NJ Dept Env Prot v. NRC

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

3-31-2009

NJ Dept Env Prot v. NRC

Precedential or Non-Precedential: Precedential

Docket No. 07-2271

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2271

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Petitioner

v.

UNITED STATES NUCLEAR REGULATORY

COMMISSION; AMERGEN ENERGY COMPANY, LLC

Respondent

Petition for Review of an Order

by the United States Nuclear Regulatory Commission

(NRC-1 : 50-0219-LR)

Argued on December 10, 2008

Before: McKEE, SMITH and ROTH, Circuit Judges

( Opinion filed March 31, 2009)

Anne Milgram, Esquire

Attorney General of New Jersey

Nancy Kaplen, Esquire

Assistant Attorney General of Counsel

Ellen B. Balint, Esquire

Eileen P. Kelly, Esquire (Argued)

Valerie Anne Gray, Esquire

John A. Covino, Esquire

Deputy Attorney Generals

R. J. Hughes Justice Complex

P. O. Box 093

25 Market Street

Trenton, New Jersey 08625

Counsel for Petitioner New Jersey

Department of Environmental Protection

Ronald J. Tenpas, Esquire

Assistant Attorney General

Karen D. Cyr, Esquire

General Counsel

John F. Cordes, Jr., Esquire (Argued)

Solicitor

Charles E. Mullins, Esquire

Senior Attorney

E. Leo Slaggie, Esquire

2

Deputy Solicitor

U. S. Nuclear Regulatory Commission

11555 Rockville Pike

One White Flint North

Rockville, MD 20852-2738

Tamara N. Rountree, Esquire

Environment & Natural Resources Division

P. O. Box 23795

L’Enfant Plaza Station

Washington, D. C. 20026

Counsel for Respondent Nuclear

Regulatory Commission

J. Bradley Fewell, Esquire

Associate General Counsel

Exelon Business Services Company

Brad Fagg, Esquire (Argued)

Kathryn M. Sutton, Esquire

Martin J. O’Neill, Esquire

Morgan, Lewis & Bockius, LLP

1111 Pennsylvania Avenue, N. W.

Washington, D. C. 20004

Counsel for Private Respondent AmerGen

Energy Company, L.L.C.

3

Ellen C. Ginsberg, Esquire

Michael A. Bauser, Esquire

Anne W. Cottingham, Esquire

Nuclear Energy Institute, Inc.

1776 I Street, N.W., Suite 400

Washington, D. C. 20006-3708

Counsel for Amicus Curiae Nuclear

Energy Institute, Inc. for Respondent

Nuclear Regulatory Commission

OPINION

ROTH, Circuit Judge:

The issue presented by this appeal is whether the Nuclear

Regulatory Commission (NRC), when it is reviewing an

application to relicense a nuclear power facility, must examine

the environmental impact of a hypothetical terrorist attack on

that nuclear power facility. The New Jersey Department of

Environmental Protection (NJDEP) contends that the National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et

seq, requires the analysis of the impact of such an attack.

NJDEP has petitioned for review of an NRC decision denying

its request to intervene in relicensing proceedings for the Oyster

Creek Nuclear Generating Station (Oyster Creek). The NRC

concluded that terrorist attacks are “too far removed from the

natural or expected consequences of agency action” to require

4

an environmental impact analysis and that, in any event, it had

already addressed the environmental impact of a potential

terrorist act at Oyster Creek through its Generic Environmental

Impact Statement and site-specific Supplemental Environmental

Impact Statement. We agree with the NRC and will deny the

petition.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Atomic Energy Act of 1954 (AEA), as amended, 42

U.S.C. § 2011 et seq., establishes a “comprehensive regulatory

framework for the ongoing review of nuclear power plants

located in the United States.” Sections 103 and 104(b) of the

AEA authorize the NRC to issue licenses to operate commercial

power reactors. 42 U.S.C. §§ 2133, 2134(b). Section 103 limits

licenses to forty-year terms but provides for renewal of nearly-

expired licenses. 42 U.S.C. § 2133. By regulation, the NRC

may renew a license for up to twenty years. See 10 C.F.R. §

54.31.

Two sets of regulatory requirements govern the NRC’s

review of license renewal applications. Under 10 C.F.R. Part

54, the NRC conducts a health and safety review focused on

“the detrimental effects of aging”on the plant. See Nuclear

Power Plant License Renewal: Revisions, 60 Fed. Reg. 22,461,

22,464 (May 8, 1995).

Under 10 C.F.R. Part 51, the NRC completes a NEPA-

based environmental review, focusing on the potential impacts

5

of twenty additional years of operation. NEPA is a procedural

statute that does not mandate particular substantive results.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

350–51 (1989). Rather, it is designed “to insure a fully

informed and well-considered decision” in the examination of

potential environmental impacts of a proposed agency action.

