METROPOLITAN EDISON COMPANY, ET AL., PETITIONERS v. PEOPLE AGAINST
NUCLEAR ENERGY, ET AL.

   UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES
OF AMERICA, PETITIONERS v. PEOPLE AGAINST NUCLEAR ENERGY, ET AL.

   No. 81-2399

   82-358

   In the Supreme Court of the United States

   October Term, 1982

   On Writs of Certiorari to the United States Court of Appeals for
the District of Columbia Circuit

   Brief for the United States and the United States Nuclear
Regulatory Commission

                       PARTIES TO THE PROCEEDING

   In addition to the parties listed in the caption of these
consolidated cases, parties to this case include Jersey Central Power
& Light Co., and Pennsylvania Electric Co., additional petitioners in
No. 81-2399 and (along with Metropolitan Edison Co.) nominal
respondents in No. 82-358.  The federal petitioners in No. 82-358 are
nominal respondents in No. 81-2399.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Summary of Argument
   Argument:
      NEPA does not require analysis of emotional
      stress allegedly flowing from fear of the
      consequences of operation of a nuclear power
      plant
      A. NEPA requires consideration only of the
          environmental effects of major
          environmentally-significant federal actions
      B. Stress cause by fear of operation of
          TMI-1 is not environmentally caused
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (81-2399 Pet. App. 1a-76a) is
reported at 678 F.2d 222.  /1/ The orders of the Nuclear Regulatory
Commission reviewed by the court of appeals (Pet. App. 77a-78a,
101a-102a) and ancillary opinions (Pet. App. 79a-100a) are reported at
12 N.R.C. 607 and 14 N.R.C. 593.  The opinion of the Atomic Safety and
Licensing Board (J.A. 29-47) is reported at 11 N.R.C. 297.

                             JURISDICTION

   The amended judgment of the court of appeals (Pet. App. 103a-104a)
was entered (without supporting opinions) on April 1, 1982.  /2/ A
modified version of the amended judgment (Pet. App. 29a-30a) was
entered on May 14, 1982, at the time opinions were issued.  On June
23, 1982, the Chief Justice extended the time for filing a petition
for a writ of certiorari to and including August 20, 1982.  On August
12, 1982, the Chief Justice further extended the time for filing such
a petition to and including August 30, 1982.  The petition in No.
81-2399 was filed on July 1, 1982, and the petition in No. 82-358 was
filed on August 30, 1982.  The petitions were granted and the cases
consolidated on November 1, 1982.  The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   Sections 2, 101 and 102 of the National Environmental Policy Act of
1969, 42 U.S.C. 4321, 4331 and 4332, are reproduced in the appendix to
this brief.

                          QUESTION PRESENTED

   Whether the National Environmental Policy Act requires the Nuclear
Regulatory Commission to consider stress (and accompanying physical
symptoms), allegedly induced in persons residing in the vicinity of
the Three Mile Island nuclear power facility by the pending proposal
to authorize restart of Unit 1 of that facility (the unit not involved
in the 1979 accident), in connection with its action upon that
proposal, notwithstanding the absence of any causal nexus between the
alleged stress and the effects of the proposed action upon the natural
environment.

                               STATEMENT

   1. This case involves the Three Mile Island Unit 1 nuclear power
reactor ("TMI-1"), located near Harrisburg, Pennsylvania.  After
preparing draft and final environmental statements and conducting an
extensive safety review, the Atomic Energy Commission, in 1974,
granted the private petitioners, Metropolitan Edison Company et al.
("the utilities"), a license to operate TMI-1, and the unit entered
service.  Four years later, the utilities received a license from the
successor agency, the Nuclear Regulatory Commission, to operate a
second facility at the site ("TMI-2").  On March 28, 1979, a
significant accident affecting the TMI-2 reactor took place.  At the
time of the TMI-2 accident, TMI-1 was not in operation, having been
shut down by the licensee for routine maintenance and refueling.  In
the aftermath of the accident, the Commission directed the licensee to
keep TMI-1 shut down pending further order of the Commission and
announced that it would conduct a hearing to determine whether, and
under what circumstances, the licensee should be allowed to resume
operation of the plant.  44 Fed. Reg. 40461 (1979) (J.A. 8).

   By further order, the Commission specified the issues to be
addressed by the Atomic Safety and Licensing Board designated to
conduct the "restart" proceeding.  All related to concerns which the
accident at TMI-2 had raised about the safety of TMI-1.  In re
Metropolitan Edison Co., 10 N.R.C. 141 (1979) (J.A. 9-25).  These
included:  deficiencies in the design common to the two reactors, the
potential for interaction between the plants, the possible effect on
TMI-1 of the decontamination of TMI-2, the management capability of
the licensee, and deficiencies in the licensee's operating procedures
and emergency plans.  The Commission added that although
accident-related psychological distress on the part of members of the
public living near TMI that was "unrelated directly to exposure to
radiation" was the subject of "real and substantial concern," it had
not yet determined whether such issues "c(ould) be legally relevant to
the(e) proceeding" (J.A. 20;  emphasis added).  The Commission
accordingly invited parties wishing to raise such contentions to
address the pertinent legal issues in briefs filed with the Atomic
Safety and Licensing Board conducting the restart proceeding.  That
Board was, in turn, directed to certify the issue to the Commission
for decision, with or without its own recommendation.

   Respondent, People Against Nuclear Energy ("PANE"), an organization
composed of residents of the Harrisburg area that had intervened in
the restart proceeding, responded to the Commission's invitation,
submitting two draft contentions (Pet. App. 115a-116a) for
consideration, along with arguments that their consideration was
legally mandated by both the Atomic Energy Act of 1954, 42 U.S.C. (&
Supp. IV) 2011 et seq., and the National Environmental Policy Act of
1969 ("NEPA"), 42 U.S.C. (& Supp. IV) 4321 et seq.

   PANE claimed, first, that the resumed operation of TMI-1 would
exacerbate the "severe psychological stress" which its members and
other residents of the TMI area had allegedly suffered as a result of
the accident at TMI-2.  PANE asserted that the prevailing stress took
the form of "increased anxiety, tension and fear, (and) a sense of
helplessness," accompanied by physical symptoms such as skin rashes,
aggravated ulcers, and skeletal and muscular problems.  Respondent
alleged that continuing injury to the health of the residents of the
area would result "(a)s long as th(e) possibility (that TMI Unit 1
will reopen) exists" and that it was accordingly "impossible * * * to
operate TMI 1 without endangering the public health and safety" (Pet.
App. 115a).

   For its second contention, PANE asserted that resumption of
operations at TMI-1 would cause communities in the vicinity of TMI to
be perceived as undesirable, thereby exacerbating damage to their
economic and social "stability, cohesiveness and well being" caused by
"a loss of citizen confidence in the ability of (community)
institutions to function properly and in a helpful manner during a
crisis" resulting from the aftermath of the 1979 TMI-2 accident.  PANE
urged that for this additional reason, TMI-1 should never again be
allowed to operate (Pet. App. 116a).

   2. On February 22, 1980, the Licensing Board issued its
"Certification to the Commission on Psychological Distress Issues." In
re Metropolitan Edison Co., 11 N.R.C. 297 (1980) (J.A. 29-47).  The
Board concluded that the alleged "psychological stress is probably not
cognizable under the Atomic Energy Act" because such effects are not
radiation hazards (J.A. 31, 32).  /3/ On the other hand, the Board
concluded that "the Commission, within its discretion, may and should
consider psychological stress and community fears under NEPA for the
purpose of mitigating the effects of its TMI-1 licensing activity"
(J.A. 29, 47).  /4/ Rejecting the Commission staff's contention that
stress and community fears are not cognizable under NEPA because
unquantifiable, the Board found "a sufficient prehearing basis for the
premise that the effects are measurable," stressing that "(p)recise
numerical quantification is not necessary" (id. at 36 & n.8).  /5/
Acknowledging that there was no evidence before it that methods
existed that "would permit the measurement of the psychological stress
phenomenon well enough for use in a full-scale cost/benefit balancing
in an * * * EIS," and suggesting that it was within the Commission's
discretion to determine whether or not its staff should be directed to
develop the necessary methodology, the Board nonetheless concluded
that NEPA permitted consideration of the alleged stress in some
fashion, even though preparation of a formal environmental impact
statement (EIS) or even a threshold environmental impact appraisal
(EIA) addressing this subject might not be required or even possible
(J.A. 32, 40-43).

   The Licensing Board rejected the contention, advanced by the
licensee and the Commission staff, that stress is not cognizable under
NEPA in the setting of this case because the fears that are alleged to
occasion it are not rationally grounded (J.A. 38-39). The Board noted
that the TMI-2 accident merely underscores the fundamental premise of
the Atomic Energy Act that nuclear power improperly controlled is a
source of danger, and "urge(d) the Commission to reject out-of-hand"
this contention, suggesting that "fears of TMI 1 operation" are
cognizable under NEPA because "they are * * * amenable to mitigation"
(J.A. 39).  The Board acknowledged that "the best way to minimize any
psychological stress in the communities around TMI 1 is to make the
plant safe or not allow it to operate" (J.A. 44).  The Board
nonetheless suggested that even if the licensee had met the
requirements of the Atomic Energy Act, for instance those requiring
monitoring of radiation releases from the plant, consideration under
NEPA of stress effects might prompt the Commission to require the
licensee to install additional monitoring devices to reduce public
apprehension (J.A. 44-45).  The Board further reasoned that giving
plant neighbors the opportunity to voice their fears in the restart
proceeding would in and of itself constitute a significant stress
mitigation strategy (J.A. 45).

   3. On December 5, 1980, the Commission issued an order (Pet. App.
77a-78a) directing that respondent's contentions based on
"psychological stress" be excluded from the restart proceedings.  The
order reflected that the four Commissioners then holding office were
evenly divided as to whether the stress issue should be considered by
the licensing board, and that the procedural effect of the tie vote
was to exclude the stress issue from the proceeding.  The order
indicated further that the issue would be reconsidered when the vacant
fifth seat on the Commission had been filled.

   No opinion for the Commission was issued.  Instead, each
Commissioner wrote separately setting forth his reasoning.  Chairman
Ahearne concluded that "an NRC licensing action is not an appropriate
forum for psychological stress issues" (Pet. App. 79a).  He maintained
that stress is not cognizable under the Atomic Energy Act, and
described "the issue of whether NEPA provides sufficient authority to
impose mitigation measures on the licensee in the context of the
restart proceeding" as "problematical" (id. at 80a).  He concluded
that the Commission's only obligation respecting stress is to mitigate
any such effects by ensuring that TMI-1 is safe before restart is
authorized.

   Emphasizing that "the psychological stress at issue is not that
associated with actual exposure to radiation -- but the stress caused
by the possibility that (petitioner) and others might be so exposed by
future operation," and that "(t)here is no way to allay that fear
except not to build or operate the reactor" (Pet. App. 82a),
Commissioner Hendrie agreed that neither the Atomic Energy Act nor
NEPA required consideration of respondents' contentions respecting
stress, as such, and that the Commission's obligation was, instead, to
ensure that TMI-1 is operated safely, and that the public is
adequately informed of the relevant facts (id. at 82-91a).
Commissioner Hendrie concluded that Congress did not intend that the
Commission consider stress in licensing decisions under the Atomic
Energy Act (id. at 83a-87a).

   Respecting NEPA, Commission Hendrie relied upon the weight of
federal judicial authority (see page 5 note 5, supra) placing
psychological effects outside the scope of the required environmental
analysis.  He rejected respondent's suggestion that the alleged
presence of physical manifestations of stress served to distinguish
this case, explaining (Pet. App. 89a):

      Presumably, psychological distress will always be accompanied by
      physical symptoms in a certain proportion of the persons
      affected.  As a legal matter, I see no basis for differentiating
      between psychological stress that has physical symptoms and that
      which is without physical symptoms * * *.  In either case, the
      problems of quantification and proof would be such as to make
      rational factfinding extremely difficult * * *.

