Blue Ridge Environmental Defense League v. Nuclear Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2011 Decided February 17, 2012

No. 09-1112

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE,

PETITIONER

v.

NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF

AMERICA,

RESPONDENTS

TENNESSEE VALLEY AUTHORITY,

INTERVENOR

Consolidated with 10-1058

On Petitions for Review of Orders

of the Nuclear Regulatory Commission

James B. Dougherty argued the cause and filed the briefs

for petitioner.

Jeremy M. Suttenberg, Attorney, U.S. Nuclear Regulatory

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

brief were Lane McFadden, Attorney, U.S. Department of

Justice, Stephen G. Burns, General Counsel, U.S. Nuclear

Regulatory Commission, John F. Cordes, Jr., Solicitor, and

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Grace H. Kim, Senior Attorney.

Maria V. Gillen, Attorney, argued the cause for intervenor.

With her on the brief was Harriet A. Cooper, Assistant General

Counsel.

Before: GARLAND and KAVANAUGH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In December 1974,

Tennessee Valley Authority (“TVA”) received construction

permits from the Atomic Energy Commission, the predecessor

to the Nuclear Regulatory Commission (“the NRC” or “the

Commission”), for the Bellefonte Nuclear Plant, Units 1 and 2

(“the units”). TVA pursued construction under a series of

permit extensions through the late 1980s, when, based on its

projections of diminished energy demand, it decided to place the

units in “deferred status” and establish a maintenance program

under the NRC’s Policy Statement on Deferred Plants (“the

Policy Statement”). See 52 Fed. Reg. 38,077, 38,077–79 (Oct.

14, 1987). Under the Policy Statement, during a deferral period,

a permit holder is required to undertake maintenance and

preservation activities but may halt actual construction. In 2005,

TVA placed the units in “terminated” status under the Policy

Statement. One year later, TVA voluntarily requested that the

NRC withdraw the permits. The NRC granted this request.

In 2008, TVA asked the NRC to reinstate its withdrawn

construction permits. Although neither withdrawal nor

reinstatement are specifically addressed in the Atomic Energy

Act (“the AEA” or “the Act”), see 42 U.S.C. § 2239 (2006), the

NRC granted TVA’s reinstatement request in an order issued on

March 9, 2009 and published in the Federal Register on March

13, 2009.

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On March 30, 2009, the Blue Ridge Environmental Defense

League (“BREDL” or “Petitioner”) filed a petition with this

court, purporting to challenge the NRC’s decision to reinstate

the construction permits. However, in its Statement of Issues To

Be Raised, in its Reply Brief, and during oral argument, BREDL

insisted that it was not challenging the NRC order that was

published in the Federal Register on March 13, 2009. Rather,

BREDL asserted that its March 30, 2009 petition for review

challenges only a compilation of “Response Sheets” filed by

individual Commissioners in December 2008 and January 2009.

BREDL contends that this compilation of Commissioners’

views resulted in a final order on January 27, 2009. We

disagree. After the Commissioners’ “Response Sheets” were

assembled, the matter was referred to the NRC staff for

evaluation. However, it was not until February 18, 2009 that the

NRC authorized the staff to issue an order on behalf of the

agency reinstating the construction permits. That order was

published in the Federal Register on March 13, 2009. Therefore,

BREDL’s petition for review challenging an alleged action of

the NRC taken on January 27, 2009 does not seek review of a

final NRC order.

On May 8, 2009, BREDL, along with some other parties,

petitioned the NRC to intervene in an agency good cause

hearing on the Commission’s action reinstating the construction

permits. The NRC decided to hear BREDL’s legal contentions

first, before addressing technical contentions primarily regarding

the safety of reinstating the construction permits. On January 7,

2010, the NRC issued an opinion rejecting BREDL’s legal

claims and referring BREDL’s remaining claims to the Atomic

Safety and Licensing Board (“the ASLB”) for disposition. On

March 8, 2010, before the ASLB had addressed BREDL’s

remaining contentions, BREDL filed its second petition for

review with this court. This second petition challenges the

NRC’s January 7, 2010 opinion rejecting BREDL’s legal claims.

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BREDL contends that the agency’s January 7 opinion qualifies

as a final agency action that is subject to judicial review. We

disagree. It is clear on the record here that the NRC’s January

7 opinion was merely an interlocutory action addressing

BREDL’s legal challenges to the Commission’s authority.

BREDL had raised numerous other claims that were referred to

the ASLB, and those claims remained pending before the NRC

when BREDL filed its premature petition for review on March

8, 2010.

