CALVERT CLIFFS COORDINATING COMMITTEE v. U.S. ATOMIC ENERGY COMMISSION

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CALVERT CLIFFS COORDINATING COMMITTEE v. U.S.
ATOMIC ENERGY COMMISSION
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Calvert Cliffs 449 F.2d 1109 (D.C. Cir. 1971)

• The Radical 1960s
• Environmental Movement
• Vietnam War
• Civil Rights Movement
• Womens Movement

www.antiracistaction.us
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Calvert Cliffs

• Concerns over building a nuclear power plant on
  the shores of Chesapeake Bay.

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ounty-map.gif
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Calvert Cliffs Way of Life
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Concerns Over Atomic Energy
Giving society cheap, abundant energywould be
the equivalent of giving an idiot child a machine
gun. -Paul Ehrlich

• Risk of nuclear accidents
• China Syndrome Trailer
• Radioactive waste disposal
• Uranium mining
• Nuclear reprocessing
• Various types of pollution

http//en.wikipedia.org/wiki/Anti-nuclear_movement
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Concerns Over Atomic Energy

• Thermal pollution may impact Chesapeake Bays
  ecosystem, including the areas famed blue crabs.

http//en.wikipedia.org/wiki/Blue_crab
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Creating a Cause of Action

• Opponents to nuclear power plants and those
  challenging federal licensing and construction
  procedures had no viable environmental cause of
  action.
• Congress had yet to enact most statutes
  permitting citizen suits.
• Calvert Cliffs created a cause of action.

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Environmental Protection as Public Policy Focus

• Scenic Hudson, 354 F.2d 608 opened the door to
  judicial review of administrative environmental
  decisions.
• Rachel Carsons Silent Spring drew attention to
  environmental protection and preservation.
• Led to the enactment of the National
  Environmental Policy Act.

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National Environmental Policy Act

• As environmental protection evolved into a
  national political issue, there was a call for
  Congressional and Executive action.
• Authors Senator Henry Jackson and Professor
  Lynton K. Caldwell

http//en.wikipedia.org/wiki/Henry_M._Jackson
http//www.iucn.org/themes/law/index2006.html
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National Environmental Policy Act

• The National Environmental Policy Act of 1969
  (NEPA) was signed by President Nixon January 1,
  1970.

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A Tale of Three NEPAs

• One a simple way to rationalize environmental
  protection.
• NEPA founders were heirs to New Deal tradition.
• Desire to adapt federal bureaucracy to
  environmentalism.

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A Tale of Three NEPAs

• Two Courts role is limited.
• Primary enforcers would be Congress and Office of
  Management and Budget.
• NEPAs core was its purpose, not the preparation
  of environmental impact statements.

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A Tale of Three NEPAs

• Three fundamentally alter this countrys
  attitude toward and relationship to the
  environment.

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NEPAs Purpose

• 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.
• 42 U.S.C.A. 4331.

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Environmental Impact Statement

• Prevents NEPA from being a good policy with no
  implementation mechanism.
• Caldwells brainchild action forcing.
• Purpose federal agencies must fully consider
  the environmental impact of proposed development,
  as well as possible alternatives.

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Environmental Impact Statement

• An EIS typically has four sections
• Introduction, including statement of the purpose
  and need of the proposed action
• Description of the affected environment
• Alternatives to the proposed action
• Analysis of the environmental impact of each
  alternative.

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Calvert Cliffs Factual Background

• Original challenge was to the construction of one
  nuclear power plant in Calvert Cliffs, Maryland.
• According to AEC procedures, to be licensed, the
  proposed plant had to meet the approval of state
  public utility commission.
• State public utility commissions rarely
  considered environmental impact of proposed
  projects.
• Calvert Cliffs emerged as a challenge to AEC
  licensing procedures generally.

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Calvert Cliffs Coordinating Committee

• Founded by Jess W. Malcom in response to study
  warning of Chesapeake Bay thermal pollution.
• Calvert Cliffs was well-known among
  environmentalists.
• The organization represented all but one of the
  groups that had participated in AEC licensing
  procedures, and was therefore an agency-aggrieved
  party.