   Commissioner Hendrie argued that the nature of the alleged effects
of the restart decision upon mental health rendered consideration of
mitigation possibilities, mandated by NEPA, inapposite (ibid.):

      If anxieties are rationally based, the corrective measures which
      would alleviate the stress would presumably be justifiable in
      terms of protecting physical health and safety (under the Atomic
      Energy Act) -- irrespective of their effect on psychological
      stress.  If the anxieties are irrationally based, on the other
      hand, then they are by definition not likely to be alleviated by
      a demonstration that some additional safety feature has been
      added.

   Finally, Commissioner Hendrie underscored that stress occasioned by
fear of operation of TMI-1 was unrelated to any environmental impact
of operation and was accordingly entirely outside the intended scope
of NEPA (Pet. App. 90a-91a;  emphasis in original):

         NEPA is a very broad statute and has had, as it was intended
      to have, a profound effect upon agency decision making.  But
      unless it is to displace the political process it must have some
      limits.  It cannot be read to require that all conceivably
      relevant factors be heard by an agency including those already
      considered by Congress.  It was intended and must be so
      construed to deal with environmental degradation.  To be sure if
      one of a project's effects on the environment causes health
      problems, the associated mental impacts are in an appropriate
      consideration;  but here we are being asked to consider effects
      apart from any effect upon the environment.

         Intervenor's argument is essentially that even if we are
      satisfied that the environmental impact is minimal, we must
      nevertheless hear evidence on, and consider in our decision,
      their fears that we are wrong and the mental stress thus
      engendered.  The short answer is that Congress has already
      decided that the country is to have a nuclear power program even
      if it makes some people uneasy.

   Commissioners Gilinsky and Bradford would have directed the
Licensing Board to hear evidence respecting stress effects.
Commissioner Gilinsky replied primarily upon the Licensing Board's
analysis (Pet. App. 91a-92a), and did not address the question whether
NEPA (or the Atomic Energy Act) required consideration of such
evidence.  Commissioner Bradford argued (id. at 93a-100a) that the
TMI-2 accident made the TMI-1 restart hearing a unique one and that,
under the circumstances, an important means of alleviating stress that
might be occasioned by the Commission's decision would be to allow
full airing of the stress issue before the Licensing Board.  Because
he concluded that the Commission should, in the exercise of its
discretion, consider respondent's contentions respecting stress,
Commissioner Bradford declined to decide whether NEPA requires such
consideration (id. at 94a n.3).

   4.a. On February 3, 1981, pursuant to 28 U.S.C. (Supp. IV) 2342(c)
and 42 U.S.C. 2239(b), respondent filed a petition for review of the
Commission's order excluding the issues it sought to raise from the
restart hearing.  /6/ In the court of appeals, respondent argued that
both NEPA and the Atomic Energy Act required the Commission to
consider the psychological stress contentions in the restart
proceeding.  Specifically, respondent asserted that whether the "major
federal action" in question was considered to be the restart of TMI-1
considered in isolation or the original licensing of TMI-1, coupled
with continued NRC regulation of the plant, psychological stress and
community deterioration were impacts of federal action that were
required to be evaluated in an environmental impact statement (Pet.
App. 10a).  Respondent argued as well that the Commission's
responsibility under the Atomic Energy Act to protect "public health
and safety" encompassed psychological health.

   The Commission responded that the projected restart of TMI-1 did
not require further environmental analysis under NEPA because an EIS
had been prepared when operation of the TMI-1 plant first was
authorized, and that the restart decision itself did not represent a
proposal for federal action within the meaning of NEPA, because it
would restore the status quo as it existed before the Commission took
enforcement action requiring that the plant remain shut down pending
investigation of the accident at TMI-1 and its implications.  Even if
there were a proposal for federal action, the Commission argued,
stress occasioned by operation of a nuclear power plant was not an
effect required to be evaluated in an environmental impact statement.
Similarly, the Commission contended that its duty under Section 103(d)
of the Atomic Energy Act, 42 U.S.C. 2133(d), to deny any license the
issuance of which "would be inimical to * * * the health and safety of
the public" comprehended the physical hazards associated with nuclear
materials but not psychological effects arising from fears of nuclear
technology.  The utilities, which had intervened in the court of
appeals, took essentially the same position.

   b. A panel of the court of appeals, Circuit Judges Wright and
Wilkey and Senior Circuit Judge McGowan, heard oral argument on
respondent's petition for review on November 17, 1981.  On January 7,
1982, the court issued an interim judgment (Pet. App. 105a-107a),
unaccompanied by an opinion for the court.  That judgment, from which
Judge Wilkey dissented, vacated the Commission's order and directed
the Commission to prepare an environmental assessment regarding the
effect of the proposed restart of TMI-1 on the "psychological health
of neighboring residents and on the well-being of the surrounding
communities" (id. at 106a).  The Commission was further ordered to
determine, on the basis of this environmental assessment, whether to
prepare a full environmental impact statement.  The Commission was
enjoined from making any decision to restart TMI-1 until it had
complied with these requirements.  In addition, the Commission was
directed (ibid.) to submit a statement of its reasons for "its
determination that psychological health is not cognizable under the
Atomic Energy Act." /7/

   On April 2, 1982, the court of appeals issued an amended judgment
(Pet. App. 103a-104a), promising opinions to follow, again over Judge
Wilkey's dissent.  The amended judgment differed from the prior
judgment in several respects.  First, the Commission was no longer
directed to prepare an environmental assessment, but was instead
ordered to determine, by whatever procedures it deemed appropriate,
whether since the preparation of the original environmental impact
statement on TMI-1, "significant new circumstances or information have
arisen with respect to the potential psychological health effects of
operating the TMI-1 facility" (id. at 104a).  If the Commission
answered that question in the affirmative, it was to prepare a
supplemental environmental impact statement addressing both
psychological health effects on individuals and effects on the
well-being of the surrounding communities of operating TMI-1.  Second,
the court of appeals vacated the previously issued injunction against
restart, explaining that because of "operating difficulties" at TMI-1
of which it took notice (discovery of a corrosion problem in the
plant's steam generators that necessitates major repairs before
restart), the injunction against restart was unnecessary.  The court
directed the Commission, however, to give it 30 days' notice if it
intended to permit renewed operation "prior to complying with its
obligations under NEPA" (ibid.) as declared by the court.  See page
18, infra.  The amended judgment made no reference to the Atomic
Energy Act.

   c. On May 14, 1982, the court of appeals issued its opinions (Pet.
App. 1a-76a).  /8/ Judge Wright, joined by Judge McGowan, with Judge
Wilkey dissenting, held that NEPA requires consideration in the
restart proceeding of petitioner's contentions respecting
psychological stress.  At the same time, a different majority, Judge
Wilkey, joined by Judge McGowan, with Judge Wright dissenting, upheld
as reasonable the Commission's interpretation of its duties under the
Atomic Energy Act, which excluded from consideration in licensing
actions "stress allegedly resulting from fear of a nuclear accident"
(id. at 67a).

   On the NEPA issue Judge Wright declared that "(b)oth (of PANE's)
contentions allege environmental effects within the meaning of NEPA"
(Pet. App. 10a).  He deemed it inconceivable that all mental health
effects, no matter how severe, of proposed federal action, whatever
its nature, are outside the scope of NEPA (id. at 11a, 17a).  He
reasoned that mental health effects of proposed federal actions are
cognizable under NEPA because effects on health have generally been
regarded as within the scope of NEPA, and because of "the simple fact
that effects on psychological health are effects on the health of
human beings" (id. at 11a-12a).  The court of appeals distinguished
cases holding that the social fears and anxieties of persons residing
near proposed federal projects are not environmental effects
cognizable under NEPA (see page 5, note 5, supra), observing that
"(n)one of these cases * * * presents the holocaust potential of an
errant nuclear reactor" (id. at 15a).  /9/ Eschewing any general rule,
the court acknowledged that "NEPA does not encompass mere
dissatisfactions arising from social opinions, economic concerns, or
political disagreements with agency policies" (id. at 16a), but held
that NEPA does apply to the "post-traumatic anxieties, accompanied by
physical effects and caused by fears of recurring catastrophe" alleged
by respondent (id. at 16a-17a).  Without attempting to locate the line
between the two classes of effects recognized, the court simply
concluded (ibid.):

      We cannot believe that the psychological aftermath of the March
      29 accident falls outside the broad scope of the National
      Environmental Policy Act.  /10/

   The court of appeals also rejected the Commission's alternative
argument that the restart proceeding involved no proposal for federal
action subject to NEPA (Pet. App. 18a-23a).  Disavowing any reliance
upon "the happenstance that TMI-1 was shut down for refueling at the
time of the accident," the court instead stated that "the extent of
the Commission's statutory responsibilities over licensed nuclear
power facilities creates a continuing obligation to comply with NEPA"
and that "(t)he 'major federal action' in the case of TMI-1 is not
solely the initial licensing decision, but the Commission's continued
exercise of supervisory responsibility over its operation and
maintenance" (id. at 18a-19a).  Treating NRC's regulation of its
licensee as a continuing proposal for major federal action
significantly affecting the environment, the court invoked the
criteria for supplementation of an EIS outlined in the Council on
Environment Quality's NEPA regulations (40 C.F.R. 1502.9(c)),
directing the Commission to prepare a supplemental EIS addressing
respondent's stress contentions (as well as the socioeconomic issues
raised by respondent (see note 10, supra)), if the Commission
determined that "significant new circumstances or information"
regarding the mental health effects of operating TMI-1 had arisen
since completion of the EIS prepared at the time of initial licensing
(Pet. App. 23a-26a).

   Judge Wilkey dissented from the court's judgment on the NEPA issue
(Pet. App. 31a-59a, 67a-69a).  He stated that the court had effected
an unprecedented expansion of the scope of NEPA obligations by
requiring consideration of stress resulting from fears triggered by
federal action, an effect that is not traceable to the actual
environmental impact of the private activity authorized by the
pertinent federal licensing decision (id. at 36a-38a;  footnotes
omitted;  emphasis in original):

         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 individual's fears of the federal
      action. * * *

         (O)peration 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. * * *

         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 upon by
      the majority.  Instead of being required to assess the risk of a
      proposed activity * * * 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.  The
      environmental effects of a federal activity are now to include
      the views of the population itself on the very desirability of
      the activity * * *.

   Judge Wilkey noted that the majority's decision was contrary to
decisions of three other courts of appeals, as well as a prior
decision of the D.C. Circuit (Pet. App. 39a-40a & nn.19-21).  He
argued as well that the mental health effects alleged by PANE are too
ephemeral, speculative and subjective to be measured for purposes of
NEPA analysis (id. at 40a-42a).  Finally, Judge Wilkey found
insupportable the majority's efforts (see pages 13-14 & note 9, supra)
to confine its ruling to the facts of this case, explaining that the
alleged severity in a particular case of an effect of a particular
type relates only to the nature and extent of the analysis required by
NEPA, if any, but has no bearing on the threshold question whether the
class of effects involved constitutes environmental impacts within the
scope of NEPA (id. at 42a-48a).

