Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm'n

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2018 Decided July 20, 2018

No. 17-1059

OGLALA SIOUX TRIBE,

PETITIONER

v.

U.S. NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA,

RESPONDENTS

POWERTECH (USA), INC.,

INTERVENOR

On Petition for Review of an Order of the

United States Nuclear Regulatory Commission

Jeffrey C. Parsons argued the cause for petitioner. With

him on the briefs was Travis Stills. Roger Flynn entered an

appearance.

James E. Adler, Senior Attorney, U.S. Nuclear Regulatory

Commission, argued the cause for respondents. With him on the

brief were Jeffrey H. Wood, Acting Assistant Attorney General,

U.S. Department of Justice, Eric Grant, Deputy Assistant

Attorney General, Lane N. McFadden, Attorney, and Andrew P.

Averbach, Solicitor, U.S. Nuclear Regulatory Commission.

2

Christopher S. Pugsley argued the cause for intervenor-

respondent. With him on the brief was Anthony J. Thompson.

Before: GARLAND, Chief Judge, and HENDERSON and

GRIFFITH, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Powertech (USA), Inc. applied to

the Nuclear Regulatory Commission for a license to construct a

uranium mining project in the Black Hills of South Dakota. The

Oglala Sioux Tribe, which has historical ties to the proposed

project area, intervened in opposition because it feared the

destruction of its cultural, historical, and religious sites. The

staff of the Commission granted the license.

On administrative appeal, the Commission decided to leave

the license in effect -- notwithstanding its own determination

that there was a significant deficiency in its compliance with the

National Environmental Policy Act -- pending further agency

proceedings to remedy the deficiency. The Commission

grounded this decision on the Tribe’s inability to show that

noncompliance with the Act would cause irreparable harm. In

so doing, the Commission was following what appears to be the

agency’s settled practice to require such a showing.

The National Environmental Policy Act, however, obligates

every federal agency to prepare an adequate environmental

impact statement before taking any major action, which includes

issuing a uranium mining license. The statute does not permit

an agency to act first and comply later. Nor does it permit an

agency to condition performance of its obligation on a showing

of irreparable harm. There is no such exception in the statute.

3

In fact, such a policy puts the Tribe in a classic Catch-22.

In order to require the agency to complete an adequate survey of

the project site before granting a license, the Tribe must show

that construction at the site would cause irreparable harm to

cultural or historical resources. But without an adequate survey

of the cultural and historical resources at the site, such a

showing may well be impossible. Of course, if the project does

go forward and such resources are damaged, the Tribe will then

be able to show irreparable harm. By then, however, it will be

too late.

The Commission’s decision to let the mining project

proceed violates the National Environmental Policy Act.

Indeed, it vitiates the requirements of the Act. We therefore find

the decision contrary to law and grant the petition for review in

part. The Tribe also challenges other aspects of the

Commission’s order but, as we explain, we lack jurisdiction to

consider those rulings.

I

The Atomic Energy Act, 42 U.S.C. § 2011 et seq.,

authorizes the Nuclear Regulatory Commission (NRC) to issue

licenses to qualified applicants to transfer, deliver, or receive

source material from in-situ leach uranium mining (also known

as ISL or ISR mining), a process used to recover underground

uranium for subsequent use in nuclear power plants. 42 U.S.C.

§ 2092; see Va. Uranium, Inc. v. Warren, 848 F.3d 590, 596 (4th

Cir. 2017). No one can conduct such activities without an NRC

license. 42 U.S.C. § 2092. The Act also creates hearing rights.

Anyone “whose interest may be affected by [a] proceeding” to

grant a license has the right to intervene and present

“contentions” challenging the license. Id. § 2239(a)(1)(A); 10

C.F.R. § 2.309(a), (f).

4

The licensing process involves three relevant components

of the NRC.

The first is the Commission Staff, which is responsible for

reviewing a license application, analyzing the environmental

effects and other features of the proposed project, and issuing an

initial decision approving or denying the application. 10 C.F.R.

§§ 2.103, 51.80, 51.102.

The second is an Atomic Safety and Licensing Board

(ASLB), a panel that can be designated to preside over a

licensing hearing, at which the Board hears contentions from

intervenors and then issues an initial decision on those

contentions. Id. §§ 2.313(a), 2.321, 2.1210. Through the Board

hearing process, intervenors can challenge the agency’s

compliance with the National Environmental Policy Act

(NEPA), which requires federal agencies to prepare a detailed

Environmental Impact Statement (EIS) for any “proposed”

major federal action that “significantly affect[s] the quality of

the human environment,” 42 U.S.C. § 4332(2)(C), including

granting the kind of license at issue here, see 10 C.F.R.

§ 51.20(b)(8).

Third is the Commission itself. Once the Board issues an

initial decision on the contentions before it, parties can seek

review from the Commission. Id. § 2.341(b). The Commission

“may adopt, modify, or set aside” the Board’s decision. Id.

§ 2.344(b).

In 2009, Powertech applied for an NRC license authorizing

it to “construct and operate” a uranium mining project, called

the “Dewey-Burdock project,” in the southwest corner of South

Dakota. NRC, Record of Decision for the Dewey-Burdock

Uranium In-Situ Recovery Project at 1 (2014) (“Record of

5

Decision”) (J.A. 738). The NRC described the project as

follows:

The proposed facility will encompass

approximately . . . 10,580 acres[,] which consists of

two contiguous mining units . . . . Powertech intends

to recover uranium and produce yellowcake at the

Dewey-Burdock site. Powertech’s proposed activities

include construction, operation, aquifer restoration, and

decommissioning of its ISR facility. In addition,

Powertech has proposed that liquid wastewater

generated during uranium recovery be disposed of

through one of the following methods: (i) deep well

disposal via Class V injection wells, (ii) land

application, or (iii) a combination of deep well disposal

and land application.

Id. at 1-2 (J.A. 738-39).1 The NRC’s chief administrative judge

established an Atomic Safety and Licensing Board to preside

over Powertech’s licensing proceeding.

1

The NRC further explained the ISR process as follows:

[A]n oxidant-charged solution, called a lixiviant, will be

injected into the production zone aquifer (uranium orebody)

through injection wells. . . . As the lixiviant circulates

through the production zone, it will oxidize and dissolve the

mineralized uranium . . . . The resulting uranium-rich

solution will be drawn to recovery wells by pumping and

then transferred to a processing facility via a network of

underground pipelines. At the processing facility, the

uranium will be removed from solution via ion exchange.

Record of Decision at 2 (J.A. 739).

