environmental consideration in the agency review process. NEPA compels a case-by-case examination and balancing
of discrete factors. Perhaps there may be cases in which the need for rapid licensing of a particular facility would
justify a strict time limit on a hearing board's review of environmental issues; but a blanket banning of such issues until
March 4, 1971 is impermissible under NEPA.

IV

42
The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact
of federal action. However, the Atomic Energy Commission's rules specifically exclude from full consideration a wide
variety of environmental issues. First, they provide that no party may raise and the Commission may not
independently examine any problem of water quality — perhaps the most significant impact of nuclear power plants.
Rather, the Commission indicates that it will defer totally to water quality standards devised and administered by state
agencies and approved by the federal government under the Federal Water Pollution Control Act.30 Secondly, the
rules provide for similar abdication of NEPA authority to the standards of other agencies:
43
"With respect to those aspects of environmental quality for which environmental quality standards and requirements
have been established by authorized Federal, State, and regional agencies, proof that the applicant is equipped to
observe and agrees to observe such standards and requirements will be considered a satisfactory showing that there
will not be a significant, adverse effect on the environment. Certification by the appropriate agency that there is
reasonable assurance that the applicant for the permit or license will observe such standards and requirements will be
considered dispositive for this purpose."31
44
The most the Commission will do is include a condition in all construction permits and operating licenses requiring
compliance with the water quality or other standards set by such agencies.32 The upshot is that the NEPA
procedures, viewed by the Commission as superfluous, will wither away in disuse, applied only to those environmental
issues wholly unregulated by any other federal, state or regional body.
45

We believe the Commission's rule is in fundamental conflict with the basic purpose of the Act. NEPA mandates a
case-by-case balancing judgment on the part of federal agencies. In each individual case, the particular economic and
technical benefits of planned action must be assessed and then weighed against the environmental costs; alternatives
must be considered which would affect the balance of values. See text at page 1113 supra. The magnitude of possible
benefits and possible costs may lie anywhere on a broad spectrum. Much will depend on the particular magnitudes
involved in particular cases. In some cases, the benefits will be great enough to justify a certain quantum of
environmental costs; in other cases, they will not be so great and the proposed action may have to be abandoned or
significantly altered so as to bring the benefits and costs into a proper balance. The point of the individualized
balancing analysis is to ensure that, with possible alterations, the optimally beneficial action is finally taken.

46

Certification by another agency that its own environmental standards are satisfied involves an entirely different kind
of judgment. Such agencies, without overall responsibility for the particular federal action in question, attend only to
one aspect of the problem: the magnitude of certain environmental costs. They simply determine whether those costs
exceed an allowable amount. Their certification does not mean that they found no environmental damage whatever. In
fact, there may be significant environmental damage (e. g., water pollution), but not quite enough to violate applicable
(e. g., water quality) standards. Certifying agencies do not attempt to weigh that damage against the opposing
benefits. Thus the balancing analysis remains to be done. It may be that the environmental costs, though passing
prescribed standards, are nonetheless great enough to outweigh the particular economic and technical benefits
involved in the planned action. The only agency in a position to make such a judgment is the agency with overall
responsibility for the proposed federal action — the agency to which NEPA is specifically directed.

47

The Atomic Energy Commission, abdicating entirely to other agencies' certifications, neglects the mandated
balancing analysis. Concerned members of the public are thereby precluded from raising a wide range of
environmental issues in order to affect particular Commission decisions. And the special purpose of NEPA is
subverted.

48

Arguing before this court, the Commission has made much of the special environmental expertise of the agencies
which set environmental standards. NEPA did not overlook this consideration. Indeed, the Act is quite explicit in
describing the attention which is to be given to the views and standards of other agencies. Section 102 (2) (C)
provides:

49

"Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments
of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact
involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local
agencies, which are authorized to develop and enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public * * *."

50

Thus the Congress was surely cognizant of federal, state and local agencies "authorized to develop and enforce
environmental standards." But it provided, in Section 102(2) (C), only for full consultation. It most certainly did not
authorize a total abdication to those agencies. Nor did it grant a license to disregard the main body of NEPA
obligations.