Vermont Yankee, 435 U.S. at 558. NEPA “merely prohibits

uninformed—rather than unwise—agency action.” Robertson,

490 U.S. at 351. In addition, NEPA review should be consistent

with NEPA’s “national policy [to] encourage productive and

enjoyable harmony between man and his environment.” 42

U.S.C. § 4321. NEPA’s “twin aims” are to “‘place[] upon an

agency the obligation to consider every significant aspect of the

environmental impact of a proposed action’ [and to] ensur[e]

that the agency will inform the public that it has indeed

considered environmental concerns in its decisionmaking

process.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97

(1983) (quoting Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519, 553 (1978)).

By regulation, the NRC has divided the environmental

requirements for license renewal into generic and plant-specific

issues. This division resulted from “a systematic inquiry into

the environmental impacts of refurbishment activities associated

with license renewal and the environmental impacts of

continued operation during the renewal period (up to 20 years

for each licensing action).” Notice of Intent to Prepare an

Environmental Impact Statement for the License Renewal of

Nuclear Power Plants and to Conduct Scoping Process, 68 Fed.

Reg. 332909, 33209 (June 3, 2003). The NRC analyzed “[t]he

significance of environmental impacts . . . for each of nearly 100

6

issues [and] categorized which of these analyses could be

applied to all plants and whether the additional mitigation

measures would be warranted for each environmental issue.” Id.

Ultimately, “[o]f the 92 issues analyzed, 69 were resolved

generally, 21 require a further site-specific analysis that

applicants are required to address, and 2 require a site-specific

assessment by the NRC.” Id.

The NRC’s “Generic Environmental Impact Statement

for License Renewal of Nuclear Plants,” Final Report, Vol. I

(May 1996) (GEIS), addresses issues that are common to all

nuclear plants. These have been designated “Category 1” issues.

GEIS at 1-5, 1-6. Of particular note here, the GEIS reviews the

risk of sabotage to nuclear power plants. The NRC has

determined from this review that the risk is small and is

provided for in the consideration of internal severe accidents:

The regulatory requirements under 10 CFR part

73 [i.e., “Physical Protection of Plants and

Materials”] provide reasonable assurance that the

risk from sabotage is small. Although the threat

of sabotage events cannot be accurately

quantified, the commission believes that acts of

sabotage are not reasonably expected.

Nonetheless, if such events were to occur, the

commission would expect that resultant core

damage and radiological releases would be no

worse than those expected from internally

initiated events.

7

Based on the above, the commission

concludes that the risk from sabotage is small and

additionally, that the risks f[ro]m other external

events[] are adequately addressed by a generic

consideration of internally initiated severe

accidents.

GEIS at 5-18. The NRC expressly incorporated the GEIS’s

findings related to internal severe accidents into the NRC’s

environmental review regulations. See 10 C.F.R. Part 51 Subpt.

A, App. B, Table B-1.

Environmental impacts not discussed in the GEIS are

designated “Category 2” issues and must be addressed in an

applicant’s environmental report. Id. § 51.53(c)(3)(ii).

Ultimately, NRC staff prepares a site-specific Supplemental

Environmental Impact Statement (SEIS) for each plant. Id. §

51.95(c). The SEIS includes evaluations of site-specific

Category 2 issues—including a consideration of “severe

accident mitigation alternatives” (SAMAs) for those issues that

have not previously been considered—and “new and significant

information” regarding Category 1 issues.

As a part of the relicensing review process, NRC

regulations permit anyone with an “interest” in a licensing

proceeding to obtain a hearing on admissible safety and

environmental “contentions.” See 10 C.F.R. § 2.309(a), (d).

Such a person must file a petition to intervene demonstrating

standing and that “the issue raised . . . is within the scope of the

proceeding.” Id. § 2.309(f)(1)(iii). Unless a party obtains a

8

waiver from the NRC, regulations are not “subject to attack”

during adjudications. Id. § 2.335(a).

B. Factual and Procedural Background

On July 22, 2005, the AmerGen Energy Company, LLC

(AmerGen) applied to the NRC to renew its operating license at

Oyster Creek for an additional twenty years. Oyster Creek is

located adjacent to Barnegat Bay in Lacey and Ocean

Townships, Ocean County, New Jersey. Oyster Creek’s current

license expires in April 2009. On September 15, 2005, the NRC

published a notice of opportunity for hearing in the Federal

Register. See Notice of Opportunity for Hearing Regarding

Renewal of Facility Operating License No. DRP-16 for an Additional

20-Year Period, 70 Fed. Reg. 54,585 (Sept. 15, 2005).

