CITIES OF STATESVILLE v. ATOMIC ENERGY COMM

TAMM, Circuit Judge:

On August 6, 1945, some four square miles of a city were destroyed by a blast from a bomb with the explosive force of 20,000 tons of TNT. On August 9, 1945, 39,000 human beings were killed and 25,000 injured in a similar explosion. Five days later a four-year war in the Pacific was over. In November, 1952, an island in mid-Pacific disappeared and in its place gaped a hole one mile wide and 175 feet deep. The TNT equivalent of such a blast is set at about 6,000,000 tons and the cause of that disturbance has become known as "The Bomb." A chronology of devastation does arise out of the exigencies of war — hot and cold — but because the success of peaceful civilization, like that of war, is dependent upon adaptibility to the environment, the inventive genius of destruction has now turned into an effort toward constructive and peaceable use of a most fantastic source of power.

Dates, numbers, weights and equivalents were taken from the Encyclopedia Britannica, 1968 ed.

The invention of the atomic bomb and its regrettable detonations have demonstrated that the fission or splitting of one pound of uranium yields an energy equivalent of 3,000,000 pounds of coal. That figure, translated into heat, amounts to about 10,000,000 kilowatt hours. It is therefore quite apparent why industry has sought to domesticate the atom and exploit its power with the intention of sophisticating both manpower and machinery in order to achieve a saleable product.

From the time our earliest ancestors squatted about their fires to this present century, the primary source of man's energy has been fossil fuel. Coal and its chemical family of wood, gas, kerosene, oil and the like have been appropriated by man to warm his cave, cook his food, light his home, power his automobile, and provide for his many general comforts in an ever-changing environment. This reliance, however, has had some visible side effects that are mounting in disturbing proportions. Man's failure to preserve his fuel supply through conservation has caused the available reserve of fossil fuel to diminish to the extent that man's energy needs must be supplemented by an alternative source within the next century. Moreover, this very mobile civilization of ours seems bent upon burning fuels to such an extent that modern pollution has contaminated the air we breathe, the water we drink, and the food we eat. Also, the exhaustive drain on our natural resources has occasioned irreparable damage in the area of their departure. It is therefore imperative that other means be employed to those same good ends of meeting mankind's needs.

The nuclear fission reaction, somewhat analogous to a fire, is maintained, in peaceful applications, by the nuclear or atomic reactor. Here a controlled chain of nuclear explosions occurs on a self-sustaining (and self-destructing) pattern. Traditional fossil fuel generators burn coal whereas nuclear generators "burn" uranium, and, while the layman can make facile comparisons of this nature, nuclear reactor engineers are still struggling to find an efficient process for controlling the reaction. Thus, the basic problem in using atomic power to generate electricity is harnessing nuclear fission to drive more or less conventional turbines.

The first nuclear reactor to generate electricity was built on an experimental basis by the Argonne National Laboratory in 1951. In 1956, the British began to operate the Calder Hall station as a large-scale endeavor. These plants could neither produce electricity on the scale of the traditional coal-burners, nor compete economically at any scale. They were, however, the prototypes of what the power companies in the instant cases hope to develop. As late as 1967 the output of electricity from nuclear generating plants was only about one per cent of the total output of the conventional generators. It is hoped that by 1980 that figure will be about 37.5 per cent, but it is clear that the present experimentation must attain substantial success if that projected figure is to be realized.

It has been found that the cost of plant construction and technological skills, although immense, is surmountable in view of the economic return — should all go well. However, at the present time, the efficiency of the fuel cycle is still an economic problem to be overcome before all can go well. This fuel cycle depends on the critical mass of the nuclear fuel, that is, the amount of fuel necessary to sustain the chain reaction. As fuel is consumed, more fissionable atoms must be introduced into the system in order to perpetuate the reaction. Also, there are intricate fuel recovery problems. The "waste product" of the reaction contains valuable amounts of fissionable material which must be recovered, reconditioned and replaced. This process is quite technical and quite costly. Extensive experimentation has been directed toward finding cheaper and more practical ways both of producing the desired chain reaction and of reprocessing the waste. This "fuel burnup" problem can be analogized to the more familiar processes of coal-burning generators. Suppose that out of one pound of coal used in a conventional generator, only one ounce is effectively "burned," leaving fifteen ounces of waste to be reconditioned before reburning. Efficiency in heat production could be realized only if an effective method of reusing the "waste" product could be attained. Thus it is with the present nuclear reactors — the problem is how to get the optimum effect from the minimum cause. In addition to the difficulty of finding an efficient means of recovering unused fuel, other major obstacles must be overcome before the full potential of atomic reactors can be realized. We list a few:

1. Initial cost of fuel.

2. Fuel contamination through radiation.

3. Contamination of reactor components through neutron absorption.

4. Thermal pollution.

Hopefully all these problems can be resolved, but there remains the practical problem of maintaining one's head "economically" above water until practical solutions are found. It is therefore necessary that these problems of economy be overcome before widespread commercial use is feasible in the competitive sense.

I. THE INSTANT CASES

A. Cities of Statesville, et al. v. Atomic Energy Commission

The petitioners are eleven North Carolina municipalities and Piedmont Cities Power Supply, Inc., a corporation formed to enable petitioners to conform to the North Carolina law which prohibits municipalities from owning an interest in a federally-licensed electric generating facility located outside their service areas. The respondents are the Atomic Energy Commission and the United States of America. The intervenor is the Duke Power Company, a public utility engaged in the production, transmission and sale of electric power in both North and South Carolina.