51
 Of course, federal agencies such as the Atomic Energy Commission may have specific duties, under acts other
than NEPA, to obey particular environmental standards. Section 104 of NEPA makes clear that such duties are not to
be ignored:

52

"Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to
comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State
agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal
or State agency."

53

On its face, Section 104 seems quite unextraordinary, intended only to see that the general procedural reforms
achieved in NEPA do not wipe out the more specific environmental controls imposed by other statutes. Ironically,
however, the Commission argues that Section 104 in fact allows other statutes to wipe out NEPA.

54
Since the Commission places great reliance on Section 104 to support its abdication to standard setting agencies,
we should first note the section's obvious limitation. It deals only with deference to such agencies which is compelled
by "specific statutory obligations." The Commission has brought to our attention one "specific statutory obligation": the
Water Quality Improvement Act of 1970 (WQIA).33 That Act prohibits federal licensing bodies, such as the Atomic
Energy Commission, from issuing licenses for facilities which pollute "the navigable waters of the United States"
unless they receive a certification from the appropriate agency that compliance with applicable water quality standards
is reasonably assured. Thus Section 104 applies in some fashion to consideration of water quality matters. But it
definitely cannot support — indeed, it is not even relevant to — the Commission's wholesale abdication to the
standards and certifications of any and all federal, state and local agencies dealing with matters other than water
quality.
55
As to water quality, Section 104 and WQIA clearly require obedience to standards set by other agencies. But
obedience does not imply total abdication. Certainly, the language of Section 104 does not authorize an abdication. It
does not suggest that other "specific statutory obligations" will entirely replace NEPA. Rather, it ensures that three
sorts of "obligations" will not be undermined by NEPA: (1) the obligation to "comply" with certain standards, (2) the
obligation to "coordinate" or "consult" with certain agencies, and (3) the obligation to "act, or refrain from acting
contingent upon" a certification from certain agencies. WQIA imposes the third sort of obligation. It makes the granting
of a license by the Commission "contingent upon" a water quality certification. But it does not require the Commission
to grant a license once a certification has been issued. It does not preclude the Commission from demanding water
pollution controls from its licensees which are more strict than those demanded by the applicable water quality
standards of the certifying agency.34 It is very important to understand these facts about WQIA. For all that Section
104 of NEPA does is to reaffirm other "specific statutory obligations." Unless those obligations are plainly mutually
exclusive with the requirements of NEPA, the specific mandate of NEPA must remain in force. In other words, Section
104 can operate to relieve an agency of its NEPA duties only if other "specific statutory obligations" clearly preclude
performance of those duties.
56

Obedience to water quality certifications under WQIA is not mutually exclusive with the NEPA procedures. It does
not preclude performance of the NEPA duties. Water quality certifications essentially establish a minimum condition for
the granting of a license. But they need not end the matter. The Commission can then go on to perform the very
different operation of balancing the overall benefits and costs of a particular proposed project, and consider alterations
(above and beyond the applicable water quality standards) which would further reduce environmental damage.
Because the Commission can still conduct the NEPA balancing analysis, consistent with WQIA, Section 104 does not
exempt it from doing so. And it, therefore, must conduct the obligatory analysis under the prescribed procedures.