6

The petitioner here, the Oglala Sioux Tribe, intervened to

challenge Powertech’s application. The Tribe’s Pine Ridge

Reservation is located roughly fifty miles from the project site,

Powertech USA, Inc., 81 N.R.C. 618, 656 (2015) (“ASLB Initial

Decision”) (J.A. 455), and the project lands are within the

Tribe’s traditional territory, see Trina Lone Hill Decl. ¶ 5. A

sizable number of cultural, historical, and archaeological sites

have already been identified in the project area, including burial

sites. EIS for Dewey-Burdock Project, NUREG-1910 at 4-159

to -182 (Jan. 2014) (“EIS”) (J.A. 655-78). The Tribe also owns

lands near the proposed project, which it has “leased for

domestic, agricultural, water development, conservation, and

other purposes.” Oglala Br. 4. The Tribe’s primary concerns

regarding the project are protecting the Tribe’s cultural and

historical resources, as well as protecting groundwater from

mining contamination. Id.

While the Board set the stage for the Powertech hearing, the

Commission Staff drew up environmental documents for the

Dewey-Burdock project, including an EIS, which it published in

2014. See EIS, NUREG-1910 (J.A. 567-737).2 After publishing

the EIS, the Staff granted Powertech’s application and issued the

requested license. Record of Decision at 1 (J.A. 738).

The Tribe promptly moved to stay the license. Without

assessing the merits of the Tribe’s contentions, the Board denied

2

Technically, this was the Final Supplemental Environmental Impact

Statement (FSEIS) for the project. The Staff first published a draft

supplemental EIS, which built on the Commission’s generic EIS for

in-situ leach uranium mining facilities. In 2014, it issued the FSEIS,

which is the document most relevant to this case. The NRC brief

occasionally refers to the document as the “EIS.” See, e.g., NRC Br.

49-52. For purposes of clarity, we will do so consistently throughout

this opinion.

7

the stay. It did so on the ground, inter alia, that the Tribe’s

allegations “lack[ed] the specificity needed to demonstrate a

serious, immediate, and irreparable harm to cultural and historic

resources.” Order, Powertech USA, Inc., No. 40-9075-MLA at

6 (May 20, 2014) (“ASLB Stay Denial Order”) (J.A. 516).

After denying the stay, the Board held a hearing on the

merits of the contentions pending before it. The Board ruled

against the Tribe, and in favor of the Staff and Powertech, on the

bulk of those contentions.3 However, on two of the Tribe’s

contentions, Contentions 1A and 1B, the Board ruled in favor of

the Tribe. ASLB Initial Decision, 81 N.R.C. at 708-10 (J.A.

507-09).

In Contention 1A, which is most significant for our

purposes, the Tribe charged that the EIS did not satisfy NEPA

because it failed to adequately address the environmental effects

of the Dewey-Burdock project on Native American cultural,

religious, and historical resources. The Board agreed with this

charge, finding that:

[T]he [EIS] in this proceeding does not contain an

analysis of the impacts of the project on the cultural,

historical, and religious sites of the Oglala Sioux Tribe

3

As relevant to the Tribe’s petition in this court, the Board ruled

against the Tribe on: Contention 2, regarding the sufficiency of

baseline groundwater quality information; Contention 3, concerning

the EIS’s analysis of features that could permit groundwater

migration; and Contention 6, relating to the EIS’s analysis of proposed

mitigation measures. ASLB Initial Decision, 81 N.R.C. at 708-09

(J.A. 507-08). The ASLB had previously found against the Tribe on

Contention 7, with respect to the adequacy of a plan for disposing of

byproduct material; and Contention 8, regarding the scoping process.

See Powertech (USA), Inc., 84 N.R.C. 219, 226 (2016) (J.A. 243).

8

and the majority of the other consulting Native

American tribes. . . . Because the cultural, historical,

and religious sites of the Oglala Sioux Tribe have not

been adequately catalogued, the [EIS] does not include

mitigation measures sufficient to protect this Native

American tribe’s cultural, historical, and religious sites

that may be affected by the Powertech project.

Accordingly, as to Contention 1A, the Board finds and

concludes that the [EIS] has not adequately addressed

the environmental effects of the Dewey-Burdock

project on Native American cultural, religious, and

historic resources. . . . NEPA’s hard look requirement

has not been satisfied.

Id. at 655 (citations omitted) (J.A. 454).

In Contention 1B, the Tribe charged that the NRC Staff had

failed to fulfill its responsibilities regarding consultation with

Native American tribes under the National Historic Preservation

Act (NHPA), 54 U.S.C. § 306108. For a variety of reasons, the

Board agreed that the consultation process between the NRC

Staff and the Tribe was inadequate to satisfy the statute. ASLB

Initial Decision, 81 N.R.C. at 655-57 (J.A. 454-56).

Despite what the Board concluded was a “significant

deficiency in the NRC Staff’s NEPA review,” it did not suspend

Powertech’s previously issued license. Id. at 658 (J.A. 457).

Instead, it retained jurisdiction and directed the Staff to cure “the

deficiencies in Contentions 1A and 1B.” Id. In the interim, it

said, the Tribe “may . . . petition this Board for a stay of the

license’s effectiveness, as may be necessary to halt ground

disturbing activities,” but only “if the . . . Tribe can identify

specific cultural, historic, or religious sites that are subject to

immediate and irreparable harm by the Powertech project.” Id.

9

The action then moved to the Commission. The Tribe, the

Staff, and Powertech all petitioned the Commission for review

of the Board’s decision. The Staff and Powertech challenged

the Board’s partial resolution of Contentions 1A and 1B in favor

of the Tribe. With respect to those same contentions, the Tribe

argued that NEPA and the National Historic Preservation Act

“prohibit[ed] the Board from leaving [Powertech’s] license in

place,” given the project’s inadequate environmental review.

Powertech (USA), Inc., 84 N.R.C. 219, 245 (2016) (“NRC

Order”) (J.A. 268). The Tribe also challenged the Board’s

rejection of its other contentions. Id. at 224-26 (J.A. 240-43).

The Commission generally upheld the Board’s rulings. Id.

It left in place the findings that the Staff had failed to comply

with NEPA and the National Historic Preservation Act. See id.

at 248 (J.A. 272). Nonetheless, it affirmed the Board’s decision

to leave the license in effect because the Tribe “has not

articulated any harm or prejudice” from the Staff’s failure. Id.

at 245 (J.A. 268). The Commission then directed that the

proceeding “remain open for the narrow purpose of resolving

the deficiencies identified by the Board.” Id. at 262 (J.A. 292).

And it denied the Tribe’s other challenges. Id. at 229, 237, 253,

256, 262 (J.A. 246, 258, 279-80, 283, 291-92).

Commissioner Baran dissented on the point that is now at

issue before us: the Commission’s decision to leave

Powertech’s license in effect while the Staff attempted to

resolve the deficiencies in its NEPA review. His dissent stated

as follows:

[A] core requirement of NEPA is that an agency

decisionmaker must consider an adequate

environmental review before making a decision on a

licensing action. If the Commission allows a Board to

supplement and cure an inadequate NEPA document

10

after the agency has already made a licensing decision,

then this fundamental purpose of NEPA is frustrated.