In the latter part of November, 1966, Duke Power Company, the intervenor herein, applied to the Atomic Energy Commission for a grant of authority to construct, use and operate three nuclear reactors to be located in its electric generating system in Oconee County, South Carolina. This application was filed in compliance with section 104(b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b) (1964), with a view toward construction of "utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes." (For full text of applicable statutes see appendix.) These reactors are to be used by Duke in its production, transmission and sale of electric power. This application, along with certain amendments, was reviewed by the regulatory staff of the Atomic Energy Commission. It found that the construction and temporary operating permit would be consistent with the Act as implemented by Commission regulations. Subsequent to this preliminary review, the Commission announced that a public hearing on the Duke application would be held on August 29, 1967, to determine whether a provisional construction permit would be issued. The only issues were whether the construction and operation would be in compliance with 10 C.F.R. § 50.35(a) (1968) with respect to health and safety, and in regard to the national security.

Prior to the hearing, the petitioners, with the exception of Piedmont Cities Power Supply, Inc., filed a protest with the Commission, alleging that they were customers of Duke and had been denied an opportunity to participate in the proposed venture. They alleged that the project, in its present form, clearly violated the spirit of the antitrust laws, and requested that Piedmont be given a share of the project so that it could represent the interests of the municipalities.

On August 9, 1967, this protest was dismissed on the ground that the Commission lacked jurisdiction of the subject matter in light of the narrowness of the August 29 hearing. Two days later the petitioners filed a motion to intervene and a motion to dismiss the Duke application on the ground that the Atomic Energy Commission lacked jurisdiction, under section 104(b) of the Atomic Energy Act of 1954, to issue a construction permit. This motion incorporated by reference the former protest based on antitrust principles, and in addition asserted that the Duke application must be considered in light of sections 102 and 103 of the Act as one for a "practical value" type reactor, and thus must comply with those and other provisions.

This motion to dismiss was likewise denied, but the municipalities were permitted to intervene in the proceeding on the issue of whether the application was properly before the Commission under section 104(b). Intervention was denied to Piedmont, however, on the ground that it had no present interest but only sought to acquire an interest. (Piedmont, as before noted, is a manufactured corporation set up in the hope that Duke Power would accord an interest in the plants to Piedmont, which by representation would protect the interests of the municipalities. North Carolina law prohibits these municipalities from having a direct interest in such ventures.) The Commission set September 12, 1967, as the date on which a hearing would be held to determine the health and security questions and also to determine whether the application was properly brought under section 104(b). The municipalities fully participated in this hearing.

On November 3, 1967, the Atomic Safety and Licensing Board issued its initial decision and ordered the Director of Regulations to issue to Duke a provisional permit on the ground that its application met the health and security standards set out by the Commission. It also held that the applicant was properly proceeding under section 104(b) of the Act. Duke immediately began construction.

All of the petitioners appealed the Initial Decision to the Commission: the municipalities on the ground that section 103 was controlling and Piedmont on the ground that it was improperly denied leave to intervene. On January 3, 1968, the Commission denied both appeals on the rationale that "until there has been a `demonstration of the practical value of such facilities for industrial or commercial purposes', utilization facilities which will provide a basis for commercial evaluation in connection therewith (i.e., `leading to' such `demonstration') may be licensed under Section 104b." (J.A. I 144.) It affirmed the denial of intervention to Piedmont, concluding that permission to intervene is a discretionary action, and that since the interests of Piedmont were "remote and tenuous" and adequately represented by the municipalities, denial of intervention was not an abuse of discretion. It upheld the grant of intervention to the municipalities as "sound" administrative procedure. On January 12, 1968, the petitioners filed a joint petition for reconsideration. On February 29, 1968, the Commission reaffirmed its earlier position and, while refusing to consider the antitrust problems (on the ground that the petition was untimely in this regard), nevertheless specifically held that it was without jurisdiction to apply such principles to section 104(b) permits. The petition for review in this court was filed in March of 1968.

There are two Joint Appendices in these cases. The Joint Appendix in No. 21,706 will be hereinafter referred to as J.A. I; the Joint Appendix in No. 21,844 will be referred to as J.A. II.

B. Power Planning Committee of the Municipal Electric Association of Massachusetts v. Atomic Energy Commission

Petitioners are the Power Planning Committee of the Municipal Electric Association of Massachusetts, an organization consisting of the officals of thirty-nine municipal electric utilities, and three municipal electric utilities that are also represented in the Power Planning Committee. The respondents are the Atomic Energy Commission and the United States of America. The intervenor is Vermont Yankee Nuclear Power Corporation, a corporation organized by ten New England utility companies in the hope of constructing and operating the proposed nuclear power facility. The companies, as stockholders, will get their supply of power from the corporation on a contract basis.

On December 2, 1966, Vermont Yankee filed an application with the Atomic Energy Commission for permission to construct, use and operate a proposed nuclear power reactor to be located in Vernon, Vermont. The application was also filed in compliance with section 104(b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b) (1964), in the hope of attaining a grant of authority for the construction of "utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes." As has been noted, this facility will be the source of power for Vermont Yankee in its production, transmission and sale of electricity in the New England area.

The application, with certain amendments, was reviewed by a regulatory staff of the Commission which apparently does a survey of the application in regard to Commission regulations. Upon completion of the review, the staff, with certain exceptions, reported that the application met Commission requirements for a construction permit. It found that the proposed facility was in accord with the Commission's regulatory scheme when viewed in the light of the public health and safety and national defense and security requirements. In an amendment to its application, Vermont Yankee requested that it be given an interim exemption from the financial qualifications requirement of Part 50 of the Commission's regulations. The regulatory staff recommended that such an exemption be granted.

