Before WRIGHT, Circuit Judge, McGOWAN, Senior Circuit Judge, and WILKEY, Circuit Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
COMPANY et al. , INTERVENORS
Petition for Review of an Order of the Nuclear Regulatory commission. 1982.CDC.86
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY; PER CURIAM
This cause came on to be heard on a petition for review of an order of the United States Nuclear Regulatory Commission and was briefed and argued by counsel. A judgment was issued on January 7, 1982, Judge Wilkey dissenting. In light of changed circumstances and further consideration, this court has decided to modify its order to the Commission. On consideration thereof,
It is ORDERED and ADJUDGED by this court that, for the reasons stated in the opinion for the court issued this day, the record in this case is remanded to the Commission for a determination whether, since the preparation of the original environmental impact statement for the nuclear facility at Three Mile Island Unit 1 (TMI-1), significant new circumstances or information have arisen with respect to the potential psychological health effects of operating the TMI-1 facility. The Commission may choose the procedures by which it makes this determination. If the Commission finds that such significant circumstances or information exist, it shall prepare a supplemental environmental impact statement which considers not only effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island.
It is FURTHER ORDERED and ADJUDGED by this court that, in light of the current operating difficulties at TMI-1, it is no longer necessary to preserve the status quo to enjoin the Commission from deciding to restart TMI-1 until it has complied with the requirements of the National Environmental Policy Act . The injunction granted on January 7, 1982 is hereby vacated. If subsequently the Commission intends to make a final decision regarding the restart of TMI-1 prior to complying with its obligations under NEPA, it shall provide the court and the petitioner with 30 days' notice thereof.
Circuit Judge WILKEY dissents for the reasons stated in his dissenting opinion filed this day.
This opinion has two distinct parts. Part I is my dissent from my two colleagues' decision on the applicability of the National Environmental Policy Act *fn1 to this case. *fn2 Part II has been joined by Judge McGowan, and represents the opinion of the court on the applicability of the Atomic Energy Act *fn3 to this case. The net result is that the court holds that NEPA requires consideration of alleged psychological health effects, while the AEA does not.
This may have the appearance of a split decision, but the reality is otherwise. The critical issue is NEPA, and the court's determination produces an extraordinary result. Judge Wright and Judge McGowan hold that in the proceedings on the restart of Three Mile Island Unit 1 (TMI-1), which was not involved in the accident at Three Mile Island Unit 2 (TMI-2), the Nuclear Regulatory Commission must consider "the potential psychological health effects of renewed operation of TMI-1." *fn4 This requires consideration of an "impact" on health-psychological stress-which has never before been held cognizable under NEPA. A similar decision under the AEA would have compounded the problem, but the NEPA decision today suffices to give petitioner People Against Nuclear Energy essentially what it has sought: a court-imposed paralysis of nuclear power at Three Mile Island, and potentially elsewhere as well. Thus although I am pleased that my view on the AEA issue has prevailed, I have no illusion that I am anything other than the chief dissenter in this case.
It is worth noting, and perhaps taking solace in, the majority's *fn5 partial retreat from the judgment it so hastily issued on 7 January 1982. *fn6 The injunction against TMI-1's restart has been lifted, *fn7 and, in addition, the majority has corrected two clear errors of NEPA law contained in its original judgment. *fn8
Unfortunately, the basic error remains. The extension of NEPA to encompass psychological stress is unwarranted, unprecedented, and inconsistent with relevant decisions in this and other circuits. This novel hurdle, well designed to delay the development of nuclear power (contrary to the national policy determined by Congress and the Executive), is thoroughly consistent with this court's track record of using NEPA to delay the development of important energy sources. *fn9 I dissent. I. NATIONAL ENVIRONMENTAL POLICY ACT
A. Cognizability of Psychological Stress Under NEPA *fn10
1. Meaning of "health" in NEPA
There is no question that NEPA's requirements extend to effects on human health. Two of the Act's goals are to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings," *fn11 and to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." *fn12 What is in question, of course, is what Congress intended by its inclusion of health as a concern. Amazingly, the majority does not find this even to be a hard question. It holds "that, in the context of NEPA, health encompasses psychological health," *fn13 a conclusion that rests on "the simple fact that effects on psychological health are effects on the health of human beings." *fn14 Since petitioner PANE alleges that the restart of TMI-1 would cause "severe psychological distress" to nearby residents, the majority orders the NRC to consider this allegation under NEPA. This holding is entirely novel, and indeed is contrary to the most closely analogous precedents. In my view it extends the reach of NEPA far beyond its intended scope.
