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Harvard Law School




Congress often responds to a complex problem by empowering an independent regulatory agency to enforce its legislative will. Acknowledging its own lack of knowledge and time, Congress gives the agency a measure of freedom to modify the legal requirements to fit a variety of circumstances that the legislature could not foresee. Ordinarily Congress restrains this autonomy by prescribing general criteria that the agency must consider and objectives that must be met.' These provisions enable Congress to measure the agency's progress and make necessary changes in the law. In addition, competition from other bureaus forces the agency to act vigorously or face a loss of prestige.

But Congress did not follow its normal practice in enacting the provisions governing radioactive emissions from nuclear power plants. Instead, it permitted the Atomic Energy Commission (AEC) to add protective conditions to power plant licenses whenever the agency felt that they would be appropriate. 2 Criteria and goals for public exposure to power plant radiation were left to the agency's planners. Moreover, Congress granted other agencies authority that logically extends to radioactive discharges, but neither explicitly sanctioned competitive efforts nor provided for interagency cooperation with the AEC. Congress may have been reluctant to clarify its desires while the federal government continued to promote nuclear power in an effort to recoup some of its capital investment in atomic weapons research and gaseous diffusion plants. Yet the end of official optimism implicit in the division of the AEC into research and regulatory branches 3 has not eliminated the uncertainty. This article explores the consequences of uncontrolled congressional delegation of authority to the AEC's successor, the Nuclear Regulatory Commission (NRC), and recommends ways of curbing agency discretion that could better guard the public health from the risks imposed by ionizing radiation. Section I discusses the potential role of the Environmental Protection Agency and state agencies in the regulation of radioactive discharges. It criticizes the congressional indecision that led to the restrictive judicial doctrines of federal and administrative preemption, but suggests that the EPA and the states still retain sufficient authority to adopt standards that complement the NRC's requirements. Section II questions the usefulness of the NRC's cost-benefit balancing test that must justify emission standards before they are imposed. It shows the practical failings of such analyses and advises Congress to reclaim its power to set standards according to a representative assessment of acceptable risk. Once Congress makes these social choices, the NRC can apply cost-effectiveness to select the best method of meeting the congressional standards.

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