In this case, the Board found that the Staff’s [EIS] did

not meet the requirements of NEPA because the [EIS]

was deficient with respect to the effects of the licensing

action on Native American cultural, religious, and

historic resources. Thus, the agency did not have an

adequate environmental analysis at the time it decided

whether to issue the license. In fact, the deficiencies in

the NEPA analysis remain unaddressed today, and

therefore the Staff still cannot make an adequately

informed decision on whether to issue the license. The

Staff’s licensing decision was based on (and continues

to rest on) an inadequate environmental review. As a

result, the Staff has not complied with NEPA.

The Commission should suspend the license until the

Staff has . . . demonstrat[ed] that the [EIS] complies

with NEPA . . . .

Id. at 269 (Commissioner Baran, dissenting in part) (citations

omitted) (J.A. 301-02).

Thereafter, the Tribe filed a petition in this court for review

of the Commission’s order. Its principal challenge is to the

NRC’s decision to leave the license in effect pending the Staff’s

effort to cure the NEPA deficiencies. The Tribe also challenges

the disposition of its other contentions, which are set out in

footnote 3, supra.

11

II

We begin with our jurisdiction.

A

Under the Hobbs Act, this court has jurisdiction to review

“final orders” of the Commission. 28 U.S.C. § 2342(4).

Generally, a final order is “one that disposes of all issues as to

all parties.” Blue Ridge Envtl. Def. League v. NRC, 668 F.3d

747, 753 (D.C. Cir. 2012) (internal quotation marks omitted);

see CSX Transp., Inc. v. Surface Transp. Bd., 774 F.3d 25, 28

(D.C. Cir. 2014). Typically, an order “remanding a matter to an

[administrative law judge, or here, to the ASLB] will not, on its

own, satisfy the principle of finality.” Meredith v. Fed. Mine

Safety & Health Review Comm’n, 177 F.3d 1042, 1050 (D.C.

Cir. 1999).

Applying this standard, we conclude that the Commission’s

order, as a whole, is not final. It did not consummate the

agency’s decisionmaking process as to all issues, but instead left

the proceeding “open” while the Staff attempted to resolve the

deficiencies in NEPA compliance (Contention 1A) and in the

National Historic Preservation Act consultation process

(Contention 1B). NRC Order, 84 N.R.C. at 262 (J.A. 292).

In keeping with this instruction, the Atomic Safety and

Licensing Board has continued to oversee the Staff’s efforts to

cure the statutory deficiencies. In October 2017, the Board

granted the Staff’s motion for summary disposition regarding

Contention 1B, concluding that the Staff’s consultation efforts

over the intervening two years had satisfied the National

Historic Preservation Act. Powertech USA, Inc., 86 N.R.C. 167,

173 (2017) (“ASLB Summary Disposition Order”). But the

Board denied the Staff’s motion to dismiss the Tribe’s NEPA

12

contention (Contention 1A), and the adjudication of that

contention remains pending. Id. at 173-74. The Board order set

a schedule contemplating resolution of the outstanding NEPA

contention on or before October 12, 2018, id. at 210, but the

Board has since suspended that schedule without imposing a

new end date, see Order Suspending Scheduled Dates,

Powertech USA, Inc., No. 40-9075-MLA at 2-3 (Apr. 12, 2018).

Because the Commission’s order did not end the agency

proceeding as to all issues, we do not have jurisdiction to review

the bulk of the rulings challenged by the Tribe.

B

We do have jurisdiction, however, to review one of the

rulings contained in the NRC order: the decision to leave the

license in effect -- notwithstanding the NRC’s determination that

the agency is not in compliance with NEPA -- pending further

proceedings before the Atomic Safety and Licensing Board.4

That ruling falls within the collateral order doctrine.5

4

Although the collateral order doctrine might also have given us

jurisdiction over the NRC’s parallel ruling regarding compliance with

the National Historic Preservation Act, the ASLB’s subsequent

determination that the Staff’s consultation efforts satisfied that Act,

ASLB Summary Disposition Order, 86 N.R.C. at 173, means that the

agency is no longer going forward despite an acknowledged NHPA

violation. Thus, the analysis set forth below, which brings the NEPA

contention within the doctrine, applies only to that contention.

5

Because we find that the ruling is reviewable as a collateral order, we

do not decide whether review of the ruling would also fall within the

scope of this circuit’s “immediate effectiveness” doctrine. See Blue

Ridge Envtl. Def. League, 668 F.3d at 757; Massachusetts v. NRC, 924

F.2d 311, 322 (D.C. Cir. 1991).

13

Pursuant to 28 U.S.C. § 1291, courts of appeals “have

jurisdiction of appeals from all final decisions of the district

courts of the United States.” The Supreme Court, however, “has

long given § 1291 a practical rather than a technical

construction[,] . . . encompass[ing] not only judgments that

terminate an action, but also a small class of collateral rulings

that, although they do not end the litigation, are appropriately

deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 106 (2009) (internal quotation marks omitted). Because the

finality requirement of the Hobbs Act “is the counterpart to that

of 28 U.S.C. § 1291,” we have permitted appeals from the same

small category of interlocutory rulings made by administrative

agencies. Cmty. Broad. of Boston, Inc. v. FCC, 546 F.2d 1022,

1024 (D.C. Cir. 1976) (construing the Hobbs Act); see

CalPortland Co. v. Fed. Mine Safety & Health Review Comm’n,

839 F.3d 1153, 1159-60 (D.C. Cir. 2016) (construing the Mine

Act); Meredith, 177 F.3d at 1050-51 (same). In applying the

collateral order doctrine, we remain mindful of the Supreme

Court’s admonition that “it must never be allowed to swallow

the general rule that a party is entitled to a single appeal, to be

deferred until final judgment has been entered.” Mohawk

Indus., 558 U.S. at 106 (internal quotation marks omitted).

To effectuate that admonition, the Court has limited

appealable collateral rulings to a “small category [that] includes

only decisions [1] that are conclusive, [2] that resolve important

questions separate from the merits, and [3] that are effectively

unreviewable on appeal from the final judgment in the

underlying action.” Id. (quoting Swint v. Chambers Cty.

Comm’n, 514 U.S. 35, 42 (1995)). Applying these conditions,

we conclude that the ruling before us, which expressly permits

a license to go forward despite the agency’s acknowledgment

14

that it has not complied with NEPA, is a reviewable collateral

order.

First, that ruling is “a fully consummated decision . . . that

conclusively and finally determine[s]” the effectiveness of

Powertech’s license for the foreseeable future. See CalPortland

Co., 839 F.3d at 1160 (internal quotation marks omitted). More

important, it conclusively determines the Commission’s

interpretation of what NEPA requires in this circumstance. The

Commission has decided that a license can remain effective and

that construction can go forward -- despite the agency’s failure

to satisfy the requirements of NEPA -- unless the Tribe can

show irreparable harm from leaving the license in place while

the NEPA violation is cured. There is “no basis to suppose that

the [Commission] contemplate[s] any reconsideration of [the]

decision,” id. (internal quotation marks omitted), to permit such

a license to remain effective unless irreparable harm can be

shown. See NRC Br. 33 (stating that the Tribe can seek a stay

only if a “new development [arises] that could potentially

support an irreparable harm demonstration”). To the contrary,

the “irreparable harm” standard appears to be the agency’s

settled practice. See infra Part III.A.

