Petitions for Review of an Order of the United States Nuclear Regulatory Commission.
Before Bauer, Circuit Judge, Gibson, Senior Circuit Judge,*fn* and Posner, Circuit Judge.
This is a petition to review administrative agency inaction: the refusal of the Nuclear Regulatory Commission's Director of Nuclear Reactor Regulation to institute a proceeding to revoke Commonwealth Edison Company's permit to construct a nuclear electrical generating plant at Byron, Illinois.
The permit was granted in 1975 after the NRC staff had reviewed, and a hearing had been conducted pursuant to 42 U.S.C. § 2239(a) on, Commonwealth Edison's plans for the Byron plant, in order to make sure that "the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public." 10 C.F.R. § 50.35(a). The issuance of a construction permit is the first step in the two-step process prescribed by 42 U.S.C. § 2235 for the licensing of nuclear power plants. The second is the granting of the actual operating license for the facility. Even if a construction permit has been issued-even if construction has been completed-the Commission may not issue an operating license unless it "has found that the final design provides reasonable assurance that the health and safety of the public will not be endangered by operation of the facility in accordance with the requirements of the license and the (Commission's) regulations ...." 10 C.F.R. § 50.35(c).
In 1978, with completion of the Byron plant in (distant) sight, Commonwealth Edison applied for an operating license. A proceeding on that application is in progress, with hearings scheduled to begin this August. Among the intervenors in the licensing proceeding was the Rockford League of Women Voters. (Rockford is about 17 miles from the construction site.) However, the League was expelled from the proceeding because of its willful and persistent refusal to comply with discovery orders. Its expulsion is under appeal within the Commission.
Before its expulsion from the licensing proceeding the League had requested the Commission's Director of Nuclear Reactor Regulation to institute a separate proceeding to revoke Commonwealth Edison's construction permit. The Commission may revoke a license-defined in 42 U.S.C. § 2235 to include a construction permit-for any reason that would have justified the Commission in refusing to issue the license in the first place. 42 U.S.C. § 2236(a). A regulation promulgated by the Commission delegates the Commission's authority under this section, so far as is relevant to this case, to the Director of Nuclear Reactor Regulation. 10 C.F.R. § 2.202. Another regulation provides that "Any person may file a request for the Director of Nuclear Reactor Regulation ... to institute a proceeding pursuant to § 2.202 ...." § 2.206(a). If the Director decides not to institute such a proceeding, he is required to advise the requesting party of his decision in writing, giving "the reasons therefor." § 2.206(b). The Commission may on its own motion review the Director's decision for abuse of discretion, but it will not entertain any petition or request for such review. § 2.206(c).
The League's request that the Director institute a proceeding to revoke the construction permit for the Byron plant was filed in November 1980, when construction was 50 percent complete. The League alleged that a number of issues concerning safe operation of the plant had not been resolved at the construction-permit stage; that some of these had not even been recognized as issues until the nuclear accident at Three Mile Island, Pennsylvania in 1979, which occurred after the construction permit had been issued for the Byron plant; and that Commonwealth Edison did not have enough money to solve the safety problems that the League had identified. In May 1981 the Director denied the League's request to institute a revocation proceeding. He stated that all of the issues raised by the League were being or would be considered in the pending proceeding on Commonwealth Edison's application for an operating license, and he rejected the League's suggestion that consideration of these issues would be prejudiced by the investment that Commonwealth Edison would have sunk in the construction of the plant by the time the Commission was ready to act on its application for an operating license, or by the alleged inability of Commonwealth Edison to spend more money on safety. The Director's denial of the League's request became final in August 1981 when the Commission declined to review his action.
We consider first, sua sponte, whether the Director's action in refusing to initiate a proceeding to revoke the construction permit for the Byron plant is reviewable in this court-as assumed, without discussion, in Illinois v. NRC, 591 F.2d 12 (7th Cir. 1979), and Porter County Chap. of Izaak Walton League of America, Inc. v. NRC, 196 U.S. App. D.C. 456, 606 F.2d 1363 (D.C.Cir.1979)-or in the district court. The Judicial Code, 28 U.S.C. § 2342(4), gives the federal courts of appeals exclusive jurisdiction to enforce those orders of the NRC that are made reviewable by 42 U.S.C. § 2239; and since no other statute gives the courts of appeals jurisdiction to review orders of the NRC besides 28 U.S.C. § 2342(4), which is limited by its terms to orders made reviewable by 42 U.S.C. § 2239, only those orders are reviewable in these courts. See Citizens for a Safe Environment v. AEC, 489 F.2d 1018, 1020 (3d Cir. 1973); Honicker v. Hendrie, 465 F. Supp. 414, 418-19 (M.D.Tenn.1979). Section 2239(b), in turn, makes reviewable "Any final order entered in any proceeding of the kind specified in" section 2239(a). The proceedings specified in that section, so far as is relevant to this case, are proceedings for granting and revoking licenses, including construction permits.
