Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519 (1978)
Strategic Delay in Derailing Public
Policy
The Historical Context
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This was decided in 1978
The Warren court first reformed criminal due process.
It next applied its individual rights jurisprudence to
administrative law
 Searches, juvenile justice, welfare rights
 The last decision was Goldberg v. Kelly in 1970
The federal circuit's 1960s-70s jurisprudence on
agency rulemaking is a reflection of the Warren
Court's views of government power.
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Modern Administrative Law
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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
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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
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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
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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
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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
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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
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What were the two alternatives in the proposed
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?
 Why is the NRDC unhappy with this alternative?
 Why did they want the rulemaking reopened?
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DC Circuit
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What does the DC circuit want the NRC to do to
improve the due process in their rulemaking?
 Is this required by 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?
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The Substantive Issue
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What is the DC court's real problem with the
rulemaking on waste management?
 What is the NRC’s plan?
 What sort of technology does it depend on?
We are 35+ years latter - who was right about the
technology?
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Energy Conservation
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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 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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