THE U.S. Court of Appeals here has finally gotten around to giving its reasons for a January ruling. That decision directed the Nuclear Regulatory Commission to consider the psychological effects on the health of those living near Three Mile Island before allowing the undamaged reactor there to resume operations. Divining, without recourse to any medical evidence, a difference between "sociologically based community anxieties" and "post-traumatic anxieties," the two-judge majority gave a bizarre interpretation to the National Environmental Protection Act (NEPA). If allowed to stand, that decision will damage both this keystone of environmental law and the future of nuclear power.

The Pennsylvania residents who brought the case did not claim this reactor has any special defects that would make it less safe than other nuclear plants, but simply that their fears of another accident would exacerbate the stress they had suffered from the events at Three Mile Island.

The central issue in the case was what Congress intended when, in writing NEPA, it said that federal agencies must consider the effects of their actions on human health. The majority of the court held that psychological health is a part of health and is therefore entitled to NEPA protection. The judges acknowledged that other courts have rejected such claims. For example, opponents of siting a prison in a residential area unsuccessfully claimed severe anxiety over becoming victims of violent crime. The judges explained away the conflict by their novel labeling of anxieties. In effect, they said that fears of nuclear power are real fears that could affect psychological health, while fears of being murdered or mugged are not.

In his dissent, Judge Malcolm Wilkey pointed out the implications. Instead of being required to assess the actual effects of a proposed action, an agency is being directed to assess how people perceive those effects. Since the January judgment, opponents of nuclear power have not been slow to seize this new opportunity. One North Carolina group claimed that its members must "study long and hard" and that "the psychological stress of an operating plant in such close proximity will detract from their studies."

The environmental policy act, properly used, is sound law that has greatly improved federal programs. It can also, it seems, be abused to make a mockery of rational decision-making. The decision deserves to be promptly appealed.

Law, however, is different from common sense. In this case, the NRC could and should have allowed opponents of this plant a formal opportunity to vent their anxieties, regardless of whether the law required it. They have every reason to have lost confidence in the NRC and the utility. Nuclear power requires public confidence. Once that is lost, either it must be rebuilt or the project must be abandoned.