423 U.S.

12
96 S.Ct. 172
46 L.Ed.2d 156

NORTHERN INDIANA PUBLIC SERVICE COMPANY,

v.
PORTER COUNTY CHAPTER OF the IZAAK WALTON LEAGUE
OF AMERICA, INC., et al. 75-4 Nov. 11, 1975. djQ PER CURIAM,
An Atomic Energy Commission Atomic Safety and Licensing Board
approved the issuance of a construction permit to Northern Indiana
Public Service Co. (NIPSCO) for a commercial nuclear powered
electrical generating plant proposed to be built on the south shore of
Lake Michigan, in Porter County, Ind., RAI-74-4, p. 557 (1974). On
appeal, an AEC Atomic Safety and Licensing Appeal Board, RAI-74-8,
p. 244 (1974), sustained the approval. On petition for review by
intervenors in the administrative proceedings,1 a divided panel ---------1.Porter County Chapter of the Izaak Walton League of America, Inc.;
Concerned Citizens Against Bailly Nuclear Site; Businessmen for the
Public Interest, Inc.; James E. Newman; Mildred Warner; and George
Hanks. NIPSCO, the State of Illinois, and the city of Gary, Ind.,
intervened before the Court of Appeals.
[13]
of the Court of Appeals for the Seventh Circuit set aside the approval on
the ground that the Licensing Board and the Appeal Board failed to follow
the Commission's own regulations governing "population center distance"
in the nuclear plant siting. 515 F.2d 513 (7 Cir. 1975). The petition for
certiorari is granted, and the judgment of the Court of Appeals is reversed.
Title 10 CFR 100.10(b) (1975) of the Commission's regulations
provides that "the Commission will take . . . into consideration in
determining the acceptability of a [proposed nuclear plant] site" the
"population center distance," defined in 10 CFR 100.3(c) (1975) as "the
distance from the reactor to the nearest boundary of a densely populated
center containing more than about 25,000 residents." At the time of
NIPSCO's application and also at the time of the Court of Appeals'
decision, 10 CFR 100.11(a)(3) (1975) further provided, in pertinent part,
that "[a]s an aid in evaluating a proposed site" for a nuclear power plant a

permit applicant should determine for a proposed unit a "population

center distance of at least one and one-third times the distance from the
reactor to the outer boundary of the low population zone. In applying this
guide, due consideration should be given to the population distribution
within the population center." Two miles was the minimum allowable
"population center distance" determined administratively pursuant to
100.11(a)(3). Accepting this determination, the Court of Appeals held that
issuance of the construction permit violated the agency's own regulations
be[14]
cause the corporate boundary of the city of Portage, Ind. projected to have
a population in excess of 25,000 by 1980lay within 1.1 miles of
NIPSCO's proposed site. In reaching this conclusion the Court of Appeals
rejected the agency's administrative interpretation of its regulations as
prescribing computation of "population center distance" for 100.11(a)(3)
purposes, where the difference is critical to the siting decision, not solely
to a political boundary but to the boundary of "that portion of the
population center at which the dense population starts," RAI-74-4, 565.
Under that interpretation of the regulations the "population center
distance" was an acceptable 4.5 miles.2 The Court of Appeals erred in
rejecting the agency's interpretation of its own regulations. That
interpretation is supported by the wording of the regulations and is
consistent with prior agency decisions.3 The wording does not equate a
"dense population center" with a city or other political entity, nor does it
define a "boundary" in terms of pre-existing lines drawn for non-siting
purposes. Rather, the regulations require consideration of "population
distribution within the population center" in applying the "population
center distance" guide. Political boundaries, in contrast, may be drawn for
many ----------2 .We do not understand the Court of Appeals' discussion of
the evidence regarding population distribution within Portage to imply an
alternative ground for the holding that the agency violated its own
regulations.3 In re Consumers Power Co., 5 A.E.C. 214, 218 (1972)
(although political boundary of nearby city was within low-population
zone, "the reduced population distance was acceptable" since "populous
areas" of the city were farther removed from the reactor site than one and
one-third times the low-population zone radius); In re Consolidated
Edison Co., 5 A.E.C. 43, 45 (1972); cf. In re Southern California Edison
Co. (San Onofre Station), RAI-74-12, pp. 957, 960 n.7 (1974).
[15]