On November 14, 2005, NJDEP filed a petition to

intervene raising three contentions, only one of which it has

raised in the appeal before us.1 NJDEP challenges the NRC’s

failure to prepare an environmental impact statement (EIS) to

study the effects of an aircraft attack on Oyster Creek. NJDEP

contends that such an EIS should have contained, within its

1

New Jersey’s other two contentions involved (1) the

appropriate calculation of metal fatigue for the reactor coolant

pressure boundary and associated components and (2) whether

Oyster Creek had sufficient back-up power to operate during a

blackout.

9

SAMAs analysis, a design basis threat (DBT) analysis2 and an

analysis of mitigation alternatives for core melt sequences likely

to result from an aircraft attack. The claims were reviewed by

the Atomic Safety and Licensing Board (Board), which “held

that terrorism and ‘design basis threat’ reviews, while important

and ongoing, lie outside the scope of NEPA in general and of

license renewal in particular.” See In re Amergen Energy Co.,

65 N.R.C. 124, 128 (2007).

NJDEP appealed this decision to the NRC, which denied

the claim. Id. at 126. The NRC agreed with the Board that

terrorism concerns are security issues, which are not addressed

during license renewal because they do not relate to the aging of

the facility. Id. The NRC also found that NEPA “‘imposes no

legal duty on the NRC to consider intentional malevolent acts’”

because such acts are “‘too far removed from the natural or

expected consequences of agency action.’” Id. at 129 (quoting

the Board decision). Finally, the NRC found that a terrorism

review would be redundant because (1) “the NRC has

undertaken extensive efforts to enhance security at nuclear

facilities,” which it characterized as the best mechanism to

protect the public; id. at 130; (2) the GEIS had concluded that

“the core damage and radiological release from [terrorist] acts

would be no worse than the damage and release to be expected

from internally initiated events”; id. at 131; and (3) in its SEIS

for Oyster Creek, the NRC had performed a site-specific

2

A DBT analysis is “used to design safeguards systems to

protect against acts of radiological sabotage and to prevent the

theft or diversion of special nuclear material.” 10 C.F.R. § 73.1.

10

SAMAs assessment; id. at 132.3

NJDEP filed a petition for review of the NRC’s order.

We have jurisdiction pursuant to 28 U.S.C. § 2342(4).

II. DISCUSSION

NJDEP’s petition suffers from two insurmountable flaws,

each of which independently supports our denial.4

3

The SEIS repeated the GEIS’s conclusion that “resultant

core damage and radiological releases [from sabotage] would be

no worse than those expected from internally initiated events.”

SEIS at 5-3.

4

The parties disagree as to the appropriate standard of

review. The NRC, along with AmerGen, contends that we must

apply the “arbitrary and capricious standard” required by the

Administrative Procedure Act (APA). NJDEP, on the other

hand, argues that we should apply a “reasonableness standard”

because the NRC’s decision was one of law—whether the NRC

was required to perform a NEPA review. Nonetheless, NJDEP

argues that even if we apply an arbitrary and capricious

standard, the NRC’s actions cannot be upheld.

We have maintained a dichotomy in the standard of

review due an agency decision—affording deference to

questions implicating agency expertise and engaging in more

exacting review of legal questions—but we have never

11

employed a “reasonableness” standard. In Patel v. Ashcroft, 294

F.3d 465 (3d Cir. 2002) (superseded by statute on other

grounds), we stated:

We usually afford deference to decisions of

administrative agencies when we are reviewing

the agency’s interpretation of a statute the agency

is charged with administering. This deference

recognizes the agency’s expertise in addressing

issues that often arise when interpreting such

statutes. However, we recognize that legal issues

that turn on a pure question of law not implicating

the agency’s expertise do not raise the same

concerns under Chevron. Accordingly, when we

are called upon to resolve pure questions of law

by statutory interpretation, we decide the issue de

novo without deferring to an administrative

agency that may be involved.

Id. at 467.

Similarly, in the wake of CBS’s broadcast of the Super

Bowl halftime performance featuring Janet Jackson, we stated

that “questions of law not within the agency’s expertise—such

as the FCC’s determination here on [Jackson’s] employment

status—receive less deference under the APA than other agency

conclusions.” CBS Corp. v. FCC, 535 F.3d 167, 195 n.25 (3d

Cir. 2008). On the other hand, we have held that “[o]ur standard

of review of an order granting a nuclear power operating license

. . . is deferential” and generally used the arbitrary and

12

First, NJDEP has not shown that there is a “reasonably close

causal relationship” between the Oyster Creek relicensing

proceeding and the environmental effects of a hypothetical

aircraft attack. Accordingly, such an attack does not warrant

NEPA evaluation. See DOT v. Pub. Citizen, 541 U.S. 752, 767

(2004); Metro. Edison Co. v. People Against Nuclear Energy,

460 U.S. 766, 774 (1983). Second, the NRC has already

considered the environmental effects of a hypothetical terrorist

attack on a nuclear plant and found that these effects would be

no worse than those caused by a severe accident. NJDEP has

not provided any evidence to challenge this conclusion and has

not demonstrated that the NRC could undertake a more

meaningful analysis of the specific risks associated with an

aircraft attack on Oyster Creek. See Limerick, 869 F.2d at 744

& n.31.

