J. SKELLY WRIGHT, Circuit Judge.
Appellant claims that the Atomic Energy Commission's Liquid Metal Fast Breeder Reactor program involves a "recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *" under Section 102(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(C) (1970), and that the Commission is therefore required to issue a "detailed statement" for the program. The District Court held that no statement was presently required since, in its view, the program was still in the research and development stage and no specific implementing action which would significantly affect the environment had yet been taken. Taking into account the magnitude of the ongoing federal investment in this program, the controversial environmental effects attendant upon future widespread deployment of breeder reactors should the program fulfill present expectations, the accelerated pace under which this program has moved beyond pure scientific research toward creation of a viable, competitive breeder reactor electrical energy industry, and the manner in which investment in this new technology is likely to restrict future alternatives, we hold that the Commission's program comes within both the letter and the spirit of Section 102(C) and that a detailed statement about the program, its environmental impact, and alternatives thereto is presently required. Since the Commission has not yet issued such a statement, we reverse and remand the case to the District Court for entry of appropriate declaratory relief.
I. FACTUAL BACKGROUND: THE LIQUID METAL FAST BREEDER REACTOR PROGRAM
Although more than a superficial understanding of the technology underlying this case is beyond the layman's ken, a brief summary will prove helpful. Nuclear reactors use nuclear fission— the splitting of the atom—to produce heat which may be used to generate electricity in nuclear power plants. Only a few, relatively rare, naturally occurring substances—primarily Uranium-235— can maintain the nuclear fission chain reaction necessary for operation of these
Because the breeding principle makes possible vast expansion of fuel available for nuclear reactors (Uranium-238 is many times more common than Uranium-235), it has been the subject of considerable interest since the earliest days of atomic energy. The Commission demonstrated the feasibility of breeder reactors by constructing several experimental breeder reactors in the 1950's. In its 1962 Report to the President on Civilian Nuclear Power, the Commission specifically recommended that future Government programs include vigorous development and timely introduction of economic breeder reactors which, in the Commission's view, were essential to long-range major use of nuclear energy.
In furtherance of these objectives the Commission, in 1968, issued a 10-volume LMFBR Program Plan, the dual objectives of which were (1) to achieve, through research and development, the necessary technology, and (2) "to assure maximum development and use of a competitive, self-sustaining industrial LMFBR capability."
The LMFBR's prospects are sufficiently bright to have led President Nixon to say: "Our best hope today for meeting the Nation's growing demand for economical clean energy lies with the fast breeder reactor."
II. APPLICATION OF NEPA TO TECHNOLOGY DEVELOPMENT PROGRAMS
NEPA requires federal agencies to include a detailed environmental impact statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *." That the Commission must issue a detailed statement for each of the major test facilities and demonstration plants encompassed by the LMFBR program is conceded by the Commission and not at issue in this case. The Commission has already issued an impact statement for its Fast Flux Test Facility to be constructed in Hanford, Washington, and, at the President's request, has completed a statement for the first demonstration plant prior to the time such a statement would normally be issued.
Our consideration of this case has been somewhat complicated by the Commission's ambivalent position with respect to these already difficult questions. The Commission's basic position seems to be that NEPA requires detailed statements only for particular facilities, and that no separate NEPA analysis of an entire research and development program is required. In the words of then Chairman James Schlesinger: "These environmental statements are intended to deal with the particular facility or a particular project."
In this context the Commission assures us that it is now preparing "a comprehensive environmental survey of the LMFBR, analyzing the direct impact of the potential plants and the broader implications of the program."
Elsewhere in its brief, however, the Commission seems to concede that at some point in time a NEPA statement for the entire program would be required. "Most assuredly, the AEC is not declaring its intention to never file a detailed statement for the overall program."
The remainder of this section will focus on the Commission's first line of defense —the applicability of NEPA to technology research and development programs and the possibility of substituting an "environmental survey" for a NEPA statement. The following section will discuss the Commission's second argument —the timing of a NEPA statement on the overall program.
