Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519 (1978)
Strategic Delay in Derailing Public
Policy
Modern Administrative Law


The story of Adlaw post-1970 is the limitation of
individual liberties in favor of efficient
government.
The DC Circuit was still in the Warren Court era
when this case was decided.
 Why was the lower court suspicious of agency
rulemaking in this case?
 What did it want to require to provide greater
public protections?
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Nuclear Power Plant Regulation


Originally regulated by the Atomic Energy
Commission
 Regulated and promoted nuclear power
 Regulation was split off to the Nuclear
Regulatory Commission because of conflicts of
interest
Environmental impact analysis was added
through NEPA after the initial permitting of this
plant.
 Greatly complicates permitting.
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The Permit History for Vermont Yankee


Permitting is an adjudication
 Specific party, specific facts
 The agency makes a decision as to whether it will
grant the permit.
In 1967 Vermont Yankee is granted a construction
permit.
 In 1971, post-NEPA, it applies for an operating
permit.
 Why is it politically difficult to deny an operating
permit?
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The Permit Fight


Who is the NRDC?
 Why does it oppose the operating permit?
The EIS
 Because of NEPA, the NRC must prepare an
environmental impact statement (EIS)
 The adjudication must deal with problems with the
EIS, and the sufficiency of the EIS can be
challenged in court.
 This the vehicle for a lot of environmental
litigation.
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Nuclear Waste and the EIS


Why is nuclear waste disposal a big issue for
NEPA?
 Does the NRC or the nuclear industry have a
good solution in 1971?
 What would this mean about the completeness
of the EIS?
Why does the NRDC want the agency to explain in
the EIS about the long term environmental impact
of the reactor?
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Avoiding the Issue


What does the NRC do to avoid making this a
subject of the hearing?
 Why does it not want this discussed in the
public hearing?
How will making a rule on waste disposal remove
it from the hearing process?
 Classic narrowing of adjudication issues by
rulemaking
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The Rulemaking



What additional process was provided beyond the
usual APA notice and comment?
 Were there limits on the public participation?
Which alternative did the NRC adopt after the public
comment?
 ..specified numerical values for the environmental
impact of this part of the fuel cycle, which values
would then be incorporated into a table, along with
the other relevant factors, to determine the overall
cost-benefit balance for each operating license.
Why is the NRDC unhappy with this alternative?
 No requirement of a plan for disposing of fuel
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DC Circuit


What does the DC circuit want the NRC to do to
improve the due process in their rulemaking?
 “it likewise clearly thought it entirely
appropriate to "scrutinize the record as a whole
to insure that genuine opportunities to
participate in a meaningful way were provided”
Did it specify exactly what procedures should
have been used?
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The Role of the APA


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Did the rulemaking comply with the APA?
What is the lower court's theory about the APA
requirements?
 Floor or ceiling?
Who does the court think should decide on the
appropriate procedures?
 Does this look like Goldberg or Matthews?
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The Substantive Issue


What is the DC court's real problem with the
rulemaking on waste management?
 What is the NRC’s plan?
 Did the technology exist at the time to dispose of
the waste?
 Can an agency put off a problem by assuming that
a solution will be found in the future?
 What about requiring a technology that does not
exist?
We are 35+ years latter - who was right about the
technology?
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Energy Conservation


What is the energy conservation issue?
 Why is energy conservation a NEPA
environmental impact issue?
 What event precipitated this concern?
 Is it fair to apply it to the operating permit for a
reactor that has already been built?
Did the lower court accept the agency’s finding on
energy conservation?
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The United States Supreme Court

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What does the United States Supreme Court think about
the role of the APA in setting process?
 Who gets to make the call - agency or courts?
In the court's view, what is the real issue?
 "The fundamental policy questions appropriately
resolved in Congress and in the state legislatures are
not subject to reexamination in the federal courts
under the guise of judicial review of agency action.
Time may prove wrong the decision to develop nuclear
energy, but it is Congress or the States within their
appropriate agencies which must eventually make that
judgment. “
Why is this critical for the political control of agencies?
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