A. Causation

capriciousness standard in this context. See Limerick Ecology

Action, Inc. v. NRC, 869 F.2d 719, 728 (3d Cir. 1989).

We need not resolve whether de novo, “reasonableness,”

or arbitrary and capriciousness review is appropriate because the

NRC’s actions survive review under any of these standards.

13

In rejecting NJDEP’s contention, the NRC held that

“there simply is no proximate cause link between an NRC

licensing action, such as [in this case] renewing an operating

license, and any altered risk of terrorist attack. Instead, the level

of risk depends upon political, social, and economic factors

external to the NRC licensing process.” See In re AmerGen

Energy Co., 65 N.R.C. at 130. NJDEP, on the other hand,

asserts that the government has a duty to protect against

foreseeable danger, even if that danger comes from intentional

criminal conduct, and that here the risk of environmental harm

caused by terrorists is foreseeable given the September 11, 2001,

attacks on the World Trade Center and Oyster Creek’s proximity

to important urban centers.5 NJDEP also finds significant the

NRC’s efforts to improve security at nuclear facilities, asserting

that these efforts demonstrate the NRC’s recognition that a

terrorist attack is foreseeable.

The Supreme Court has spoken on two occasions

regarding the circumstances in which NEPA requires an agency

to prepare an EIS. The first concerned the resumption of

activity at the Three Mile Island nuclear power plant after a

serious accident caused a shutdown of one of the reactors. See

Metro. Edison Co., 460 U.S. at 768. Though no radiation was

5

NJDEP did not raise Oyster Creek’s proximity to

important urban centers until this appeal; therefore, it should not

be considered. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d

256, 262 (3d Cir. 2006). In any event, it follows from our

discussion that Oyster Creek’s proximity to urban centers is

irrelevant to the causation analysis.

14

released in the accident, it caused widespread concern about the

safety of the plant. Id. at 769. A group of Harrisburg residents,

organized as People Against Nuclear Energy (PANE), argued

that restarting the reactor would “cause both severe

psychological health damage to persons living in the vicinity[]

and serious damage to the stability, cohesiveness, and well-

being of the neighborhood communities.” Id. The NRC

declined to take evidence on this issue, and PANE petitioned for

review, arguing that both NEPA and the AEA required such an

analysis. Id. at 770. The D.C. Circuit agreed as to NEPA,

finding, “NEPA requires agencies to consider effects on health.

An effect on psychological health is an effect on health.

Therefore, NEPA requires agencies to consider the effects on

psychological health . . ..” Id. at 771.

The Supreme Court reversed. 6 First, the Court noted that

“NEPA does not require the agency to assess every impact or

effect of its proposed action, but only the impact or effect on the

environment.” Id. at 772. The Court held that, in order to

determine when NEPA requires consideration of a particular

environmental effect, agencies and reviewing courts “must look

at the relationship between that effect and the change in the

physical environment caused by the major federal action at

issue.” Id. at 773. The Court then explained that NEPA

attaches only when there is a “reasonably close causal

relationship between a change in the physical environment and

6

Only the NEPA issue was before the Supreme Court;

neither party contested the D.C. Circuit’s holding with regard to

the AEA. Id. at 771 n.5.

15

the effect at issue.” The Court likened this relationship to “the

familiar doctrine of proximate cause from tort law.” Id. at 774.

In applying this standard to the case before it, the Court

observed that the renewed operation of the reactor would affect

the environment, particularly in the release of low levels of

radiation, increased fog, the release of warm water into the

Susquehanna River, and the potential results of a nuclear

accident.7 Id. at 775. It then observed that the NRC had

considered all of these effects. The Court, however, found

damage to psychological health caused by the perception of a

risk of a nuclear accident too attenuated: “In a causal chain

from renewed operation . . . to psychological health damage, the

element of risk and its perception by PANE’s members are

necessary middle links. We believe that the element of risk

lengthens the causal chain beyond the reach of NEPA.” Id.

7

With regard to the potential results of a nuclear accident,

the Court indicated that the environmental effects of an accident

arising from the operation of a nuclear facility are direct effects

whereas here the Court was considering the effect of fear of the

risk occurring: “We emphasize that in this case we are

considering effects caused by the risk of an accident. The

situation where an agency is asked to consider effects that will

occur if a risk is realized, for example, if an accident occurs at

[Three Mile Island], is an entirely different case.” Id. at 775 n.9.