10 C.F.R. § 50.12 (1969) provides that "[t]he Commission may, upon application by any interested person, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest."

Following the staff report, the Commission, on June 27, 1967, issued a notice of a proposed hearing on the Vermont Yankee proposal to be conducted on August 1, 1967, by the Atomic Safety and Licensing Board. The notice further indicated that the issues of public health and safety and national security, as well as the contemplated interim financial exemption, would be the subject of the inquiry.

The Atomic Safety and Licensing Board was appointed in compliance with 42 U.S.C. § 2241 (1964).

On July 17, 1967, the petitioners filed a joint petition for leave to intervene in the hearing. This petition alleged that each was interested in purchasing a share of the proposed facility and that, should they be excluded from such an interest, each would be prohibited from purchasing the low-cost energy of the proposed venture. The petition further asserted that the action of Vermont Yankee appeared to violate provisions of the antitrust laws. Their position essentially was that they wished an opportunity to be heard on the question of their participation in this venture. They bolstered their position by arguing that their exclusion would be contrary to the concepts embodied in the antitrust laws.

On July 24, 1967, a supplemental petition for leave to intervene was filed by the petitioners on the ground that the application of antitrust principles must be directed toward the Vermont Yankee request for interim exemption from the financial qualification requirements of Part 50 of the Commission's regulations. On July 31, 1967, the Atomic Safety and Licensing Board entered a prehearing order denying intervention to the petitioners on the grounds (a) that the petitioners had no "interest comprehended within the meaning and intent of the applicable statutory and regulatory provisions"; (b) that they failed to allege any immediate or substantive interest which "may be affected by the present proceeding"; and (c) that, in any event, the contentions alleged in the petition to intervene were irrelevant to the issues pending before the hearing board (J.A. II 29-30). The petitioners appealed the prehearing decision on the ground that the license sought by the applicant was of a commercial nature rather than one for research and development, thus focusing on the issue of section 103 versus section 104(b) jurisdiction. This appeal was denied by the Commission as interlocutory but the denial was without prejudice to filing an appropriate exception after the Board's initial decision.

On December 8, 1967, the licensing board issued its Initial Decision affirming its preliminary decision of denial to the petitioners for leave to intervene; the Initial Decision also authorized the issuance of a provisional construction permit to Vermont Yankee. This permit was to be in compliance with section 104(b) of the Atomic Energy Act of 1954. The Board also authorized interim exemption from the financial qualifications requirements. On December 11, 1967, the Commission's Division of Reactor Licensing issued the provisional construction permit which took immediate effect. Like Duke Power Company, the applicant commenced construction.

The petitioners filed their exceptions to the Initial Decision on the grounds that the Board erred in (1) failing to make an adequate investigation of the alleged antitrust violations; (2) denying the petition for leave to intervene; (3) permitting the application to proceed under section 104(b) of the Act: and (4) permitting the interim exemption from financial qualifications.

On April 8, 1968, the Commission denied all of the petitioners' exceptions and affirmed the Initial Decision of the Board. In its memorandum and order the Commission held that, as to the petition for leave to intervene, the petitioners had not shown how their interests "will be affected by our determination on the radiological safety and national security issues in the proceeding" (J.A. II 95). The Commission refused to consider the anti-trust allegations as providing the necessary "interest" for intervention under section 189(a) of the Atomic Energy Act as implemented in 10 C.F.R. § 2.714 (1967). The Commission ruled that it had no authority to consider antitrust violations when considering a grant of authority under section 104(b) as indicated by the "distinction which the Act draws between proceedings under Section 103 and Section 104b. as respects consideration of antitrust matters, and from a reading of the legislative history. * * * That history shows a deliberate limitation in the 1954 Act of the broader antitrust authority in licensing matters which had been contained in Section 7(c) of the Atomic Energy Act of 1946." (J.A. II 96-97.) The Commission held, as to the allegations that the application should have been processed under section 103 rather than section 104(b), that the finding of practical value had not yet been made and that the rationale of its Duke decision would apply to the instant case. In dealing with the interim exemption from financial qualifications, the Commission held that the Board acted on a proper basis in permitting exemption and that since the financial qualifications of the applicant were yet to be determined, the interim exemption provided adequate safeguards while awaiting the outcome of those determinations.

The Commission set December 8, 1968, as the cut-off date by which information had to be filed by all interested parties to enable the Commission to determine the financial qualifications of Vermont Yankee, providing in its order that the date could be extended for good cause shown. (J.A. II 105.) It is assumed that the petitioners herein have submitted all data relevant to the question of whether the financial arrangements violate the spirit of the antitrust laws. The determination will, of course, be subject to independent judicial review.

Following the aforementioned action of the Commission, the petitioners filed a petition to review in this court.

II. THE MERITS OF THE PETITIONERS' CONTENTIONS

The issues presented by these petitions are the following:

A. Whether, in both the Duke Power and Vermont Yankee cases, the Commission properly awarded the grant of authority under section 104(b).

B. Whether, in both cases, the concepts of antitrust law are applicable to grants of authority under either section 103 or section 104(b) of the Atomic Energy Act of 1954.