   Judge Wilkey also rejected the majority's view that the initial
licensing and ensuing oversight regulation of the TMI-1 facility
constituted for NEPA purposes a single continuing major federal action
(Pet. App. 48a-50a).  He noted that under the majority's analysis "the
fact that * * * the NRC is proposing to restart the plant is
irrelevant." That analysis, Judge Wilkey explained, is inconsistent
with the requirements of NEPA, which governs only proposed actions.
Judge Wilkey appears to have concluded, however, that because TMI-1
was shut down, the Commission's restart decision itself constituted
federal action for NEPA purposes (id. at 50a).  On the other hand, he
stressed that the majority's analysis was overly broad and would
effect a substantial and unwarranted increase in the NEPA obligations
of NRC and all other federal agencies.  For instance, he explained
(id. at 49a):

      (U)nder the majority's interpretation, the NRC is engaged in * *
      * "action" (subject to NEPA) 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.

   d. On the Atomic Energy Act issue, the court of appeals (Judge
Wilkey joined by Judge McGowan) upheld the Commission's conclusion
that consideration of respondent's contentions was not mandated by
statute (Pet. App. 59a-67a).  /11/ The court of appeals observed that
substantial deference is due to the Commission's interpretation of the
Atomic Energy Act, its governing statute (id. at 60a-61a).  The court
approved the conclusion of the First Circuit in New Hampshire v.
Atomic Energy Commission, 406 F.2d 170, cert. denied, 395 U.S. 962
(1969), based upon pertinent legislative history, administrative
interpretation, and congressional oversight, that in enjoining the
Commission to "protect the health and safety of the public" (42 U.S.C.
2012(d);  see also 42 U.S.C. 2133(d)) "Congress 'had in mind only the
special hazards of radioactivity' and that the Commission's
responsibility is 'confined to scrutiny of and protection against
hazards from radiation'" (Pet. App. 62a, quoting New Hampshire v.
Atomic Energy Commission, supra, 406 F.2d at 174, 175).  The court of
appeals concluded that Congress' concern was "'the danger from
explosion, radioactivity, and other harmful or toxic effects incident
to the presence of such materials" (Pet. App. 63a, quoting S. Rep. No.
1211, 79th Cong., 2d Sess. 1335 (1946)).

   The court of appeals also rejected respondent's alternative
contention that stress induced in neighbors by operation of a nuclear
power plant, is, in any event, a "special hazard of radioactivity"
within this definition (Pet. App. 64a-66a).  The court explained (id.
at 64a, quoting In re Metropolitan Edison Co., 15 N.R.C. 407, 412
(1982)):

      "Presumably, every hazardous technology gives rise to fears
      associated with it:  fear of being inundated by failure of a
      newly constructed dam, for example, or of being hit by debris
      from a crashing airplane." Individuals may experience
      psychological trauma from the occurrence of accidents or
      disasters such as these * * *.  It is obvious, therefore, that
      "post-traumatic psychological stress" can result from any
      traumatic event and is not so peculiar to nuclear energy that
      Congress can be deemed to have considered it a special hazard of
      radioactivity.

   Judge Wright dissented from the judgment of the court of appeals on
the Atomic Energy Act issue (Pet. App. 70a-76a).  He complained that
the court had given undue deference to the Commission's interpretation
of the Act and asserted that the plain meaning of the statutory
directive to protect the health and safety of the public dictates that
(id. at 70a) "(i)f operation of a nuclear facility would be inimical
to the psychological health of the public, the Commission must not
approve the operation." /12/

   5. Subsequent to entry of the court of appeals' decision, on
October 6, 1982, the Commission issued an order announcing its
intention to decide, after conducting public hearings, whether to lift
the immediate effectiveness of the two 1979 orders that required that
TMI-1 facility remain shut down pending further order of the
Commission (see pages 3-4, supra).  A decision is presently
anticipated in January 1983.  However, as the October 6 order makes
clear, other barriers to operation of TMI-1 remain, including the
resolution of the steam generator corrosion problem noted by the court
of appeals (Pet. App. 104a), and any necessary agency review of the
licensee's repairs to the steam generators.  For this reason, it is
the Commission's view that a decision to lift the immediate
effectiveness of the shutdown orders would not constitute "a final
decision regarding the restart of TMI-1" within the terms of the
judgment of the court of appeals requiring advance notice to the court
of such a decision (Pet. App. 30a;  see page 12, supra).  The
Commission has nonetheless provided notice to the court of appeals of
its intention to reach a decision respecting the 1979 shutdown orders.
 /13/

                          SUMMARY OF ARGUMENT

   A.1. This case presents a fundamental question of interpretation of
the National Environmental Policy Act.  In requiring the Nuclear
Regulatory Commission to consider stress induced by the proposal to
authorize restart of the TMI-1 facility, the court of appeals lost
sight of the terms of Section 102(2)(C) of NEPA which establishes the
obligation to prepare a "detailed statement" to accompany "every
recommendation or report on proposals for * * * major Federal actions
significantly affecting the quality of the human environment." Rather
than directing a survey of all effects of such an action, the
statutory requirement is to canvass "the environmental impact of the
proposed action." The court of appeals' analysis, discarding this
limitation, and extending the NEPA obligation to encompass all effects
upon the welfare of mankind that may be plausibly assigned the label
"health," imposes a substantial burden upon all federal agencies and
does not advance the objectives of the National Environmental Policy
Act.

   2. Respondent has not alleged that the Commission has failed
adequately to consider any species of environmental degradation, such
as radiation, that will or may flow from the renewed operation of the
TMI-1 plant, and has not claimed that such phenomena are the cause of
the stress cited by respondent.  The court of appeals has nonetheless
held the alleged mental health effects of restart are themselves
environmental impacts of Commission action, because they relate to
human health.  But contrary to the court of appeals' view, nothing in
the statute requires consideration under NEPA of all effects on human
health of federal action;  rather NEPA requires examination only of
those health effects (or any other class of effects) that are
attributable to environmental causes.  And the cases cited by the
court of appeals in support of its judgment are inapposite because
they embody no broader or different rule.

   3. In an effort to escape the restrictive effect of the statutory
directive to consider only "environmental impact(s)," respondents note
that the statutory language and legislative history express concern
with the "human environment." But we do not argue that NEPA excludes
the effects of federal action on human beings from the mandated
analysis;  rather, our submission is simply that the consideration
mandated by NEPA extends only to those influences on mankind's
interests that are environmentally propagated.  Indeed, any other rule
would render NEPA a noble, but utterly ineffective, call for advancing
the human condition in all of its facets.

   The legislative history of NEPA confirms that Congress was aware of
the importance of man in the environment.  But the legislative history
equally reflects that precisely because Congress appreciated that
man's health and welfare depended upon the continuing vitality of his
natural environment, it directed that federal decision makers
carefully consider the effects of contemplated federal action upon
that natural environment.  Solicitude for human health and welfare was
thus in a sense a motive for the legislation;  but in NEPA Congress
addressed only a specific set of problems, deemed theretofore to have
been insufficiently recognized, impinging upon that health and
welfare:  the degradation of the natural environment.  The decision of
the court of appeals and respondent's argument in support of it
confuse the general legislative objective with the specific remedial
measures actually adopted.

   The decision of the court of appeals is also contrary to the
authoritative regulations of the Council on Environmental Quality
implementing NEPA.  These regulations do not purport to define the
statutory term "environmental impact." They do, however, define the
related term "human environment" in a manner that makes clear that
effects of federal action upon human health and other human concerns
are cognizable under the statute only to the extent that they are
rooted in the condition of the natural or physical environment.  Thus
"human environment" is taken to mean "the natural and physical
environment and the relationship of people with that environment." 40
C.F.R. 1508.14 (emphasis added).

   4. Ours is not a novel interpretation of NEPA.  On the contrary the
decision of the court of appeals is inconsistent with decisions of six
other courts of appeals, and another decision of the District of
Columbia Circuit -- all of the courts of appeals that have considered
the question whether non-environmentally caused effects of federal
action are subject to the requirements of NEPA.  The court below
thought to distinguish these decisions by reference to the "holocaust
potential of an errant nuclear reactor" and stressing that the alleged
stress impinges upon human health.  But the court of appeals simply
ignored the underlying rationale of the conflicting decisions -- i.e.,
that NEPA requires only the analysis of environmental impacts.

   5. The decision of the court of appeals is also at odds with the
firmly established principle (see Kleppe v. Sierra Club, 427 U.S. 390,
410 n.21 (1976)) that an agency satisfies its obligations under NEPA
by taking a "hard look" at the environmental consequences of agency
action.  If fear of environmental consequences that are themselves
fully appraised in appropriate environmental analysis must be treated
as an independent environmental impact of agency action, however, then
contrary to this Court's teaching, Strycker's Bay Neighborhood
Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980), the agencies are no
longer free to determine what action ultimately to take after
appraising the pertinent environmental consequences.

   B. The decision of the court of appeals is founded upon the
erroneous premise that all effects upon human health are environmental
impacts for NEPA purposes even if they are not environmentally caused
or propagated.  Respondents have argued in this Court, however, that
the alleged stress effects of restart of TMI-1 are environmentally
caused.  But close scrutiny of respondent's original stress
contention, as well as its belated argument in this Court, reveals
that respondents are engaged in a word game that cannot bring that
stress contention within the ambit of NEPA.

   Stripped to its essentials, respondent's argument is simply that
both routine operation of TMI-1 and the accident at TMI-2 entailed
some level of environmental effects, and could, if all safeguards
failed, have produced much more substantial environmental effects.
Because the TMI-2 accident allegedly generated stress and fear among
persons residing in the surrounding region, and because restart of
TMI-1 may renew those effects, respondent claims that stress is an
environmental effect of TMI-1 operation.  But respondent's argument
cannot supply the essential ingredient:  an environmental cause for
the alleged stress.  Without such a nexus, that stress cannot be
considered an environmental effect.  Respondent demonstrates only that
environmental effects and the alleged stress have a common source --
the very fact of TMI-1 operation.  That coincidence is not a causal
relationship, such as is required by Section 102(2)(C) of NEPA.
Plainly, most, if not all, environmentally-significant federal actions
have significant non-environmental effects.  To sweep such effects
into the already broad ambit of NEPA analysis would impose a
substantial burden upon all federal agencies that finds no warrant in
the plain language of the statute.  /14/

                               ARGUMENT

   NEPA DOES NOT REQUIRE ANALYSIS OF EMOTIONAL STRESS

   ALLEGEDLY FLOWING FROM FEAR OF THE CONSEQUENCES OF

   OPERATION OF A NUCLEAR POWER PLANT

      A. NEPA Requires Consideration Only Of The Environmental

         Effects Of Major Environmentally Significant Federal

         Actions

   1. The question presented in this case is one of statutory
interpretation, and thus ultimately of discerning congressional
intent.  As in other contexts, questions of statutory interpretation
under the National Environmental Policy Act must begin with the
pertinent statutory language.  The duty of federal agencies to file
environmental impact statements arises from Section 102 of NEPA, 42
U.S.C. 4332, which provides, in pertinent part:

      The Congress authorizes and directs that, to the fullest extent
      possible:  * * * (2) all agencies of the Federal Government
      shall --

++ * * * * *

      (C) 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 * * *.  /15/

   As the statutory language plainly reflects, the duty imposed is not
to assess all effects of proposals for federal action, or even all
effects of the subclass of federal actions that are "major Federal
actions significantly affecting the quality of the human environment."
Rather, the obligation created is to consider the environmental
impacts of the latter subclass of federal actions.  Thus, the
criterion of environmental impact must be satisfied in two respects
before a particular effect of a federal action triggers assessment
obligations under NEPA.  First, there must be a proposal for federal
action that has an impact of the requisite significance upon man's
environment.  But even when such as environmentally-sensitive proposal
has been identified, the assessment obligation extends only to those
impacts of the federal action that are themselves environmental.  /16/

   Although the precise issue presented here has never been addressed
by this Court -- presumably because a negative answer to the generic
question presented has been self-evident -- the decisions rendered by
the Court in this field reflect the exclusively environmental focus of
the assessment duties imposed by NEPA.  Thus, for instance, the Court
has described NEPA as "one of the recent major federal efforts at
reversing the deterioration of the country's environment * * *."
United States v. SCRAP, 412 U.S. 669, 693 (1973).  And this Court has
explained that "NEPA * * * create(s) a discrete procedural obligation
on Government agencies to give written consideration of environmental
issues in connection with certain major federal actions," Aberdeen &
R.R.R. v. SCRAP, 422 U.S. 289, 319 (1975);  Flint Ridge Development
Co. v. Scenic Rivers Association, 426 U.S. 776, 787 (1976).  Typical
environmental consequences noted by the Court include "increased solid
waste disposal and accelerated depletion of natural resources."
Aberdeen & R.R.R. v. SCRAP, supra, 422 U.S. at 327;  see also id. at
331 (Douglas J., dissenting) ("NEPA * * * is a commitment to the
preservation of our natural environment").  /17/

   The EIS itself, the formal record of NEPA analysis, has been
characterized as a "detailed statement of environmental consequences,"
Kleppe v. Sierra Club, 427 U.S. 390, 394 (1976), and the Court has
explained (Andrus v. Sierra Club, 442 U.S. 347, 350 (1979)) that:

         The thrust of Section 102(2)(C) is * * * that environmental
      concerns be integrated into the very process of agency
      decisionmaking.  The "detailed statement" it requires is the
      outward sign that environmental values and consequences have
      been considered * * *.