16

The Supreme Court again discussed NEPA’s causation

requirement in Department of Transportation v. Public Citizen,

541 U.S. 752 (2004). Public Citizen concerned the operation of

Mexican tractor-trailer trucks in the United States. Prior to

1982, these trucks were certified to operate in the United States

by the Interstate Commerce Commission. In 1982, Congress

suspended this certification procedure in light of concerns about

Mexico’s discriminatory treatment of American trucks operating

in Mexico. Id. at 759. The United States agreed, however, as

part of the North American Free Trade Agreement (NAFTA) to

phase out the moratorium. Id.

In 1994, the President lifted the moratorium but called for

new regulations related to the certification of Mexican trucks

seeking to operate in the United States. Accordingly, the

Federal Motor Carrier Safety Administration (FMCSA), a

division of the Department of Transportation, published

proposed safety regulations and procedures for the certification

of Mexican trucks. The FMCSA also prepared an

environmental assessment (EA) focusing on the effects of its

proposed regulations. Id. at 760–62. The EA did not consider

the environmental impact of increased Mexican truck traffic

because the FMCSA attributed this increase not to the

regulations but to NAFTA and the President’s decision to lift the

moratorium. Id. at 761. A citizen group petitioned for review,

arguing that NEPA required such an analysis. Id. at 766.

The Supreme Court upheld the FMCSA’s decision. The

Court noted that an EIS is required only for “‘major Federal

actions,’” defined to include “‘actions with effects that may be

17

major and which are potentially subject to Federal control and

responsibility.’” Id. at 763 (quoting 40 C.F.R. § 1508.18)). The

Court then noted that “effects” were limited by regulation to (1)

“[d]irect effects, which are caused by the action and occur at the

same time and place,” and (2) “indirect effects, which are

caused by the action and are later in time or farther removed in

distance, but are still reasonably foreseeable.” Id. at 764

(internal quotation marks and citation omitted).

The Court concluded that the increase in Mexican truck

traffic was not an effect of the FMCSA’s action. First, the Court

noted that the FMCSA does not have the authority to exclude

Mexican trucks from the United States. Rather, pursuant to

congressional mandate, the FMCSA must certify every truck

that can meet the FMCSA’s regulations. Id. at 766. Next, the

Court considered the causal relationship between the agency

action and the environmental impact, as required by

Metropolitan Edison. The Court characterized the causation at

issue as “‘but for’ causation, where an agency’s action is

considered a cause of an environmental effect even when the

agency has no authority to prevent the effect.” It declared that

this form of “but for” causation is “insufficient to make an

agency responsible for a particular effect under NEPA.” Id. at

767.

The Public Citizen Court also rejected the petitioner’s

argument under the rule of reason, stating that agencies need not

prepare an EIS when it would serve “no purpose” under NEPA.

Id. It noted NEPA’s twin aims: (1) to force agencies to

18

consider environmental impact as part of its decision making,

and (2) to make information available to the public so that it can

play a role in the decision making process. Because the

FMCSA cannot prevent the entry of Mexican trucks, an EIS

addressing increased traffic would not affect its decision

making. Id. at 768. Moreover, the public information purpose

would not be served since FMCSA could not react to the input

received from the public. Id. at 768–69. Accordingly, the Court

agreed with the FMCSA that “the legally relevant cause of the

entry of the Mexican trucks is not FMCSA’s action, but instead

the actions of the President in lifting the moratorium and those

of Congress in granting the President this authority.” Id. at 769.

NJDEP argues that neither Metropolitan Edison nor

Public Citizen is apposite, asserting that those decisions

involved cause and effect relationships that are far more

attenuated than the one presented here. We disagree. The

Supreme Court has directed that we “draw a manageable line

between those causal changes that may make an actor

responsible for an effect and those that do not.” Id. at 767

(quoting Metro. Edison, 460 U.S. at 774 n.7). In the cases, this

line appears to approximate the limits of an agency’s area of

control. For example, in Metropolitan Edison, the NRC could

control the nuclear facility and its operation but not how

individuals perceived the risks of renewed operation and the

possibility of another accident; therefore, these risks were too

remote to require a NEPA analysis. Likewise, in Public Citizen,

the FMCSA controlled the certification process, but it could not

control the admission or volume of Mexican trucks; the

FMCSA’s role was limited to certification.

19

In the instant case, the NRC controls whether equipment

within a facility is suitable for continued operation or could

withstand an accident, but it has no authority over the airspace

above its facilities, which is largely controlled by Congress and

the Federal Aviation Administration (FAA). The NRC has

explicitly noted its limited ability to address airborne threats,

articulating its consistent view that “security from terrorist

attacks on nuclear facilities [i]s best approached by enhancing

aviation security, including intelligence gathering and security

at airports and on airplanes.” Riverkeeper, Inc. v. Collins, 359

F.3d 156, 161 (2d Cir. 2004); cf. Glass Packaging Institute v.