C. Whether, in the Duke Power case, the Commission properly denied intervention to Piedmont Cities Power Supply, Inc.

D. Whether in the Vermont Yankee case, the Commission properly denied intervention to those petitioners.

A. The Propriety of the Section 104(b) Grant

In evaluating the action of the Commission with respect to the question of whether section 103 or section 104(b) of the Act is controlling in these cases, our review must be limited to a finding of whether the Commission, in proceeding under section 104(b), acted reasonably and whether the facts before the Commission support its finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In Duke Power, the Commission held that "the `research and development' about which Section 104b. speaks encompasses as `development' a demonstration that will provide a basis for commercial evaluation. Such `commercial evaluation' * * * means an evaluation of the economic competitiveness of the nuclear facility with conventional power plants." (J.A. I 143-44.) The Commission went on to require that "until there has been a `demonstration of the practical value of such facilities for industrial or commercial purposes'" (J.A. I 144), these facilities will be licensed under section 104(b). What this means is that no commercial license will issue until there is a showing that these reactor types are "practical" under section 102. The question, then, is what constitutes a "practical value" showing under section 102.

The Commission, in January of 1966, held that a finding of "practical value, while presupposing a determination of technical feasibility, also involves economic considerations, the essential economic test being the competitiveness of the [proposed] nuclear power plant with conventional power plants." Determination Regarding Statutory Finding of Practical Value, 31 Fed.Reg. 221 (1966) (emphasis added). The Commission, quoting from that proceeding, noted that "`[p]ending the completion of scaled-up plants, and the information to be obtained from their operation', there `has not yet been sufficient demonstration of the cost of construction and operation of light water, nuclear electric plants to warrant making a statutory finding that any types of such facilities have been sufficiently developed to be of practical value'" (J.A. I 144-45). In the final order of the Commission in the Duke Power case, it was demonstrated that the proposed plants of Duke Power are "scaled-up" plants — that is, that they exceed, substantially, the modified 200 (electric) megawatt plants that are currently operable but which have not yet been shown to be economically competitive with conventional plants. See J.A. I 144-47. The Commission admits that, based on data currently available, it is not capable of finding these large-scale plants to be practical within the meaning of section 102. The Commission apparently hopes that the facilities which are the subject of this action will provide the necessary data for making such a determination. The Commission has said that it will "await a reliable estimate of the economics based upon a demonstration of the technology and plant performances" before it will make the "practical value" finding. This position not only conforms to the wording of the Act, but also adheres to the expressed intent of the drafters of the 1954 law. Congressman Cole of New York, the 1954 Chairman of the Joint Committee on Atomic Energy, spoke to his colleagues on the floor of the House and specifically outlined what the Commission's duty would encompass under section 104(b) of the Act. At 100 Cong.Rec. 11,658 (1954) he made it clear that

After a reactor has been tested out under section 104(b) and its practicability as an atomic reactor has been established, and after it has been demonstrated that this force can be used economically competitively, the Commission then makes a determination that such a reactor as a type does have commercial utility. It may then license persons to use that reactor under the authority given to it as set forth in section 103. (Emphasis added.)

We are called upon by petitioners' argument to make an independent finding of "practical value" so as to require the Commission to hold a section 103 hearing. To do so would be a usurpation of the Commission's function — a function which Congress has confidently delegated to its regulatory arm.

This is neither a field which is pregnant with legal precedent nor a field in which we can draw upon personal awareness of our surroundings or general knowledge gleaned from readings of the financial section of the daily newspaper. The field of nuclear engineering is one which the experts must dominate for the present time. All that can be required from them is that they make a bona fide attempt at clarity while acting within reason. The Commission, of course, is the technical arm of Congress in this field. It brings its expertise to bear on these problems and its interpretations of the statutes must be given effect, barring clear abuse or patent error. The petitioners in the Duke Power case admit that the determinations of "practical value" depend upon logic and customary usage. The Commission, in its order and rulemaking regarding "practical value," has been both logical and sufficiently lucid that one not versed in the language of the atom can point out that the Commission does not stand alone in its doubt as to the "practical" value of these proposed facilities. Several giants in the field of electric utilities are apparently not yet prepared to pour large amounts of their financial resources into nuclear power at this time. Consolidated Edison, Niagara Mohawk and Central Hudson Gas have indicated doubt as to the "practical value" of these plants by their investment of 170 million dollars in a conventional fuel oil generator to be built on the Hudson River. We admit that this somewhat crude "economic weathervane" cannot guarantee all aspects of the weather, but it may be valuable in determining which way the wind is blowing.

The Wall Street Journal, Nov. 7, 1968, at 19, col. 2. See also The Washington Evening Star, June 16, 1969, at C-5, col. 6 — where there appears an article noting that Duke Power Co. plans a $6 million "coal-fired" generator to be built by 1972 and The Wall Street Journal, May 6, 1969, at 5, col. 2 — where it is noted that Duke Power plans a $289 million coal powered plant for 1974 because of "the importance of bringing this generating [sic] into service on schedule and in view of the higher risk of regulatory delays associated with nuclear [power]. * * *" (Emphasis added.)

Extending this analogy somewhat, we note in the June 6, 1969, edition of "The Wall Street Journal" that the wind is not only blowing but is also variable. There, in an article entitled "Reassessing Nuclear Power: Rising Costs, Delays Cause Electric Firms To Turn to More Conventionally Fired Units," a staff reporter concludes:

Atomic power, which came into its own with a vengeance three years ago, is losing important ground to conventional means of generating electricity.

Electric utility companies, beset by sharply rising nuclear steam generating plant costs, long delays in getting the facilities built and operating, and criticism by local antagonists over alleged water pollution or safety hazards, are turning to more steam plants fired with coal, oil or natural gas. A number of utilities in recent months have substituted such conventional units for previously planned nuclear plants, and others indicate they may follow suit in the months to come.