   See also Weinberger v. Catholic Action/Peace Education Project, 454
U.S. 139, 143 (1981).  Although "NEPA does create * * * a right of
action in adversely affected parties to enforce" its requirements
(Aberdeen & R. R.R. v. SCRAP, supra, 422 U.S. at 319), the Court has
repeatedly emphasized that the role entrusted to the courts is
strictly delimited:  "once an agency has made a decision subject to
NEPA'S procedural requirements, the only role for a court is to ensure
that the agency has considered the environmental consequences * * *."
Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227
(1980) (emphasis added);  see also Vermont Yankee Nuclear Power Corp.
v. NRDC, 435 U.S. 519, 558 (1978);  Kleppe v. Sierra Club, supra, 427
U.S. at 410 n.21.

   2. As Judge Wilkey and Commissioner Hendrie each recognized (see
pages 7-9 & 14-16 supra;  Pet. App. 36a-38a, 90a-91a), the
consideration of stress allegedly induced by the fear of operation of
TMI-1 (and, indeed by the very pendency of the restart proposal and
the mere possibility of restart (see page 4, supra)), is radically
inconsistent with the above described limiting principle.
Significantly, the gravamen of PANE's allegations is not that the
Commission has failed adequately to consider some kind of
environmental degradation in any form.  Nor is it that some impact of
TMI-1 operation upon the natural environment -- such as radiation --
will cause injury to the health (whether mental or physiological) of
its members that has not been adequately considered.  Compare
Weinberger v. Catholic Action, supra, 454 U.S. at 142.  Rather,
respondent's allegation is that the existence of the plant itself,
apart from any environmental impact it might create, will cause
emotional injury to TMI-1's neighbors.  Yet it is precisely that
contention that the court of appeals concluded "allege(s)
environmental effects within the meaning of NEPA" (Pet. App. 10a).

   The logic of the court of appeals is deceptively simple.  Effects
of federal action upon human health, the court of appeals reasoned,
have been recognized in previous cases as environmental impacts for
NEPA purposes (Pet. App. 12a-13a).  Finding no warrant for a blanket
exclusion of mental health concerns from the ambit of NEPA, and
perceiving in the statute a solicitude for the overall well-being of
mankind (id. at 13a), the court concluded that "in the context of
NEPA, health encompasses psychological health" (ibid.).  Finally, the
court reasoned that because the "governmental decision" involved --
the Commission's restart decision -- is alleged to affect "human
health" in this respect, the stress effect of restart upon the
surrounding community is an environmental impact requiring assessment
under NEPA (id. at 16a).

   This syllogism is seriously flawed.  Contrary to the court of
appeals' first premise there is no general rule that effects of
"governmental decisions" upon human health are environmental impacts
subject to NEPA analysis.  Rather, such effects are cognizable under
NEPA only if the twin requirements of the statute are present:  a
proposal for significant environmentally-sensitive federal action, and
an environmental impact.  Indeed, as Judge Wilkey noted in his dissent
(Pet. App. 36a), the few authorities cited by the court of appeals
(id. at 13a & n.8) are fully consistent with this reading;  they lend
no support to the court of appeals' judgment.  /18/ Thus health
effects, like any other class of effects of federal action that may be
cognizable under NEPA, are so only to the extent that they are
proximately traceable to the impact of the federal action upon the
natural or physical environment, or flow from a physically measurable
or discernible variable, such as heat, radiation, noise, pollution, or
odors, in that environment.

   The range of possible influences upon human health of federal
action is potentially unlimited.  Bringing all of these within NEPA
would radically change that law from one directing special attention
to environmental concerns to one dealing generally with human health
and welfare.  For instance, it has never heretofore been suggested
that the Food and Drug Administration must file environmental impact
statements pertaining to drug approval and disapproval actions --
actions that unquestionably have a powerful impact on human health.
Indeed, the pertinent regulations reflect the recognition that drug
approval ordinarily is not subject to environmental impact analysis.
21 C.F.R. 25.1(f).  The reason is simply that the health effects of
such federal actions are not propagated through federal action upon
the natural or physical environment.  Other examples abound.
Proposals for the addition, or termination of governmental health
services, welfare programs and other income maintenance schemes surely
have as direct a bearing upon human health as the restart of a nuclear
power plant.  Although we trust that no one would seriously argue that
these proposals entail environmental impacts within the meaning of
NEPA, the court of appeals' reasoning, treating any and all health
effects as environmental impacts, eliminates the principled basis for
this limitation.

   The range of possible causes of stress is likewise virtually
unlimited.  Bringing all such causes with NEPA would transform that
statute from a mandate for environmental sensitivity in federal
administration to an amorphous, and thus ultimately ineffectual,
spotlight on human emotions.  Assuming that psychological effects are
reached by NEPA, only those that are caused by environmental factors
are covered.  /19/ Absent such a causal nexus, the effect of federal
action simply does not qualify as an "environmental impact" required
to be analyzed under NEPA.

   Thus, while effects of federal action upon human health may
occasion NEPA analysis, the statutory requirement is necessarily
limited to environmentally-generated health effects -- a fundamental
limitation upon agency responsibility under NEPA that was entirely
disregarded by the court of appeals.  The issue for NEPA purposes, was
not, as the court of appeals assumed, whether NEPA requires
consideration of environmentally-generated mental health effects of
federal actions.  Rather, the relevant inquiry is whether stress that
allegedly arises from the very fact that TMI-1 exists and that the
Commission has authority delegated by Congress to license its renewed
operation -- a cause entirely distinct from the radiation or accident
potential associated with plant operation -- is cognizable under NEPA.
 /20/ The plain statutory language requires a negative answer.

   3. In order to escape from the plain meaning of Section 102(2)(C)
(i) as outlined above, respondents have in this Court seized upon the
use of the term "human environment" in Section 102(2)(C), arguing that
an effect upon the natural or physical environment is not needed to
establish an environmental impact sufficient to trigger NEPA
assessment obligations and that the court of appeals accordingly
correctly treated the alleged stress effect as such an impact (Br. in
Opp. 47-54).  Seeking support in the legislative history of NEPA and
the Council on Environmental Quality Regulations, respondents now
argue that the "human environment" guarded by NEPA is affected by the
restart of TMI-1 because restart "would significantly affect the human
environment of (the surrounding) area by significantly altering the
psychological context for local residents" (Br. in Opp. 53;  emphasis
added).  Like the court of appeals' underlying reasoning, respondent's
novel interpretation of the term "human environment" is entirely
divorced from the pertinent legislative intent;  respondent's overall
interpretation of NEPA finds no support in the legislative history or
the regulations of the Council on Environmental Quality cited.
Indeed, the materials are entirely inconsistent with respondent's
contention and the court of appeals' decision.

   a. Contrary to respondent's suggestion, it is not our submission
that effects upon human beings of federal action are for that reason
excluded from the scope of analysis under NEPA.  Rather, the point of
our argument is simply that NEPA covers only those effects of
environmentally significant federal action upon man that are
propagated through environmental variables.  Thus, contrary to
respondent's assertion (Br. in Opp. 47-49), our argument in no respect
detracts from the central focus of NEPA upon the "human environment"
(42 U.S.C. 4332(2)(C)).  A major federal action significantly
affecting the quality of man's environment is assuredly the statutory
trigger for preparation of an environmental impact statement.  Ibid.
But it is equally clear that the statement required need only address
the "environmental impact of the proposed action" (42 U.S.C.
4332(2)(C)(i)) -- and thus that it need not address nonenvironmental
effects of federal action whether upon human beings or otherwise.  In
short, our submission would not, as charged, read out of the statute
the intended focus upon the human environment;  it is respondent and
the court of appeals that have rewritten the statute by eliminating
the requirement that the effects of federal action addressed be
environmentally caused.

   To be sure, if pulled away from its statutory context the term
"environmental impacts" could theoretically be read in conjunction
with the term "human environment" in Section 102(2)(C) to include
impacts upon man's "psychological context" as respondent suggests.
For that matter, NEPA could in that manner equally be construed to
require consideration of all sorts of federal action affecting a host
of other "contexts" impinging upon man's existence -- his political,
social, moral, economic, and spiritual environments.  Such an
interpretation, however, would render meaningless the critical
statutory terms, "human environment" and "environmental impact,"
rendering them synonymous, respectively, with "human affairs" and
"effects on people." Thus construed, NEPA would require preparation of
an "environmental" impact statement on all aspects of every major
federal action affecting human beings.  But such loose statutory
construction based entirely upon creative use of the dictionary and
thesaurus does not constitute an appropriate means of discerning
Congress' intent.  See United States v. Bacto-Unidisk, 394 U.S. 784,
798-799 (1969);  see also New Hampshire v. Atomic Energy Commission,
supra, 406 F.2d at 173.  As Judge Leventhal, writing for a panel of
the D.C. Circuit explained, rejecting the claim that an influx of
low-income workers into a more affluent suburban community could
constitute an environmental impact within the contemplation of NEPA
(Maryland-National Capital Park & Planning Commission v. United States
Postal Service, 487 F.2d 1029, 1037 (1973)):

      Concerned persons might fashion a claim, supported by
      linguistics and etymology, that there is an impact from people
      pollution on "environment," if the term be stretched to its
      maximum. * * * (T)his type of effect cannot fairly be projected
      as having been within the contemplation of Congress.

   b. The legislative history of NEPA clearly demonstrates that
Congress intended to require systematic assessment only of the effects
of federal action (on human beings or otherwise) that are expressed in
or propagated through the natural or physical environment.
Conversely, the legislative history provides no support for the court
of appeals' view that all human health effects are within the ambit of
NEPA, or for respondents' still more far-reaching suggestion (Br. in
Opp. 49 n.43) that all federal action that effects human beings is
subject the NEPA.

   The legislative history of NEPA underscores that Congress intended
to require consideration only of the effects of environmental impacts
of federal action -- i.e., of those effects traceable to some
measurable or physically discernible influence upon, or alteration of,
the physical environment.  Senator Jackson, the "father" of NEPA, and
the Senior Manager on the part of the Senate in the conference
committee that produced NEPA, explained this nexus and its relevance
to human health in presenting the Conference Report (115 Cong. Rec.
40416 (1969)):

      What is involved is a congressional declaration that we do not
      intend as a government or as a people to initiate actions which
      endanger the continued existence or the health of mankind:  That
      we will not intentionally initiate actions which will do
      irreparable damage to the air, land and water which support life
      on earth.

   See also 115 Cong. Rec. 40924 (1969) (remarks of Senior House
manager Rep. Dingell) ("we can now move forward to preserve and
enhance our air, aquatic, and terrestrial environments, and * * *
provide each citizen of this great country a healthful environment").
The legislative history thus makes it clear that Congress' motive for
protecting air, land, water and natural resources was, in large
measure, to protect the health and welfare of mankind.  It is equally
clear, however, that the method adopted for achieving that end in NEPA
was to direct special attention to effects of federal decisions upon
the natural and physical environment.  The court of appeals has thus
effectively substituted one of Congress' broad general ends --
advancement of human welfare -- for the quite specific means of
advancing it actually prescribed by law -- the environmental impact
statement.