Reagan, 737 F.2d 1083, 1092 (D.C. Cir. 1984) (“NEPA is meant

to supplement federal agencies’ other nonenvironmental

objectives, not to transplant specific regulatory burdens from

those expert agencies otherwise authorized to redress specific

nonenvironmental problems and pointlessly to reimpose those

objectives on other unqualified agencies.”). This view is shared

by other federal agencies. See Richard A. Meserve, Statement

Submitted by the Nuclear Regulatory Commission to the

Subcomm. on Oversight and Investigations of the H. Comm. on

Energy and Commerce 5 (2003) (noting that when there were

reported threats to the airspace above nuclear facilities, the FAA

and the Department of Defense, rather than the NRC, responded

to protect the airspace).

NRC’s lack of control over airspace supports our holding

that a terrorist aircraft attack lengthens the causal chain beyond

the “reasonably close causal relationship” required by those

cases. Indeed, an aircraft attack on Oyster Creek requires at

20

least two intervening events: (1) the act of a third-party criminal

and (2) the failure of all government agencies specifically

charged with preventing terrorist attacks. We conclude that this

causation chain is too attenuated to require NEPA review.

Moreover, this conclusion is supported by traditional tort law

concepts of causation.8

According to the Restatement (Second) of Torts, the

criminal conduct of a third person is not a superseding cause of

harm unless the original actor “realized or should have realized

the likelihood that [an opportunity for a third person to commit

a crime] might be created, and that a third person might avail

himself of the opportunity.” Restatement (Second) of Torts §

448. The comments to the section clarify the circumstances in

which an actor should anticipate third-party criminal conduct:

(1) situations that “afford[] temptations to which a recognizable

percentage of humanity is likely to yield” and (2) situations

“created at a place where persons of peculiarly vicious type are

likely to be” who might yield to the temptation, even though the

average individual would not do so. Id § 448 cmt. b. NJDEP

has not demonstrated that either condition is present here.

8

The relevant tort law concepts are premised on the idea

that the actor, the NRC in this case, engages in underlying

negligent conduct. Since cases analyzing NEPA have not

focused on negligence, we assume for purposes of this analysis

that NEPA differs from tort law in this regard. See Pub. Citizen,

541 U.S. at 763; Metro. Edison, 460 U.S. at 772.

21

The Restatement also clarifies when “an intervening

force is a superseding cause.” See id. § 442. Section 442 lists

six factors for consideration: (1) whether the third party causes

harm “different in kind from that which would otherwise have

resulted from the actor’s negligence,” (2) whether the event

appears extraordinary in light of circumstances at the time, (3)

whether the intervening force operates “independently of any

situation created by the actor’s negligence,” (4) whether the

intervening act is “due to a third person’s act,” (5) whether the

third person’s act is wrongful and would subject him to liability,

and (6) the “degree of culpability of [the] wrongful act by [the]

third party.” Id. These factors counsel against finding the

NRC’s relicensing of Oyster Creek to be the proximate cause of

environmental harm in a terrorist attack. The first factor cuts

against the NRC because the consequences of a successful

terrorist attack would be similar to the possible consequences of

a severe accident. The remaining five factors, however, are in

the NRC’s favor. Such an attack would certainly be

“extraordinary,” as there has never been an airborne attack on a

nuclear facility, any terrorist would be operating independently

of the NRC, the intervening force would be due to a third-party

terrorist, a terrorist attack is wrongful, and the degree of

culpability of the terrorist would far exceed that of the NRC.

Our decision in Port Authority of New York & New

Jersey v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999), although

decided under state law, further supports our conclusion. Port

Authority arose in the wake of the 1993 World Trade Center

bombing. Id. at 309. The plaintiffs alleged that the defendant

22

fertilizer manufacturers were negligent in the manufacture and

sale of the fertilizer used in the attack. Id. at 310. We held “as

a matter of law that the World Trade Center bombing was not a

natural or probable consequence of any design defect in

defendants’ products. In addition, the terrorists’ actions were

superseding and intervening events breaking the chain of

causation.” Id. at 319; see also Gaines-Tabb v. ICI Explosives,

USA, Inc., 160 F.3d 613, 618 (10th Cir. 1998) (after Oklahoma

City bombing, defendant fertilizer manufacturer held not

responsible for the criminal conduct of bomber in using the

fertilizer to make the bomb). Similarly, here, a terrorist attack

on a nuclear facility would be a superseding cause of the

environmental effects felt after an attack.

The government agencies specifically charged with

preventing an airborne terrorist attack would also serve as

intervening forces. As noted above, the NRC’s sphere of

authority is limited to the facilities themselves and the

equipment within them. A terrorist attack on an NRC-licensed

facility would require, at a minimum, a failure by the FAA and

the Department of Defense to protect and defend the facility.