Id. at 38 col. 1. The reporter goes on to describe the overall picture regarding the present disposition of electric utilities toward nuclear power facilities. He notes that "many utilities are waiting to see how nuclear plants set to start operating this year perform before forging ahead on new nuclear programs." Id. (It is almost as though the wind is watching to see which way the wind is blowing.) Significantly, the article relates that "[m]any utilities say the cost studies of two or three years ago showing a definite nuclear advantage can no longer be relied on." Id. at col. 4. In support of this assertion, the article indicates that "Pennsylvania Power Light Co., Allentown, Pa., has received an extension from General Electric Co. on an option to but two nuclear plants for 1975 and 1977 operation, and will use the extra time to take `a long, hard look' at current cost comparison figures for nuclear and conventional power plants. * * *" Id. If the electric utilities feel compelled to take a "long, hard look" at the practical economics of large-scale plants from the viewpoint of their private pocketbooks, we think it not unreasonable to permit the Commission an opportunity to appraise the practical value of these facilities from the standpoint of the public interest. In the final analysis this court must rely on the Commission's expertise for a determination of practical value. It is the Commission's duty to so determine — it is our duty merely to review.

The Commission, in proceeding under section 104(b), is not acting on a whim but by will — the will of Congress as evidenced by the statute. In fact, the Commission has on occasion brought to the attention of Congress this very problem of distinguishing between section 103 and section 104(b) licensing. It has urged Congress that the traditional reasoning behind the distinction has ceased to be realistic. The fuel supplies, so jealously guarded in the past, have been found to be relatively abundant. Congress, however, has not sought to change the standards and thus the Commission must follow the will of Congress. It is axiomatic that if the change is to come, it must come from Congress and not from the Courthouse.

These points, perforce, apply to both cases under review. We hold the action of the Commission in proceeding under section 104(b) to be within its expertise, substantially supported in the record, reasonable and valid.

B. Applicability of Antitrust Laws to Section 103 and Section 104(b) Grants

We need not consider whether antitrust principles apply to section 103 licensing, because we have found that the Commission was correct in proceeding under section 104(b). Turning then to the question of whether the Commission must apply these principles to section 104(b) licensing, we note that the petitioners in both Duke Power and Vermont Yankee base their contentions (that these considerations must be taken into account by the Commission) on a broad public policy argument that can be seen running through many of the administrative law decisions of this court and other courts. They say, correctly, that the Atomic Energy Act contains specific caveats urging the Commission to act in the public interest by promoting "free competition in private enterprise." 42 U.S.C. § 2011(b) (1964). The petitioners also assert that section 105(a) of the Act, 42 U.S.C. § 2135(a) (1964), makes it clear that antitrust laws are applicable to everything contained in that chapter. Also, under section 105(a) the Commission is empowered to suspend or revoke licenses in cases where courts of competent jurisdiction have found antitrust violations. What petitioners fail to see is that, in reading the legislative history of this Act, one can find many examples of the drafters' intent to narrowly limit antitrust considerations to specific portions of the statute while expanding the health and national security considerations of the Act as a whole. In 1965 the Joint Congressional Committee on Atomic Energy favorably reported an amendment to section 271 of the Act of 1954. In so doing they recognized that the 1954 Act established that the "AEC's regulatory control was limited to considerations involving the common defense and security and the protection of the health and safety of the public. * * *" S.Rep. No. 390, 89th Cong., 1st Sess. 4 (1965). The petitioners miss the distinction between the 1946 Act and the 1954 Act with respect to antitrust authority. Section 7(c) of the Atomic Energy Act of 1946, 42 U.S.C. § 1807 (c) (1946), warned the Commission that

See, e.g., FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 244, 88 S.Ct. 1005, 19 L.Ed.2d 1071 (1968); McLean Trucking Co. v. United States, 321 U.S. 67, 79-88, 64 S.Ct. 370, 88 L.Ed. 544 (1944); Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968).

[w]here activities under any license might serve to maintain or to foster the growth of monopoly, restraint of trade, unlawful competition, or other trade position inimical to the entry of new, freely competitive enterprises in the field, the Commission is authorized and directed to refuse to issue such license or to establish such conditions to prevent these results as the Commission, in consultation with the Attorney General, may determine. (Emphasis added.)

It is apparent from a reading of that statute that had it been in effect when the Commission acted on the instant petitions this opinion would never have been written.

The foregoing language, however, cannot be found in the 1954 Act. That its omission was not one of neglect but of purpose is evidenced by the words of the chief proponent of the change, Joint Committee Chairman Cole. In the hearings on H.R. 8862, and S. 3323, (II Leg.Hist. 2131) Chairman Cole, in addressing himself to the antitrust provisions of what was to be the new Atomic Energy Act of 1954, said:

The complete legislative history of the 1954 Act was compiled by the Commission's staff in 1955 in a three-volume set known as Legislative History of the Atomic Energy Act of 1954, both here and hereinafter cited ___ Leg.Hist. ___.

the Atomic Energy Commission's responsibility was to run the Atomic Energy Commission, the Government activity in the energy field, and it was not the responsibility of the AEC to prevent, prohibit, or police antitrust operations. That is the duty and the statutory obligation of another agency of the Government, so it was for that reason that these references [in the 1946 Act] to the Commission's relationship to antitrust in the present [1954] law were eliminated.