Under the Hobbs Act, this court has jurisdiction to review

only “final orders” of the NRC. 28 U.S.C. § 2342(4) (2006).

The March 30, 2009 and March 8, 2010 petitions filed by

BREDL with this court do not seek review of final NRC orders.

Therefore, we lack jurisdiction and must dismiss.

I. Background

A. Facts

The AEA provides the general framework that governs the

construction of nuclear power plants. Before a company can

build a plant, it must seek a construction permit from the NRC.

See 42 U.S.C. § 2235(a). All construction permits must specify

the latest date by which construction must be complete, although

the NRC can extend deadlines for good cause. Id. All of a

permit holder’s rights and privileges are “forfeited” when a

permit “expire[s]” on the designated completion date. Id. The

AEA also authorizes the NRC to revoke a construction permit

prior to completion in the event of wrongdoing. See id. § 2236.

But the Act does not account for the possibility that a permit

holder might voluntarily request that the NRC withdraw a valid

construction permit, nor does it address whether the NRC may

reinstate a construction permit that has been withdrawn. See id.

§ 2239.

TVA first applied for construction permits for the units in

1973. See In re Tenn. Valley Auth., 71 N.R.C. 113, 115 (2010),

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reprinted in Joint App. (“J.A.”) 14. The ASLB considered

interested citizens’ intervention requests, conducted an

evidentiary hearing, and issued a favorable decision in

December 1974. The permits for the units were set to expire in

1979 and 1980 respectively. See id. at 115–16. But by 1979,

TVA realized that it would not be able to complete construction

by the deadlines due in part to labor shortages, delivery

problems, and the need for new safety features following the

Three Mile Island accident. See TVA, Bellefonte Nuclear Plant,

Units 1 and 2; Order Extending Construction Completion Dates,

44 Fed. Reg. 76,893, 76,893 (Dec. 28, 1979). TVA thus

requested, and the NRC granted, an extension of the permit

deadlines. See id. But TVA found that it could not complete

construction by the new deadlines, and it again submitted timely

extension requests, which the NRC granted. See TVA,

Bellefonte Nuclear Plant, Units 1 and 2; Order Extending

Construction Completion Dates, 52 Fed. Reg. 25,676, 25,676

(July 8, 1987).

Soon after the 1987 extension, TVA decided to defer

construction of the plants under the Commission’s Policy

Statement. In re Tenn. Valley Auth., 71 N.R.C. at 116. At the

time of deferral, Units 1 and 2 were approximately ninety and

sixty percent complete, respectively. Id. Under the Policy

Statement, a permit holder may resume construction of a plant

only after providing at least an 120-day notice to the NRC and

receiving the NRC’s approval that the plant’s systems,

structures, and components are acceptable. See 52 Fed. Reg. at

38,079. TVA provided notice of its intent to resume

construction in 1993 and requested deadline extensions for its

permits. In re Tenn. Valley Auth., 71 N.R.C. at 116–17. The

NRC granted this request, extending Unit 1’s deadline into 2001

and Unit 2’s deadline into 2004. See In the Matters of TVA

(Bellefonte Nuclear Plant, Units 1 and 2), 59 Fed. Reg. 34,874,

34,874–75 (July 7, 1994). Shortly thereafter, TVA decided that

the units could not be completed without additional financial

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support, and it suspended further construction pending

completion of a comprehensive evaluation of its power needs.

Although the units were in deferred status, TVA requested

further extensions in 2001. See In re Tenn. Valley Auth., 71

N.R.C. at 117. NRC approved this request in March 2003,

extending the permits for Units 1 and 2 into 2011 and 2014,

respectively. See In the Matters of TVA (Bellefonte Nuclear

Plant, Units 1 and 2); Order, 68 Fed. Reg. 11,415, 11,415–16

(Mar. 10, 2003). As completion continued to be delayed,

however, TVA placed the units in terminated status, concluding

that they could not be justified economically. See In re Tenn.

Valley Auth., 71 N.R.C. at 117. TVA’s board of directors voted

to cancel construction, and, in 2006, TVA formally requested

that the NRC withdraw the permits. The Commission granted

TVA’s request by letter that same year. See id.

TVA recounts that, in 2008, a number of factors – the

estimated cost per kilowatt of installed capacity among

generation alternatives, the number of worldwide suppliers

capable of providing necessary reactor components, and the

number of entities expressing interest in developing new nuclear

generation capacity – augured in favor of completing

construction of the units. In light of these changed

circumstances, TVA requested by letter that the NRC reinstate

the permits and return the plants to “deferred” status, such that

TVA could resume preservation and maintenance activities to

prepare the plants for construction. See id. at 117–18.