57
We believe the above result follows from the plain language of Section 104 of NEPA and WQIA. However, the
Commission argues that we should delve beneath the plain language and adopt a significantly different interpretation.
It relies entirely upon certain statements made by Senator Jackson and Senator Muskie, the sponsors of NEPA and
WQIA respectively.35 Those statements indicate that Section 104 was the product of a compromise intended to
eliminate any conflict between the two bills then in the Senate. The overriding purpose was to prevent NEPA from
eclipsing obedience to more specific standards under WQIA. Senator Muskie, distrustful of "self-policing by Federal
agencies which pollute or license pollution," was particularly concerned that NEPA not undercut the independent role
of standard setting agencies.36 Most of his and Senator Jackson's comments stop short of suggesting that NEPA
would have no application in water quality matters; their goal was to protect WQIA, not to undercut NEPA. Our
interpretation of Section 104 is perfectly consistent with that purpose.
58
Yet the statements of the two Senators occasionally indicate they were willing to go farther, to permit agencies such
as the Atomic Energy Commission to forego at least some NEPA procedures in consideration of water quality. Senator
Jackson, for example, said, "The compromise worked out between the bills provides that the licensing agency will not
have to make a detailed statement on water quality if the State or other appropriate agency has made a certification
pursuant to [WQIA]."37Perhaps Senator Jackson would have required some consideration and balancing of
environmental costs — despite the lack of a formal detailed statement — but he did not spell out his views. No
Senator, other than Senators Jackson and Muskie, addressed himself specifically to the problem during floor
discussion. Nor did any member of the House of Representatives.38 The section-by-section analysis of NEPA
submitted to the Senate clearly stated the overriding purpose of Section 104: that "no agency may substitute the
procedures outlined in this Act for more restrictive and specific procedures established by law governing its
activities."39 The report does not suggest there that NEPA procedures should be entirely abandoned, but rather that
they should not be "substituted" for more specific standards. In one rather cryptic sentence, the analysis does muddy
the waters somewhat, stating that "[i]t is the intention that where there is no more effective procedure already
established, the procedure of this act will be followed."40 Notably, however, the sentence does not state that in the
presence of "more effective procedures" the NEPA procedure will be abandoned entirely. It seems purposefully vague,
quite possibly meaning that obedience to the certifications of standard setting agencies must alter, by supplementing,
the normal "procedure of this act."
59

This rather meager legislative history, in our view, cannot radically transform the purport of the plain words of
Section 104. Had the Senate sponsors fully intended to allow a total abdication of NEPA responsibilities in water
quality matters — rather than a supplementing of them by strict obedience to the specific standards of WQIA — the
language of Section 104 could easily have been changed. As the Supreme Court often has said, the legislative history
of a statute (particularly such relatively meager and vague history as we have here) cannot radically affect its
interpretation if the language of the statute is clear. See, e. g., Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct.
789, 91 L.Ed. 1040 (1947); Kuehner v. Irving Trust Co., 299 U.S. 445, 57 S.Ct. 298, 81 L.Ed. 340 (1937); Fairport,
Painesville & Eastern R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446 (1934); Wilbur v. United States ex
rel. Vindicator Consolidated Gold Mining Co., 284 U.S. 231, 52 S.Ct. 113, 76 L.Ed. 261 (1931). In a recent case
interpreting a veterans' act, the Court set down the principle which must govern our approach to the case before us:

60

"Having concluded that the provisions of § 1 are clear and unequivocal on their face, we find no need to resort to
the legislative history of the Act. Since the State has placed such heavy reliance upon that history, however, we do
deem it appropriate to point out that this history is at best inconclusive. It is true, as the State points out, that
Representative Rankin, as Chairman of the Committee handling the bill on the floor of the House, expressed his view
during the course of discussion of the bill on the floor that the 1941 Act would not apply to [the sort of case in question]
* * *. But such statements, even when they stand alone, have never been regarded as sufficiently compelling to justify
deviation from the plain language of a statute. * * *" United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281,
6 L.Ed.2d 575 (1961). (Footnotes omitted.) It is, after all, the plain language of the statute which all the members of
both houses of Congress must approve or disapprove. The 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.

61

Petitioners' final attack is 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.

62
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 require 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
63

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.

64
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 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.
65

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 page 1114 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 page 1114 supra.

66

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.

67

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."

68

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 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.

69
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.43 All we demand is that the environmental review be as full and fruitful as
possible.

VI

70

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.

71

Remanded for proceedings consistent with this opinion.

APPENDIX

72

Public Law 91-190 91st Congress, S. 1075 January 1, 1970 An Act

73

To establish a national policy for the environment, to provide for the establishment of a Council on Environmental
Quality, and for other purposes.

74

Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled, That this Act may be cited as the "National Environmental Policy Act of 1969."

PURPOSE

75

Sec. 2. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable
harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological
systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

TITLE I

DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

76

Sec. 101. (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all
components of the natural environment, particularly the profound influences of population growth, high-density
urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and
recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and
development of man, declares that it is the continuing policy of the Federal Government, in co-operation with State
and local governments, and other concerned public and private organizations, to use all practicable means and
measures, including financial and technical assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the
social, economic, and other requirements of present and future generations of Americans.