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The Road to the D.C. Circuit Court

• James Moorman, Center for Law and Social Policy.
• Berlin, Kessler and Roisman
• Federal district court trial v. direct appellate
  review.
• AEC as first major NEPA case.
• NEPA imposes affirmative duty of environmental
  review on federal agencies.

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AEC NEPA Compliance Rules at Issue

• 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.
• 449 F.2d at 1122.

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AEC NEPA Compliance Rules at Issue

• If no party to such a proceedingraises any
  environmental issuethose issues would not be
  considered by the atomic safety and licensing
  board. Under such circumstances, although the
  Applicants Environmental Report, comments
  thereon, and the Detailed Statement will
  accompany the application through the
  Commissions review processes, they will not be
  received in evidence, and the Commissions
  responsibilities under the National Environmental
  Policy Act of 1969 will be carried out in toto
  outside the hearing process.
• 10 C.F.R. pt. 50 App.D at 249.

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Judge Skelly Wright

• US District Court for the Eastern District of
  Louisiana (appointed by President Truman)
• Established a record of enforcing
  anti-discrimination precedents such as Brown.
• Belief in judicial protection for those in need.

http//www.tulanelink.com/tulanelink/skellywright_
box.htm
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Circuit Court Decision

• Plaintiffs
• AECs licensing rules did not comply with NEPA.
• Did not require environmental impact analysis of
  proposed projects.

• Defendants
• Vagueness of NEPA leaves room for agency
  discretion.
• AECs NEPA compliance rules fall within scope of
  NEPA.

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Circuit Court Decision

• Section 101 of NEPA shows evidence of the
  framers intent that the Act apply to all federal
  agencies.
• Section 101 is substantive, soft.
• Section 102 is procedural, hard.
• 102 contains the action forcing provision, thus
  rendering the Act judicially enforceable.

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Section 102

• NEPA Section 102(c) provides that every federal
  agency shall
• 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,
• (iii) alternatives to the proposed action,
• (iv) the relationship between local short-term
  uses of man's environment and the maintenance and
  enhancement of long-term productivity, and
• (v) any irreversible and irretrievable
  commitments of resources which would be involved
  in the proposed action should it be implemented.

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Balancing Test

• NEPA demands that all federal agencies must
  identify and develop methods and
  procedureswhich will insure that presently
  unquantified environmental amenities and values
  may be given appropriate consideration in
  decisionmaking along with economic and technical
  considerations.
• 449 F.2d at 1113 (quoting 42 U.S.C.A. 4331).

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Holding

• Atomic Energy Commissions licensing regulations
  failed to meet the duty imposed on federal
  agencies by NEPA.

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Immediate Impact of Calvert Cliffs
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• The proposed nuclear power plant was constructed
  at Calvert Cliffs.

(After the completion of a very thorough
Environmental Impact Statement.)
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Immediate Impact of Calvert Cliffs

• Licensing of all nuclear power plants was
  suspended for the eighteen months following the
  Calvert Cliffs decision.
• Calvert Cliffs was described as the judicial
  opinion that had the most detrimental
  consequences on the development of nuclear power.

http//en.wikipedia.org/wiki/Anti-nuclear_movement
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Calvert Cliffs Today

• Calvert Cliffs greatest contribution
  Environmental Impact Statement requirement.
• Balancing of environmental values and economic
  considerations.

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But Also

• Emphasis on procedural concerns, rather than
  outcomes.
• Detachment of EIS process from original goals of
  NEPA.

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Conclusion

• It is too much to ask of a legal decision that
  it generate on its own the vast and complicated
  set of social policies to fulfill it.
• -Kathleen Sullivan, What Happened to Brown?
  N.Y. Rev. of Books, Sept. 23, 2004, at 47, 52.
• The transformation envisioned by Judge Wright and
  NEPAs framers was never completely realized.