   This relationship between environmental protection and human
welfare that underlies NEPA is also reflected in Senator Jackson's
definition of the term "human environment":  "(The environmental)
movement is concerned with the integrity of man's life support
system(s) -- the human environment" 115 Cong. Rec. 40417 (1969);  115
Cong. Rec. 19009 (1969).  Similarly, Senator Jackson described the
terms "environment" and "ecology" as part of "a new set of words and
concepts (that) have come into wide public use in discussing the
Nation's irreplaceable natural resource base." 115 Cong. Rec. 29066
(1969) (emphasis supplied).  /21/ The Senate Report on the bill that
supplied the pertinent language of NEPA also reflects congressional
intent to direct attention to the effects of federal actions on the
natural environment, and the impact upon man of those effects.  S.
Rep. No. 91-296, 91st Cong., 1st Sess. 5, 16 (1969) (emphasis
supplied):

      The ultimate issue posed by shortsighted, conflicting, and often
      selfish demands and pressures upon the finite resources of the
      earth are clear.

                      * * * * *

      The expression 'environmental quality' symbolizes the complex
      and interrelated aspects of mans' dependence upon his
      environment. * * * The Nation has in many areas overdrawn its
      bank account in life-sustaining natural elements.  For these
      elements -- air, water, soil, and living space -- technology at
      present provides no substitutes.

   See also H.R. Rep. No. 91-378, 91st Cong., 1st Sess. 3 (1969)
(quoting from a N.Y. Times, May 3, 1969, editorial).

   Both the Senate Report on the legislation (S. Rep. No. 91-296,
supra at 4) and Senator Jackson's remarks presenting the Conference
Report (115 Cong. Rec. 40417 (1969)) contain a revealing listing of
perceived environmental quality problems:

      haphazard urban and suburban growth;  crowding, congestion and
      conditions within our central cities which result in civil
      unrest and detract from man's social and psychological
      well-being;  the loss of valuable open spaces;  inconsistent
      and, often, incoherent rural and urban land-use policies;
      critical air and water pollution problems;  diminishing
      recreational opportunity;  continuing soil erosion;  the decline
      and extinction of fish and wildlife species;  faltering and
      poorly designed transportation systems;  poor architectual
      design and ugliness in public and private structures;  rising
      levels of noise;  the continued proliferation of pesticides and
      chemicals without adequate consideration of the consequences;
      radiation hazards;  thermal pollution;  an increasingly ugly
      landscape cluttered with billboards, powerlines, and junkyards *
      * *.

   Significantly each of the effects listed is rooted in a discernible
impact upon the natural or physical environment.  Respondent's effort
(Br. in Opp. 49 n.43) to find support for the judgment of the court of
appeals in the italicized language is unavailing.  As Judge Wilkey
observed (Pet. App. 37a n.17), that language reflects only that the
underlying environmental causes of social and psychological malaise
should be considered.  Senator Jackson did not even suggest that the
social and psychological effects of physical crowding were, in their
own right, environmental quality problems.  A fortiori, there is no
suggestion that social or mental ills that are not environmentally
grounded are nonetheless environmental impacts for NEPA purposes.
/22/

   Congress' understanding of the relationship between protection of
human health and that of the natural environment is also conveyed by
the introductory language of NEPA proclaiming the legislative findings
and purpose.  As this Court has recognized (Andrus v. Sierra Club,
supra, 442 U.S. at 349, quoting 42 U.S.C. 4321):

   NEPA sets forth its purposes in bold strokes:

      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 * * *.

   Congress chose its words carefully;  "stimulat(ion) of the health
and welfare of man" is adopted as a purpose -- but only to the extent
achievable by "prevent(ion) or elimination(ion of) damage to the
environment and biosphere." Similarly, in Section 101(a) of NEPA, 42
U.S.C. 4331(a), Congress "recogniz(ed) the profound impact of man's
activity on * * * the natural environment (and) the critical
importance of restoring and maintaining environmental quality to the
overall welfare and development of man."

   Protection of human health and welfare was thus a motive for
adoption of a particular procedural mechanism to advance that end, the
environmental impact statement.  But reference to that general motive
provides no basis for shoehorning any measure that might be thought to
advance the human condition into NEPA analysis.  The decision of the
court of appeals thus loses sight entirely of the means selected by
Congress to achieve its ends.

   c. The court of appeals' conclusion that, because it relates to
human health, stress allegedly associated with restart of TMI-1 is an
environmental impact for NEPA purposes is also contrary to the
regulations promulgated by the Council on Environmental Quality, 40
C.F.R. 1500 et seq.  Substantial deference is due to these
authoritative regulations.  Andrus v. Sierra Club, supra, 442 U.S. at
357-358.

   The CEQ regulations repeatedly describe the portion of an
environmental impact statement that fulfills the requirements of
Section 102(2)(C)(i) of NEPA as a statement of the "(e)nvironmental
(c) onsequences" of the proposed action.  40 C.F.R. 1502.10(g),
1502.16.  Although the CEQ regulations contain no definition of the
term "environmental," employed in 42 U.S.C. 4332(2)(C)(i) (requiring
"a detailed statement * * * on the environmental impact of the
proposed action"), they provide that the related statutory term "human
environment" ("major Federal actions significantly affecting the
quality of the human environment") embraces "the natural and physical
environment and the relationship of people with that environment." 40
C.F.R. 1508.14 (emphasis added).  The CEQ regulations thus make clear
that the "human environment" for NEPA purposes includes human affairs
only the extent that they are affected by forces expressed in the
"natural and physical environment." Plainly, the term "environmental
impact" can have no broader ambit that that assigned the term "human
environment."

   Respondent, however, seeks support for the decision below in the
Council's explanatory comment (43 Fed. Reg. 55988 (1978)) that it was
not the Council's intention by its definition of human environment to
limit that term to "the natural and physical aspects of the
environment." Read in context, however, this comment merely reaffirms
that the statutory mandate to consider the effects of federal action
extends to people, as well as plants, animals and inanimate objects,
as long as the operative cause is environmental.  Thus the Council's
comment goes on to call attention to the definition of the term
"effects" -- employed in the regulations as a synonym for the
statutory term "impact" -- which provides that "effects" "includes
ecological * * * aesthetic, historic, cultural, economic, social or
health, whether direct, indirect or cumulative." Of course, because 40
C.F.R. 1508.8 merely defines the term impact, without defining the
term environmental, the inclusiveness of this definition reflects only
that the range of "effects" and "impacts" to be considered is broad;
it does not purport to eliminate the separate statutory directive that
the impacts to be surveyed under NEPA be environmentally-grounded.
Thus, it follows from the Council's regulations that the effects upon
human health of federal action are cognizable under NEPA if and only
if environmentally caused.

   The Council also declared that "(t)he full scope of the environment
is set out in Section 101 of NEPA." 43 Fed. Reg. 55988 (1978).  As we
have seen (pages 34-35, supra), Section 101, 42 U.S.C. 4331, like
other introductory language in NEPA, reflects the role of man in the
environment.  But the role portrayed is one of dependency:  mankind's
reliance for survival upon the surrounding natural world.  Nothing in
Section 101 suggests that the "psychological context" identified by
respondent -- in which man stands isolated from the natural and
physical environment -- of which fears induced by nuclear power plant
operation are said to be a part, is within the scope of the
environment that is the subject of the analysis required by NEPA.

   Respondent also urges in this Court (Br. in Opp. 51 n.44) that the
express relegation of social and economic effects of federal action to
a secondary role under the CEQ regulations, indicates that mental
health effects such as those at issue here must receive full analysis
under NEPA.  On the contrary, the pertinent regulation, set out in the
margin, /23/ actually reflects the fundamental principle we have
identified.  Social and economic effects are explicitly assigned a
secondary role, not merely because the CEQ has determined that they
are, in any event, too remote from any environmental cause to warrant
preparation of an EIS that is not otherwise necessary (see page 28
note 19, supra), but primarily in consequence of the fundamental rule
applicable to all classes of "impacts":  that absent some
environmental cause expressed in the natural or physical environment,
an "effect" simply cannot properly be classified as environmental for
NEPA purposes.  Significantly, even when preparation of an
environmental impact statement is required by the presence of other,
environmental, effects of federal action, the regulation directs
coverage of social or economic effects only to the extent that such
effects are related to the natural or physical environmental effects.
40 C.F.R. 1508.14 thus embodies and implements the requirement of
environmental causation that is prescribed by Section 102(2)(C)(i).
/24/

   4. Ours is not a novel interpretation of NEPA.  On the contrary,
the decision of the court of appeals here is inconsistent with the
decisions of every other court of appeals that has considered the
issue, as well as a well-reasoned decision of the District of Columbia
Circuit itself.  These courts of appeals have uniformly recognized
that psychological and socioeconomic effects that are not
environmentally grounded are outside the scope of the analysis
required by NEPA.

   As indicated above (page 31), in Maryland-National Capital Park &
Planning Commission v. United States Postal Service, supra, the
District of Columbia Circuit rejected the claim that an influx of low
income workers into an affluent neighborhood could be regarded as an
environmental impact subject to analysis under NEPA.  To similar
effect is Breckinridge v. Rumsfeld, 537 F.2d 864, 865-866 (6th Cir.
1976), cert. denied, 429 U.S. 1061 (1977).  There the court rejected
the claim that unemployment caused by closing of a military base was
an environmental impact cognizable under NEPA, explaining that
although "NEPA goes beyond * * * the 'physical environment' * * *
factors other than the physical environment (are to be considered) * *
* only when there exist(s) a primary impact on the physical
environment." Accord:  Image of Greater San Antonio, Texas v. Brown,
570 F.2d 517, 522 (5th Cir. 1978);  Como-Falcon Coalition, Inc. v.
Department of Labor, 609 F.2d 342, 345-346 (8th Cir. 1979), cert.
denied, 446 U.S. 936 (1980);  /25/ Goodman Group, Inc. v. Dishroom,
679 F.2d 182, 184-185 (9th Cir. 1982);  Citizens Committee Against
Interstate Route 675 v. Lewis, 542 F. Supp. 496, 531-537 (S.D. Ohio
1982).  /26/ And several courts of appeals have specifically rejected
the claim that social fears and anxieties arising from federal action
must be addressed under NEPA, in the absence of an environmental
effect.  See, e.g., Nucleus of Chicago Homeowners Association v. Lynn,
524 F.2d 225, 231 (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976);
First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1380 n.13
(7th Cir. 1973);  see also Como-Falcon Coalition, Inc. v. Department
of Labor, 465 F. Supp. 850, 861-862 (D. Minn. 1978), aff'd 609 F.2d
342, 345-346 (8th Cir. 1079), cert denied.  446 U.S. 936 (1980).  /27/
See also Hanly v. Kliendeinst, 471 F.2d 823, 833 (2d Cir. 1972), cert.
denied, 412 U.S. 908 (1973) ("Hanley II");  compare Hanley v.
Mitchell, 460 F.2d 640, 647 (2d Cir.), cert. denied, 409 U.S. 990
(1972) ("Hanly I").  /28/

   The court of appeals recognized the force of the above-mentioned
decisions, but thought to distinguish them by stressing the special
"holocaust potential of an errant nuclear reactor" (Pet. App. 15a),
striving to couch its holding in case-specific terms.  But there is no
logical basis for confining the court's holding to the facts of this
case;  the cognizability of a class of effects under NEPA cannot turn
upon their alleged severity (or mildness) in a particular case.  And
the court of appeals' cryptic explanation (id. at 16a) that "in
contrast (to the foregoing cases) PANE is not asking the agency to
evaluate the effect of 'people pollution' on the environment, but
rather the effect of a governmental decision of human health" simply
ignores the rationale of the conflicting decisions, i.e. that NEPA
requires only the analysis of environmental impacts.  Nothing in the
court of appeals' decision explains why the principle recognized by
the other courts that have addressed this issue is not controlling
here.

   5. Thus far our argument has been that the decision of the court of
appeals requires consideration of matters that are outside the scope
of the environmental analyses commissioned by Congress.  Because this
additional obligation is a "creature of judicial cloth, not
legislative cloth" (Weinberger v. Catholic Action, supra, 454 U.S. at
141), and because NEPA provides no sanction for such judicial law
making (Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S. at
548), it cannot stand.  But it should not escape notice that the
decision of the court of appeals imposing a non-statutory obligation
is not a mere barnacle upon the statute.  Rather it directly undercuts
the legislative commands embodied in NEPA, frustrating the statutory
scheme.