The Commission takes an unnecessarily crabbed approach to NEPA
We think it plain that at some point in time there should be a detailed statement on the overall LMFBR program. The program comes before the Congress as a "proposal for legislation" each year, in the form of appropriations requests by the Commission. And as the Council on Environmental Quality has noted in its NEPA Guidelines, the statutory phrase "recommendation or report on proposals for legislation" includes "[r]ecommendations or favorable reports relating to legislation including that for appropriations."
The statutory phrase "actions significantly affecting the quality of the environment" is intentionally broad, reflecting the Act's attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency.
Application of NEPA to technology development programs is further supported by the legislative history and general policies of the Act. When Congress enacted NEPA, it was well aware that new technologies were a major cause of environmental degradation. The Act's declaration of policy states:
And the Senate report notes, as one of the conditions demanding greater concern for the environment:
NEPA's objective of controlling the impact of technology on the environment cannot be served by all practicable means, see 42 U.S.C. § 4331(b) (1970), unless the statute's action forcing impact statement process
Applying the logic of this guideline to the present case, because of the long lead times necessary for development of new commercially feasible technologies for production of electrical energy, the decisions our society makes today as to the direction of research and development will determine what technologies are available 10, 20, or 30 years hence when we must apply some new means of producing electrical energy or face the alternative of energy rationing, through higher prices or otherwise. The manner in which we divide our limited research and development dollars today among various promising technologies in effect determines which technologies will be available, and what type and amount of environmental effects will have to be endured, in the future when we must apply some new technology to meet projected energy demand.
In a very practical sense, then, the Commission's LMFBR program affects the quality of the environment. That the effects will not begin to be felt for several years, perhaps over a decade, is not controlling, for the Act plainly contemplates consideration of "both the long- and short-range implications to man, his physical and social surroundings, and to nature, * * * in order to avoid to the fullest extent practicable undesirable consequences for the environment."
We thus tread firm ground in holding that NEPA requires impact statements for major federal research programs, such as the Commission's LMFBR program, aimed at development of new technologies which, when applied, will significantly affect the quality of the human environment. To the extent the Commission's "environmental survey" would not be issued in accordance with NEPA's procedures for preparation and distribution, it is not an adequate substitute for a NEPA statement. These procedural requirements are not dispensable technicalities, but are crucial if the statement is to serve its dual functions of informing Congress, the President, other concerned agencies and the public of the environmental effects of agency action,
It is apparent, however, that the Commission seeks to avoid issuing its forthcoming "environmental survey" as an impact statement under Section 102, not out of any desire to circumvent NEPA's procedural requirements, but rather because of a fear that Section 102's requirements as to the contents of an impact statement are so strict, particularly as to the need for "detail" in the statement, that any Commission attempt to issue its environmental survey as a NEPA statement would be doomed to failure. While we do not altogether understand the Commission's fears, we feel they are based on certain misapprehensions as to what NEPA requires.
It is now clear that an agency's duties to issue a statement on a project and to consider environmental factors at each stage of agency decision making as to that project are not inherently flexible or discretionary.
Certainly NEPA does not require the Commission to forecast the deployment and effects of LMFBR power reactors in the year 2000 in the same detail or with the same degree of accuracy as another agency might have to forecast the increased traffic congestion likely to be caused by a proposed highway. Conversely, the Commission may well be expected to devote more resources toward preparation of an impact statement for its multi-billion-dollar program than it would for a project involving a federal investment many times smaller.
Similarly, Section 102(C)'s requirement that the agency describe the anticipated environmental effects of proposed action is subject to a rule of reason. The agency need not foresee the unforseeable, but by the same token neither can it avoid drafting an impact statement simply because describing the environmental effects of and alternatives to particular agency action involves some degree of forecasting. And one of the functions of a NEPA statement is to indicate the extent to which environmental effects are essentially unknown. It must be remembered that the basic thrust of an agency's responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as "crystal ball inquiry." "The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible * * *."