Second, the order resolves an “important question[] separate

from the merits,” Mohawk Indus., 558 U.S. at 106 (quoting

Swint, 514 U.S. at 42). Powertech now has the right to an

effective license, despite an ongoing NEPA violation that the

agency acknowledges. The Commission’s irreparable harm

standard for vacating the license pending the conclusion of its

administrative adjudication has no bearing on its ultimate

resolution of the merits of the Tribe’s multiple contentions,

including whether NEPA actually has been (or subsequently will

be) satisfied. And the Commission’s resolution of the merits of

those questions will not address the validity of that standard.

15

Third, the ruling that permits projects to go forward despite

“significant” NEPA violations will be effectively unreviewable

if the Tribe is forced to wait for the conclusion of the agency’s

adjudication before appealing. If we do not hear that issue now,

the ASLB proceedings will continue. At the end of that process,

the agency either will conclude that the Staff has been unable to

satisfy NEPA and will therefore (presumably) vacate the license,

see NRC Br. 8, 30, or it will determine that the Staff has finally

satisfied NEPA and reaffirm the license. If it reaches the former

conclusion, there will be nothing left for the Tribe to petition to

review. If it reaches the latter, our precedent will require denial

of the petition on the ground that -- at that point -- a remand

would be futile. See Friends of the River v. FERC, 720 F.2d 93,

106-08 (D.C. Cir. 1983) (denying as futile a petition for review

when the agency issued a license despite noncompliance with

NEPA, but subsequently complied before the petition for review

was filed); see also Nat. Res. Def. Council v. NRC, 879 F.3d

1202, 1211-12 (D.C. Cir. 2018) (same, citing Friends of the

River, 720 F.2d 93).

In evaluating this third condition, the Supreme Court has

said that “the decisive consideration is whether delaying review

until the entry of final judgment would imperil a substantial

public interest or some particular value of a high order.”

Mohawk Indus., 558 U.S. at 107 (internal quotation marks

omitted). We know that the environmental values protected by

NEPA are of a high order -- because Congress has told us so.6

We likewise know (as discussed in Part III.A below) that

Congress has directed that, to protect those values, “all agencies

6

See 42 U.S.C. § 4331 (recognizing “the critical importance of

restoring and maintaining environmental quality to the overall welfare

and development of man,” and declaring the federal government’s

responsibility to “preserve important historic, cultural, and natural

aspects of our national heritage”).

16

of the Federal Government” must prepare an environmental

impact statement that satisfies NEPA before taking an action

like granting Powertech’s license. 42 U.S.C. § 4332(2)(C); see

10 C.F.R. § 51.20(b)(8). Delaying review of an action that

concededly was not preceded by a valid EIS would imperil the

public interest in requiring that a valid EIS be prepared before

the agency grants the license. Moreover, if review is delayed

until final judgment, and vulnerable but as-yet-unidentified

historical, cultural, or religious sites are damaged in the interim,

the court will be unable to remedy that injury to the public

interest -- an interest that NEPA’s procedural mandate was

intended to vindicate. See Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349-51 (1989).

Finally, in making the collateral order determination, the

Court has instructed that we “not engage in an individualized

jurisdictional inquiry,” but rather focus on “the entire category

to which a claim belongs.” Mohawk Indus., 558 U.S. at 107

(internal quotation marks omitted). “[T]he chance that the

litigation at hand might be speeded, or a particular injustic[e]

averted, does not provide a basis for . . . jurisdiction.” Id.

(internal quotation marks omitted). Our conclusion in this case

is in accord with that direction as well. Here, we focus not only

on the Tribe’s challenge to the effectiveness of Powertech’s

license, but rather on the entire category of claims that challenge

(and will challenge) NRC’s legal position that it may leave a

license in full effect despite the agency’s failure to comply with

NEPA.

We therefore have jurisdiction to consider whether the NRC

may authorize a licensee to go ahead with construction --

notwithstanding the Commission’s conclusion that there has

17

been a significant deficiency in its NEPA compliance -- unless

an intervenor demonstrates irreparable harm.7

III

Our review of this matter is governed by the Administrative

Procedure Act (APA), 5 U.S.C. § 706(2). See Blue Ridge Envtl.

Def. League v. NRC, 716 F.3d 183, 195 (D.C. Cir. 2013). Under

the APA, we must hold an agency’s action unlawful if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

A

NEPA requires that “all agencies of the Federal

Government shall . . . include in every recommendation or

report on proposals for . . . major Federal actions significantly

affecting the quality of the human environment, a detailed

statement by the responsible official” on:

(i) the environmental impact of the proposed action,

7

We are unpersuaded by NRC counsel’s suggestion that the Tribe

should have raised this challenge when the Staff first made

Powertech’s license effective in 2014. NRC Br. 33. The Tribe did

apply for a stay at that time, and it did not appeal after the ASLB

denied its application. But the question posed at that moment was not

the same as the one raised here. When the Tribe first sought a stay,

neither the Commission nor the Board had yet acknowledged the

NEPA violation and neither had ruled that the license could remain in

effect notwithstanding the violation. See ASLB Stay Denial Order,

No. 40-9075-MLA at 8-9 (J.A. 518-19). Hence, the Tribe could not

have challenged the ruling and policy that it alleges here is unlawful:

letting a project go forward despite the Commission’s

acknowledgment that it has not satisfied NEPA’s requirements.

18

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed

action should it be implemented.

42 U.S.C. § 4332(2)(C); see New York v. NRC, 681 F.3d 471,

476 (D.C. Cir. 2012). There is no dispute that the NRC’s grant

of a uranium mining license constitutes such a “major Federal

action[] significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C); see NRC Br. 5 (“NRC

regulations . . . require NRC to prepare an EIS prior to issuing

an in situ recovery facility license.”); ASLB Initial Decision, 81

N.R.C. at 641 n.123 (J.A. 440) (“Issuing a license to possess and

use source material to a uranium milling facility is identified as

a major federal action.”); 10 C.F.R. § 51.20(b)(8).

This statutory provision requires agencies to take a “hard

look” at environmental consequences before undertaking any

such action. Robertson, 490 U.S. at 350. The environmental

effects that must be assessed include “aesthetic, historic,

cultural, economic, social, or health” effects. 40 C.F.R.

§ 1508.8(b); see 42 U.S.C. § 4331(b)(4) (declaring that

“preserv[ing] important historic, cultural, and natural aspects of

our national heritage” is an element of national environmental

policy). And the Commission’s regulations expressly require its

Staff to include, in an environmental impact statement, “an

19

analysis of significant problems and objections raised by . . . any

affected Indian Tribes.” 10 C.F.R. § 51.71(b).