An additional factor counsels against finding that the

NRC’s relicensing of the Oyster Creek facility would be the

proximate cause of environmental harm in the event of an

airborne attack. In insisting that we “draw a manageable line”

when imposing NEPA responsibilities, the Metropolitan Edison

Court noted the limited time and resources of federal agencies

and warned that “[t]he scope of the agency’s inquiries must

remain manageable if NEPA’s goal of [ensuring] a fully

23

informed and well considered decision is to be accomplished.”

Id. at 774 n.7, 776 (internal quotation marks omitted). Applied

to the case before it, the Court indicated that, if agencies were

required to assess psychological health damage associated with

increased risk, agencies would “expend considerable resources”

on issues “not otherwise relevant to their congressionally

assigned functions” and “resources may be spread so thin that

agencies are unable adequately to pursue protection of the

physical environment and natural resources.” Id.

Similarly, if NEPA required the NRC to analyze the

potential consequences of an airborne attack, the NRC would

spend time and resources assessing security risks over which it

has little control and which would not likely aid its other

assigned functions to assure the safety and security of nuclear

facilities. Moreover, an analysis of the risks of a terrorist attack

on Oyster Creek, as well as NJDEP’s arguments concerning

Oyster Creek’s status as a particularly vulnerable terrorist target,

implicate security concerns that are broader than those at issue

under NEPA. For example, security decisions must be

centralized rather than made on a site-specific basis since those

in charge of each site may have differing ideas over how to

spread limited resources. This policy is reflected in NRC

regulations, which separate its health and safety review,

conducted through rulemaking under the APA, from the

environmental review required by NEPA. See 10 C.F.R. Parts

51, 54; In re AmerGen Energy Co., 65 N.R.C. at 130. Likewise,

security reviews involve analysis of sensitive information not

available to the public, while NEPA requires public participation

and transparency. See In re Private Fuel Storage, CLI-02-023,

24

56 N.R.C. 340 (Dec. 18, 2002).9

In holding that there is no “reasonably close causal

relationship” between a relicensing proceeding and the

environmental effects of an aircraft attack on the licensed

facility, we depart from the reasoning of the Ninth Circuit Court

of Appeals in San Luis Obispo Mothers for Peace v. NRC, 449

F.3d 1016 (9th Cir. 2006). The Mothers for Peace court held

that, given “the policy goals of NEPA and the rule of

reasonableness that governs its application, the possibility of

terrorist attack is not so ‘remote and highly speculative’ as to be

beyond NEPA’s requirements.” Id. at 1031. We note, initially,

that Mothers for Peace is distinguishable on the ground that it

9

We do not mean to suggest that the NRC has no

obligation to consider how to strengthen nuclear facilities to

prevent and minimize the effects of a terrorist attack; indeed, the

AEA gives broad discretion over the safety and security of

nuclear facilities. See 42 U.S.C. § 2011 et seq. Though the

sufficiency of its efforts is not before us, we note that the NRC

considered and implemented changes pursuant to the AEA to

address the threats of a terrorist attack following the attacks of

September 11, 2001. See Design Basis Threat, Final Rule, 10

C.F.R. part 73 (2007). In Metropolitan Edison, however, the

Supreme Court made it clear that an agency’s obligations under

NEPA must be more manageable given the limited resources of

federal agencies and the fact that some environmental review

might “not [be] otherwise relevant to their congressionally

assigned functions.” 460 U.S. at 776.

25

involved the proposed construction of a new facility—a change

to the physical environment arguably with a closer causal

relationship to a potential terrorist attack than the mere

relicensing of an existing facility. See id. at 1021. More

centrally, however, we disagree with the rejection of the

“reasonably close causal relationship” test set forth by the

Supreme Court and hold that this standard remains the law in

this Circuit.10 We also note that no other circuit has required a

NEPA analysis of the environmental impact of a hypothetical

10

The Mothers for Peace court attempted, unsuccessfully

in our view, to distinguish Metropolitan Edison by

characterizing that case as involving a three step causal chain:

“(1) a major federal action; (2) a change in the physical

environment, and (3) an effect.” Id. at 1029. According to the

Ninth Circuit, Metropolitan Edison “was concerned with the

relationship between events 2 and 3,” where event two was “the

change in the physical environment, or increased risk of

accident resulting from the renewed operation of a nuclear

reactor” and event three was the “decline in the psychological

health of the human population.” Id. In contrast, the Ninth

Circuit characterized the case before it as involving “the

disputed relationship . . . between events 1 and 2,” where step

one was “the federal act, or the licensing of the Storage

Installation” and event two was the “change in the physical

environment, or the terrorist attack.” Id. at 1030. It therefore

held that the “reasonably close causal relationship” test from

Metropolitan Edison did not apply and, instead, created a test

requiring agencies to consider under NEPA all events not

“remote and highly speculative.” The Ninth Circuit made no

mention of Public Citizen.

26

terrorist attack. See Mid States Coalition for Progress v.