Accordingly, if the Commission's environmental survey is prepared and issued in accordance with NEPA procedures, and if the Commission makes a good faith effort in the survey to describe the reasonably foreseeable environmental impact of the program, alternatives to the program and their reasonably foreseeable environmental impact, and the irreversible and irretrievable commitment of resources the program involves, we see no reason why the survey will not fully satisfy the requirements of Section 102(C). The resulting document may look very different from the impact statement the Commission is used to issuing for a particular nuclear power plant, but this variance should be accepted as a healthy reflection of NEPA's broad scope. It should not be twisted into an excuse for not complying with NEPA at all.
So long as the above described NEPA analysis of the overall program is prepared, we think it of little moment whether that analysis is issued as a separate NEPA statement or whether it is included within a NEPA statement on a particular facility. Questions of format such as these properly reside within the discretion of the issuing agency. To the extent the matter is of any significance, we agree with former Chairman Schlesinger that it would be a "mistake to attempt
III. TIMING THE NEPA STATEMENT
Whether a statement on the overall LMFBR program should be issued now or at some uncertain date in the future is the most difficult question presented by this case. It was especially troubling to the District Court, as reflected in the following colloquy with counsel for appellant:
In our view, the timing question can best be answered by reference to the underlying policies of NEPA in favor of meaningful, timely information on the effects of agency action. In the early stages of research, when little is known about the technology and when future application of the technology is both doubtful and remote, it may well be impossible to draft a meaningful impact statement. Predictions as to the possible effects of application of the technology would tend toward uninformative generalities,
Determining when to draft an impact statement for a technology development program obviously requires a reconciliation of these competing concerns. Some balance must be struck, and several factors should be weighed in the balance. How likely is the technology to prove commercially feasible, and how soon will that occur? To what extent is meaningful information presently available on the effects of application of the technology and of alternatives and their effects? To what extent are irretrievable commitments being made and options precluded as the development program progresses? How severe will be the environmental effects if the technology does prove commercially feasible?
Answers to questions like these require agency expertise, and therefore the initial and primary responsibility for striking a balance between the competing concerns must rest with the agency itself, not with the courts.
The first function of judicial review in this area should be to require the agency to provide a framework for principled decision making.
More importantly, when the agency has decided that a NEPA statement is not yet necessary, it should state reasons for its decision. The value of such a statement of reasons is becoming generally recognized as courts and agencies grapple with the difficult task of developing procedures for compliance with NEPA. In Hanly v. Kleindienst, 2 Cir., 471 F.2d 823 (1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), for example, the General Services Administration issued a 25-page "Assessment of the Environmental Impact" to justify its conclusion that a proposed downtown jail facility would have no significant effect on the quality
A statement of reasons will serve two functions. It will ensure that the agency has given adequate consideration to the problem and that it understood the statutory standard. In addition, it will provide a focal point for judicial review of the agency's decision, giving the court the benefit of the agency's expertise.
We must, therefore, resort to other material in the record to determine whether the Commission properly decided not to draft a statement for the overall program at the present time. Fortunately a substantial record was made before the District Court, consisting in large part of analyses and reports completed by the Commission itself. Our examination of this record leads us to conclude that the Commission could have no rational basis for deciding that the time is not yet ripe for drafting an impact statement on the overall LMFBR program.
To begin with, commercial implementation of LMFBR technology is far from speculative. The massive amounts of money being pumped into this program by Congress and the Presidential Energy Policy statement committing the nation to completion of the first commercialsized demonstration plant by 1980 both indicate widespread confidence that the program will succeed in its twin goals of demonstrating the commercial feasibility of the breeder reactor and producing an industrial infrastructure ready, willing and able to construct such reactors on a commercial basis. The Commission also has a great deal of confidence in the program. As the Director of the Commission's Division of Reactor Development and Technology stated in the introduction to the LMFBR Program Plan:
Nor do we think completion of the program may be termed remote. While 10 years may seem a long time in other contexts, by 1968 the Commission already had a carefully planned and detailed schedule for the LMFBR program through the year 1980.