77

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to
use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate
Federal plans, functions, programs, and resources to the end that the Nation may —

78

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

79
 (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

80

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or
other undesirable and unintended consequences;

81

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever
possible, an environment which supports diversity and variety of individual choice;

82

(5) achieve a balance between population and resource use which will permit high standards of living and a wide
sharing of life's amenities; and

83

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable
resources.

84

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a
responsibility to contribute to the preservation and enhancement of the environment.

85

Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and
public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this
Act, and (2) all agencies of the Federal Government shall —

86

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social
sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's
environment;

87

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality
established by title II of this Act, which will insure that presently unquantified environmental amenities and values may
be given appropriate consideration in decisionmaking along with economic and technical considerations;

88

(C) include in every recommendation or report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

89

(i) the environmental impact of the proposed action,

90

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

91

(iii) alternatives to the proposed action,

92

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of
long-term productivity, and

93
 (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action
should it be implemented.

94

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments
of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact
involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local
agencies, which are authorized to develop and enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States
Code, and shall accompany the proposal through the existing agency review processes;

95

(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available resources;

96

(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the
foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to
maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world
environment;

97

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in
restoring, maintaining, and enhancing the quality of the environment;

98

(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

99

(H) assist the Council on Environmental Quality established by title II of this Act.

100

Sec. 103. All agencies of the Federal Government shall review their present statutory authority, administrative
regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or
inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall propose to
the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into
conformity with the intent, purposes, and procedures set forth in this Act.

101

Sec. 104. Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal
agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other
Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of
any other Federal or State agency.

102

Sec. 105. The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations
of Federal agencies.
Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980)

Strycker's Bay Neighborhood Council, Inc. v. Karlen

No. 79-168

Decided January 7, 1980*

444 U.S. 223

Syllabus

Held: The Court of Appeals erred in concluding that, when the Department of Housing and Urban Development (HUD)
considered alternative sites before redesignating a proposed site for middle-income housing as one for low-income
housing it should have given determinative weight to environmental factors such as crowding low-income housing into
a concentrated area and should not have considered the delay that would occur in developing an alternative site as an
overriding factor. Once an agency has made a decision subject to the procedural requirements of the National
Environmental Policy Act of 1969, the only role for a court is to insure that the agency has considered the
environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of
the action to be taken. Here, there is no doubt that HUD considered the environmental consequences of its decision to
redesignate the proposed site for low-income housing, and the Act requires no more.

Certiorari granted; 590 F.2d 39, reversed.

Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980)

Strycker's Bay Neighborhood Council, Inc. v. Karlen

No. 79-168

Decided January 7, 1980*

444 U.S. 223

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Held: The Court of Appeals erred in concluding that, when the Department of Housing and Urban Development (HUD)
considered alternative sites before redesignating a proposed site for middle-income housing as one for low-income
housing it should have given determinative weight to environmental factors such as crowding low-income housing into
a concentrated area and should not have considered the delay that would occur in developing an alternative site as an
overriding factor. Once an agency has made a decision subject to the procedural requirements of the National
Environmental Policy Act of 1969, the only role for a court is to insure that the agency has considered the
environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of
the action to be taken. Here, there is no doubt that HUD considered the environmental consequences of its decision to
redesignate the proposed site for low-income housing, and the Act requires no more.

Certiorari granted; 590 F.2d 39, reversed.

PER CURIAM.

The protracted nature of this litigation is perhaps best illustrated by the identity of the original federal defendant,
"George Romney, Secretary of the Department of Housing and Urban Development." At the center of this dispute is
the site of a proposed low-income housing project to be constructed on Manhattan's Upper West Side. In 1962, the
New York City Planning Commission (Commission), acting in conjunction with the United States Department of
Housing and Urban Development (HUD), began formulating a plan for the renewal of 20 square blocks known as the
"West Side Urban Renewal Area" (WSURA) through a joint effort on the part of private parties and various government
agencies. As originally written, the plan called for a mix of 70% middle-income housing and 30% low-income housing
and designated the site at issue here as the location of one of the middle-income projects. In 1969, after substantial
progress toward completion of the plan, local agencies in New York determined that the number of low-income units
proposed for WSURA would be insufficient to satisfy an increased need for such units. In response to this shortage,
the Commission amended the plan to designate the site as the future location of a high-rise building containing 160
units of low-income housing. HUD approved this amendment in December, 1972.