That this was a purposeful omission is also borne out by a joint comment of Representatives Holifield and Price in which they stated that this bill (later to become the Atomic Energy Act of 1954) had certain "major defects." "[W]e believe," the Congressmen declared, "it is a mistake to relieve the Commission of the affirmative responsibility contained in the McMahon Act [of 1946], and deleted in this bill, to exercise its licensing authority in a manner to prevent the growth of monopoly or restraint of trade." S.Rep. No. 1699, 83d Cong., 2d Sess. 105, 125 (1954); U.S. Code Congressional and Administrative News 1954, p. 3515 (emphasis added.) Section 105(c) of the Atomic Energy Act of 1954, 42 U.S.C. § 2135(c) (1964), was most assuredly an attempt on the part of these (or other like-minded Congressmen) to inject antitrust principles into the Act. However, section 105(c) is patently restricted to section 103 licensing. In fact it could not apply to section 104(b) licenses until a section 102 finding of "practical value" could be made. In effect then, the Commission is barred, with certain exceptions (such as § 103 licensing), from considering affirmative anticipatory antitrust sanctions. In a colloquy between a member of the Joint Committee on Atomic Energy, Representative Holifield, and Mr. William Mitchell, General Counsel of the Commission in 1954, on the topic of section 105 of the new act and its general meaning, Congressman Holifield noted that the

section provides that the Commission may suspend, revoke, or take such other action as it may deem necessary after the court finding of monopoly.

I point out that this is "after," after the court finding of monopoly, and obviously not before the formation of a monopoly. I point out that it is permissive and not mandatory upon the Commission to take that type of action.

Mr. Mitchell replied:

Yes, sir; that is right. I think our feeling would be that in a case of a finding of violation of law by a court, normally the court itself would take whatever action would be appropriate, but this [section 105(a)] provides for additional authority in the Commission.

II Leg.Hist. 2279-80 (emphasis added).

These findings of course do not preclude the Commission from keeping an administrative eye on anticompetitive effects of the use of these facilities once they are constructed under section 104(b). The Commission has the statutory obligation to report to the Attorney General any information it might receive "with respect to any utilization of special nuclear material or atomic energy which appears to violate or to tend toward the violation of any of the [antitrust laws], or to restrict free competition in private enterprise." 42 U.S.C. § 2135(b) (1964).

Furthermore, the full statutory scheme set up by Congress makes it clear "that Congress contemplated a step-by-step procedure. First an applicant would have to get a construction permit, then he would have to construct his facility, and then he would have to ask the Commission to grant him a license to operate the facility." Power Reactor Development Co. v. International Union of Electrical, etc., Workers, 367 U.S. 396, 405, 81 S.Ct. 1529, 1534, 6 L.Ed.2d 924 (1961). From this it is also clear that these construction licensees must return to the Commission for authority to operate their new facilities. At that point the Commission must determine whether the performance of other large-scale plants have demonstrated practicability (and thus commerciality) sufficiently to warrant an authorization under section 103. We warn the Commission that it has a most serious duty to perform at that stage, for if the trade has shown that these nuclear reactors are competitive in the commercial sense and it is clear that a commercial license is appropriate, then the Commission must consider, under section 105(c), anticipatory antitrust impact. Finally, under section 186(a), 42 U.S.C. § 2236(a) (1964), the Commission has the power to revoke any type of license it has issued when there is a "violation of, or failure to observe any of the terms and provisions" of the Act. This section invests the Commission with a continuing "police" power over the activity of its licensees and provides it with the ability to take remedial action if a license is being used to restrain trade.

This seems to be the position of the Department of Justice also. In respondents' brief in Cities of Statesville at 39 n. 44, it is stated that

It is the view of the Department of Justice that once a determination of practical value has been made for a type of facility, the Commission is required by the Act to conduct the operating license proceeding for a facility of the type under Section 103 even though a construction permit for the facility was issued under Section 104(b).

The petitioners also advance the argument that because the language of section 104(b) calls for compatibility with the regulations "which would apply in the event that a commercial license were later to be issued pursuant to section [103]," the Commission is bound to apply the rationale of section 105(c) to its licensing under section 104(b). Essentially, the petitioners argue that this language expresses Congress' intent to provide anticompetitive protection to facilities which, at the outset, are experimental but which could become "practical" and "commercial" in the future. The error in this reasoning is that in interpreting the language of a statute the presumption that it means what it says must be given effect, absent patent conflict or ambiguity. The petitioners, in reading section 105(c) in the light of section 104(b), are attempting to make that language, clearly applicable to section 103 on its face, circuitously applicable to section 104(b) licensing. Chairman Cole recognized the difficulty in interpreting this qualifying language of section 104(b) and noted:

* * * I think it should be stated that it is not the intention of the authors of this bill that a license for research and development to prove out a type of reactor ever would ripen into a license for commercial use of that particular reactor, that after the type has been established to the satisfaction of the Commission as being acceptable in all respects, then the Commission opens up the field to applicants for licenses for commercial use of that type.

If a person having a license to conduct a research to prove out a type later wants to commercialize that thing, he must go back to the Commission and get the license, just the same as anybody else.

It seems apparent from this language and from the letter of section 104(b) that Congress intended the Commission, in licensing under this section, to prevent conditions from arising which would tend to fix or freeze the applicant's status under section 104(b); rather, the Commission should promote conditions which will permit flexibility when the eventual finding of "practical value" under section 102 leads the applicant to seek a commercial license under section 103. At that time the contentions here raised will certainly be both pertinent and reviewable. In essence, section 104(b) merely warns the Commission that today's experiment may be tomorrow's practice and that it should do nothing to impede that hoped-for eventuality.