Judge Wright's opinion cites several cases holding that agencies must prepare an EIS when there is a potential effect on human health. What the opinion does not acknowledge is that in each of these cases the effect on health was caused by the federal action itself, not by individuals' fears of the federal action. Use of toxic herbicides has a potential for damaging human health, and consideration must therefore be given to these potential effects. *fn15 An allegedly inadequate water run-off system may lead to flooding which endangers human health, so this possibility must be considered. *fn16
In the same way, operation of a nuclear power plant may cause harm to human health-for example, due to the potential for exposure to radiation-and the NRC must therefore prepare an EIS and consider these potential harms before licensing the plant. In this case, however, the NRC already has prepared a full EIS on TMI-1, as well as an environmental appraisal relating to restart, to facilitate decisionmaking and minimize the damage that could result from the plant's operation. This undertaking is what NEPA clearly contemplates.
PANE's contention, however, is not that operation of TMI-1 will affect human health because of the dangers inherent in operation of a nuclear facility, but that individuals' fears of an accident at the plant, combined with their lack of confidence in the NRC, will lead to an extension of the psychological stress allegedly caused by the TMI-2 accident. It is patently obvious that this alleged effect is entirely different from those health effects at issue in any NEPA case relied on by the majority. Instead of being required to assess the risk of a proposed activity in determining whether the activity should go forward, the agency is now required to assess how people perceive and react to the risk. PANE's primary purpose is to force the agency to determine whether people so fear renewed operation of TMI-1 that it should not go forward, even if the agency's assessment of the actual risk indicates that the impact on health will not be significant.
This takes NEPA far beyond its intended purpose. *fn17 The environmental effects of a federal activity are now to include the views of the population itself on the very desirability of the activity, as expressed through the alleged psychological distress people may suffer if the activity goes forward-no matter how scientifically ignorant and divorced from reality those views (fears) may be. In my view this is a judgment for Congress, and one which has already been made in the case of nuclear power. "Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy ...." *fn18 To adopt the majority view would be to let any special interest group effectively repeal an act of Congress if it could whip up sufficient hysteria.
2. Case law on psychological factors under NEPA
Many federal courts have agreed that individuals' psychological reactions to a federal action are not properly considered under NEPA. For example, the Second Circuit has declared: "It is doubtful whether psychological and sociological effects upon neighbors constitute the type of factors that may be considered in making such a determination since they do not lend themselves to measurement." *fn19 Similarly, the Seventh Circuit has stated: "To the extent that this claim can be construed to mean that HUD must consider the fears of the neighbors of prospective public housing tenants, we seriously question whether such an impact is cognizable under NEPA." *fn20 Many other courts have agreed, *fn21 and these cases represent a clear consensus against consideration of psychological factors.
The majority tries simply to cite and then dismiss these cases as irrelevant, but their force cannot be ignored. They are based largely on the fact that psychological concerns are simply too far removed from the purpose of NEPA, which is to ensure that an agency considers the environmental effects of a decision, not the reactions of affected individuals to the risk of those environmental effects. They also rest on the inherent difficulties in attempting to measure and incorporate into the environmental analysis the differing psychological states of the affected persons.
The majority blithely dismisses this quantification problem as irrelevant, *fn22 thus ignoring Judge Leventhal's observation that although measurement difficulties do not necessarily prevent consideration under NEPA, they do "have a bearing on the intention of Congress, and whether it contemplated ... a requirement of a detailed ." *fn23 In this case petitioner makes much of the practice of courts in measuring psychological injury. This is of dubious validity given that the assignment of monetary damages for purposes of liability is different from the measurements involved here.
