Baltimore Gas & Electric Company v. Natural Resources Defense Council, Inc.

PETITIONER: Baltimore Gas & Electric Company
RESPONDENT: Natural Resources Defense Council, Inc.
LOCATION: Residence of Senator Ernie Chambers

DOCKET NO.: 82-524
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 462 US 87 (1983)
ARGUED: Apr 19, 1983
DECIDED: Jun 06, 1983

ADVOCATES:
David A. Strauss - on behalf of the Petitioners
Timothy B. Atkeson - on behalf of the Respondents

Facts of the case

Question

Media for Baltimore Gas & Electric Company v. Natural Resources Defense Council, Inc.

Audio Transcription for Oral Argument - April 19, 1983 in Baltimore Gas & Electric Company v. Natural Resources Defense Council, Inc.

Warren E. Burger:

We'll hear arguments next in Baltimore Gas and Electric against the Natural Resources Defense Council.

Mr. Strauss, you may proceed whenever you are ready.

David A. Strauss:

Thank you, Mr. Chief Justice, and may it please the Court.

The issue in this case is whether the Nuclear Regulatory Commission adequately considered the impact that disposing of the spent fuel from nuclear power plants will have on the environment.

In 1972, the Commission began an informal rulemaking proceeding to consider this and other associated environmental impacts and the effect they should have on applications for licenses to build or operate nuclear reactors.

Seven years later the Commission adopted the final version of the rule that is at issue here.

In the interim the Commission had conducted two extensive staff studies, three informal rulemaking proceedings in which literally thousands of pages of comments were exchanged, and a total of over two weeks of hearings.

The rule itself went through four versions that differed in detail.

The rule specifies in a table the amount of radioactivity that will be released to the environment in the course of disposing of various kinds of nuclear wastes, and it provides that this table is to be included in the environmental impact statements that are prepared in connection with each individual reactor license.

The licensing boards that consider individual applications are then not to receive additional evidence on the amount of radiation released.

The reason for precluding the boards from reconsidering the radiation releases in individual cases is that these releases are entirely generic, that is to say they are always the same for a reactor of a given size no matter where or when the reactor is built.

Many aspects of this rule are not at issue here.

For example, the Commission made the very pessimistic assumption that all of the radioactive gases would escape from the wastes, and it listed in the table the resulting amounts of radioactivity that would be released.

The aspect of the rule that is at issue here concerns high-level solid wastes, many of which remain radioactive for thousands of years.

The Commission's conclusion reflected in the rule is that these wastes can be buried in a certain geologic formation of a kind that is found in 24 of the 50 states in such a way that they will not release a significant amount of radiation to the environment.

The Commission studied a number of events, natural or man-made that might cause radiation to escape from such a repository.

For example, the Commission concluded that a direct hit by a meteorite a mile and a quarter in diameter would release radiation sufficient to contaminate the area within roughly an 11-mile radius of the repository.

But such a meteorite--

Warren E. Burger:

Does the record show how many meteors there are that big they planned around?

David A. Strauss:

--Well, the record shows that such a meteorite hit could be expected on the average once every ten trillion years.

Warren E. Burger:

So they do not have any record of the most recent one?

[Laughter]

David A. Strauss:

An earthquake fault, the Commission estimated, would occur at a typical site every 25 billion years.

A more likely although still unlikely occurrence is that ground water would penetrate the repository, but ground water usually moves very slowly and the Commission calculated that by the time the radioactive materials in the groundwater reached the surface they would be so diluted and they would have decayed to such a degree that a person receiving the maximum exposure to that ground water would be subject to radiation roughly equal to the background radiation of the atmosphere and the soil.

The Commission accordingly concluded that so far as science could determine the chances of a substantial release of radiation from the repository are minimal to the point of being banishing, and the more likely occurrences would not release significant amounts of radiation.

Now, the Court of Appeals did not question that conclusion.

At the same time the Commission acknowledged explicitly and, in fact, repeatedly that there is, of course, a certain irreducible and imponderable uncertainty involved in predicting what will happen so far into the future and in making predictions about a repository site that has not yet been specifically designated.

But the Commission concluded that although these uncertainties exist, a reasonable working assumption that the licensing boards are to use is that there will be no releases of radiation from the solid wastes once the repository has been sealed.

The Court of Appeals had invalidated an earlier version of the rule on the ground that the Commission did not follow sufficiently elaborate procedures in assessing the impacts of nuclear wastes.

This Court reversed.