The Atomic Safety and Licensing Board ruled that, to

“fulfill the agency’s NEPA . . . responsibilities to protect and

preserve cultural, religious, and historical sites important to the

Native American tribal cultures in the Powertech project area,

the NRC Staff must conduct a study or survey of tribal cultural

resources before granting a license.” ASLB Initial Decision, 81

N.R.C. at 653 (J.A. 452). As discussed in Part I above, the

Board found that “the [EIS] in this proceeding does not contain”

such an analysis. Id. at 655 (J.A. 454). Moreover, “[b]ecause

the cultural, historical, and religious sites of the Oglala Sioux

Tribe have not been adequately catalogued, the [EIS] does not

include mitigation measures sufficient to protect this Native

American tribe’s cultural, historical, and religious sites that may

be affected by the Powertech project.” Id. “Accordingly,” the

Board concluded, “NEPA’s hard look requirement has not been

satisfied.” Id.

The Board did not find just a technical violation of NEPA.

Rather, it found that “the inadequate discussion of potential

impacts to Sioux cultural, historical, or religious sites in the

[EIS] or Record of Decision is a significant deficiency in the

NRC Staff’s NEPA review.” Id. at 658 (emphasis added) (J.A.

457). And the Commission did not disagree. Refusing to

“second guess the Board’s fact-finding,” the Commission

declined to set aside the Board’s order and denied the Staff’s

petition for review with respect to the Tribe’s NEPA contention.

NRC Order, 84 N.R.C. at 248 (J.A. 272-73).

For purposes of our review, we accept the Board’s finding

-- undisturbed by the Commission -- that the agency did not

fulfill its NEPA responsibilities. We do not review the merits of

that conclusion.

20

Notwithstanding the Board’s finding, and in particular its

acknowledgment that the Staff “must conduct a study or survey

of tribal cultural resources before granting a license” in order to

fulfill the agency’s NEPA responsibilities, ASLB Initial

Decision, 81 N.R.C. at 653 (emphasis added) (J.A. 452), the

Board ruled that it would not suspend Powertech’s license

unless the Tribe sought a stay within ten days and showed that

“specific cultural, historic, or religious sites . . . are subject to

immediate and irreparable harm.” Id. at 658 (J.A. 457). The

Commission likewise refused to vacate the license on the ground

that more than just a NEPA violation was required, stating that

there was no need to disturb the license because the “Tribe ha[d]

not articulated any harm or prejudice.” NRC Order, 84 N.R.C.

at 245 (J.A. 268).

The agency thus conditioned enforcement of NEPA on a

showing of irreparable harm by the Tribe.8 It did so even

though, as Commissioner Baran explained in dissent, the agency

lacked an adequate environmental analysis when it first issued

the license and the significant NEPA deficiencies identified by

the Board “remain[ed] unaddressed” at the time of the

8

Although the Commission’s order vaguely referred to “harm or

prejudice,” NRC Order, 84 N.R.C. at 245 (J.A. 268), it upheld the

Board’s order requiring a showing of “irreparable harm,” ASLB Initial

Decision, 81 N.R.C. at 658 (J.A. 457). The NRC also noted that the

Tribe “did not request a stay of the effectiveness of the license,” NRC

Order, 84 N.R.C. at 245 (J.A. 268), which the Board had made clear

it would not grant unless the Tribe could identify specific “sites that

are subject to immediate and irreparable harm by the Powertech

project,” ASLB Initial Decision, 81 N.R.C. at 658 (J.A. 457). And the

NRC brief likewise indicates that “irreparable harm” is the

Commission’s own standard. See NRC Br. 1 (emphasizing that “the

Tribe demonstrated no irreparable harm”); id. at 33 (noting that the

Tribe could still seek a stay if “a new development” could support “an

irreparable harm demonstration”).

21

Commission’s decision. Id. at 269 (Commissioner Baran,

dissenting in part) (J.A. 301). Therefore “[t]he Staff’s licensing

decision was based on (and continues to rest on) an inadequate

environmental review.” Id.

Moreover, this was not a one-off decision by the NRC.

Rather, it appears to reflect the agency’s settled practice. See

Strata Energy, Inc., 83 N.R.C. 566, 595 n.188 (2016) (“It is well

settled that parties challenging an agency’s NEPA process are

not entitled to relief unless they demonstrate harm or

prejudice.”); see also Crow Butte Resources, Inc., 83 N.R.C.

340, 413-14 (2016) (relying on the Powertech precedent to keep

a license in effect, notwithstanding finding that the NRC staff

had not complied with NEPA, and repeating the “irreparable

injury” requirement).

The agency’s decision in this case and its apparent practice

are contrary to NEPA. The statute’s requirement that a detailed

environmental impact statement be made for a “proposed”

action makes clear that agencies must take the required hard

look before taking that action. See, e.g., Pub. Emps. for Envtl.

Responsibility v. Hopper, 827 F.3d 1077, 1081 (D.C. Cir. 2016)

(holding that an agency’s decision to issue a lease for a

windpower project “without first obtaining sufficient site-

specific data . . . violated” NEPA (internal quotation marks

omitted)); New York, 681 F.3d at 476 (“Under NEPA, each

federal agency must prepare an [EIS] before taking a ‘major

Federal action[] significantly affecting the quality of the human

environment.’” (quoting 42 U.S.C. § 4332(2)(C))).9 Nothing in

9

See also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989)

(“NEPA ensures that the agency will not act on incomplete

information, only to regret its decision after it is too late to correct.”);

Robertson, 490 U.S. at 349 (explaining that NEPA “focus[es] the

agency’s attention on the environmental consequences of a proposed

22

NEPA’s text suggests that the required environmental analysis

of a “proposed” action is optional if a party does not prove that

“irreparable harm” would result from going forward before the

agency completes a valid EIS.

The nontextual exception upon which the NRC insists

would vitiate the statute’s “‘action-forcing’ purpose.”

Robertson, 490 U.S. at 349. As the Court explained in

Robertson:

The statutory requirement that a federal agency

contemplating a major action prepare such an

environmental impact statement serves NEPA’s

“action-forcing” purpose in two important respects. . . .

It ensures that the agency, in reaching its decision, will

have available, and will carefully consider, detailed

information concerning significant environmental

impacts; it also guarantees that the relevant information

will be made available to the larger audience that may

also play a role in both the decisionmaking process and

the implementation of that decision.

id. (emphasis added); see Baltimore Gas & Electric Co. v. Nat.