In the reasoning of each of the petitioners in these cases we see a basic position constantly appearing in several facets of the argument. That basic position is that every agency charged with a licensing power must, when acting under a "public interest" standard, apply antitrust concepts to everything it does which might involve anticompetitive results. Such reasoning is not without support in cases of this court. Last year, in Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968), we took the opportunity to develop our thinking on the relationship of the antitrust laws to agency regulation. There we declared our belief "that the basic goal of direct governmental regulation through administrative bodies and the goal of indirect governmental regulation in the form of antitrust law is the same — to achieve the most efficient allocation of resources possible." 399 F.2d at 959. We further pointed out that while these two goals complement one another, "the antitrust laws are merely another tool which a regulatory agency employs to a greater or lesser degree to give `understandable content to the broad statutory concept of the "public interest."'" Id. at 961. However, what we did not touch upon in that case, and what is unique about the instant situation, is the extreme narrowness of the Commission's jurisdiction in making licensing determinations. Unlike the Federal Power Commission, the Federal Communications Commission, and the many other regulatory agencies, the Atomic Energy Commission is dealing with a subject matter that is not, as yet, open to vast commercial exploitation. These atomic power plants are not like radio stations of proven technical and commercial feasibility which are coveted prizes of the elite; instead, nuclear reactors are extremely speculative investments because of the many technical and financial imponderables. Unlike the other regulatory agencies, the Atomic Energy Commission concerns itself not with economic feasibility but with practical development and application of this wondrous source of energy. While the regulatory agencies in most of the other fields concern themselves with establishing an efficient national allocation of resources in the area which they are administering, and base this goal on a "public interest" concept of free enterprise, the Atomic Energy Commission concerns itself with promoting technical innovation in a highly experimental field and implementing "public interest" concepts through protection of the health, safety, and security of the nation.

The First Circuit recently addressed itself to the scope of the Commission's jurisdiction. In New Hampshire v. AEC, 406 F.2d 170, cert. denied, 395 U.S. 962, 89 S.Ct. 2100, 23 L.Ed.2d 748 (1969), that court upheld the Commission's refusal to consider as part of its regulatory concern thermal pollution of the Connecticut River by Vermont Yankee. The court, while affirming, did so "with regret that Congress has not yet etablished procedures requiring timely and comprehensive consideration of non-radiological pollution effects." 406 F.2d at 176 (emphasis added). Moreover, as late as 1965, Congress reiterated, through its Joint Committee on Atomic Energy, that the Commission's regulatory control is "limited to considerations involving the common defense and security and the protection of the health and safety of the public." S.Rep. No. 390, 89th Cong., 1st Sess. 4 (1965). This kind of Congressional prescription of the Commission's regulatory jurisdiction cannot be overridden without risk that this court will exercise what Justice Black has described as "super-legislative power." Sniadach v. Family Finance Corp., 395 U.S. 337, 345, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). It seems clear, therefore, that the narrow construction of the Commission's jurisdiction must prevail at this time rather than the broader interpretation of power urged by the petitioners.

It might be helpful, in gauging the proper role of antitrust considerations in the Commission's activities, to ponder the future. A day may come when trains, television stations, airplanes, electric utilities, ships, and even food processing will be powered by the atom. When that day arrives, the Interstate Commerce Commission, the Federal Communications Commission, the Federal Aviation Administration, the Civil Aeronautics Board, the Federal Power Commission, the Department of Justice, the Federal Maritime Commission, and the Food and Drug Administration will be the regulators of their respective fields as they are today. It will be their duty to consider broad anticompetitive effects upon the entities which they regulate then, as it is their duty to do so now. Perhaps at that time there will be a Solar Energy Commission attempting to develop a new energy source with its eye on technology and safety rather than commercial reality.

Sections 105(b) and (c) direct the Commission to inform the Attorney General of any information the Commission might have which suggests anticompetitive practices arising out of the use of atomic energy. In the instant cases, a representative of the Attorney General from the Antitrust Division of the Justice Department was on the briefs for the respondents. Could it be that the "watchdog" and the "thief" have interests in common? In sum, the Commission was acting within the statute as properly interpreted. We therefore uphold the Commission on the issues of antitrust and jurisdiction.

C. Propriety of Denying Piedmont Cities Power Supply, Inc. the Right to Intervene

This holding in no way supports the viewpoint of the Commission that untimely filing of protests raising antitrust questions waives consideration thereof. Where the Commission is charged with the duty of weighing these considerations it cannot discharge that duty through procedural gymnastics.

In considering whether the Commission properly denied intervention of Piedmont in the proceedings below, we must first turn to the words of the Commission. "Unlike the cities," the Commission concluded, "Piedmont has no existing economic interest related to the jurisdictional issue but only seeks to acquire such an interest. This interest claim * * * is a remote and tenuous one * * * and does not warrant a grant of intervention" (J.A. I 151). Section 2239(a) of Title 42 of the United States Code requires the Commission to "admit any such person [whose interest may be affected by the proceeding] as a party to such proceeding." Therefore, the clear expression of the statute requires us to uphold the Commission if its finding that Piedmont lacked a sufficient interest is reasonable and supported by substantial evidence.

Piedmont's interest, of course, is not directed at the issue of national health, safety and security which the Commission feels is the only proper consideration in a section 104(b) licensing proceeding. However, Piedmont does have an interest when one considers that it is urging the Commission to act under section 103. In other words, if the Commission had been convinced that it should have proceeded under section 103 then Piedmont's allegations regarding economic restraint would have been pertinent to the proceeding. It follows, then, that Piedmont had a significant interest in the section 104 proceeding — namely, that the Commission was wrong in so proceeding.