Meanwhile, in October, 1971, the Trinity Episcopal School Corp. (Trinity), which had participated in the plan by building
a combination school and middle-income housing development at a nearby location, sued in the United States District
Court for the Southern District of New York to enjoin the Commission and HUD from constructing low-income housing
on the site. The present respondents, Roland N. Karlen, Alvin C. Hudgins, and the Committee of Neighbors To Insure
a Normal Urban Environment (CONTINUE), intervened as plaintiffs, while petitioner Strycker's Bay Neighborhood
Council, Inc., intervened as a defendant.

The District Court entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Romney, 387 F.Supp.
1044 (1974). It concluded, inter alia, that petitioners had not violated the National Environmental Policy Act of 1969
(NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq.

On respondents' appeal, the Second Circuit affirmed all but the District Court's treatment of the NEPA claim.See
Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (1975). While the Court of Appeals agreed with the District
Court that HUD was not required to prepare a full-scale environmental impact statement under § 102(2)(C) of NEPA,
42 U.S.C. § 4332(2)(C), it held hat HUD had not complied with § 102(2)(E), [Footnote 1] which requires an agency to
"study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available resources."

42 U.S.C. § 4332(2)(E). See 523 F.2d at 995. According to the Court of Appeals, any consideration by HUD of
alternatives to placing low-income housing on the site "was either highly limited or nonexistent." Id. at 94. Citing the
"background of urban environmental factors" behind HUD's decision, the Court of Appeals remanded the case,
requiring HUD to prepare a "statement of possible alternatives, the consequences thereof and the facts and reasons
for and against. . . ." Ibid. The statement was not to reflect "HUD's concept or the Housing Authority's views as to how
these agencies would choose to resolve the city's low income group housing situation," but rather was to explain "how,
within the framework of the Plan, its objective of economic integration can best be achieved with a minimum of
adverse environmental impact." Ibid. The Court of Appeals believed that, given such an assessment of alternatives,
"the agencies with the cooperation of the interested parties should be able to arrive at an equitable solution." Id. at 95.

On remand, HUD prepared a lengthy report entitled Special Environmental Clearance (1977). After marshaling the
data, the report asserted that, "while the choice of Site 30 for development as a 100 percent low-income project has
raised valid questions about the potential social environmental impacts involved, the problems associated with the
impact on social fabric and community structures are not considered so serious as to require that this component be
rated as unacceptable."

Special Environmental Clearance Report 42. The last portion of the report incorporated a study wherein the
Commission evaluated nine alternative locations for the project, and found none of them acceptable. While HUD's
report conceded that this study may not have considered all possible alternatives, it credited the Commission's
conclusion that any relocation of the units would entail an unacceptable delay of two years or more. According to
HUD, "[m]easured against the environmental costs associated with the minimum two-year delay, the benefits seem
insufficient to justify a mandated substitution of sites." Id. at 54.

After soliciting the parties' comments on HUD's report, the District Court again entered judgment in favor of
petitioners. See Trinity Episcopal School Corp. v. Harris, 445 F.Supp. 204 (1978). The court was "impressed with
HUD's analysis as being thorough and exhaustive," id. at 209-210, and found that "HUD's consideration of the
alternatives was neither arbitrary nor capricious"; on the contrary, "[i]t was done in good faith and in full accordance
with the law." Id. at 220.