Res. Def. Council, 462 U.S. 87, 97 (1983). If an agency fails to

complete the required review before authorizing a proposed

project -- whether or not a party is able to present evidence of

project” (emphasis added)); Sierra Club v. U.S. Army Corps of Eng’rs,

803 F.3d 31, 37 (D.C. Cir. 2015) (explaining that NEPA requires

agencies to take a “hard look” at environmental consequences of

proposed actions “in advance of deciding whether and how to

proceed”); 40 C.F.R. § 1500.1(b) (Council on Environmental Quality

regulation providing that “NEPA procedures must [e]nsure that

environmental information is available to public officials and citizens

before decisions are made and before actions are taken”).

23

harm at that stage -- it runs the risk “that important effects

will . . . be overlooked or underestimated only to be discovered

after . . . the die [has been] cast.” Robertson, 490 U.S. at 349;

see Winter v. Nat. Res. Def. Council, 555 U.S. 7, 23 (2008); Ill.

Commerce Comm’n v. ICC, 848 F.2d 1246, 1259 (D.C. Cir.

1988).

Indeed, the nature of the agency action in this case puts the

problem in high relief. As we have noted, the Tribe “has shown

it has the most direct historical, cultural, and religious ties to the

[Dewey-Burdock project] area.” ASLB Initial Decision, 81

N.R.C. at 656 (J.A. 455). A significant number of cultural,

historical, and archaeological sites have already been identified

in the project area, including burial sites. EIS, NUREG-1910 at

4-159 to -182 (J.A. 655-78). The Tribe is concerned that

mining, as well as the construction and other land disturbances

that precede mining, will damage those resources. See Trina

Lone Hill Decl. ¶¶ 5, 28. The purpose of an EIS is, in part, to

determine whether the land contains such resources and where

they are located, so that damage to them can be avoided or

mitigated. If the project is permitted to go forward without the

necessary land survey, such damage may well be done.

In short, the NRC has placed the Tribe in a classic Catch-

22. It must show irreparable harm to insist that an adequate

survey be completed. But it likely cannot show even the risk of

such harm unless that survey is completed. Of course, if the

project goes forward and the burial or other sites are damaged,

the Tribe will then be able to show irreparable harm -- but by

then, it will be too late to stop it.

The NRC’s conduct in this case may be compared --

unfavorably -- to that of the Interstate Commerce Commission

in Illinois Commerce Commission v. ICC, 848 F.2d 1246.

There, the court declined to remand the agency’s policy of

24

publishing an environmental assessment after publishing notice

of proposed abandonment of a railroad line. But it did so only

because the agency represented that, if environmental issues

were raised, a stay would “automatically be granted until the

concerns are resolved by the [agency],” with “no showing of

irreparable harm or probability of success . . . required.” Id. at

1260. That procedure, we said, “obviate[d] the possibility that

an abandonment would be authorized even though

environmental questions were still outstanding.” Id. Needless

to say, that procedure -- providing for an automatic stay without

the need to show irreparable harm -- stands in stark contrast to

the approach the Commission employed here. And for the

reasons we have stated, the latter is contrary to law.

B

In this subpart, we address the NRC’s defense of its ruling.

1. The justification upon which the Commission relied in

its order was an analogy to this court’s treatment of “harmless

error” when reviewing an agency decision. NRC Order, 84

N.R.C. at 245 (J.A. 268) (“[F]ederal courts have required that

parties demonstrate harm or prejudice to disturb an agency’s

decision.”). The analogy is inapt.

The “harmless error” doctrine that this court applies is

compelled by a statute, the Administrative Procedure Act, which

provides that “due account shall be taken of the rule of

prejudicial error,” 5 U.S.C. § 706; see, e.g., First Am. Discount

Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008,

1015 (D.C. Cir. 2000). As the Commission itself notes,

however, “the Board and Commission are not courts, and so 5

U.S.C. § 706 does not govern their choices of remedy” for Staff

errors. NRC Br. 34. Nor does NEPA -- or any other statute that

has been called to our attention -- give the NRC authority to

25

forgive “harmless” violations of NEPA. Cf. 38 U.S.C. §

7261(b)(2) (directing the United States Court of Appeals for

Veterans Claims to “take due account of the rule of prejudicial

error”); 28 U.S.C. § 2111 (instructing appellate courts to give

judgment “without regard to errors or defects which do not

affect the substantial rights of the parties”).

But whether or not that ends the argument -- a question we

do not need to decide -- what the agency has done here looks

nothing like the harmless error review undertaken by this court.

First, it is true that “[w]e have applied the prejudicial error

rule in the NEPA context where the proposing agency engaged

in significant environmental analysis before reaching a decision

but failed to comply precisely with NEPA procedures.” Nevada

v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006) (emphasis

added); see, e.g., Int’l Bhd. of Teamsters v. U.S. Dep’t of

Transp., 724 F.3d 206, 217 (D.C. Cir. 2013) (holding that any

“technical error” in the timing of the release of an environmental

assessment was harmless when the agency completed the

assessment “before authorizing any” operations). But the error

here was neither a failure of precision nor a technicality. Rather,

as the Board itself said, it was a “significant deficiency” in the

Staff’s NEPA review. ASLB Initial Decision, 81 N.R.C. at 658

(J.A. 457).10

10

This circuit has also sometimes regarded deviations from NEPA as

harmless when an agency subsequently completed a comprehensive

environmental review before the matter reached our court. See Nat.

Res. Def. Council, 879 F.3d at 1211-12 (refusing to remand where the

agency “adequately augmented its decision before being challenged

in th[e] court”); Friends of the River, 720 F.2d at 106-08 (declining to

remand when the agency completed a thorough, if belated,

environmental review). In this case, however, the agency has not yet

completed a valid review.

26

The Commission’s order disparaged this error as merely

“procedural.” NRC Order, 84 N.R.C. at 245 (J.A. 268); see

NRC Br. 34, 35. But “NEPA imposes only procedural

requirements.” Winter, 555 U.S. at 23. If even “significant”

deficiencies in NEPA reviews are forgiven because they are

merely procedural, there will be nothing left to the protections

that Congress intended the Act to provide. Moreover, in a

comparable situation, “[w]e have not been hospitable to

government claims of harmless error in cases in which the

government violated [the procedural requirement of APA]

§ 553 . . . by failing to provide notice” of proposed agency

action. Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1109

(D.C. Cir. 2014).

Given the significant deficiency at issue in this case, the

harmless error doctrine cannot justify the agency’s ruling. As

we have noted, the Board found that the EIS “does not contain

an analysis of the impacts of the project on the cultural,

historical, and religious sites of the Oglala Sioux Tribe and the

majority of the other consulting Native American tribes.” ASLB

Initial Decision, 81 N.R.C. at 655 (J.A. 454). As a consequence,

“the EIS does not include mitigation measures sufficient to

protect this Native American tribe’s cultural, historical, and

religious sites that may be affected by the Powertech project.”

Id. That assessment of the risks to the Tribe’s sites is consistent

with the Commission’s generic EIS for these kinds of mining

projects: “[D]epending on local conditions,” the agency has

explained, ISL facility construction can cause a “large” impact

on “ecological, historical, or cultural resources” because of the

“potential for unidentified resources to be altered or destroyed

during excavation, drilling, and grading.” Generic EIS for In-

Situ Leach Uranium Milling Facilities, NUREG-1910 at xlii

(May 2009) (J.A. 531).

