The following is a review article on two Environmental Case opinions of two different panels of judges. The first case is related with an expansion plan for a nuclear energy based energy distribution company to which certain Environmental Groups raised issues of inconsistency of data provided by the company for permissions to acquire and keep land for future purposes. The second case is related to a natural gas distribution company that wished to lay a pipeline through United States area, although the pipeline would supply from one Canadian state to the other.
The first case (470 F.3d 676, *2006 U.S. App. LEXIS 29743, ** 36 ELR 20239) is an opinion report by the circuit judges headed by Judge Flaum on an appeal made by certain environmental groups against Exelon Generation Company’s Early Site Permission (ESP) for new nuclear power facilities in the region of Clinton, Illinois in 2004. The Environmental Groups consists of Environmental Law and Policy Center, Blue Ridge Environmental Defense League, Nuclear Energy Information Service, Nuclear Information and Resource Service and Public Citizen.
The issue with this case was that the Environmental Groups filed contention against Exelon Generation Company against a report they submitted to the Nuclear Regulatory Commission (NRC). The contention stated that Exelon Generation Co. and the NRC failed to put consideration to alternative sources of energy and the potential such energy sources may hold, in the ESP report and documentation. The Environmental Group also pointed out that Exelon had also failed to consider the use of alternative combinations of energy sources for example wind, geothermal, hydropower and solar energy coupled with burning wood waste or other biomass, burning municipal solid water, burning energy crops, oil-fired, coal-fired or natural gas-fired plants. The Environmental Groups alleged that Exelon used “flawed” information in the estimation of wind and solar power. In answer to the Environmental Group’s contention the NRC’s Atomic Safety Licensing Board (referred to as the “Board” later on in the document as well as this article) determined Exelon Generation Co.’s application had put considerations to alternative sources of energy and had cited reasons for low efficiency of such sources of energy. The Board found that these considerations were in alignment with the National Environmental Policy Act, 1965 (NEPA) and therefore issued summary disposition that favored Exelon Generation Co. The NRC on getting the summary disposition from the Board issued an order for dismissal of the contention. The Environmental Groups then appealed in the court against the dismissal order by the NRC.
All such cases come under proceedings directed under National Environmental Policy Act (NEPA) and other Acts that may be suitable to the cases. Following is the review of two of such cases that were presented before different competent courts in different regions of the United States. The National Environmental Protection Act is an environmental law effective in the United States of America. Its primary function is to set up a mandatory procedural requirement of Environmental Assessments (EAs) and Environmental Impact Statements for all federal government agencies. These rules apply on federal government agencies only, and have no jurisdiction over the President of the United States, the Federal Courts or the Congress (CEQ2). The first case concerns with the agency Nuclear Regulatory Commission that was created under the Energy Reorganization Act of 1974 and mainly concerned with nuclear reactor safety and security, licensing and renewal of license by reactor operating corporations, management guidelines for spent fuel, radioactive material usage and safety. Any entity that wishes to construct or has plans to construct a nuclear plant must obtain a construction license and operating permit from the NRC. The application of the permit must contain the proposed plant’s design, safety assessment of the plan and the site and a report of the environmental impact assessment of the facility to be constructed and operated. The NRC then prepares an Environmental Impact Statement (EIS) for the construction. In case the entity wishes to construct the facility later, then the entity must file an ESP report with the NRC. Under 10 CFR R. § 52.17 and § 52.1 the ESP report must contain an elaborate environmental report so that NRC may pass on to form an ESP report. In the circumstances of this case, NRC rejected the contention from the Environmental Groups on the basis of law 28 U.S.C. § 2342. This law examines the validity and maturity of contentions and the ruling is made on the basis of date of filing of contention. Other laws include the 290 U.S. App. D.C. 371,938 F.2d 190, 199 (D.C. Cir. 1) which dictates that a company’s alternatives to the proposal depend upon the application they submit.
According to the Environmental Groups, the Environment report submitted by Exelon and the report assessment created by NRC did not account for the alternative energy use. Also, these reports did not contain valid facts and figures related to such energy resources. Under NEPA Act, an energy source that is not cost effective or when the energy generation technology is not upto efficiency the technology cannot be used for base-load production of energy for supply or distribution sale. Due to this provision the circuit judges accepted the report of the NRC and Exelon and hence rejected the contention of the Environmental Groups. The courts found through case law 290 U.S. App. D.C. 371,938 F.2d 190, 199 (D.C. Cir. 1) that NRC’s decisions were yet under a consideration level. The NRC forwarded reasons under 28 U.S.C. § 2342, stating that the contention was filed prematurely and hence had less significance since the final ESP had not been issued by that time.
In conclusion to the above discussed case, firstly the energy resources quoted by the contention did not hold valid at that point of time as those methods of energy production were still in the research and developmental stage. This decision was made at a time when renewable sources were yet developing as power sources all over the world. The case opinion was written in a very to the point manner, explaining all the important developments in the case and citing reasons for the rejection of the contention by the Environmental Group. However, if such a case would have been filed in the present day, the analysis would have generated a different result and opinion altogether. But considering the situation of technological advancement during the development of this case, the judge’s opinion held well. The case can also be seen as an example of inadequate function of the NRC has been indicated by some nuclear energy concerns like the Union of Concerned Scientist (Northey).
The second case opinion (389F.3d 1313; 2004 U.S. App. LEXIS 24774; 160 Oil & Gas Rep. 1187) comes from circuit judge Anderson on a petition filed by Fuel Safe Washington against Federal Energy Regulatory Commission (FERC) regarding granting a Certificate of Public Convenience and Necessity (CPCN) to Georgia Strait Crossing Pipeline LP (GSX) that would allow GSX to construct a working gas pipeline and necessary infrastructure to control the supply.