On appal, the Second Circuit vacated and remanded again. Karlen v. Harris, 590 F.2d 39 (1978). The appellate court
focused upon that part of HUD's report where the agency considered and rejected alternative sites, and in particular
upon HUD's reliance on the delay such a relocation would entail. The Court of Appeals purported to recognize that its
role in reviewing HUD's decision was defined by the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), which
provides that agency actions should be set aside if found to be "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. . . ." Additionally, however, the Court of Appeals looked to "[t]he provisions of
NEPA" for "the substantive standards necessary to review the merits of agency decisions. . . ." 590 F.2d at 43. The
Court of Appeals conceded that HUD had "given consideration' to alternatives" to redesignating the site. Id. at 44.
Nevertheless, the court believed that "`consideration' is not an end in itself." Ibid. Concentrating on HUD's finding that
development of an alternative location would entail an unacceptable delay, the appellate court held that such delay
could not be "an overriding factor" in HUD's decision to proceed with the development. Ibid. According to the court,
when HUD considers such projects, "environmental factors, such as crowding low-income housing into a concentrated
area, should be given determinative weight." Ibid. The Court of Appeals therefore remanded the case to the District
Court, instructing HUD to attack the shortage of low-income housing in a manner that would avoid the "concentration"
of such housing on Site 30. Id. at 45. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 435 U. S.
558 (1978), we stated that NEPA, while establishing "significant substantive goals for the Nation," imposes upon
agencies duties that are "essentially procedural." As we stressed in that case, NEPA was designed "to insure a fully
informed and well considered decision," but not necessarily "a decision the judges of the Court of Appeals or of this
Court would have reached had they been members of the decisionmaking unit of the agency." Ibid. Vermont
Yankee cuts sharply against the Court of Appeals' conclusion that an agency, in selecting a course of action, must
elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a
decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has
considered the environmental consequences; it cannot " 'interject itself within the area of discretion of the executive as
to the choice of the action to be taken.'" Kleppe v. Sierra Club, 427 U. S. 390, 427 U. S. 410, n. 21 (1976). See also
FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976). [Footnote 2]

In the present litigation, there is no doubt that HUD considered the environmental consequences of its decision to
redesignate the proposed site for low-income housing. NEPA requires no more. The petitions for certiorari are granted,
and the judgment of the Court of Appeals is therefore

Reversed.

* Together with No. 79-181, City of New York v. Karlen et al.; and No. 79-184, Secretary of Housing and Urban
Development v. Karlen et al., also on petitions for certiorari to the same court.

[Footnote 1]

At the time of the Court of Appeals' decision, this section was numbered 102(2)(D) and was codified at 42 U.S.C. §
4332(2)(D) (1970 ed.). Congress redesignated it two weeks later. See Act of Aug. 9, 1975, Pub.L. 94-83, 89 Stat. 424.

[Footnote 2]

If we could agree with the dissent that the Court of Appeals held that HUD had acted "arbitrarily" in redesignating the
site for low-income housing, we might also agree that plenary review is warranted. But the District Court expressly
concluded that HUD had not acted arbitrarily or capriciously, and our reading of the opinion of the Court of Appeals
satisfies us that it did not overturn that finding. Instead, the appellate court required HUD to elevate environmental
concerns over other, admittedly legitimate, considerations. Neither NEPA nor the APA provides any support for such a
reordering of priorities by a reviewing court.

MR. JUSTICE MARSHALL, dissenting.

The issue raised by these cases is far more difficult than the per curiam opinion suggests. The Court of Appeals held
that the Secretary of Housing and Urban Development (HUD) had acted arbitrarily in concluding that prevention of a
delay in the construction process justified the selection of a housing site which could produce adverse social
environmental effects, including racial and economic concentration. Today the majority responds that, "once an
agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the
agency has considered the environmental consequences," and that, in this litigation, "there is no doubt that HUD
considered the environmental consequences of its decision to redesignate the proposed site for low-income housing.
NEPA requires no more."

The majority finds support for this conclusion in the closing paragraph of our decision in Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U. S. 519, 435 U. S. 558 (1978).