reasons irrelevant to safe reactor siting, and thus encompass areas never
likely to harbor a significant population.4 But even if the meaning is not
free from doubt, the agency's reliance upon the actual boundaries of
population density in its interpretation sensibly conforms to the purpose
and wording of the regulations. In that circumstance, the Court of Appeals
was "obligated to regard as controlling [such] a reasonable, consistently
applied administrative interpretation. . . ." Ehlert v. United States, 402
U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971). See also Udall
v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965);
Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529,
1535, 6 L.Ed.2d 924 (1961); Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 413-414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).5 The
judgment is reversed, and the case is remanded for consideration of other
contentions against the issuance of the construction permit not decided by
the Court of Appeals. So ordered. Mr. Justice DOUGLAS concurring. The
Atomic Energy Commission, by general regulations, limited the location
of nuclear power plants so as not to be nearer than a specified number of
miles from population centers. After issuing a construction ----------4 .The
Court of Appeals' opinion also notes that the boundaries of 1970 census
enumeration districts, including an area within Portage's political limits,
lay less than a mile from the proposed reactor site. The location of these
boundaries, however, without more, has no greater significance than the
location of the corporate border.5 Our decision does not rely upon a
revision of 10 CFR 100.11(a)(3), 40 Fed.Reg. 26526 (1975), published
after the decision of the Court of Appeals by the Nuclear Regulatory
Commission which, pursuant to the Energy Reorganization Act of 1974,
201, 88 Stat. 1242, 42 U.S.C. 5841 (1970 ed., Supp. IV), now discharges
the licensing responsibility formerly exercised by the Atomic Energy
Commission.
[16]
permit which the Court of Appeals held violated those regulations, that
agency's successor, the Nuclear Regulatory Commission, amended the
regulations so as to permit the deviation. 40 Fed.Reg. 26526 (1975). By
its decision today, the Court holds that the Court of Appeals "erred in
rejecting the agency's interpretation of its own regulations." Ante, 14. I
read today's decision as in no way relying on the agency's post hoc
amendment of its regulations to save in this Court its issuance of the
construction permit. Ante, 15 n.5. I therefore concur in the Court's
decision. The Nuclear Regulatory Commission's conduct in the course of
this litigation, however, compels further comment. A certain danger lurks

in the ability of an agency to perfunctorily mold its regulations to conform

to its instant needs. In the present case, regulations performed an
important function of advising all interested parties of the factors that had
to be satisfied before a license could be issued. If those conditions can be
changed willy-nilly by the Commission after the hearing has been held
and after adjudication has been made, the Commission is cut loose from
its moorings, and no opponent of the licensing will be able to tender
competent evidence bearing on the critical issues. Not just the
Commission, but the entire federal bureaucracy is vested with a
discretionary power, against the abuse of which the public needs
protection. "[A]dministrators must strive to do as much as they reasonably
can do to develop and to make known the needed confinements of
discretionary power through standards, principles, and rules." K. Davis,
Discretionary Justice 59 (1969). Confinement of discretionary power,
however, cannot be obtained where rules can be change and applied
retroactively to affect a controversy. For some years, the agency which
was supposed to
[17]
promote nuclear energy was also charged with the responsibility of
protecting the public against its abuse. But a promoter is naturally
shortsighted when it comes to the adverse effects of his project on the
community. With the establishment of the Nuclear Regulatory
Commission, Congress undertook to rectify this weakness in the control
system by separating the promotion function from the function of
safeguarding the public.1 But the power to change the rules after the
contest has been concluded would once more put the promotion of nuclear
energy ahead of public's safety. Eminent scientists have been steadfast in
opposing the growth of nuclear power plants in this Nation. The number
who think nuclear power should be abandoned has been growing.2 The
future of nuclear power in this ----------1 .The separation of promotional
and regulatory functions was accomplished under the Energy
Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C.A. 5801 et seq.
(1970 ed., Supp. IV). The legislation transferred the research and
development functions of the AEC to the new Energy Research and
Development Administration. 5814(c). The AEC's regulatory functions
became the responsibility of the Nuclear Regulatory Commission.
5841(f). Also transferred to this new Commission were the responsibilities
of the Atomic Safety and Licensing Board and the Atomic Safety and
Licensing Appeal Board. 5841(g). The legislative history of the Act
indicates that this division of functions was "a response to growing