   It is well established that NEPA imposes upon the concerned federal
agency ultimate responsibility for determining what action to take
after taking a "hard look" at the environmental consequences of
contemplated action.  Strycker's Bay Neighborhood Council, Inc. v.
Karlen, supra, 444 U.S. at 227;  Vermont Yankee Nuclear Power Corp. v.
NRDC, supra, 435 U.S. at 558;  Kleppe v. Sierra Club, supra, 427 U.S.
at 410 n.21.  In taking that "hard look" we appreciate that the agency
may be required to consider eventualities that are not certain to
arise;  remote and spectulative possibilities, however, need not be
addressed.  Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435
U.S. at 551.  But to treat individuals' fears respecting the
environmental consequences of agency action (and stress occasioned by
those fears) as environmental effects of the federal action in their
own right, as the court of appeals has done here, threatens the "hard
look" principle.  Under the court of appeals' analysis, an agency's
failure to treat these fears as an independent consideration
militating against approval of a proposed federal action would be
ground for invalidation of agency action even though the agency had
fully appraised the facts underlying the fears in question.  In short,
under the court of appeals' analysis, it is not enough to take a hard
look at the environmental consequences of agency action and to
consider the views of interested parties;  an agency must also
ascertain if public disagreement with the agency's decision will
engender stress in the affected population.  Nothing in NEPA requires
this result;  indeed, such an analysis can only detract from the
intended focus of NEPA analysis, the effects of federal action upon
the natural and physical environment.

   The burdens imposed upon federal agencies by the court of appeals'
decision are substantial.  To be sure, the decision of the court of
appeals nominally went no further than to hold NEPA applicable to
"post-traumatic anxieties, accompanied by physical effects and caused
by fears of recurring catastrope." But as we have explained, there is
no principled basis for this limitation.  The court of appeals'
decision has clear implications for activities licensed or conducted
by the Commission and other federal agencies.  If agencies must take
account of stress that is not proximately traceable to an
environmental effect of agency action under NEPA, forms of stress
other than "post-traumatic stress" may also be cognizable, as may
stress which is not accompanied by physical symptoms or which is
caused by factors other than "fears or recurring catastrophe."

   Psychological stress contentions are not unique to TMI-1.  Indeed,
virtually every federal activity arguably generates psychological
impacts;  such effects simply are not confined, as the court of
appeals suggested, to nuclear energy.  Examples include management of
air traffic control, operation of National Airport, management of
federal prisons, economic programs with their effects on life and
livelihood, leasing of federal lands for coal mining, construction of
dams, and construction and operation of military facilities.  The
amorphous nature of psychological effects, moreover, renders their
assessment in all of these circumstances especially burdensome and
subjective.  In discarding the requirement of an environmental nexus
that limits NEPA obligations, the court of appeals has effected an
extraordinary expansion of the task of assessment established by that
statute, potentially encompassing all of the non-environmental effects
of federal actions that affect the environment, as well as the
health-related effects of actions that do not affect the environment
at all.

 B. Stress Caused By Fear Of Operation Of TMI-1 Is Not Environmentally
Caused

   1. As we have explained, the court of appeals' decision was founded
on the erroneous premise that because some effects of federal action
on human health are caused by environmental factors, and may thus be
subject to NEPA analysis, all effects of federal action affecting
human health are themselves environmental effects (pages 26-29,
supra).  We have also explained that the stress that is the subject of
respondent's contentions is not recognizable as an environmental
effect (page 26, supra).  In this Court, however, respondents have
argued (Br. in Opp. 41-46) that even if, as we contend, NEPA requires
consideration of human health effects only to the extent that they are
caused by an impact upon the natural environment or a discernible or
measurable physical phenomen, the alleged stress satisfies that test.
/29/ Close examination of respondent's actual stress contention, along
with the arguments made in this Court, merely confirms that respondent
cannot bring these contentions within the scope of the analysis
required by NEPA.

   As noted above, the mental health effect that respondent would have
the Commission consider is not the product of heat, radiation, liquid
or gaseous effluents, noise, odors, smoke, or visual impacts
associated with operation of the TMI-1 plant.  Instead, the alleged
effects are caused by stress and fear induced by the simple fact that
the plant is, or may in the future be, in operation.  The most that
can be said is that respondent's members fear the environmental
effects, such as low level radiation, associated with routine plant
operation, and the possibility of other graver effects should a
serious nuclear accident occur.  These environmental effects are not
in dispute here.  But, as we have explained, fear of an environmental
effect such as these is not in itself an environmental effect.

   Indeed, the issue framed by the Commission at the outset of the
proceedings that led to this case was whether psychological distress
associated with restart that was "unrelated directly to exposure to
radiation" was within the ambit of NEPA (J.A. 20). Respondent's
contention was submitted together with its affirmative argument on the
legal issue thus framed, without any suggestion that the contention
should be considered irrespective of the Commission's ruling.
Respondent thus defined its stress contention as one that would be
outside the scope of NEPA should its legal contentions be rejected.
Moreover, respondent did not argue in the court of appeals that the
Commission was in any event required to take evidence on its
contention.  Respondent's alternative position in this Court is
therefore inconsistent with its prior stance in this litigation.  /30/

   2. In any event, there is no merit to respondent's argument that
the fear-generated stress they would have the Commission consider is
environmentally grounded.  Indeed, respondent's effort (Br. in Opp.
32-33, 42-45) to demonstrate the necessary causal nexus simply
underscores the absence of the required connection.  Respondent argues
that NEPA mandates assessment of the mental health effects of restart
because:

         1) the TMI-2 accident caused releases of radiation -- an
      environmental effect;

         2) the TMI-2 accident threatened to cause other, more
      serious, environmental effects;

         3) apprehension caused by the TMI-2 accident engendered
      mental health effects;

         4) restart of TMI-1 creates potential for future radiation
      releases or even a serious nuclear accident entailing
      environmental effects;  and

         5) restart of TMI-1 may exacerbate the stresses caused by the
      TMI-2 accident.

   The foregoing premises, however, are insufficient to establish that
any stress that may be occasioned by the restart decision is traceable
to the environmental effects, potential or certain, that would be
attributable to restart.  Respondent simply demonstrates that
potential environmental effects and mental health effects flow from a
common source.  But, as we have explained above, that circumstance is
not enough to render the alleged mental health effects "environmental
impact(s)" of the federal action.  /31/

   Respondent's other efforts to portray stress alleged to result from
fear of operation of TMI-1 as an environmental impact are equally
unpersuasive.  Noting that the Commission recognizes that it must
consider the environmental consequences of plant operation, including
those that might flow from a major accident, and labeling the
possibility of a major accident "holocaust potential," respondent
reasons (Br. in Opp. 45):

      That holocaust potential * * * is precisely the sort of impact
      on the natural or physical environment that the Commission
      argues must be the proximate cause of any psychological health
      damage to be considered under NEPA.

   Respondents thus identify "holocaust potential" as the
environmental cause of the mental health problems they tender for
analysis under NEPA.  Quod erat demonstrandum.  But this is no more
than a play upon words.

   Of course, NEPA may require the consideration of events -- such as
a major nuclear accident -- that are quite unlikely to occur but that
would entail substantial environmental effects if they occurred.  /32/
Such a major accident may perhaps be labeled a potential "holocaust".
But it does not follow that the mental health effects of the
possibility ("holocaust potential") of a major nuclear accident
entailing environmental effects are themselves environmentally caused.
 /33/ In short, no causal nexus at all exists between the alleged
stress and the effects of restart upon "man's life support system --
the human environment" (115 Cong. Rec. 40417 (1969) (remarks of Sen.
Jackson)).  Respondent's analysis, like the court of appeals' judgment
it purports to support, thus plainly requires consideration under NEPA
of non-environmental effects of federal action.  /34/

   3. The quintessentially non-environmental nature of the stress
impacts alleged by PANE is reflected strikingly by considering the
nature of measures, if any, that might be attempted to mitigate these
effects.  Given the fundamental role that mitigation plays in the NEPA
process, see 40 C.F.R. 1502.14(f), 1502.16(h), 1503.3(d), 1505.2(c),
1505.3, 1508.20, it is noteworthy that, as Commissioner Hendrie
observed (Pet. App. 82a, 89a;  see page 8, supra), consideration of
stress effects admits of no meaningful mitigation.

   To be sure, the licensing board suggested (J.A. 39, 44-45;  see
page 6, supra) that mitigation of some kind is possible.
Significantly, however, the actual measures identified -- provision of
an opportunity for airing of fears and installation of additional
monitoring devices (assuming they would be effective) -- are
themselves directed to respondents' consciousness, rather than the
environmental effects of operation of TMI-1.  In any event, the true
gravamen of respondent's claim is better revealed by the mitigation
measures implicit in respondent's stress contention itself, and in its
arguments in this Court.  Respondent's original contention is simply
that because of unmitigable stress factors "it (is) impossible for the
NRC to operate TMI-1 without endangering public health and safety"
(Pet. App. 115a).  See also Br. in Opp. 53 n.45 (quoted at page 46
note 33, supra).  Respondent's frankly stated view that mitigation of
the alleged stress requires permanent closing of the TMI-1 plant,
rather than any set of measures to improve safety or control
environmental effects, is eloquent testimony that the alleged stress
is in no sense an environmental effect of operation of TMI-1.

                      * * * * *

   In closing, we pause to emphasize that although neither NEPA nor
the Atomic Energy Act requires consideration by the Commission of
respondents' allegations of community fears in deciding whether to
authorize restart, /35/ it is our view that these laws do serve
effectively to alleviate those fears by assuring that any factual
basis therefor is publicly aired and fully explored in the most
effective manner.  As recognized by Chairman Ahearne (Pet. App.
80a-81a) and most aptly described by Commissioner Hendrie (Pet. App.
83a, 87a):

      (T)he most appropriate way for the Commission to take account of
      fears related to TMI-1 is, first, to assure that the technical
      decision on restart is sound;  and second, if the decision is to
      permit restart, to make sure that the public understands,
      through accurate and comprehensible information, fully
      disseminated, the basis for the Commission's determination that
      the plant can operate safely.

                      * * * * *

      (A)n unsafe plant is not made safe by the fact that local
      citizens are unconcerned about it, any more than a safe plant is
      made unsafe by the fact that local residents are deeply anxious
      about it.

   Here, prior to authorizing restart, the Commission has undertaken a
detailed evaluation of the safety of TMI-1 and has required that
safety measures be taken prior to any restart.  See page 3, supra.  In
this manner, the subject of community fears -- the safety of the
operation at TMI -- has been addressed by the Commission.

   In addition, in order to educate both itself and the public, the
Commission has gone to great lengths to involve the public in its
decisionmaking process (see, e.g., page 18, supra).  The Atomic Energy
Act, 42 U.S.C. 2239(a), provides that upon the request of interested
persons the Commission must hold a public hearing as part of its
proceedings on most significant determinations.  Similarly, public
involvement is a mainstay of the NEPA planning process.  See 40 C.F.R.
1506.6.  The legislative history of each of these enactments reflects
a strong congressional desire to promote public confidence in federal
decisionmaking by providing for significant public participation.  See
S. Rep. No. 1677, 87th Cong., 2d Sess. 7-9 (1962) (Atomic Energy Act);
 S. Rep. No. 91-296, supra, at 5 (NEPA).  This important aspect of the
latter statute moreover, has been emphasized by this Court most
recently in Weinberger v. Catholic Action of Hawaii, supra, 454 U.S.
at 143.  The District of Columbia Circuit has made the same point
about the former statute:  "In the Atomic Energy Act, (Congress) * *
*, in the interest of public confidence in the thoroughness of the
review process, invited public scrutiny * * *." Union of Concerned
Scientists v. Atomic Energy Commission, 499 F.2d 1069, 1078 (D.C. Cir.
1974) (citation omitted).