The issue with this case begins with GSX wish to lay a gas pipeline that would begin at the Canadian Border of Sumas, Washington, which would then overland across Whatcom County and San Juan County, followed by an underwater installation through Strait of Georgia to join at a subsea interconnection at the international border between United States and Canada. The facility was supposed to be unidirectional but reverse flow capacity would be possible in case of excessive accumulation at the final destination. The first issue with the case was with Whatcom County who objected to the FERC’s involvement with the permission procedure because the origin and the end user of the gas pipeline would be Canadian. The GSX applied for permissions for permit under the NEPA to the FERC so that FERC may issue an EIS for GSX. The initial complaint was dismissed by the FERC but FSW asked for reopening of the case in the circuit court. FSW argued that FERC’s final EIS failed on four different counts. First failure was suggestion of better alternatives to the laying of the pipeline, second was trans-boundary effects, third was acoustic effects and the last was implication occurrence of earthquakes. FERC appealed that the FSW failed to challenge their jurisdiction.
The agency involved in the second case the Federal Energy Regulatory Commission is charged with the jurisdiction over interstate sale of electricity, natural gas, liquefied natural gas and hydropower. FERC has complete jurisdiction over the transportation, sale in interstate commerce of natural gas for resale for ultimate public consumption and natural-gas companies that are engaged in this kind of transportation or sale." (15 U.S.C. § 717 (b)). The legal procedure for the agency goes as follows. Under the Council on Environment Quality (CEQ) regulations that implement NEPA, 40 C.F.R. §§ 1500-08, FERC must produce the draft EIS for public comment (from 42 U.S.C. § 4332(2) (C)). Since any and every gas related activity in the United States must pass through scrutiny of the FERC for operation.
According to the functioning of the FERC the agency must regulate and sanction all the gas transport that may occur over the United States area. The Whatcom County and later the FSW laid objection to the GSX’s to take permission from FERC for the discussed pipeline as the pipeline supplied gas from one Canadian region to the other under § 7 of the NGA. The Whatcom County’s objection and request for stay order to the FERC’s EIS to GSX was rejected, to which the county did not apply for a rehearing. However, the case was reopened by FSW based on a dictum Union Electric Co. v. Federal Power Commission, 326 F.2d 535 (8th Cir. 1964) which did not provide enough weightage to the petition of FSW. FSW also produced alternative suggestions to the pipeline activity, like the replacing of the Vancouver Power Lines, which would decrease the power consumption on the Vancouver Islands. This suggestion aimed at reducing gas consumption at power generation sites. The suggestions were countered by the FERC and EPA with scientific proofs related to the durability of the pipeline and its environmental effects over the long run. Other arguments like the rupture of pipeline due to earthquake were rejected by the EPA through valid responses as well. The court also quoted that under 15 U.S.C. § 717 r (b) the court will not receive appeals in case applicant must use all their administrative solutions before seeking court appeal.
The opinion ends with a conclusion including a concurring opinion from McConnell. Both the opinions agree to the fact that FSW’s petition requesting a stay on the pipeline order will not be acknowledge due to lack of contention and motion. The opinion describes all the sections under which the petitioner had filed their case especially mentioning the dictum Union Electric Co. v. Federal Power Commission. The Union Electric statement based on which FSW filed its petition for the stay order could not qualify as a holding of the court. The opinion clearly stated the inadequacy of jurisdiction that the court or any other regulatory authority for that matter held on the subject. As McConnell puts it in the conclusion, “The scope of regulatory jurisdiction and of the procedural limitations on appellate challenges to regulatory agency decisions, by contrast, is a matter of policy for Congress to decide.” The judgement comes directly from the fact that objection and appeal for stay order to the setup of pipeline by GSX and the EIS permission is ineffective in terms of ample reason for the judiciary.
A detailed study of both the cases presents the reader with the proposition that in both of the cases environmental concerns played active role in trying to regulate the way industries run their facilities with the impending environmental impacts their activities may have on the human environment. The cases also present the fact that many petitions and objections find rejection due to the fact that the arguments the environmental groups and active organizations present find great opposition from the parties as well as the concerned federal agencies. The agencies work so as to provide license to the industries and are driven according to the needs of the industry rather than the needs of the people. There is in fact a need for thorough change in the way these agencies work and the NEPA itself needs a generalized update with the increasing number of changes and innovations in the energy front, especially in the field of production of energy through the help of renewable sources. It is true that no system can be perfect and without the proper scope for an opposition there cannot exist in any form of development that is whole in every sense.
Works cited
Anderson. Fuel Safe Washington, Petitioner, V. Federal Energy Regulatory Commission, Respondent, Powerex Corp. And Georgia Strait Crossing Pipeline Lp, Intervenors, Whatcom County, Amicus Curiae. No. 03-9577. United States Court Of Appeals for the Tenth Circuit. 1 Dec. 2004
CEQ1. A Citizen’s Guide to the NEPA: Having Your Voice Heard. Washington DC p.p. 2-7. Accessed 8 Nov. 2013. Web.
CEQ2. 40 CFR Section 1508.12: Terminology: Federal Agency. Code of Federal Regulations. Accessed 8 Nov. 2013 Web.
Flaum. Environmental Law and Policy Center, Blue Ridge Environmental Defense League, Nuclear Energy Information Service, Nuclear Information and Resource Service, and Public Citizen, Petitioners, V. United States Nuclear Regulatory Commission and The United States Of America, Respondents, And Exelon Generation Company, Llc, Intervening Respondent. No. 06-1442. United States Court Of Appeals for the Seventh Circuit. 5 Dec. 2006
Northey, H. Japanese Nuclear Reactors, U.S. Safety to Take Center Stage on Capitol Hill This Week. New York Times. 28 Mar. 2011. Accessed 7 Nov. 2013. Web.