B. Procedural History

Because this court’s jurisdiction under the Hobbs Act turns

on the finality of the challenged agency actions, we offer a

somewhat detailed description of both the internal procedures

followed by the NRC with respect to TVA’s reinstatement

request and BREDL’s petitions for review.

In a “tasking memorandum” issued on October 30, 2008,

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the NRC Chairman directed the NRC staff to provide its views

and recommendations on TVA’s reinstatement request. See

Memorandum from R. W. Borchardt, Exec. Dir. for Operations,

to Chairman Klein, Commissioner Jaczko, Commissioner

Lyons, and Commission Svinicki 1 (Dec. 12, 2008) (“Borchardt

Memo”), reprinted in J.A. 92 (describing staff’s responsibilities

under Chairman’s tasking memo). The staff submitted its

response on December 12, 2008, asking for authorization from

the Commissioners “for the recommendation to go forward with

the review and action on [TVA’s] request.” Id. The staff’s

memorandum states:

If the Commission agrees with the staff’s recommendation,

the staff will evaluate TVA’s request for reinstatement to

determine whether it is supported by good cause,

considering the totality of the circumstances. If the staff

finds the request acceptable, it will prepare an order

granting the request, with conditions, an environmental

assessment, and a supporting safety evaluation.

Id. (emphasis added).

In the weeks that followed, the four NRC Commissioners

submitted individual “Response Sheets” to the staff’s

memorandum. Three indicated their general approval of the

reinstatement request, although they recommended that the units

be placed in “terminated,” rather than “deferred,” status. See

Response Sheet from Chairman Klein to Annette Vietti-Cook

(Jan. 9, 2009); Response Sheet from Commissioner Lyons to

Annette Vietti-Cook (Jan. 7, 2009); Response Sheet from

Commissioner Svinicki to Annette Vietti-Cook (Dec. 22, 2008),

reprinted in J.A. 1–2, 9–13. The fourth Commissioner to

respond, Commissioner Jaczko, disapproved of the

reinstatement request. See Response Sheet from Commissioner

Jaczko to Annette Vietti-Cook (Jan. 27, 2009), reprinted in J.A.

3–8.

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On February 18, 2009, the Commission authorized the staff

to issue an order reinstating the construction permits and place

Bellefonte Units 1 and 2 in “terminated” status under the

agency’s Policy Statement, rather than the “deferred” status

TVA sought. In re Tenn. Valley Auth., 71 N.R.C. at 118. The

Commission also directed the staff to offer a hearing opportunity

on the question of whether TVA had established “good cause”

for reinstatement. The staff “then prepared an environmental

assessment which concluded that reinstatement of the

construction permits would not result in a significant

environmental impact.” Id.

On March 9, 2009, an order was issued by the agency

authorizing reinstatement of the construction permits for Units

1 and 2. The order was published in the Federal Register on

March 13, 2009. See In the Matter of TVA (Bellefonte Nuclear

Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13,

2009). The order states “it is hereby ordered that [construction

permits] . . . for the construction of [Bellefonte] Units 1 and 2,

respectively, are reinstated, and the facility returned to a

terminated plant status . . . . It is also ordered . . . that the

expiration dates defining the latest construction completion

dates . . . are October 1, 2011, and October 1, 2014,

respectively.” Id. at 10,970 (second emphasis added) (citation

omitted). The order also provided notice that parties could

request a limited agency hearing to address whether good cause

supported reinstatement and invited participation in that hearing.

See id. at 10,969.

On March 30, 2009, BREDL filed a petition with this court,

“for review of the final determination by [the NRC] to reinstate

construction permits that had previously been issued by the

NRC to the [TVA] and were subsequently withdrawn and

rendered void.” Pet. for Review 1, Mar. 30, 2009. The petition

stated that, “[t]hough the exact date on which the NRC took

final action reinstating the construction permits is uncertain, the

9

action was announced in the March 13, 2009 edition of the

Federal Register.” Id. Copies of the NRC Commissioners’

“Response Sheets” were attached to BREDL’s petition for

review. On April 30, 2009, BREDL filed a Statement of Issues

To Be Raised, advising the court that, “[o]n information and

belief, the final action of the NRC was taken on January 27,

2009, in a compilation of written decision[s] by the four

individual NRC Commissioners.” Pet’r’s Statement of Issues

To Be Raised 1, Apr. 30, 2009. This point was emphasized

further by BREDL in its Reply Brief to the court, which states:

The NRC asserts (NRC Br. at 12), incorrectly, that BREDL

filed the first petition for review in this Court “[i]n response

to the [March 13] Federal Register notice” . . . . What

actually happened is that BREDL challenged the January

27, 2009 Commission decision, and it attached a copy of

the four-part decision, not the subsequent Federal Register

notice, to its petition for review.

