I return now to a discussion of hearings on construction permit ap­plications. Under the Atomic Energy Act, a hearing is mandatory before a construction permit may be issued. This provision was inserted into the Act in a 1957 amendment because of the conclusion by the Joint Com­mittee on Atomic Energy that “full, free, and frank discussion in public of the hazards involved in any particular reactor would seem to be the most certain way of assuring that the reactors will indeed be safe and that the public will be fully apprised of this fact” (H. R. Rep. No. 435, 85th Cong., 1st Sess., 12 [1957]). The Act also provides that any person “whose interest may be affected by the proceeding” shall be admitted as a party to the proceeding. In those cases in which a petition to intervene is granted, the hearing is known as a “contested hearing”; in all other cases, most to date, the hearing is “uncontested.”

In the uncontested case, the only parties are the applicant and the aec regulatory staff. Since they are of like mind in desiring expeditious is­suance of the construction permit, there is no adversary element present; therefore, negative factors are likely to be introduced into the record and the risks articulated only if the Board is unusually aggressive and inquis­itive. Thus, the decision whether or not construction of the nuclear power plant is licensed is really made by three elite groups of experts — the Ad­visory Committee on Reactor Safeguards, the aec regulatory staff, and the Atomic Safety and Licensing Board — on the basis of the questions they choose to ask. A consequence of this is that these expert bodies are really determining how much risk the public will be required to assume. The decisional process, the criteria they use, and their reasoning proc­esses are largely obscured from public audit.

This procedure leaves much to be desired. There are in every nuclear power plant licensing case three distinct interests at stake. First, there is the economic interest of the utility in installing nuclear power capacity to meet its customers’ demand. Second, there is the interest of the public in not being subjected to injury or potential injury. Third, there is the broader public interest which is represented by the aec, a bifurcated interest in­volving protection of the health and safety of the public and assuring the appropriate development of a beneficial technology. These three sets of interests clash to a greater or lesser degree in every reactor licensing case and are, in effect, reconciled in the ultimate decision of whether there is reasonable assurance of no undue risk. The beginning of wisdom is the recognition that whether or not a nuclear power plant is adequately safe is not a decision that can be made as a matter of scientific or engineering fact; it is, rather, a relative matter. Whether a reactor is adequately safe is not a matter of black or white, but lies in a gray area of judgment. Safety is intrinsically a marginal consideration, as indicated by the ques­tions, How much more safety do we want or how much less safety can be tolerated? The answer to these questions lies not only in technical facts, but also involves moral and ethical values. As Clark Havighurst put it in his foreword to the symposium on “Safety” last year, in Law and Con­temporary Problems (1968, 33, 427): “When human life is put in one scale, the cost-benefit balance becomes a metaphysical one and the valu­ation process one of vast ethical implications” (Law and Contemporary Problems, 1968,33,427).

Where, we must ask, in the aec licensing process, do we find any de­cisional body —the acrs, the regulatory staff, the Atomic Safety and Li­censing Board, the aec itself — which has the competence and the experi­ence to deal with these marginal questions in the light of such ethical con­siderations? I do not suggest that the licensing decisions should be made by a board of philosophers and theologians (although perhaps one or two of these should be involved), but at the very least some mechanism should exist for forcing explicit consideration of life values upon those who do make the decisions. This is, indeed, what the adversary process, which un­derlies our legal system, is all about. It simply cannot be assumed that even the most competent, dedicated, and wise decision-makers will on their own initiative search out, expose, and consider all of the risks which should be considered, and translate them into life values as part of the decisional process.

If we are to have an adversary process in nuclear power licensing cases, this can be found only in the contested case in which some outsider intervenes to assert private interests which are part of the broader public interest in health and safety. Unfortunately, however, interventions have been relatively infrequent, although there are starting to be more of them. Most interventions to date have been relatively ineffective.

The paucity of interventions is attributable to two principal factors. First, the public relations efforts of the atomic energy establishment have been remarkably effective in allaying public concerns and in smothering the concerns that are articulated. As a consequence, relatively few mem­bers of the public are concerned. Second, even where serious concern ex­ists, the enormous expense of meaningful intervention means that only rich individuals or organizations are in a position to intervene effectively. The general pattern which has been emerging during the past year or so is for citizen groups to organize, under the stimulus of concerned scien­tists, environmentalists, and conservationists, to intervene in aec licensing cases. Such groups have enthusiasm and some volunteer scientific and en­gineering talent, but they are woefully lacking in money.

Moreover, the aec’s procedures in themselves exacerbate the diffi­culties of intervention. Once the acrs and the aec regulatory staff have given their blessings to the proposed nuclear power plant, the case moves very rapidly. For example, in the Indian Point No. 3 case, Consolidated Edison filed its application on April 26, 1967. The reports of the acrs and the aec regulatory staff were completed on January 15 and February 20, 1969, respectively. On February 5, 1969, the aec published notice that a hearing on issuance of the construction permit would be held on March 25,1969. The notice specified that petitions for intervention could be filed on or before March 7, 1969. Under the aec’s rules, petitions for intervention will not be considered until after notice of hearing has been given. This means that if an intervenor petitions for intervention on or near the final date for filing such a petition, he is expected to be prepared for participation in a hearing to commence within three weeks after he is admitted as a party. This imposes an immense burden on the intervenor, since he, his counsel, and his experts have only this limited time even to familiarize themselves with the voluminous record in the case to that point, to prepare direct testimony, and to prepare to cross-examine wit­nesses. On the other hand, the aec staff and the applicant’s staff and their battery of lawyers have had many months of total immersion in the case. Requests for postponement of the hearing are strenuously resisted by the aec staff and the applicant, since delay will interfere with the applicant’s having the new power capacity on line when scheduled and needed. If a postponement is granted, it will be for only a short period of time, much too short for adequate preparation.

The hearing itself is a strange, hybrid affair, part town meeting and part legal proceeding, with the parts interspersed. Much of what transpires is unrelated to the intervenor’s specific interests in the proceeding, but his counsel must nevertheless be present. The testimony consumes hundreds of pages in the typewritten transcript, which can be purchased on a daily basis for a minimum of $1.38 per page. Availability of a daily transcript is a necessity in litigation, but in the usual aec case it must be regarded as a dispensable luxury since the intervenor cannot afford the expense.

The entire proceeding is reminiscent of David versus Goliath. The intervenor’s counsel sitting alone, usually without adequate technical as­sistance, faces two or three aec attorneys, two or three attorneys for the applicant, and large teams of experts who support the aec and applicant’s attorneys. And, in the reality of the situation, the intervenor is pitted against both the aec staff and the applicant.

I hope that what I have said conveys an adequate impression of the intervenor’s plight. His problems are twofold: time and money. The finan­cial problem is most acute. Most of the citizens’ groups which desire to in­tervene have at the most only ten to twenty thousand dollars to devote to the cause as compared with the rock bottom figure of one hundred thou­sand necessary to support an intervention which at least would fully serve the purposes I discussed above.