   In the decision under review, the court of appeals has overlooked
authoritative teachings on the role of public participation under the
statutes that govern nuclear licensing, as well as the clear meaning
of Section 102(2)(C) of NEPA.  To be sure, there are those who fear
the development and utilization of nuclear power.  "But Congress has
made a choice to at least try nuclear energy, establishing a
reasonable review process in which courts are to play only a limited
role * * *.  Time may prove wrong the decision to develop nuclear
energy, but it is Congress or the States within their appropriate
agencies which must eventually make that judgment." Vermont Yankee
Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 557-558.  NEPA does
not provide the courts a means of second-guessing Congress' considered
judgment in the guise of mandating consideration of alleged
psychological harm induced by individuals' disagreement with the
implementation of congressional enactments by a federal agency.  Once
an agency has considered the "environmental consequences" of its
proposed federal action, it has satisfied its NEPA responsibilities.

                              CONCLUSION

   For the foregoing reasons, the judgment of the court of appeals
respecting the Commission's responsibilities under NEPA should be
reversed.

   REX E. LEE

      Solicitor General

   CAROL E. DINKINS

      Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   JAMES M. SPEARS

   JACQUES B. GELIN

   RICHARD J. LAZARUS

      Attorneys

   LEONARD BICKWIT, JR.

      General Counsel

   MARTIN G. MALSCH

      Deputy General Counsel

   PETER G. CRANE

      Acting Assistant General Counsel Nuclear Regulatory Commission

   DECEMBER 1982

   /1/ Because the petition appendix in No. 81-2399, reproduces all of
the materials required by Rule 21(k), these materials were not
duplicated in the petition in No. 82-358.  Accordingly, we refer here
to the petition appendix in No. 81-2399 (hereafter "Pet. App.").

   /2/ The April 2 judgment, replaced an interim judgment (Pet. App.
105a-107a) issued by the court of appeals, also without opinions, on
January 7, 1982.

   /3/ The Board added that "the Commission might conclude to the
contrary for reasons not discussed by the parties" (J.A. 31).  The
Board apparently meant to suggest that the Commission itself had
sufficient discretion to conclude that PANE's allegations of a mental
health effect rested in part upon "radiological hazards associated
with accident conditions" and were accordingly cognizable under the
Atomic Energy Act.  The Board thought that either position adopted by
the Commission on this question of interpretation of its governing
statute would be entitled to substantial deference and would withstand
judicial review (J.A. 32-33).

   /4/ The Licensing Board rejected the Commission staff's contention
that psychological effects of restart authorization are not cognizable
under NEPA because not traceable to a "direct impact upon the physical
environment" (J.A. 34).  Accepting the staff's premise that such a
nexus was required, the Board reasoned, however, that (J.A. 35):

      (t)he psychological stress alleged by intervenors here is
      related to a significant physical environmental impact:  the
      operation of TMI 1 coupled with residual effects of the accident
      at TMI 2. * * * The very fact that an EIS and cost/benefit
      balancing (were undertaken at the time TMI was initially
      licensed) is a recognition of the fact that the operation of TMI
      1 involves a significant physical impact upon the environment.

   /5/ The Board distinguished cases in which the courts of appeals
have held psychological and socioeconomic effects of agency action to
lie outside the scope of NEPA analysis.  See, e.g., Hanly v. Mitchell,
460 F.2d 640 (2d Cir.), cert. denied, 409 U.S. 990 (1972);  Hanly v.
Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908
(1973);  Maryland-National Capital Park & Planning Commission v.
United States Postal Service, 487 F.2d 1029, 1037-1038 (D.C. Cir.
1973);  First National Bank of Chicago v. Richardson, 484 F.2d 1369,
1375 (7th Cir. 1973);  Nucleus of Chicago Homeowners Association v.
Lynn, 524 F.2d 225 (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976);
 see also Como-Falcon Coalition v. Department of Labor, 465 F. Supp.
850, 857 n.2(D. Minn. 1978), aff'd, 609 F.2d 342 (8th Cir. 1979),
cert. denied, 446 U.S. 936 (1980).  The Board stressed that none of
these decisions precludes agency consideration of mental health or
socioeconomic effects associated with federal action.  The Board
noted, as well, that many of the foregoing cases involved "the
argument that the mere presence of a disadvantaged group of people
could constitute a pollution to the enviro(n)ment of a higher
socioeconomic group," an argument with unacceptable overtones of
racial and class discrimination, which, as a matter of policy, were to
be excluded from environmental analysis.  By contrast, here the Board
thought "there (we)re no overriding national policies preventing the
frank acknowledgement that the presence of the impacting force
(operation of TMI 1) * * * may be considered" (J.A. 38).

   /6/ On September 17, 1981, after the vacancy on the Commission had
been filled and while the petition for review was pending, the
Commission by a majority vote reaffirmed its directive that the stress
issue be excluded from the restart proceeding (Pet. App. 101a-102a).
No opinion for the Commission was issued.

   During the restart proceedings several parties argued that
preparation of an EIS was required before any decision respecting
restart could be made.  The Commission staff disagreed, but, pursuant
to Commission regulations, prepared an environmental impact assessment
(EIA) to support that determination.  The EIA (J.A. 48-65) was issued
on March 27, 1981, and supplemented (J.A. 66-87) on May 11, 1981, but
neither document addressed the alleged stress effects of the restart
proposal.  Among the topics addressed in the EIA are the physical
impact of any additional construction upon the site, thermal and
chemical effects of liquid effluents upon the receiving waters,
effects of cooling water intake and discharge upon aquatic organisms
in the adjacent Susquehanna River, the effect of evaporation of
cooling water upon stream flow in the Susquehanna and upon local
fogging conditions, normal and possible accidental releases of
radiation, including the health effects, if any, of radiation releases
incident to simultaneous operation of TMI-1 and decontamination of
TMI-2, the noise associated with maintenancne of a network of
emergency warning sirens in the area surrounding the plant, and the
visual impact of the plant and appurtenant facilities.

   On December 15, 1981, while this case was under submission to the
court of appeals, the Licensing Board rendered a decision that the EIA
was adequate and that no EIS was required.  The Commission itself has
yet to take final action respecting NEPA compliance.  See page 18 &
note 13, infra.

   /7/ On March 30, 1982, the Commission issued a "Memorandum and
Order" responding to the court's directive.  In re Metropolitan Edison
Co., 15 N.R.C. 407.  Relying on the text and legislative history of
the Atomic Energy Act, as well as pertinent judicial decisions, the
Commission set forth its view that in administering the Atomic Energy
Act, Congress intended that the Commission address itself only to the
physical hazards associated with nuclear materials and activities.
The Commission added that even if its statutory authority under the
Act were broad enough to permit the discretionary consideration of
mental health effects, strong policy considerations counseled against
doing so.  The Memorandum and Order was adopted by a 3-1 vote, with
Commissioner Gilinsky dissenting and one seat on the Commission again
vacant.

   /8/ A modified version of the amended judgment (Pet. App. 29a-30a)
resting upon the opinions for the court was also issued.

   /9/ Distinguishing earlier court of appeals decisions excluding
from NEPA analysis claims that federal projects would induce influxes
of undesirable persons into impacted neighborhoods the court
proclaimed (Pet. App. 16a):

      In this case, in contrast, PANE is not asking the agency to
      evaluate the effect of "people pollution" on the environment,
      but rather the effect of a governmental decision on human
      health.

   /10/ Respecting PANE's allegation of socioeconomic effects, the
court of appeals endorsed the Commission's suggestion that this
represents a "classical 'socioeconomic' issue" constituting a
secondary indirect effect that does not in and of itself require
preparation or supplementation of an EIS, but which must be addressed
if other matters require such formal NEPA analysis (Pet. App.
17a-18a).  The court accordingly tied the community deterioration
issue to the stress issue for purposes of prescribing the Commission's
NEPA obligations.

   /11/ Judge McGowan did not write separately to explain his opposed
views on the two issues presented to the court of appeals.

   /12/ Outlining the application of this standard Judge Wright added
(Pet. App. 70a):

      Not all fears and worries, of course, are psychological health
      effects within the definitions of medical science.  The adverse
      psychological impact of restarting TMI-1 may or may not rise to
      the level of a health problem;  even if it does, the same might
      not be true of the fears and anxieties of neighbors of other
      power plants.  Drawing these lines, on the basis of the facts,
      is the task of the Commission. * * * (I)f investigation shows
      that the allegations of psychological health effects are
      unfounded or that the effects are de minimis, the Act does not
      prohibit grant of a license.

   /13/ The effect of a decision to lift the shutdown orders will be
to authorize restart on an interim basis at such time as the utilities
complete repairs to the TMI-1 steam generator, and secure the
necessary approval of the Commission or its staff for those repairs.
The "restart" proceeding itself, however, will remain pending, for it
is only the immediate effectiveness of the shutdown order that the
Commission is considering revoking at this time.  In the restart
proceeding itself, on December 10, 1982, the Atomic Safety and
Licensing Appeal Board upheld the Licensing Board's determination (see
page 10, note 6, supra) that no full scale environmental impact
statement need be prepared.  In re Metropolitan Edison Co. (Three Mile
Island Nuclear Power Station Unit 1), Docket No. 50-289 (ALAB-705).
Time for filing of a request for Commission review of the Appeal
Board's decision expires January 3, 1983.

   /14/ As indicated in our petition (Pet. 17 n. 12), if free to do
so, we would have presented for review the additional question whether
NEPA imposes upon the Nuclear Regulatory Commission a continuing
obligation to reassess the environmental impacts of a licensing
decision in light of changed circumstances or information even in the
absence of any contemplated further federal action.  The majority
opinion below (Pet. App. 18a-26a) appears to give an affirmative
answer that is irreconcilable with this Court's decision in Weinberger
v. Catholic Action/Peace Education Project, 454 U.S. 139, 146 (1981);
Kleppe v. Sierra Club, 427 U.S. 390, 398-406 (1976);  Aberdeen & R.
R.R. v. SCRAP, 422 U.S. 289, 320, 322 (1975).  We do not tender that
issue for review only because the result in this case probably does
not turn upon its resolution.  As Judge Wilkey observed (see page 16,
supra), the application of NEPA in this case may rest upon the far
narrower ground that the NRC is here engaged in federal action -- the
restart proceeding.  Indeed, whether required to do so or not, the
Commission staff actually prepared an environmental impact appraisal
here, determining on that basis that no EIS was required (see page 9,
note 6, supra).  In this setting, the question whether such NEPA
compliance was actually required by law lacks the general importance
of the issue that we tendered for review.  And because of the
availability of the narrower ground suggested by Judge Wilkey, the
question whether the court of appeals' continuing obligation analysis
(which may be dictum) is sound is not presented in sharp focus here.
Should the Court disagree with this assessment, however, and conclude
that the issue is properly presented, the Court perforce remains free
to address it as necessary for the proper disposition of this case.
Cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 246 n.12 (1981).

   /15/ The obligations to prepare environmental assessments, to
undertake other forms of preliminary environmental analysis less
formal than the full environmental impact statement contemplated by
Section 102(2)(C), and to prepare supplemental environmental impact
statements have been interpolated into NEPA by the courts, see, e.g.,
Hanly v. Kliendienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412
U.S. 908 (1973);  Society for Animal Rights, Inc. v. Schlesinger, 512
F.2d 915, 917-918 (D.C. Cir. 1975), and have been confirmed and
elucidated in the regulations promulgated by the Council on
Environmental Quality, see 40 C.F.R. 1501.3, 1501.4(b) and (c), and
1502.9(c), as a means of enforcing the underlying statutory
requirement of preparation of environmental impact statements.  In
this case the court of appeals has ordered the Commission to determine
whether a supplemental environmental impact statement is required, the
Commission having prepared an original EIS on TMI-1 licensing in 1974.
 Because Section 102(2)(C) provides the basis for all forms of
environmental analysis required by the courts under NEPA, the question
whether a particular class of effects is cognizable is to be resolved
by the reference to Section 102(2)(C), irrespective of the stage of
environmental analysis involved or the label attached to a particular
document.