27

In this context, the agency may not properly conclude that

its failure to comply with NEPA is harmless simply because the

Tribe cannot point to specific historical sites that are at risk.

Indeed, placing the burden on the Tribe to show harm was

especially inappropriate because the inadequate EIS may well

make doing so impossible. See Winter, 555 U.S. at 23

(“[W]ithout [an EIS], there may be little if any information

about prospective environmental harms and potential mitigating

measures.”); cf. Pub. Emps. for Envtl. Responsibility, 827 F.3d

at 1082 (refusing to “excuse the [agency] from its NEPA

obligation to gather data about the seafloor” before issuing a

lease for a wind turbine project because “[w]ithout adequate

geological surveys, the [agency] cannot ensure that the seafloor

[will be] able to support wind turbines” (internal quotation

marks omitted)).

Second, the point at issue here is not simply forgiveness of

a single error. As we have explained, it appears to be the NRC’s

settled practice to keep licenses in effect, notwithstanding

significant NEPA deficiencies, unless an intervenor shows

irreparable harm. See supra Part III.A. That does not represent

the application of a harmless error exception to a statutory

violation. It represents a wholesale rewrite of NEPA.

Third, the standard of review the Commission approved is

not just a “harmless” error standard -- it is an “irreparable harm”

standard. See supra note 8. The harmless error standard of the

APA merely requires a showing of prejudice. That standard

does not “impose a . . . particularly onerous requirement.”

Shinseki v. Sanders, 556 U.S. 396, 410 (2009); see Jicarilla

Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121

(D.C. Cir. 2010) (“If prejudice is obvious to the court, the party

challenging agency action need not demonstrate anything

further.”).

28

The irreparable harm standard applied by the Board, in

contrast, derives from the standard courts must apply in granting

injunctive relief. See Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139, 156-57 (2010); Winter, 555 U.S. at 20, 22. It is

not the standard for the “less drastic” APA remedy of vacatur,

see Monsanto, 561 U.S. at 165-66, nor is it the standard applied

under the APA’s harmless error provision, see Shinseki, 556

U.S. at 410. Rather, it requires a substantially higher showing.

See Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 297-98 (D.C. Cir. 2006). Here, it requires a well-nigh

impossible one. How, after all, can the Tribe show that

Powertech’s project will irreparably damage its cultural artifacts

if there has not been a survey adequate to determine where those

artifacts are located?

2. NRC counsel -- but not the Commission itself -- also

analogize the Commission’s treatment of the erroneous Staff

decision to the analysis this court applies when considering

whether to vacate or merely remand erroneous agency actions.

NRC Br. 34-39. As counsel correctly note, “[t]his Court has

long held when considering remedies under § 706 that the

‘decision whether to vacate depends on the seriousness of the

order’s deficiencies (and thus the extent of doubt whether the

agency chose correctly) and the disruptive consequences of an

interim change that may itself be changed.’” Id. at 34 (quoting,

inter alia, Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150-51

(D.C. Cir. 1993)); see Allina Health Servs., 746 F.3d at 1110-11.

Because the NRC order appealed here does not rely upon

this reasoning, see NRC Order, 84 N.R.C. at 245 (J.A. 268),

neither can we. SEC v. Chenery Corp., 318 U.S. 80, 87-88

(1943) (“The grounds upon which an administrative order must

be judged are those upon which the record discloses that its

action was based.”); see NLRB. v. CNN Am., Inc., 865 F.3d 740,

751 (D.C. Cir. 2017). In any event, this argument-by-analogy

29

has flaws that are similar to those of the Commission’s harmless

error argument.

As is true of this court’s “harmless error” analysis, our

remand practice is informed by the APA. Compare 5 U.S.C.

§ 706(2)(A) (“[T]he reviewing court shall . . . hold unlawful and

set aside agency action . . . found to be . . . not in accordance

with law . . . .”), with id. § 702 (“Nothing herein . . . affects . . .

the power or duty of the court to . . . deny relief on any other

appropriate . . . equitable ground . . . .”). But once again, the

agency fails to identify any statute that authorizes it not to

comply with NEPA on equitable grounds.

Without resolving whether the absence of statutory

authority is sufficient to reject the analogy to judicial remand-

without-vacatur, what the agency has done here does not mirror

the court’s decisionmaking process in that regard.

As the above quotation from Allied-Signal indicates, in

deciding whether vacatur is required, we first consider the

“seriousness of the order’s deficiencies.” 988 F.2d at 150.

Here, the NRC acknowledged a “significant deficiency in the

NRC Staff’s NEPA review.” ASLB Initial Decision, 81 N.R.C.

at 658 (J.A. 457). It nonetheless left the license in place, in part

because it regarded the failure to comply with NEPA as merely

a “procedural deficienc[y].” NRC Br. 34; see id. at 37. But as

we have just underlined, NEPA is a purely procedural statute

and taking such an approach would vitiate it. Nor is it true, as

counsel claim, that this court routinely remands (without

vacatur) violations of procedural requirements. See NRC Br. 37.

To the contrary, in the comparable circumstance of the APA’s

procedural requirements, we have held that “deficient notice is

a ‘fundamental flaw’ that almost always requires vacatur.”

Allina Health Servs., 746 F.3d at 1110 (quoting Heartland Reg’l

Med. Ctr. v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009)).

30

The seriousness of the NEPA deficiency is particularly clear

here because the point of NEPA is to require an adequate EIS

before a project goes forward, so that construction does not

begin without knowledge of the affected cultural and historical

sites. “Part of the harm NEPA attempts to prevent in requiring

an EIS is that, without one, there may be little if any information

about prospective environmental harms and potential mitigating

measures.” Winter, 555 U.S. at 23 (emphasis added). As the

ASLB acknowledged, “[b]ecause the cultural, historical, and

religious sites of the Oglala Sioux Tribe have not been

adequately catalogued, the [EIS] does not include mitigation

measures sufficient to protect this Native American tribe’s

cultural, historical, and religious sites that may be affected by

the Powertech project.” ASLB Initial Decision, 81 N.R.C. at

655 (J.A. 454). Indeed, even when we have remanded without

vacatur, we have considered this kind of concern and

conditioned the remand accordingly. Cf. Pub. Emps. for Envtl.

Responsibility, 827 F.3d at 1084 (declining to vacate a

windpower project owner’s lease for a deficient EIS, but

vacating the agency’s impact statement and requiring it “to

supplement [the impact statement] with adequate geological

surveys before [the project] may begin construction”). The

Commission did not do that here.11

11

NRC counsel maintain that the Board “determined that vacating the

license would not prevent potential harm to the Tribe’s cultural

resources.” NRC Br. 35. The Board did conclude, more than two

years before the order at issue here, that a stay would be of only

“limited and incomplete effect.” ASLB Stay Denial Order, No. 40-

9075-MLA at 7-8 (J.A. 517-18). But that 2014 order was based on an

assessment of ground-disturbing work expected only “for the next few

months,” id. at 7 (J.A. 517), and there is no reason to believe its

reasoning remained relevant to the status of construction in 2016.

