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Power Reactor Development Company v. International Union of Electrical, Radio and Machine Workers/Dissent Douglas

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Dissenting Opinion

United States Supreme Court

367 U.S. 396

Power Reactor Development Company  v.  International Union of Electrical, Radio and Machine Workers

 Argued: April 26, 27, 1961. --- Decided: June 12, 1961

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The only requirement in the Act for a finding that the facilities involved here 'will provide adequate protection to the health and safety of the public' is found in § 182 h ich is headed 'License Applications.' [1] By the terms of § 185 a construction permit is, apart from the requirements of § 185, 'deemed to be a 'license." [2] Section 185 governs applications for construction permits. It has no separate or independent standards for safety, no specific requirement for a finding on 'safety.' If the facility is finished and will operate 'in conformity with' the Act, the license issues 'in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of' the Act. As the Committee Report stated, 'Section 185 * * * requires the issuance of a license if the construction is carried out in accordance with the terms of the construction permit.' [3] In other words, the finding on 'safety,' if it is to be made (as it assuredly must be), must be made at the time the construction permit is issued or not at all.

While in the present case the Commission 'finds reasonable assurance in the record, for the purposes of this provisional construction permit,' that the facility can be operated 'without undue risk to the health and safety of the public,' it also finds that 'It has not been positively established' that a facility of this character 'can be operated without a credible possibility of releasing significant quantities of fission products to the environment.' The Commission added that there was 'reasonable assurance' before the date when the facility went into operation that research and investigation would definitely establish 'whether or not the reactor proposed by Applicant can be so operated.'

Plainly these are not findings that the 'safety' standards have been met. They presuppose-contrary to the premise of the Act that 'safety' findings can be made after construction is finished. But when that point is reached, when millions have been invested, the momentum is on the side of the applicant, not on the side of the public. The momentum is not only generated by the desire to salvage an investment. No agency wants to be the architect of a 'white elephant.' Congress could design an Act that would give a completed structure that momentum. But it is clear to me it did not do so.

When this measure was before the Senate, Senator Humphrey proposed an amendment that read, 'no construction permits shall be issued by the Commission until after the completion of the procedures established by section 182 for the consideration of applications for licenses under this act.' [4] That amendment would plainly have made the present findings inadequate for they leave the issue of 'safety' wholly in conjecture and unresolved.

Senator Humphrey explained his amendment as follows: [5]

'The purpose of the amendment when it was prepared was to make sure that the construction of a facility was not permitted prior to the authorization of a license, because had that been done what it would have amounted to would be getting an investment of a substantial amount of capital, which surely would have been prejudicial in terms of the Commission issuing the license. In other words, if the Commission had granted the construction permit for some form of nuclear reactor, and then the question of a license was not fully resolved, surely there would have been considerable pressure, and justifiably so, for the Commission to have authorized the license once it had authorized the permit for construction.

'The chairman of the committee tells me he has modified certain sections by the committee amendments to the bill, of which at that time I was not aware. The chairman indicates to me that under the terms of the bill, as amended, the construction permit is equivalent to a license. In other words, as I understand, under the bill a construction permit cannot be interpreted in any other way than being equal to r a part of the licensing procedure. Is that correct?'.

His question was answered by Senator Hickenlooper, who was in charge of the bill: [6]

'A license and a construction permit are equivalent. They are the same thing, and one cannot operate until the other is granted.

'The same is true with reference to hearings. Therefore, we believe, and we assure the Senator, that the amendment is not essential to the problem which he is attempting to reach.'

Senator Humphrey then asked if § 182 applied 'directly to construction permits.' [7] Senator Hickenlooper replied 'Yes.' [8] Senator Humphrey accordingly withdrew his amendment. [9]

This legislative history makes clear that the time when the issue of 'safety' must be resolved is before the Commission issues a construction permit. The construction given the Act by the Commission (and today approved) is, with all deference, a light-hearted approach to the most awesome, the most deadly, the most dangerous process that man has ever conceived. [10]

Section 182, subd. a, provides in relevant part:

'License applications.-

'a. Each application for a license hereunder shall be in writing and shall specifically state such information as the Commission, by rule or regulation, may determine to be necessary to decide such of the technical and financial qualifications of the applicant, the character of the applicant, the citizenship of the applicant, or any other qualifications of the applicant as the Commission may deem appropriate for the license. In connection with applications for licenses to operate production or ultilization facilities, the applicant shall state such technical specifications, including information of the amount, kind, and source of special nuclear material required, the place of the use, the specific characteristics of the facility, and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public. Such technical specifications shall be a part of any license issued.'

'Construction Permits.-All applicants for licenses to construct or modify production or ultilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause, the Commission extends the completion date. Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this Act and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this Act, the Commission shall thereupon issue a license to the applia nt. For all other purposes of this Act, a construction permit is deemed to be a 'license'.'


^1  See Appendix to this opinion, 367 U.S. at page 419, 81 S.Ct. at page 1541.

^2  Ibid.

^3  1 Leg.Hist. 1024. (Emphasis added.)

^4  3 Leg.Hist. 3759.

^5  Ibid.

^6  Ibid.

^7  Ibid.

^8  Ibid.

^9  Ibid.

^10  See Biological and Environmental Effects of Nuclear War, Summary-Analysis of Hearings, June 22-26, 1959, Joint Committee on Atomic Energy, 86th Cong., 1st Sess.; Fallout From Nuclear Weapons Tests, Summary-Analysis of Hearings, May 5-8, 1959, Joint Committee on Atomic Energy, 86th Cong., 1st Sess. For an analysis of the administrative law techniques used by the Commission in this case, see Jalet, A Study in Administrative Law, 47 Georgetown L.J. 47 (1958).

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).