criticism that there is a basic conflict between the AEC's regulation of the
nuclear power industry and its development and promotion of new
technology for the industry." S.Rep. No. 93-980, p. 2, U.S.Code Cong. &
Admin.News, p. 5471 (1974). "The [Nuclear Regulatory Commission]
will have solely regulatory responsibilities, in keeping with a basic
purpose of this act to separate the regulatory functions of the Atomic
Energy Commission from its developmental and promotional functions,
which are transferred to [the Energy Research and Development
Administration]." Id., at 19. 2 J. Gofman & A. Tamplin, Poisoned Power:
The Case Against Nuclear Power Plants (1971); see Ford & Kendall,
What Price Nuclear Power?, 10 Trial, 11 (1974); Tamplin, Reacting to
Reactors, 10 Trial, 15 (1974); Hearings on AEC Licensing Procedure and
Related Legislation before the Subcommittee on Legislation of the Joint
Committee on Atomic Energy, 92d Cong., 1st Sess., pt. 1., pp. 294-302
(1971).
[18]
country is not a policy matter for courts to decide, but those who oppose
the promotion of nuclear power should have at least a chance to know
what the issues are when a case is set down for hearing and adjudication,
and to argue meaningfully about those issues. If the rules can be changed
by the Commission at any time even after the hearing is overthe
protection afforded by the opposition of scientific and environmental
groups is greatly weakened. Ad hoc rulemaking in those areas touching
the public safety is to be looked upon with disfavor. Rose v. Hodges
[96SCt175,423US19,46LEd2d162] 96 S.Ct. 175 423 U.S. 19 46 L.Ed.2d
162 Jimmy H. ROSE Warden v. Isadore HODGES, Jr., and Andrew
Lewis, Jr.
No. 75-139.
Nov. 11, 1975.
Rehearing Denied Jan. 26, 1976.
See 423 U.S. 1092, 96 S.Ct. 888.
PER CURIAM.

Respondents Hodges and Lewis were convicted of committing murder in the

perpetration of a rape in Memphis, Tenn., and sentenced to death by

electrocution. On July 31, 1972, the Tennessee Court of Criminal Appeals

affirmed the judgments of conviction but reversed and remanded the record to
the trial court on the issue of punishment, declaring that "(t)he Supreme Court
of the United States has decreed that the death sentence is contrary to the
Eighth Amendment . . .." Hodges v. State, 491 S.W.2d 624, 628 (1972).
2

On August 7, 1972, the Governor of Tennessee commuted respondents' death

sentences to 99 years' imprisonment. On August 8, 1972, the State (represented
by petitioner here) filed a timely petition for rehearing in the Court of Criminal
Appeals pursuant to Tenn.Code Ann. 16-451 (Supp.1974), which provides
that such a petition must be filed within 15 days of the entry of the judgment.

The Court of Criminal Appeals then found the commutations by the Governor
to be "valid and a proper exercise of executive authority," citing Bowen v.
State, 488 S.W.2d 373 (Tenn.1972), and held its remand "for naught," thus
affirming the convictions and the sentences, as modified, in full, 491 S.W.2d, at
629. On March 5, 1973, the Supreme Court of Tennessee denied certiorari.

Respondents Hodges and Lewis then petitioned for habeas corpus in the federal
District Court asserting, inter alia, that their Fourteenth Amendment rights were
violated by the illegal commutation of their sentences. The case was transferred
to the federal District Court for the Western District of Tennessee, which
dismissed as to this issue for failure to exhaust state remedies. Respondents
appealed to the United States Court of Appeals for the Sixth Circuit.

In a brief order, that court held that since the death sentences had been vacated
at the time of the Governor's commutation order, "there were . . . no viable
death sentences to commute" and therefore declared the commutations invalid.1

Upon reconsideration, the court noted that the judgment of the Court of
Criminal Appeals vacating the death penalties had been timely modified by that
court to comply with the commutation order. However, it did not alter its earlier
decision, except to note that respondents had exhausted their state remedies as
to this point.2

A necessary predicate for the granting of federal habeas relief to respondents is

a determination by the federal court that their custody violates the Constitution,
laws, or treaties of the United States, 28 U.S.C. 2241; Townsend v. Sain, 372
U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). The one sentence in
the opinion of the Court of Appeals dealing with the invalidity of the
Governor's commutations contains no reference to any provision of the

Constitution, laws, or treaties of the United States or to any decision of this

Court or any other court.3 Whether or not the sentences imposed upon
respondents were subject to commutation by the Governor, and the extent of his
authority under the circumstances of this case, are questions of Tennessee law
which were resolved in favor of sustaining the action of the Governor by the
Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the
province of a federal habeas court to re-examine these questions.
8

Respondents urge, in support of the result reached by the Court of Appeals for
the Sixth Circuit, that their Fourteenth and Sixth Amendments right to jury trial
have been infringed by the Tennessee proceedings. We reject these contentions.
A jury had already determined their guilt and sentenced them to death. The
Governor commuted these sentences to a term of 99 years after this Court's
decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972). Neither Furman nor any other holding of this Court requires that
following such a commutation the defendant shall be entitled to have his
sentence determined anew by a jury. If Tennessee chooses to allow the
Governor to reduce a death penalty to a term of years without resort to further
judicial proceedings, the United States Constitution affords no impediment to
that choice. Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902). Cf.
Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).