Surface Transp. Bd., 345 F.3d 520, 544 (8th Cir. 2003) (holding

that agency did not err in declining to reopen record for

construction of new rail lines in light of terrorist attacks of

September 11, 2001); Limerick Ecology Action v. NRC, 869

F.2d 719, 743–44 (3d Cir. 1989) (upholding NRC decision not

to analyze risks of sabotage under NEPA where petitioner did

not propose a meaningful way to analyze the risk); Glass

Packaging Inst., 737 F.2d at 1091 (upholding agency decision

not to consider possibility that a “deranged criminal” might

tamper with bottles); City of New York v. Dep’t of Transp., 715

F.2d 732, 750 (1983) (deferring to agency’s conclusion that

risks of sabotage “were too far afield for consideration” in the

NEPA analysis of regulation governing highway shipment of

radioactive material).

Finally, NJDEP’s argument concerning the relevance of

the NRC’s other efforts to prevent terrorist attacks is misplaced.

As the NRC notes, even the Ninth Circuit Court of Appeals has

held that precautionary actions to guard against a particular risk

do not trigger a duty to perform a NEPA analysis. See Ground

Zero Ctr. for Non-Violent Action v. Dep’t of the Navy, 383 F.3d

1082, 1090–91 (9th Cir. 2004) (fact that the Navy took potential

Trident missile accident into account when planning base layout

did not mean, in and of itself, that Navy had to prepare NEPA

review outlining effects of that potential accident).

In sum, the NRC correctly concluded that the relicensing

of Oyster Creek does not have a “reasonably close causal

relationship” with the environmental effects that would be

27

caused in the event of a terrorist attack.

B. The NRC’S Prior Analysis of the Terrorism

Threat

Even if NEPA required an assessment of the

environmental effects of a hypothetical terrorist attack on a

nuclear facility, the NRC has already made this assessment. As

described above, the GEIS addresses the risks associated with a

terrorist attack, stating that “estimates of risk from sabotage” are

impossible to quantify but nonetheless characterizing the risks

as “small.” GEIS at 5-18. The GEIS goes on to say that, should

the unlikely event occur, the effects would be “no worse than

those expected from internally initiated events.” Id. The NRC

rules codify these generic findings, and by regulation, license

renewal applicants are excused from discussing generic issues

in their environmental reports. See 10 C.F.R. § 51.53(c)(3)(i);

id. Part 51 Subpt. A, App. B, Table B.

Generic analysis “is clearly an appropriate method of

conducting the hard look required by NEPA.” Baltimore Gas,

462 U.S. at 101 (internal quotation marks omitted). Indeed, it

is “hornbook administrative law that an agency need

not—indeed should not—entertain a challenge to a regulation”

in an individual adjudication. Tribune Co. v. FCC, 133 F.3d 61,

68 (D.C. Cir. 1998). NJDEP’s contention challenges the NRC’s

generic findings, essentially arguing that certain characteristics

of Oyster Creek make the risk of a terrorist attack more than

“small” and the environmental effects of a terrorist attack

28

somehow different from “those expected from internally

initiated events.” These arguments thus amount to collateral

attacks on the licensing renewal regulations, and the proper way

to raise them would have been in a petition for rulemaking or a

petition for a waiver based on “special circumstances.” See 10

C.F.R. §§ 2.335, 2.802.11

Moreover, the NRC prepared a SEIS that analyzed

alternatives at Oyster Creek to mitigate severe accidents. See

SEIS at 5-3 through 5-12. Accordingly, the GEIS and SEIS

together provide both generic and site-specific analyses of

potential environmental impacts at Oyster Creek arising from

terrorist attacks. New Jersey has never explained how or why

an aircraft attack on Oyster Creek would produce impacts that

are different from severe accidents and has not provided any

evidence that the NRC could engage in a meaningful analysis of

the risks of an attack. Instead, NJDEP argues, quoting our

decision in Limerick Ecology Action v. NRC, that the NRC’s

“mere assertion of unquantifiability” does not immunize it from

having to conduct a NEPA analysis. See 869 F.2d at 744 n.31.

This is a true statement of the law, but it ignores our holding in

Limerick that the burden is on the petitioner to demonstrate that

11

A recurring theme running through NJDEP’s arguments

is its concern that Oyster Creek’s design increases the risk of

any harm resulting from a terrorist attack. If NJDEP had

wished, however, to pursue a position that the Oyster Creek

plant is obsolete, NJDEP should have sought a waiver of the

usual licensing procedures, as set out above, so that this

complaint could be made.

29

the NRC could evaluate risks more meaningfully than it has

already done. See id. at 744 n.31. NJDEP has not met its

burden here.

III. CONCLUSION

Because NJDEP did not present an admissible contention

before the NRC, concerning the environmental effects of a

hypothetical aircraft attack on Oyster Creek, we will deny the

petition for review.

30