Indeed, that explanation was not repeated in either the Board’s 2015

decision or the 2016 Commission order that upheld the 2015 decision

and is now under review. We are therefore unable to evaluate its

31

As Allied-Signal further indicates, we also evaluate the

“disruptive consequences of an interim change.” Allied-Signal,

988 F.2d at 150-51 (internal quotation marks omitted). But

here, neither the Commission’s nor the Board’s order examined

what the consequences would be for Powertech were its license

vacated or suspended until the NRC completed its NEPA

review. See NRC Order, 84 N.R.C. at 245 (J.A. 268); ASLB

Initial Decision, 81 N.R.C. at 657-58 (J.A. 456-57). Nor did

those orders examine the potential consequences for the Tribe.12

Finally, once again the issue here is not just what to do

about a single agency error, but what to do about the validity of

an NRC practice that permits NEPA-deficient licenses to remain

in place unless an intervenor can show irreparable harm. We

have never turned merely to a remand remedy when an agency

refused to adhere to a statutory command in such an across-the-

board fashion.

validity, which reaffirms the wisdom of adhering to Chenery’s rule

that the soundness of an agency’s decision must rest on the reasoning

contained therein, and not on any post hoc justifications offered by

counsel. Chenery Corp., 318 U.S. at 87-88; see NLRB v. CNN Am.,

Inc., 865 F.3d at 751.

12

The NRC brief posits that “the Commission reasonably left the

license in place -- thereby ensuring NRC’s continued ability to enforce

the cultural-resource protections the license already imposes on

Powertech -- while allowing the agency to address the procedural

deficiencies identified by the Board.” NRC Br. 35 (citing, by analogy,

Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 188 (D.C. Cir.

2017)). The order makes no mention of this consideration, and we are

unable to evaluate its validity. The Tribe -- which has the most direct

interest in cultural resources protection and yet calls for vacatur of the

license -- obviously feels that the site is better protected without the

license than with whatever limited protections it may impose. This

again shows the wisdom of adhering to Chenery’s rule.

32

3. NRC counsel make two further arguments that are also

not reflected in the Commission’s order. Even if they were

meritorious, Chenery would render them insufficient to uphold

the order.

First, NRC counsel maintain that the ASLB’s decision to

leave the license in place was justified because it was “based in

part on the Tribe’s own actions making the NHPA consultation

process unnecessarily difficult.” NRC Br. 35. But the

Commission’s order did not rely on this justification and instead

noted that “the Board acknowledged that it could not

definitively determine whether the Staff or the Tribe bore

responsibility for what the Board considered a breakdown in

consultation.” NRC Order, 84 N.R.C. at 244 (J.A. 266-67).

Second, counsel argue that the agency’s “adjudicatory

hearing process, which led to the identification of deficiencies

in NRC’s compliance with NEPA . . . , did not arise from th[at]

statute[], but, rather, from the Atomic Energy Act.” NRC Br.

38. Whether the Commission could have delegated to its Staff

the final authority to resolve NEPA issues without appeal to the

Commission is a question that we need not answer today. The

fact is that the Commission did not do so, and thus must explain

why it permitted the project to go forward despite its own

determination that the Staff had failed to comply with NEPA.

As we have explained, the Commission has failed to offer a

justification that is consistent with its statutory responsibility.

C

To be clear, today we hold only that, once the NRC

determines there is a significant deficiency in its NEPA

compliance, it may not permit a project to continue in a manner

that puts at risk the values NEPA protects simply because no

intervenor can show irreparable harm. We do not decide that the

33

Commission may never leave in place a license that its Staff

previously issued but that the Commission later finds NEPA-

deficient. That is, we do not decide that there is no version of a

harmless error rule that the Commission may apply. Nor do we

decide that there are no protective conditions the Commission

might impose that would justify leaving a license in place during

an administrative remand intended to cure a NEPA deficiency.

Cf. Pub. Utils. Comm’n v. FERC, 900 F.2d 269, 282 (D.C. Cir.

1990) (holding that NEPA did not preclude FERC from issuing

an approval that was “expressly not to be effective until [an]

environmental hearing was completed”).

Regardless of whether one of those options might pass

muster, the Commission did not follow such a course here.

IV

Because the standard that the Commission applied in

permitting Powertech’s license to remain in effect is inconsistent

with NEPA, we remand this matter to the agency for further

consideration consistent with this opinion. We do not, however,

vacate the agency’s ruling. As we recounted above, an appellate

court’s decision regarding whether to vacate or merely remand

“depends on the seriousness of the order’s deficiencies (and thus

the extent of doubt whether the agency chose correctly) and the

disruptive consequences of an interim change that may itself be

changed.” Allied-Signal, 988 F.2d at 150-51 (internal quotation

marks omitted).

We have no doubt about the seriousness of the order’s

deficiencies. But we have not been given any reason to expect

that the agency will be unable to correct those deficiencies, and

we are concerned about the disruptive consequences of vacating

the license while the agency proceeds to satisfy NEPA.

Powertech reasonably relied on the NRC’s ruling and settled

34

practice that permitted the continued effectiveness of the license

the Staff issued. And it has represented to the court that its stock

price “would plummet” if the license were “suspended, vacated,

or revoked.” Oral Arg. Tr. 30.

More important, it appears that the Tribe will not suffer

harm -- irreparable or otherwise -- from a disposition that leaves

the license in effect for now. Powertech has further represented

that a South Dakota permitting requirement independently bars

it from moving forward with construction on the site until the

NRC completes its compliance with NEPA. Oral Arg. Tr. 32-

35. We note that the Tribe doubts this representation. Id. at 37.

But for now, we rely on it. If the representation turns out not to

be correct, the Tribe will have grounds to seek further redress

from this court. Cf. Pub. Empls. for Env. Responsibility, 827

F.3d at 1084 (requiring the agency “to supplement [the impact

statement] with adequate geological surveys before [the project]

may begin construction”).

V

The Nuclear Regulatory Commission’s December 2016

order is not entirely final, and as a consequence we do not have

jurisdiction over the bulk of the rulings challenged by the Oglala

Sioux Tribe. Under the collateral order doctrine, however, we

do have jurisdiction to review the Commission’s decision to

leave Powertech’s license in place -- notwithstanding the NRC’s

acknowledgment that it has not yet complied with the National

Environmental Policy Act -- on the ground that the Tribe failed

to show irreparable harm. Because that decision is contrary to

law, we grant the petition for review in part and remand the case

to the Commission for further proceedings consistent with this

opinion.

So ordered.