Secondly, the Commission's own documents indicate that there already exists much meaningful information on the reasonably foreseeable environmental impact of development of LMFBR technology. The impact statement for the first demonstration plant, for example, contains detailed estimates of the radioactive wastes produced annually by a single commercial-scale LMFBR electrical power plant. It also contains estimates of the amount of land area necessary for short- and long-term storage of
It also seems clear that the Commission has available much information on alternatives to the program and their environmental effects. The Commission's own answer to the complaint in this case, at 9-10, states:
Similarly, in a speech given in 1971 Commissioner Ramey stated:
One would be hard pressed to give a better description of what the discussion of
Moving to another factor in our balancing test, it is evident that there are sizable irretrievable commitments of resources taking place in the program. As indicated in the introduction, the federal commitment to this program is now over $100 million per year. The Commission itself admits that one of the results of this commitment has been to slow down development of other new technologies, such as alternative breeder reactor concepts, which would also require a large investment to move from the stage of technical and theoretical research into a stage of commercial feasibility.
Finally, we cannot ignore the fact that the anticipated effects of the LMFBR program on the environment are among the most significant, and most controversial, of all federal programs. We deal here with a radical change in the manner in which our entire nation produces electricity. In many respects, no doubt, this new technique of producing electricity will be less harmful to the environment than present fossil fuel generating plants. But it is evident that the program presents unique and unprecedented environmental hazards. The Commission itself concedes it is expected that by the year 2000 some 600,000 cubic feet of high-level concentrated radioactive wastes will have been generated.
Of course, some of the environmental impacts of the program are still shrouded in uncertainty. But one of the functions of an impact statement is to point up uncertainties where they exist. And whatever statement is drafted by the Commission can be amended to reflect newly obtained information as the program progresses.
At this point it is appropriate that we emphasize the limited nature of the issue under review in this case. By our holding we do not intend in any way to question either the wisdom of the Commission's LMFBR program or the Commission's dedication to protection of the public health and safety. But as one commentator has noted:
So far as the human environment is concerned, NEPA has provided a means of answering this "basic question" by requiring full disclosure to the public and to other entities within government of all environmental effects likely to stem from agency action.
Accordingly, the judgment of the District Court is reversed and the case is remanded to the District Court for entry of appropriate declaratory relief.
Further evidence of the prospects for success of the LMFBR program lies in the major commitment of other nations in similar programs. See generally Authorization Hearings, supra note 6, at 677-687.
Nor is it significant that this case concerns an overall agency program rather than a single specific action. While it is true that the policies, programs and plans of an agency do "not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character," Ashwander v. TVA, 297 U.S. 288, 324, 56 S.Ct. 466, 472, 80 L.Ed. 688 (1936), the AEC's LMFBR certainly passes this requirement of justiciability. The AEC has already begun step-by-step implementation of the program. This program has life, not only in the minds of AEC scientists, but through actions already being carried out. Traditional principles of ripeness dictate that judicial resources be reserved for problems which are real and present, not hypothetical and remote. See 3 K. Davis, Administrative Law Treatise 116 (1958). The instant case is ripe under these principles since the issue tendered for review is whether an impact statement on the AEC's LMFBR program is presently required under NEPA. That the statement itself would consider the future effects of the program does not detract from the ripeness of this legal issue. The basic thrust of NEPA is to require consideration of environmental effects of proposed agency action long enough before that action is taken so that important agency decisions can meaningfully reflect environmental concerns. In the context of a long-range program such as is involved here, judicial review of compliance with NEPA is necessary at stages at which significant resources are being committed, lest the statute's basic purpose be thwarted. See text at pp. 1093-1094 infra.