Far more important, however, is that the issue before the NRC will be not how much damage was caused by the TMI-2 accident, but how much additional damage will result from TMI-1's restart. This issue is particularly ephemeral and speculative since it is not subject to measurement at all. Instead, the Commission will be forced to predict how every individual in the TMI area will react to the restart. Moreover, to the extent the Commission is supposed to devise techniques to alleviate the stress, it will need to guess at how much benefit will accrue from, say, warning system X as compared to warning system Y.
To attempt to assess the effect of TMI-1's operation on the psychological condition of area residents will, in my view, demonstrate the truth in the Second Circuit's finding that "psychological factors are not readily translatable into concrete measuring rods." *fn24 I do not believe that Congress intended NEPA to encompass an effect which not only varies from individual to individual, but which is also entirely subjective. All the other federal courts which have considered this issue agree.
The majority obviously recognizes that these NEPA decisions are far more relevant than any others to this case. It attempts to distinguish them, however, by asserting that they deal with "sociologically based community anxieties" and "mere dissatisfactions arising from social opinions, economic concerns, or political disagreements with agency policies," which supposedly are easily distinguishable from the potential "medically-recognized impairment of the psychological health of neighboring residents" of TMI. *fn25 This purported distinction is destroyed by the majority's own finding that it is a "simple fact that effects on psychological health are effects on the health of human beings." *fn26 The assertion that mere "anxieties" about nearby matters other than nuclear power are not effects on psychological health is entirely unsupported and, I submit, obviously unsupportable. It is a callous assumption indeed to believe that persons living close to a prison or in a high-crime area cannot suffer very real psychological harm from fear of physical violence-and highly illogical, also, since the casualty total from crime is a gruesome, proven fact, while the casualty total from nuclear accidents so far, fortunately, remains at zero.
The majority's decision to ignore these many cases seems based ultimately on nothing more than a political determination that fears that federal actions will "change the character of the neighborhood, reduce property values, and increase the dangers of crime" *fn27 are simply not worthy of consideration. Fears of nuclear power, on the other hand, must be considered, presumably because the majority considers them legitimate. In each case, however, what we are dealing with are fears and anxieties; if NEPA embraces fears and anxieties in one, it must in all.
In response, the majority declares that it is not attempting to extend NEPA to "mere anxieties," *fn28 because this case involves "post-traumatic anxieties, accompanied by physical effects and caused by fears of recurring catastrophe." *fn29 Yet this very passage frames the harm precisely in terms of anxiety and fear. All that it adds are the alleged physical effects accompanying psychological stress. Why physical effects should be determinative of the outcome the majority does not say. If this is critical, then petitioner surely must fail; the physical harms alleged are, standing alone, rather minor. Moreover, I see no basis, as either a legal or scientific matter, for drawing the majority's distinction. I am confident that psychologists would not accept the view that psychological stress unaccompanied by physical symptoms is therefore medically unrecognizable or necessarily much less severe than stress that does have related physical effects. *fn30
Moreover, the majority's emphasis on the notion that "post-traumatic" psychological harm is recognized by the medical profession is unconvincing. Surely "post-traumatic " stress is but one of numerous forms of psychological stress that are "medically recognizable." There is no legal or logical justification for interpreting NEPA's "health" coverage to extend only to such stress as may arise from a traumatic event. *fn31 The majority seems to rely on PANE's allegation of severe psychological stress, as well as its own view that this accident was especially "unique and traumatic." *fn32 But the fact that post-traumatic stress may be more severe than other psychological harms is irrelevant to whether psychological harms are cognizable under NEPA. The severity of an effect is relevant to the "significance" it has under NEPA, and thus to whether an EIS must be prepared. *fn33 Before this inquiry need be undertaken, however, there is the preliminary question at issue here: is the alleged effect cognizable at all under NEPA as a "primary impact" which may require an EIS? This inquiry does not depend on the intensity of a particular effect.
This point is disputed by the majority: "he severity of a psychological effect is not only relevant to whether an EIS is required under NEPA, ... but also to the cognizability of the impact under the statute." *fn34 Why is this so? No answer is given. The majority simply asserts that some psychological effects are worse than others, and therefore the former are cognizable while the latter are not. But this is not true of any other type of health effect, and there is utterly no support in NEPA for this distinction. *fn35 The majority has simply set itself up as the arbiter of what harms are severe enough to deserve NEPA protection. Thus what constitutes a "real" and "justifiable" fear, as opposed to what constitutes only a "social" or "economic" or "political" fear, will be determined by the courts.