Pet’r’s Reply Br. at 3 (first and second alterations in original).

On May 8, 2009, while its first petition for review was

pending before this court, BREDL, along with other

environmental groups, petitioned the NRC to intervene in the

agency’s good cause hearing. See In re Tenn. Valley Auth., 71

N.R.C. 118–19. The petition offered nine “contentions”

opposing the reinstatement – including both legal claims that the

NRC lacked authority to reinstate withdrawn permits under the

AEA and technical contentions addressing other concerns

related to reinstatement. See id. In an order issued on May 20,

2009, the NRC advised the parties that it intended “to resolve

[BREDL’s] threshold ‘authority’ issue before taking action on

Petitioners’ other contentions.” In re Tenn. Valley Auth., Order,

reprinted in J.A. 243. The Commission also directed the parties

and the NRC staff to submit briefs “addressing the question

whether the NRC possesses the statutory authority to reinstate

the withdrawn construction permits.” Id. Finally, the

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Commission’s order made it clear that

[t]he remainder of Petitioners’ proposed contentions will be

held in abeyance, pending the Commission’s ruling on the

threshold “authority” issue. The Commission may refer

Petitioners’ remaining contentions to the Atomic Safety and

Licensing Board Panel at a future date.

Id., reprinted in J.A. 244. Meanwhile, on June 11, 2009, this

court granted the NRC’s unopposed motion to hold in abeyance

BREDL’s March 30, 2009 petition for review, pending the

NRC’s disposition of the challenges raised by BREDL in its

petition to intervene in the agency’s good cause hearing. See

Clerk’s Order, June 11, 2009.

On January 7, 2010, after receiving arguments on BREDL’s

legal contentions, the NRC issued an opinion holding that the

Commission has authority under the AEA to reinstate previously

withdrawn construction permits. See In re Tenn. Valley Auth.,

71 N.R.C. at 115. The opinion also referred BREDL’s technical

contentions to the ASLB. On this point, the opinion says:

This decision addresses the “authority” question only, a

question raised in Petitioners[’] Contentions 1 and 2. We

hold that NRC has authority to reinstate surrendered

construction permits. We refer the remainder of the petition

to intervene and request for hearing, including Petitioners’

July 15, 2009, supplemental filing to the Atomic Safety and

Licensing Board Panel for further proceedings. Once a

Licensing Board is convened, it will have to decide in the

first instance whether Petitioners have established standing

and have raised admissible contentions and if so, given their

claims, whether reinstatement on the particular facts

presented here is lawful and proper – that is, whether there

is “good cause” for reinstatement.

Id. at 126.

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On March 8, 2010, after the Commission had rejected

BREDL’s legal contentions, but before the ASLB could consider

BREDL’s remaining contentions, BREDL filed its second

petition for review with this court. This second petition

challenges the NRC’s January 7, 2010 opinion holding that the

agency has the authority to reinstate the construction permits for

Units 1 and 2. BREDL’s consolidated petitions are now before

us.

II. Analysis

A. Standard of Review

The Hobbs Act grants appellate courts jurisdiction to review

“final orders” issued by the NRC. 28 U.S.C. § 2342(4). Thus,

we must determine de novo whether either of BREDL’s

petitions seeks review of a final order. See, e.g., Waters v.

Rumsfeld, 320 F.3d 265, 271 (D.C. Cir. 2003) (“[W]e have an

independent obligation to determine jurisdiction de novo.”

(citation omitted)).

“[T]he relevant considerations in determining finality are

whether the process of administrative decisionmaking has

reached a stage where judicial review will not disrupt the orderly

process of adjudication and whether rights or obligations have

been determined or legal consequences will flow from the

agency action.” Port of Bos. Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)

(citations omitted); see also Massachusetts v. U.S. Nuclear

Regulatory Comm’n, 878 F.2d 1516, 1519–20 (1st Cir. 1989). In

Bennett v. Spear, 520 U.S. 154 (1997), which addressed the

requirement of finality under the Administrative Procedure Act,

5 U.S.C. § 704 (2006), the Supreme Court explained that

[a]s a general matter, two conditions must be satisfied for

agency action to be “final”: First, the action must mark the

“consummation” of the agency’s decisionmaking process –

it must not be of a merely tentative or interlocutory nature.

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And second, the action must be one by which “rights or

obligations have been determined,” or from which “legal

consequences will flow.”

520 U.S. at 177 (citations omitted). Finality under the Hobbs

Act is to be “narrowly construed[;] . . . [a]n order is final if it

‘imposes an obligation, denies a right, or fixes some legal

relationship, usually at the consummation of an administrative

process.’” Natural Res. Def. Council, Inc. v. U.S. Nuclear

Regulatory Comm’n, 680 F.2d 810, 815 (D.C. Cir. 1982)

(citations omitted). And in the context of administrative

adjudications, “a final order is [normally] one that disposes of

all issues as to all parties.” Citizens for a Safe Env’t v. Atomic

Energy Comm’n, 489 F.2d 1018, 1021 (3d Cir. 1973) (citation

omitted).

B. Finality

1. BREDL’s March 30, 2009 Petition for Review

As noted above, when BREDL filed its first petition for

review on March 30, 2009, it was not entirely clear what

specific NRC action BREDL sought to have reviewed. That

petition states:

Petitioner Blue Ridge Environmental Defense League

hereby petitions this Court for review of the final

determination by Respondent Nuclear Regulatory

Commission (“NRC”) to reinstate construction permits that

had previously been issued by the NRC to the Tennessee

Valley Authority (“TVA”) and were subsequently

withdrawn and rendered void. The construction permits in

question, which were issued December 24, 1974, had

authorized TVA to construct two nuclear reactors –

Bellefonte Units 1 and 2 – in Jackson County, Alabama.

Though the exact date on which the NRC took final

action reinstating the construction permits is uncertain, the

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action was announced in the March 13, 2009 edition of the

Federal Register, 74 Fed. Reg. 10969.

A copy of the NRC decision document (actually a

compilation of decisions[] by each of the four sitting NRC

Commissioners) is attached.

Pet. for Review 1–2, Mar. 30, 2009.

At first blush, one might suppose that BREDL meant to

contest the agency’s order that was published in the Federal

Register on March 13, 2009. It is true that the petition says that

the “exact date on which the NRC took final action reinstating

the construction permits is uncertain.” But the petition was filed

after publication of the Commission’s order, and it explicitly

acknowledges that the agency’s “action was announced in the

March 13, 2009 edition of the Federal Register, 74 Fed. Reg.

10969.” Indeed, the briefs filed by the NRC and Intervenor

TVA appear to assume that BREDL’s March 30, 2009 petition

for review challenges the agency order that was published on

March 13, 2009. It is therefore somewhat perplexing that

BREDL insists otherwise.

As noted above, in its Statement of Issues To Be Raised,

BREDL asserted that “the final action of the NRC was taken on

January 27, 2009, in a compilation of written decision[s] by the

four individual NRC Commissioners.” Pet’r’s Statement of

Issues To Be Raised 1, Apr. 30, 2009. Then in its Reply Brief

filed with the court, BREDL made it clear that its March 30,

2009 petition sought review only of “the January 27, 2009

Commission decision, . . . not the subsequent Federal Register

notice.” Pet’r’s Reply Br. at 3. And during oral argument, when

pressed on this point, BREDL’s counsel positively confirmed

that the petition for review was meant to focus solely on the

composite statements of the NRC Commissioners as expressed

in their “Response Sheets” written in December 2008 and

January 2009.

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In light of these facts, there is only one, inescapable

conclusion. By repeatedly insisting that it never sought review

of the order that was published in the Federal Register on March

13, 2009, BREDL has effectively confirmed that it did not seek

review of a final order.

There are several reasons why BREDL was incorrect to

conclude that the Commissioners’ “Response Sheets” constitute

a final order. First, as recounted above, the NRC staff’s

memorandum to the Commissioners seeking authorization to

consider TVA’s request makes explicit that such authorization

was only the first step toward a final reinstatement order. See

Borchardt Memo 1, reprinted in J.A. 92. After the

Commissioners returned their “Response Sheets,” the staff still

had to exercise its independent judgment to prepare an

environmental assessment.

Second, the Commissioners clearly anticipated that after

submitting their “Response Sheets,” the NRC staff would

engage in deliberation and independent review before issuing a

reinstatement order on behalf of the agency. The following

statements from the “Response Sheets” – dealing primarily with

whether to place the units in “deferred” or “terminated status”

– are particularly illustrative of the fact that the “Response

Sheets” do not constitute, or even resemble, the consummation

of the administrative process.

• “I approve the staff’s request to proceed with the

review of TVA’s request, and I approve the

reinstatement of the [construction permits] if the staff

concludes that TVA’s request is acceptable. However,

I disapprove the proposal for concurrent placement of

the facility in a deferred plant status; instead, I support

the sequential approach for placing the facility in a

deferred plant status . . . .” