Environmental Law & Policy Center v. Nuclear Regulatory Commission

Exelon Generation Company (Exelon) applied for an early site permit (ESP) from the Nuclear Regulatory Commission (the commission) (defendant). Exelon sought approval for construction of one or two new nuclear reactors. The purpose of the ESP was to permit Exelon to reserve a site for a nuclear-power plant to generate baseload power. In its application, Exelon reviewed and evaluated alternative sources of energy including renewable resources and fossil-fuel resources that might serve its purpose of generating baseload power. Exelon concluded that renewables were not reasonable alternatives and that natural gas and coal had greater impacts on air quality than the impact from the proposed nuclear facility. Further, a mix of renewables and fossil fuels was not environmentally preferable to a nuclear facility. Neither Exelon nor the commission considered energy-efficiency measures (programs supporting more efficient electricity use) as an alternative to generating baseload power. The commission issued a draft environmental-impact statement (EIS) that reached essentially the same conclusions as Exelon regarding the preferability of nuclear energy. The commission’s licensing board issued a 57-page memorandum exploring all reasonable alternatives and granted Exelon an ESP. The Environmental Law & Policy Center and other environmental groups (environmental groups) (plaintiffs) appealed the board’s decision to the commission. They argued that the board should have considered energy-efficiency measures in its consideration of reasonable alternatives and in a need-for-power analysis, which was not conducted. The commission affirmed the board’s ruling. The environmental groups appealed.