And the choice itself will be totally arbitrary: NEPA protection will depend less on how much psychological harm the individual suffers, than on whether the judges of this court believe the source of the psychological harm is acceptable. If one fears living near a prison following a violent escape, NEPA might provide no protection because fear of a public project is merely social; if one fears living near a nuclear power plant following an accident which threatened to cause harm, NEPA will provide protection because, as we all know, nuclear power is potentially dangerous and we should all fear it.
3. Implications of the majority's reasoning for nuclear power
The majority's attempt to base its decision on the singularity of the TMI-2 accident, and thus perhaps to avoid the implications of the logic employed, also fails to explain why all nuclear power licensing decisions in the future will not need to include consideration of psychological stress. One key factor the majority sees in distinguishing this case from the "sociological anxiety" cases is that none of those cases involved "the holocaust potential of an errant nuclear reactor." *fn36 But this rationale obviously applies to all nuclear facilities, and licensing is their sine qua non.
More generally, the court's emphasis on the "major" and "unique and traumatic" nature of the TMI-2 accident does not explain why the type of psychological harm resulting from this accident is cognizable under NEPA while other forms of psychological stress associated with nuclear energy might not be. This accident killed no one and caused no detectable physical harm. *fn37 Thus the "unique and traumatic" circumstances must be found elsewhere, perhaps in the fact that the TMI-2 accident "aroused fears of a nuclear core meltdown and led to mass evacuation from the surrounding communities." *fn38 Both factors might exist, however, even where an accident objectively is not a "major" one at all. Indeed, even in this case it is clear that some of the dangers were greatly exaggerated; most of the evacuation that took place was voluntary rather than officially requested or ordered. *fn39 To the extent any consistent standard can be derived from the majority's analysis, what appears is a standard which will depend largely on how much fear is worked up, from whatever source, rather than how serious the danger actually is. *fn40
In any event, the majority fails even to try to explain why fears resulting from lesser accidents, or simply from the operation of nuclear facilities, do not also engender psychological stress in individuals. The susceptibility of individuals to psychological stress may vary widely. There may be a considerable number of persons who suffered more stress from having read about TMI-2's accident than some persons who were in the area at the time. A traumatic event is not a prerequisite to experiencing psychological health problems. And what constitutes a "traumatic" event may differ greatly among individuals. The mere sound of a warning siren at a nuclear plant may cause a great deal of stress to certain individuals, yet the majority apparently would find such stress not cognizable under NEPA because a warning siren is not, in the majority's view, sufficiently "unique or traumatic."
Most fundamentally, the majority never explains why the prerequisite to NEPA consideration of psychological harm is the existence of some level of stress caused by a nuclear accident. This is true of no other effect under NEPA. Consideration of the potential for harm from exposure to radiation is not postponed until actual exposure takes place; it is the potential harm that is to be considered. If, as PANE alleges, the TMI-2 accident caused severe psychological harm, then any nuclear facility has the potential for "causing" such harm. NEPA consideration therefore should be mandatory in all licensing decisions, if psychological stress is cognizable at all.
This is the result the majority opinion's rationale inexorably demands. If it is a "simple fact that effects on psychological health are effects on the health of human beings," *fn41 and if such effects are cognizable under NEPA, there is no reason why only "post-traumatic" forms of psychological stress must be considered. This logic is obvious enough to opponents of nuclear power that they have responded to this court's 7 January judgment by filing psychological stress contentions in ordinary NRC licensing and construction permit proceedings. *fn42 The breadth of the extension of NEPA that acceptance of these contentions would entail is what obviously leads the majority to take refuge in the "unique and traumatic" nature of the TMI-2 accident and, allegedly, its psychological aftermath. In the end, this attempted limitation is compelling evidence of the majority's own doubts about the validity of its analysis and own realization of how far NEPA is being stretched in order to support today's result.
