Background 
Shortcomings of the Older Laws 
In recent years energy facility siting has become a 
major issue. One reason is that there now are new 
energy technologies and associated debate over how 
they should be planned and licensed. Offshore deep- 
water ports are an example. Before 1974 there was 
no clear procedure for siting these facilities outside 
the 3-mile limit. The resulting debate led to the 
Deepwater Port Act. Now there are debates about 
whether new licensing procedures are needed for 
such technologies as liquefied natural gas. 
But a larger reason for controversy is that indus- 
try, the public, and the States are critical of the older 
siting procedures. James Sundquist has written a 
summary of the role industry plays under these 
older procedures, how the public now often reacts, 
and government’s traditional methods for trying to 
resolve the conflicts.1%#16 
“The site selection process is as follows: 
The utility decides in secret what the 
energy requirements of the area it serves 
are. Then in secret it decides whether it 
will propose a nuclear plant—what kind 
of a nuclear plant and how big—or a coal- 
fired plant or something else. Then, again 
as surreptitiously as possible, it surveys its 
area and picks out a site. At this point it 
springs its decision on the people. The peo- 
ple in the area at once get organized. 
Sometimes they lie down in front of a 
bulldozer as they are doing in New Hamp- 
shire [at the site of the proposed Seabrook 
nuclear plant], but in any case they orga- 
nize. Then an adversary process begins, 
with the utility on one side and the oppo- 
nents on the other. Either an administra- 
tive body or a court—or, eventually 
both—acts as judge, but public agencies 
may also intervene on one side or the 
other. There have been cases where one 
State agency has intervened on one side 
and another State agency on the other, 
to reinforce both sides. In any case, the 
long adversary process, moving from one 
tribunal to another and employing judicial 
or quasi-judicial procedures, can drag on 
for years.” 
164 James L. Sundquist. ‘““Commentary,” in Erasmus H. Klo- 
man, coordinator, The Federal System and Energy Facility Siting. 
Washington, D.C., National Academy of Public Administration, 
1977, pp. 45-56. 
165 For another discussion of these issues see: Luther J. Carter. 
“Virginia Refinery Battle: Another Dilemma in Energy Facility 
Siting,’ Science, 199, February 10, 1973, 
pp. 668-671. 
This description summarizes some key points. One 
is that traditionally industry has had the lead role 
in deciding siting matters. It decides not only the 
location but other overall siting decisions: when a 
facility is needed, what kind of fuel and design 
should be used, and timing. Sometimes industry must 
conform to guidelines set in advance by Govern- 
ment, such as design criteria for nuclear reactors, but 
in general Government’s role has been limited to 
reviewing industry’s proposals after the companies 
have made the key decisions and have invested con- 
siderable time and money in a particular unit for a 
particular site. 
The people’s opposition stems from one or both 
of two reasons. One is opposition to the specific pro- 
posed site itself. Many may feel that a facility will 
be too destructive of the environment or too close to 
populated areas to be safe. But citizens also can 
criticize “larger” issues, such as whether a given re- 
actor design is safe. 
Public groups often feel that a given proposal is 
not the best that could be made, that important con- 
siderations and alternatives have been neglected, 
and that therefore—and this is a key point—citizens 
themselves should play a larger role in deciding these 
matters. In fact, much of the public now feels that 
energy facility siting is too important to be left solely 
to the companies. 
A major problem, though, is that traditional 
Government procedures often do not resolve these 
kinds of disputes. Government licensing proceedings 
usually are quasi-judicial and, on a case-by-case 
basis, geared to judge whether a particular proposal 
is in accordance with legislative standards regarding 
antitrust, safety, and financing. They stem from an 
era when Government’s role was to give a “go” or 
“no go” decision to industry, not to arbitrate con- 
flicts between industry and the public, or resolve 
situations where the public does not agree among it- 
self over whether a particular plant is necessary, de- 
signed properly, or located in the right place. 
In recent years, citizens, States, and communities, 
frustrated by the lack of other forums to raise such 
“larger” issues as the safety and need for nuclear 
power, have tried to raise these matters during the 
usual case-by-case licensing proceedings. When they 
are dissatisfied with how the issues are addressed, 
they go to court to get a fuller discussion or to block 
certain facilities outright. Some Government agencies 
have sided with citizens groups; other, particularly 
energy agencies, have sided with the companies. 
The regulatory agencies are caught in the middle. 
It often is difficult for them to carry out the functions 
desired by the environmentalists; they are now called 
upon to judge policy matters—such as coal versus 
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