   /16/ The onerous implications of neglecting the two-faceted
environmental trigger built into the statute is readily apparent.  For
instance, the Secretary of Transportation's decision to allow the
Anglo-French Concorde supersonic transport to land at designated
United States airports was regarded as an action subject to NEPA.  See
Environmental Defense Fund, Inc. v. Department of Transportation, 6
Envtl. L. Rep. (Envtl. L. Inst.) 20581 (D.C. Cir. 1976).  That
decision, however, had implications for foreign relations and
international commercial relationships, as well as the noise level in
communities surrounding the airports in question.  See British Airways
Board v. Port Authority, 558 F.2d 75 (2d Cir. 1977).  Yet it was never
suggested, nor could it be, that the Secretary's NEPA analysis
obligations extended to the former as well as the latter.

   /17/ See also Named Individual members of the San Antonio
Conservation Society v. Texas Highway Department, 400 U.S. 968, 971
(1970) (Black, J., dissenting from denial of certiorari) (NEPA is a
major part of "coordinated legislation designed to protect our
Nation's environmental from destruction by water pollution, air
pollution, and noise pollution").

   /18/ Use of toxic herbicides, particularly through aerial spraying,
to control unwarranted (or illegal) vegetation potentially affects
human health through an environmentally propagated medium.  See, e.g.,
National Organization for the Reform of Marijuana Laws v. United
States Department of State, 452 F.Supp. 1226, 1232 (D. D.C. 1978);
Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908, 927
(D. Or. 1977).  And when the inadequacy of provision for precipitation
run-off in the plans for a federal facility is claimed to create a
danger of life-threatening flooding, this likewise constitutes an
environmental threat to human life and health, properly cognizable
under NEPA.  See Maryland-National Capital Park & Planning Commission
v. United States Postal Service, 487 F.2d 1029, 1039 (D.C. Cir. 1973).

   /19/ Because the court of appeals' decision completely disregards
this fundamental limitation upon the scope of the analysis required by
NEPA, we have not pursued here the question whether the particular
mental health effects alleged by PANE are outside the scope of NEPA
for the independent reason that the chain of causation between the
federal action and the alleged effects is so lengthy and attenuated,
and the effect so speculative as to render NEPA analysis unnecessary.
Clearly, there are situations in which effects of federal action,
psychological or otherwise, are outside the scope of the mandated NEPA
analysis for this reason.  Cf. Vermont Yankee Nuclear Power Corp. v.
NRDC, supra, 435 U.S. at 551.

   /20/ The court of appeals' misconception of the issue presented
permeates the decision.  For instance, it was simply irrelevant that
the court of appeals found it difficult to believe that "(r)egardless
of the severity of psychological health effects * * * (they) would
(be) exclude(d) from consideration at any stage of the NEPA procedures
relating to any proposed federal action" (Pet. App. 11a).  This case
does not present that broad questions, but the narrower one whether
psychological health effects that are not attributable to an
environmental cause can be environmental impacts within the meaning of
Section 102(2)(C) of NEPA.  Equally misplaced was the majority's
reliance (id. at 13a) upon language of Section 102(2)(A) of NEPA, 42
U.S.C. 4332(2)(A), requiring use of a "systematic, interdisciplinary
approach which will insure the integrated use of the natural and
social sciences and the environmental design arts." The court of
appeals ignored the purpose which this interdisciplinary approach was
to serve, stated in the statutory language that immediately follows
the quoted phrase -- "in planning and decisionmaking which may have an
impact on man's environment."

   /21/ NEPA's legislative history is replete with similar statements
reflecting concern with the natural environment and man's dependence
thereupon for survival.  See 115 Cong. Rec. 26576 (1969) (remarks of
Rep. Rogers);  id. at 26577 (remarks of Rep. Feighan);  id. at 26579
(remarks of Rep. Yates);  id. at 26581 (remarks of Rep. Goodling);
id. at 26581 (remarks of Rep. Obey);  id. at 26583 (remarks of Rep.
Cohelan);  id. at 26584 (remarks of Rep. Frey).

   /22/ Under respondent's view, federal action affecting urban
"conditions," such as poverty or drug addition would apparently
require formal analysis under NEPA.

   /23/ 40 C.F.R. 1508.14 provides:

   Human environment.

   "Human environment" shall be interpreted comprehensively to include
the natural and physical environment and the relationship of people
with that environment. * * * This means that economic or social
effects are not intended by themselves to require preparation of an
environmental impact statement.  When an environmental impact
statement is prepared and economic or social and natural or physical
environmental effects are interrelated, then the environmental impact
statement will discuss all of these effects on the human environment.
(Emphasis added.)

   /24/ Respondent would apparently read Section 1508.14 to require
inclusion of all social and economic effects of federal action in an
environmental impact statement if any aspect of the action is
environmentally significant, even if the social and economic effects
are unrelated to the environmental effects.  For instance, an
environmental impact statement on the construction of a military base
would be required to include not only the social and economic
consequences of depletion of a scarce water supply, but the purely
economic effects of the base on the surrounding region.  This
interpretation is contradicted, however, by the language of Section
1508.14 reaffirming that social and economic effects need never to be
addressed under NEPA unless causally connected to the impact of
federal action expressed in the natural or physical environment.

   /25/ Respondent suggests (Br. in Opp. 38) that the decision in this
case rests upon a factual finding that the socioeconomic effects in
question here were insignificant.  On the contrary, although the
district court had made such a finding (see 609 F.2d at 345), the
court of appeals expressly held that the "district court erred" in
considering these issues, and that they were as a matter of law
outside NEPA.  Id. at 345-346.

   /26/ The rule of these cases is consistent with CEQ regulations.
See Page 37, supra.  As explained above those regulations do not
require analysis of non-environmentally-grounded socioeconomic effects
of federal action.  Similarly, none of the cited cases suggest that if
preparation of an EIS is required for independent reasons, social and
economic effects of federal action must be canvassed unless they are
proximately traceable to natural or physical environmental effects of
the action.

   /27/ The court of appeals' reliance (Pet. App. 13a) on Chelsea
Neighborhood Associations v. Postal Service, 516 F.2d 378, 388 (2d
Cir. 1975), is misplaced, because the court below overlooked this
limitation.  In Chelsea Neighborhood Associations, the court of
appeals merely held that an EIS that had been prepared was inadequate
because it failed to address social and psychological effects upon
residents of a housing project alleged to arise directly from the
unique physical form of the project.

   /28/ While requiring, in Hanly I, that a federal agency take
cognizance of a broad range of urban environmental effects, including
noise associated with construction of a federal detention center in
close proximity to a residential setting, the Second Circuit made it
equally clear, in Hanly II, that the required consideration does not
extend to effects comparable to those alleged here (471 F.2d at 833):

      For the most part (plaintiffs') opposition is based upon a
      psychological distate for having a jail located so close to
      residential apartments * * *.  It is doubtful whether
      psychological and sociological effects upon neighbors constitute
      the type of factors that may be considered (under NEPA).

   The reason articulated by the court of appeals for this exclusion,
it is true, was the difficulty of measurement of these effects
(ibid.).  As noted above (page 28 note 19), we have not pursued that
argument here.  Nevertheless, the distinction between purely
psychological effects and environmental variables recognized by the
two decisions of the Second Circuit cited, is for the reasons we have
stated, a valid one.

   /29/ In opposition to our petition respondent argued that this case
entailed no more than a factual dispute as to whether that was so (Br.
in Opp. 45-46).  As indicated in our reply brief, that suggestion is
disingenuous.  The issue in this case has been at all times a purely
legal one, and respondent did not argue in the court of appeals that a
factual determination was necessary to determine whether the evidence
it wished to proffer for consideration was material to an issue
properly before the Commission.  The court of appeals likewise treated
the issue as purely legal in character.  Significantly, its judgment
was unconditional in character;  it did not leave the Commission any
discretion to decline, upon proper findings, to entertain petitioner's
stress claim.  The issues left open for the Commission instead were
whether the evidence to be proffered was sufficiently significant to
require supplementation of the EIS.

   /30/ Significantly, respondent's belated argument that the alleged
stress flows from an impact upon the natural or physical environment
is strikingly similar to its contention, rejected by the court of
appeals (Pet. App. 64a;  see page 17, supra), that such stress is a
"special hazard of radioactivity."

   /31/ For similar reasons, the Licensing Board, which accepted the
contention that NEPA requires consideration only of the environmental
effects of federal action (J.A. 35), went astray in suggesting that
"the psychological stress alleged by the intervenors here is related
to a significant environmental impact" (ibid.; see page 5 note 4,
supra).  In support of that conclusion the Board observed only that
the operation of TMI-1 and the accident at TMI-2 entailed
environmental effects, noting that the former had led the Commission
to undertake preparation of an EIS when TMI-1 was initially licensed.

   /32/ Thus, respondents err in characterizing (Br. in Opp. 43 n.37)
our argument as holding that "psychological health damage related to
the restart of Unit 1 cannot be considered because there is no
realistic probability of an accident." The question whether a major
nuclear accident is so unlikely as to place the environmental effects
of such an accident entirely outside the scope of NEPA analysis is not
presented here.  Neither does our argument depend in any way upon
characterization of respondents' members' fears as irrational (compare
page 6, supra).

   /33/ That respondents' argument rests on semantic legerdemain is
clear from its pervasive relevance upon such verbal formulations to
avoid our argument.  See, e.g., Br. in Opp. 12 (The alleged
"psychological health damage * * * is directly related to the
potential of a nuclear reactor to cause overwhelming damage to the
human environment"), id. at 38 (The alleged mental health effects
"involve() a concern related to the prospect of further devastating
impact on the physical environment"), id. at 43 ("The restart of TMI-1
poses the risk of a further accident and further, perhaps exposure to
radiation -- a direct physical impact of the sort required by the
Commission's legal theory"), id. at 53 ("Restart of (TMI-1) would
significantly affect the human environment * * * by significantly
altering the psychological context for local residents") (emphasis
added).

   Most revealing in this respect is respondent's ingenuous
explanation (Br. in Opp. 53 n.45) that:

      The fact that this health damage derives from an alteration of
      the human environment is most clearly illustrated by the fact
      that if people were to move away -- to a different human
      environment -- they would not suffer from the same damage to
      their health upon restart of TMI-1.

   Similar statements -- all literally correct -- could be made about
any federal action that affects people in any manner.  Nor does the
relatively localized impact of TMI-1 operation render its mental
health effects environmental.  It has never been though that NEPA is
applicable only to localized phenomena.

   /34/ Similarly, amicus curiae American Psychological Association
misses the mark with its suggestion (Br. in Opp. 14) that the mental
health effects of a restart decision are cognizable under NEPA because
"restarting the TMI-1 reactor will have an effect upon the physical *
* * environment, through the dramatic alteration of conditions of
temperature and pressure within the reactor and other physical effects
of reactor operation." Even if these effects, wholly contained within
a closed system, could somehow be deemed environmental impacts within
the meaning of 42 U.S.C. 4332(2)(C)(i), they do not supply the
predicate for analysis of mental health effects of restart.  To
repeat, our submission is not that reactor restart has no
environmental effects, but that the alleged mental health effects of a
restart decision do not flow from the distinctively environmental
attributes of plant operation.  Respondent plainly has not alleged
that conditions of high temperature and pressure within the reactor
itself directly engender mental illness or distress among its members.
 Rather, these conditions are merely symptomatic of normal reactor
operation, and it is the fact of such operation itself, rather than
any of its environmental effects that creates the potential for an
accident which in turn gives rise to the alleged mental health
effects.  Thus the cause of the mental health effects alleged by
respondent is fear or risk itself, not any environmental effect
(whether certain to occur or speculative) of restart.

   /35/ Respondents have not sought this Court's review of the court
of appeals' judgment on the Atomic Energy Act issue.

   Appendix Omitted