B. Need for a Supplemental EIS
Regulations promulgated by the Council on Environmental Quality require preparation of a supplemental EIS when, inter alia, "(t)here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." *fn43 A prerequisite to application of this provision, obviously, is the existence of a "proposed action." Taking the broadest conceivable view of this issue, the majority concludes that "the "continuing activity' of regulating TMI-1 is federal action within the scope of NEPA." *fn44 This means that the fact that in this case the NRC is proposing to restart the plant is irrelevant. The majority concedes as much, stating that PANE's claim that NEPA must be followed "does not depend on the happenstance that TMI-1 was shut down for refuelling at the time of the accident." *fn45
This is a holding of considerable breadth. Preparation of an EIS or a supplemental EIS is required only for proposed actions. Yet under the majority's interpretation, the NRC is engaged in such "action" every second of every day. It thus will be possible for NEPA to apply even when a nuclear plant is operating pursuant to an NRC license and the NRC proposes to take no action to upset this status quo.
The majority defends its interpretation by pointing to cases which have held that continuing federal involvement in a project meant that NEPA remained applicable, and also to the CEQ definition of "federal action" as "new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." *fn46 The majority overlooks, however, the fact that each case it relies on involved a "proposed action": projects had been approved but were as yet not undertaken or were incomplete. *fn47 Although in this case the "happenstance" of TMI-1 being shut down does put the Commission in the position of proposing an "action" (restart), the majority's holding may significantly increase the NEPA burden on regulatory agencies in the future. *fn48
In its 7 January judgment, the majority compounded this unnecessarily broad construction of the supplemental EIS requirement by ordering the NRC to conduct an "environmental assessment" and by ordering that the assessment extend to the socioeconomic effects alleged by PANE. *fn49 Both of these orders were clearly wrong. The majority has not expressly repudiated those portions of the original judgment, but its 2 April amended judgment and its opinion today indicate otherwise. To eliminate any possible uncertainty on the part of the agency, I will briefly discuss these two points.
An environmental assessment is a procedure required by CEQ regulations to be used when an agency must decide whether to prepare an EIS. *fn50 This requirement does not extend to supplemental EIS's. The majority's first judgment required the NRC to conduct an environmental assessment in this case. Today's opinion, however, leaves this procedural question to the agency: "We remand the record in this case to the Commission to determine what procedures NEPA requires in light of its evaluation of new information about psychological health effects." *fn51 In other words, the NRC is required to determine whether a supplemental EIS is required, but it is not required to make that determination on the basis of any specific procedure.
This obviously is the correct result. The Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. *fn52 makes clear that courts may not impose new procedural requirements on agencies. Moreover, there is no necessary reason why an agency must conduct a formal environmental assessment every time any person alleges that new and significant information requires preparation of a supplemental EIS. This determination may well be different from the determination whether an EIS was required originally, the determination that an environmental assessment is designed to facilitate. *fn53 Thus, while the agency retains the power to order an environmental assessment if it wants to, *fn54 neither NEPA nor the CEQ regulations require adherence to this procedure.
The court's 7 January judgment also ordered the NRC to include in the environmental assessment consideration of the socioeconomic effects alleged by petitioner. Today, however, the court withdraws that requirement: "If NEPA requires the Commission to prepare a supplemental EIS regarding the TMI-1 restart decision because the agency makes a threshold finding of significant new information on psychological effects, ... PANE's contentions regarding secondary effects on the community must be evaluated in the supplemental EIS." *fn55 This means that the NRC is not required to hear any evidence or make any findings on the alleged effects of restart on community well-being, unless it determines that the psychological health effects of restart are significant enough to warrant preparation of a supplemental EIS.
The majority is correct in drawing back from the requirement in its original judgment. Socioeconomic effects are, as the majority itself has found, *fn56 only secondary effects which therefore do not themselves require preparation of an EIS. PANE has argued that secondary effects can necessitate a supplemental EIS, *fn57 but this would lead to the absurd result of a continuing agency requirement to supplement its EIS with consideration of effects that were not significant enough to require preparation of an EIS in the first place. Nothing in NEPA or the CEQ ...