Vermont Yankee does not stand for the broad proposition that the majority advances today. The relevant passage in
that opinion was meant to be only a "further observation of some relevance to this case," id. at435 U. S. 557. That
"observation" was a response to this Court's perception that the Court of Appeals in that case was attempting, "under
the guise of judicial review of agency action," to assert its own policy judgment as to the desirability of developing
nuclear energy as an energy source for this Nation, a judgment which is properly left to Congress. Id. at 435 U. S.
558. The Court of Appeals had remanded the case to the agency because of "a single alleged oversight on a
peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below," ibid. It was in this
context that the Court remarked that "NEPA does set forth significant substantive goals for the Nation, but its mandate
to the agencies is essentially procedural." Ibid.(emphasis supplied). Accordingly, "[a]dministrative decisions should be
set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by
statute," ibid. (emphasis supplied). Thus, Vermont Yankee does not stand for the proposition that a court reviewing
agency action under NEPA is limited solely to the factual issue of whether the agency "considered" environmental
consequences. The agency's decision must still be set aside if it is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), and the reviewing court must still insure that the agency
"has taken a hard look' at environmental consequences," Kleppe v. Sierra Club,427 U. S. 390, 427 U. S. 410, n. 21
(1976).

In the present case, the Court of Appeals did not "substitute its judgment for that of the agency as to the environmental
consequences of its actions," ibid., for HUD, in its Special Environmental Clearance Report, acknowledged the
adverse environmental consequences of its proposed action:

"the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the
potential social environmental impacts involved."

These valid questions arise from the fact that 68% of all public housing units would be sited on only one cross-town
axis in this area of New York City. As the Court of Appeals observed, the resulting high concentration of low-income
housing would hardly further racial and economic integration. The environmental "impact . . . on social fabric and
community structures" was given a B rating in the report, indicating that, from this perspective, the project is
"questionable" and ameliorative measures are "mandated." The report lists 10 ameliorative measures necessary to
make the project acceptable. The report also discusses two alternatives, Sites 9 and 41, both of which are the
appropriate size for the project and require "only minimal" amounts of relocation and clearance. Concerning Site 9, the
report explicitly concludes that "[f]rom the standpoint of social environmental impact, this location would be superior to
Site 30 for the development of low-rent public housing." The sole reason for rejecting the environmentally superior site
was the fact that, if the location were shifted to Site 9, there would be a projected delay of two years in the
construction of the housing.

The issue before the Court of Appeals, therefore, was whether HUD was free under NEPA to reject an alternative
acknowledged to be environmentally preferable solely on the ground that any change in sites would cause delay. This
was hardly a "peripheral issue" in the case. Whether NEPA, which sets forth "significant substantive goals," Vermont
Yankee Nuclear Power Corp. v. NRDC, supra at 435 U. S. 558, permits a projected 2-year time difference to be
controlling over environmental superiority is by no means clear. Resolution of the issue, however, is certainly within
the normal scope of review of agency action to determine if it is arbitrary, capricious, or an abuse of discretion.* The
question whether HUD can make delay the paramount concern over environmental superiority is essentially a
restatement of the question whether HUD in considering the environmental consequences of its proposed action gave
those consequences a "hard look," which is exactly the proper question for the reviewing court to ask. Kleppe v. Sierra
Club, supra at 427 U. S. 410, n. 21.

The issue of whether the Secretary's decision was arbitrary or capricious is sufficiently difficult and important to merit
plenary consideration in this Court. Further, I do not subscribe to the Court's apparent suggestion that Vermont
Yankee limits the reviewing court to the essentially mindless task of determining whether an agency "considered"
environmental factors even if that agency may have effectively decided to ignore those factors in reaching its
conclusion. Indeed, I cannot believe that the Court would adhere to that position in a different factual setting. Our
cases establish that the "arbitrary or capricious" standard prescribes a "searching and careful" judicial inquiry
designed to ensure that the agency has not exercised its discretion in an unreasonable manner. Citizens To Preserve
Overton Park, Inc. v. Volpe, 401 U. S. 402, 401 U. S. 416 (1971). Believing that today's summary reversal represents
a departure from that principle, I respectfully dissent.

It is apparent to me that this is not the type of case for a summary disposition. We should at least have a plenary
hearing.

* The Secretary concedes that, if an agency gave little or no weight to environmental values, its decision might be
arbitrary or capricious. Pet. for Cert. in No. 7184, p. 15, n. 16.