Paper by Jack Beatson
It is an interesting feature of common law adjudication that some cases assume an importance far beyond their ratio decidendi. Although, it is too early to say whether Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., will be such a case, the quantity of literature generated in the two years since the opinion demonstrates that it must be a candidate.
The importance of the case stems from the opening two paragraphs of Justice Rehnquist's opinion for a unanimous Court, in which he stated "that the formulation of [administrative] procedures was basically to be left within the discretion of the agencies to which Congress has confided the responsibility for substantive judgments" and that the Administrative Procedure Act enacted "a formula upon which opposing moral and political forces have come to rest." He concluded that while agencies are free to grant additional procedural rights, "reviewing courts are generally not free to impose them if the agencies have not chosen to grant them."
The issues before the Court included the validity of the Nuclear Regulatory Commission's "spent fuel cycle" rule which dealt with the environmental hazards involved in the reprocessing or disposal of fuel used in light water cooled reactors. The rule specified numerical values for the environmental impact of this part of the cycle that were incorporated in table with other relevant factors to determine the overall cost-benefit balance in each application by a power company for an operating license. With respect to the Vermont Yankee reactor, the Commission had, on the basis of a staff report, concluded that the hazards were "relatively insignificant" to the total environmental impact.
It was, inter alia, this determination that the Natural Resources Defense Council (NRDC) sought to question, contending that the only supporting evidence was an empirically unsatisfactory paper attesting to the adequacy of existing waste disposal techniques. Although the Commission had made the staff report available, allowed oral statements, and provided for procedures beyond those required by either its governing statute or the Administrative Procedure Act (A.P.A.), the agency refused to allow discovery and cross-examination. NRDC argued that further procedures were necessary to "develop the factual issues fully." This position was accepted by the District of Columbia Circuit Court of Appeals but rejected by the Supreme Court.
The Court's decision has elicited a wide range of commentaries, the majority of which have been critical. On the one hand, there is the view that Vermont Yankee perpetuated the heresy of Florida East Coast Railway Co., which held that rulemaking required to be after a hearing (as was the case in Vermont Yankee) was not subject to the formal procedures of § 556 and § 557 of the A.P.A. On the other hand, Vermont Yankee has been defended on the ground that although "there may be instances in which compliance with the minimum notice, comment and statement requirements of § 553 would not produce an adequate record for review," the creation of additional procedures by reviewing courts would conflict with notions of the "appropriate institutional roles of court, legislature and agency." Somewhere in the middle are those who contend that the need to generate the record necessary for adequate judicial review is best met by judicial specification of procedures and that the Vermont Yankee decision is self-contradictory in separating the specification of procedures from reviewability. Advocates of this approach believe that the decision will force agencies to try to second-guess judicial requirements which may, paradoxically, lead to the adoption of more procedural formality than is necessary or desirable. Other comments have focused on the relationship between the District of Columbia Circuit Court of Appeals and the Supreme Court and the technical complexity of the issue. This paper will attempt to evaluate the decision in the light of the more informal and less systematic requirements of British administrative law. The comparison is perhaps sharpened because most of the evidence provided is drawn from a context very similar to that in Vermont Yankee: the procedure employed at the inquiry into the proposal to build a nuclear reprocessing plant at Windscale in Northwestern England.
About the Author
Jack Beatson. Fellow of Merton College, Oxford; Lecturer in Law, University of Oxford; B.C.L. (1972), M.A. (1973) Oxon.
Citation
55 Tul. L. Rev. 435 (1981)