The motion of the respondents for leave to proceed in forma pauperis and the
petition for certiorari are granted, and the judgment of the Court of Appeals is

10

Reversed.

11

Mr. Justice DOUGLAS would deny certiorari.

12

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins,

dissenting.

13

I dissent on two grounds: first, because the Court errs in reading the record to
include a final holding of the Court of Appeals declaring the commutations to
be invalids and, second, because if there were such a final holding, summary
disposition of the question of the validity of the commutations certainly one of
first impression in this Court is particularly inappropriate.1

14

That the "commutations" have not been finally declared invalid clearly emerges
from the record of the proceedings in the District Court and in the Court of

Appeals. The petition for habeas corpus alleged five errors by the state courts.
Three (coerced confessions, prejudicial comments during voir dire, Hodge's
claim under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476) attacked respondents' convictions, the other two the sentences (invalid
jury sentence and unconstitutional commutations). The District Court held that
respondents had failed to exhaust state remedies on all of these issues except
the alleged invalidity of the jury sentence; accordingly, the District Court issued
a show-cause order "solely on the issue that the jury allegedly failed to specify
the degree of murder in the verdicts." Hodges v. Rose, No. C-73-442
(W.D.Tenn., Nov. 15, 1973). The State accordingly filed an answer dealing
only with this issue, and the District Court decided only that issue, rejecting
respondents' claim on the merits. This question was therefore the only claim
that was ripe for appeal; specifically, there was no decision of the District Court
on the constitutionality of the commutations that was or could have been the
subject of respondents' appeal to the Court of Appeals.2
15

Nevertheless, it is of course true that the initial opinion of the Sixth Circuit
contains the following language:

16

"(The) commutation followed by some eight days an order of the Tennessee

Court of Criminal Appeals vacating the order imposing the death penalty and
remanding the case to the trial court for punishment determination in the light
of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 ((1972)),
and for the reason that there were therefore no viable death sentences to
commute, we hold the purported commutation and the concomitant imposition
of committed (sic ) sentences for terms of 99 years invalid." Hodges v. Rose,
No. 74-1461, 511 F.2d 1403 (CA6, Feb. 25, 1975).

17

The same opinion goes on to affirm the decision on the merits of the only
question decided by the District Court, namely, the jury-sentence issue, and
then observes that the State had confessed error on the exhaustion point.
Accordingly, the judgment was "for further proceedings consistent herewith."
This necessarily must have meant that the three constitutional attacks on the
convictions should be addressed on the merits by the District Court. The sua
sponte comments on the commutations thus made no sense since that issue
would never arise if the convictions were set aside on any of the three grounds.

18

Not surprisingly, therefore, the State sought rehearing. The State dispositively
argued, first, that the Sixth Circuit was precluded from addressing the
commutation issue since the District Court had carefully confined its decision
on the merits to the validity of the jury sentence. The State argued, second, that

there had been no opportunity to argue the commutation question in the District
Court and that no record had been made on the issue, and, third, the
commutation issue had not been briefed in the Sixth Circuit. Fourth, and finally,
the State argued what surely must have been crystal clear that the commutation
question would never be reached if respondents prevailed on their challenge to
the validity of their convictions. True, as a good lawyer's would, the State's
petition for rehearing challenged in any event the soundness of the statement
that the commutations were invalid. But the relief sought on rehearing was
excision of the language quoted above and remand "to the District Court for
consideration of all issues."
19

The Court of Appeals obviously recognized its error. The opinion on rehearing,
while not deleting the whole statement, did delete the language emphasized
above and left only the factual statement of what had occurred:

20

"(The) commutation followed by some eight days an order by the Tennessee

Court of Criminal Appeals vacating the (order imposing the) death penalty and
remanding the case (to the trial court) for punishment determination in the light
of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 ((1972))."
Hodges v. Rose, No. 74-1461, 519 F.2d 1402 (CA6, June 10, 1975).