The Commission did not base denial of intervention solely on this ground, however. It proceeded in its denial of intervention to say that "[w]e fail to see * * * how Piedmont was prejudiced in any practical way by its being denied intervention. * * * This identity of interest, position, and representation [with the "cities"] would indicate that the jurisdictional contentions which Piedmont sought to assert were, in fact, fully presented to the board and to us by its joint petitioners" (J.A. I 151). We are in complete agreement with the Commission on this point. Yet the petitioners argue that Piedmont had a right to intervene in the proceedings. This court has held that when a petitioner can show that it possesses a substantial interest in the outcome of the proceedings it has a right to intervene. However, an agency "should be accorded broad discretion in establishing and applying rules for * * * public participation, including * * * how many are reasonably required to give the [agency] the assistance it needs in vindicating the public interest." Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 339-340, 359 F.2d 994, 1005-1006 (1966). Piedmont Cities Power Supply, Inc. is the handmaiden of the interests of these cities. It must follow that they can adequately protect Piedmont's interest. We can discern no substantial prejudice to Piedmont.

D. Propriety of Denying the Power Planning Committee the Right to Intervene

The question of intervention in the Power Planning Committee case is somewhat more difficult. As noted above, the Commission denied intervention to all of the petitioners on the ground that they "in no way relate their interests to these matters or show how those interests will be affected by our determination on the radiological safety and national security issues in the proceeding" (J.A. II 95). It should be noted, however, that the Power Planning Committee's petition for leave to intervene failed to allege any impropriety on the part of the Commission in proceeding under section 104(b), and that the petitioners raised that issue only on appeal to the Commission. Consistent with our rationale in considering Piedmont's denial, we hold that the failure of the petitioners to timely raise this jurisdictional issue is fatal to their argument in this court. It must also be noted that even though the Commission refused intervention to the petitioners, it considered their arguments in passing upon the substantive issues of their complaint and gave adequate and reasonable treatment thereto.

Finally, the Commission has extended an opportunity to the petitioners in the Power Planning Committee to participate in the proceeding to determine whether Vermont Yankee qualifies financially under Part 50 of the Commission's regulations. At that time they will have full opportunity to air all of their contentions on antitrust principles and if they are unsuccessful before the Commission they can seek review in this court.

Basically, all of these problems hinge on a question of timing. At this time the field of atomic energy is experiencing scientific adolescence and the Commission is attempting to act as a watchful parent so that nuclear power will someday grow into a tractable adult. We recognize this role of the Commission and therefore affirm its action.

Affirmed.

APPENDIX

42 U.S.C. § 2132 (1964), § 102 of the Atomic Energy Act of 1954:

Whenever the Commission has made a finding in writing that any type of utilization or production facility has been sufficiently developed to be of practical value for industrial or commercial purposes, the Commission may thereafter issue licenses for such type of facility pursuant to section 2133 of this title.

42 U.S.C. § 2133 (1964), § 103 of the Atomic Energy Act of 1954:

(a) Subsequent to a finding by the Commission as required in section 2132 of this title, the Commission may issue licenses to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export under the terms of an agreement for cooperation arranged pursuant to section 2153 of this title, such type of utilization or production facility. Such licenses shall be issued in accordance with the provisions of subchapter XV of this chapter and subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter.

42 U.S.C. § 2134 (1964), § 104 of the Atomic Energy Act of 1954:

(b) The Commission is authorized to issue licenses to persons applying therefor for utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes. In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public and will be compatible with the regulations and terms of license which would apply in the event that a commercial license were later to be issued pursuant to section 2133 of this title for that type of facility. In issuing such licenses, priority shall be given to those activities which will, in the opinion of the Commission, lead to major advances in the application of atomic energy for industrial or commercial purposes.

42 U.S.C. § 2135 (1964), § 105 of the Atomic Energy Act of 1954:

(a) Nothing contained in this chapter shall relieve any person from the operation of sections 1-13, 14-19, 20, 21, 22-27, 41-46 and 47-58 of Title 15 and sections 52 and 53 of Title 29. In the event a licensee is found by a court of competent jurisdiction, either in an original action in that court or in a proceeding to enforce or review the findings or orders of any Government agency having jurisdiction under the sections cited above, to have violated any of the provisions of such sections in the conduct of the licensed activity, the Commission may suspend, revoke, or take such other action as it may deem necessary with respect to any license issued by the Commission under the provisions of this chapter.

(b) The Commission shall report promptly to the Attorney General any information it may have with respect to any utilization of special nuclear material or atomic energy which appears to violate or to tend toward the violation of any of the foregoing sections, or to restrict free competition in private enterprise.

(c) Whenever the Commission proposes to issue any license to any person under section 2133 of this title, it shall notify the Attorney General of the proposed license and the proposed terms and conditions thereof, except such classes or types of licenses, as the Commission, with the approval of the Attorney General, may determine would not significantly affect the licensee's activities under the antitrust laws as specified in subsection (a) of this section. Within a reasonable time, in no event to exceed 90 days after receiving such notification, the Attorney General shall advise the Commission whether, insofar as he can determine, the proposed license would tend to create or maintain a situation inconsistent with the antitrust laws, and such advice shall be published in the Federal Register. Upon the request of the Attorney General, the Commission shall furnish or cause to be furnished such information as the Attorney General determines to be appropriate or necessary to enable him to give the advice called for by this section.