With respect to appellant's standing to sue, we think appellant has alleged sufficient "injury in fact" to satisfy the standing test recently set out by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). As this court has already had occasion to note, the Sierra Club decision retained the principle of a modernized law of standing which embraces injury in fact to other than economic interests. See Environmental Defense Fund, Inc. v. EPA, 150 U.S.App.D.C. 348, 350-351 n. 1, 465 F.2d 528, 530-531 n. 1 (1972). Unlike the Sierra Club, which failed to allege that it or any of its members would be affected in any of their activities by the federal action in question, see 405 U.S. at 735, 92 S.Ct. 1361, the plaintiff organization in this case has clearly alleged and demonstrated that it and its members are adversely affected by the AEC's decision not to draft an impact statement on the overall LMFBR program.
The activities of the plaintiff organization in this case, as described in a memorandum submitted to the District Court on the standing issue, include making available to the public scientific information relevant to important social issues and stimulating and informing public discussion of the scientific aspects of questions of public policy. The AEC's decision not to provide an impact statement on the overall LMFBR program has an adverse effect on these organizational activities by limiting appellant's ability to provide the public information on the LMFBR program. Appellant thus has alleged and shown more than the "mere `interest in a problem'" held insufficient in Sierra Club. See 405 U.S. at 739, 92 S.Ct. 1361. Any other approach to standing in the context of suits to ensure compliance with NEPA for long-range Government programs not yet resulting in injury to discrete economic, aesthetic or environmental interests would insulate administrative action from judicial review, prevent the public interest from being protected through the judicial process, and frustrate the policies Congress expressed in NEPA, a result clearly inconsistent with the Supreme Court's approach to standing. See 405 U.S. at 740, 92 S.Ct. 1361. Accordingly, we believe the District Court was correct in finding that appellant has standing.
See also CEQ, Statements on Proposed Federal Actions Affecting the Environment: Guidelines, 36 Fed.Reg. 7724, 7726 (Guidelines 10(a)) (April 23, 1971) (hereinafter cited as CEQ, NEPA Guidelines):
See also S.Rep. No. 91-296, supra note 33, at 8; id. at 5:
It is also interesting to note that radiation hazards was one of the specific problem areas noted in NEPA's legislative history. Id. at 4.
CEQ, Third Annual Report, supra note 30, at 246. See also note 44 supra.
With respect to judicial review of such mixed questions of law and fact, the Supreme Court has authorized a practical standard of review, the "rational basis" test, under which the court will reverse the agency's decision if it has no warrant in the record and no reasonable basis in law. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); Hanly v. Kleindienst, 2 Cir., 471 F.2d 823, 829 (1972).
In reviewing an agency decision that no impact statement was required for certain proposed federal action, the 2nd Circuit has recently rejected this approach in favor of the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of the Administrative Procedure Act, see 5 U.S.C. § 706(2) (A) (1970), as that test was interpreted by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 67. See Hanly v. Kleindienst, supra, 471 F.2d at 828-830.
We think it largely irrelevant which standard of review is verbalized in the context of the instant case. Under Overton Park the court must first delineate the scope of the agency's authority and discretion under the governing statute and then determine "whether on the facts the [agency's] decision can reasonably be said to be within that range." 401 U.S. at 416, 91 S.Ct. at 823. Under the rational basis test, the court would have to determine whether the agency's decision had "reasonable support in relation to the statutory purpose." See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 9, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). In the present case, the scope of the AEC's authority and discretion in determining when to draft a NEPA statement for its research and development program is defined specifically by reference to the underlying statutory purpose of timely and meaningful impact statements and, as a result, the two standards of review merge into one.
Thus the whole tone of discourse about the LMFBR program suggests that commercial implementation of breeder reactor technology is not a question of "if," but rather a question of "when."