21

Significantly the opinion on rehearing also squarely held that the District Court
had erred in finding a failure to exhaust as to the commutation issue.

22

On this record, therefore, the only proper disposition is denial of the petition
for certiorari. At the least, we should vacate and remand to the Sixth Circuit for
clarification of whether the validity of the commutations was addressed and
decided.

23

In any event, summary disposition of the issue of the validity of the

commutations is strikingly inappropriate. There is no record in the lower courts
on the commutation issue, because the District Court limited the habeas
proceeding to the validity of the jury sentence. More importantly, the issue is
one of first impression in this Court, and it surely merits briefing and oral
argument. For example, I find troublesome the question whether (since there
existed no viable death sentences to commute) the Governor's action should be
treated as imposing the 99-year sentences without affording respondents
constitutionally secured safeguards required when sentences are imposed. If the
Governor had not acted, resentencing would have been by a jury at a
proceeding highlighted by the usual safeguards, none of which applied to the
Governor's action. The question is plainly not insubstantial; in Mempa v. Rhay,

389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), we held that constitutional
safeguards (there the right to counsel) applied to the sentencing stage. Was the
commutation in this case actually the sentencing stage since no death sentence
existed to commute when the Governor acted? Also, the due process
dimensions of the right to present evidence relevant to sentencing was left open
in McGautha v. California, 402 U.S. 183, 218-220, 91 S.Ct. 1454, 1473, 28
L.Ed.2d 711 (1971). If respondents were "sentenced" by the Governor, were
they denied due process when not afforded that opportunity, even assuming that
the Federal Constitution permits States to adopt executive in preference to
judicial sentencing? I agree that the Constitution allows Tennessee to empower
the Governor to reduce a death penalty to a term of years without resort to
judicial proceedings. But the Court's disposition assumes, without any in-depth
analysis, that the instant case involves such "commutations" despite the fact
that respondents' death sentences were voided and were therefore nonexistent
when the Governor acted.
24

I would deny the petition for certiorari on my view that there is no holding of
the Court of Appeals regarding the commutations to be reviewed. In any event,
rather than disposing of the case summarily, the Court should grant the petition
and set the case for oral argument.

This order would have returned respondents to the trial court for resentencing to
between 20 years and life as a jury might determine. Tenn.Code Ann. 392405 (1956).

The dissent would have us probe beneath the surface of the opinions below in
search of a logical foundation. In cases where the holding of the court below is
unclear, such a technique may be required. Here, however, that court clearly
"hold(s) the purported commutation . . . invalid." In its second opinion it
reversed the District Court on the exhaustion question and otherwise
specifically reaffirmed the earlier order. We are forced to take the Court of
Appeals at its word.

Two other panels of the same court have correctly recognized, in cases virtually
identical to this one, that no federal constitutional question was presented by
such a commutation. Smith v. Rose, 508 F.2d 844 (1974); Bowen v. Rose No.
74-1087, (1974).

Neither of the decisions cited by the Court is apposite. Dreyer v. Illinois, 187
U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902), held merely that the Due Process
Clause of the Fourteenth Amendment does not bar executive exercise of

sentencing powers. Id., at 84, 23 S.Ct. at 32. Schick v. Reed, 419 U.S. 256, 95
S.Ct. 379, 42 L.Ed.2d 430 (1974), where the President reduced petitioner's
death penalty to life imprisonment, was not a case where the death sentence had
been judicially voided when the President acted.
2

The cases cited by the Court in which panels in the Sixth Circuit have upheld
similar commutations in other cases, ante, at 21 n. 3, serve to substantiate my
reading of the record. Judge Miller was a member of the panel in Smith v.
Rose, 508 F.2d 844 (CA6, Nov. 15, 1974), and Judge Peck participated in
Bowen v.Rose, No. 74-1087 (CA6, Mar. 19, 1974). Both judges were also on
the panel in the instant case, and the alleged inconsistency among the panel
decisions was noted in the State's petition for rehearing. The Court's implicit
suggestion that these federal judges issued conflicting decisions, without
explanation, indicates the inaccuracy of the Court's view of the record.
Moreover, neither of the cited unpublished panel opinions explicitly states that
the commutation being upheld was issued after a death sentence had been
judicially voided. Parenthetically, the Sixth Circuit's Rule 11 prohibits citation
of unpublished opinions. Am I to understand that this Court is not called upon
to respect that prohibition?