At least on a literal reading of section 2239(b), the Director's action in denying the petitioner's request to initiate a revocation proceeding was not an order, final or otherwise, in a section 2239 proceeding; it was a refusal to initiate such a proceeding; and while the petitioner could in the licensing proceeding to which it was once a party have, if it had remained a party, sought a stay of construction, an immediate hearing on safety questions, or other relief the denial of which might-perhaps-be deemed a final order in a section 2239 proceeding, it did none of these things. The League is emphatic that what it wants is a brand-new proceeding wholly separate from the pending licensing proceeding.
The distinction between the entry of an order in an ongoing proceeding and the refusal to launch a new proceeding was recognized in both Illinois v. NRC, supra, 591 F.2d at 14 n.3, and Porter County, supra, 606 F.2d at 1368, though the implications for the jurisdiction of the courts of appeals were not addressed. In Porter County (and possibly in Illinois v. NRC as well, though one cannot tell from the opinion in that case) the petitioner was a party to an ongoing proceeding before the Commission. The petition for a new proceeding could therefore be construed as a petition for a hearing on safety in the ongoing proceeding, and there is a hint in Porter County that this is the true basis of the court of appeals' jurisdiction. See 606 F.2d at 1370. But the petitioner in the present case was no longer a party to the licensing proceeding or any other proceeding when it asked the Director of Nuclear Reactor Regulation to initiate a proceeding to revoke Commonwealth Edison's construction permit. See Gage v. AEC, 156 U.S. App. D.C. 231, 479 F.2d 1214, 1218 (D.C.Cir.1973).
A ruling that the courts of appeals lack jurisdiction to review the Director's refusal to initiate a revocation proceeding would not leave the petitioner remediless. The League could still bring suit in district court under 28 U.S.C. § 1331, the general federal-question jurisdictional statute, see Izaak Walton League of America v. Schlesinger, 337 F. Supp. 287, 291-92 (D.D.C.1971); Gage v. Commonwealth Edison Co., 356 F. Supp. 80, 84 (N.D.Ill.1972); Gage v. AEC, supra, 479 F.2d at 1222, and perhaps under other statutes, such as 28 U.S.C. § 1337 (acts regulating commerce), as well. The district court is arguably the more appropriate venue for a proceeding to review informal agency action, of which agency inaction is a conspicuous example. In deciding not to initiate a proceeding to revoke the Byron construction permit, the Director of Nuclear Reactor Regulation naturally did not compile the kind of formal record that is the usual predicate for reviewing agency action in the courts of appeals. To decide whether he abused his discretion it might be necessary to reconstruct the informal record on which he based his decision. The district courts are better suited to perform that task than the courts of appeals. See Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 241 (3d Cir. 1980).
But despite all this we have concluded, primarily on the authority of Natural Resources Defense Council, Inc. v. NRC, 196 U.S. App. D.C. 354, 606 F.2d 1261, 1265 (D.C.Cir.1979), that the courts of appeals rather than the district courts have exclusive jurisdiction to review refusals to initiate section 2239 proceedings. In NRDC the Commission had refused the petitioner's request to institute certain licensing proceedings, believing it lacked jurisdiction. The court of appeals held that this refusal was a final order in a section 2239 proceeding because "a licensing jurisdictional determination is a necessary first step in any proceeding for the granting of a license." Similarly, a determination under 10 C.F.R. § 2.206 to initiate a license-revocation proceeding is a necessary first step in that proceeding.
One might be able to distinguish NRDC from this case, pointing out that the court prefaced its holding with the words "In the circumstances of this case," 606 F.2d at 1265, and noting the court's emphasis on the fact that it had "an administrative record on which to base our review," id., which as we have said could be a problem in a discretionary agency inaction case such as this. But jurisdictional lines ought whenever possible to be clear, so that litigants know what court they can proceed in; it would not do to distinguish between jurisdictional and discretionary refusals to act for purposes of allocating jurisdiction between the courts of appeals and the district courts.
The District of Columbia Circuit's holding in NRDC admittedly does some violence to the language of 42 U.S.C. § 2239(b), but not so much, we think, as cannot be justified by the benefits to judicial economy from confining judicial review of NRC determinations to the courts of appeals. Whenever the district courts have jurisdiction to review agency action, it means that anybody aggrieved by that action is entitled to two successive judicial reviews of it-first in the district court and then, on appeal, in the court of appeals. This in turn implies five tiers of potential judicial or quasi-judicial review of the petitioner's request in this case: by the Director of Nuclear Reactor Regulation, by the full Commission, by the district court, by the court of appeals, and by the Supreme Court. This is too much. See Investment Co. Inst. v. Board of Govs. of Fed. Res. Sys., 179 U.S. App. D.C. 311, 551 F.2d 1270, 1278-80 (D.C.Cir.1977); Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 16-19 (1975). The court of appeals' lack of fact-finding capacity can be got round in other ways. See Investment Co. Inst., supra, at 1280 and n.9; Currie & Goodman, supra, at 41-53. Even if we were somewhat inclined as an original ...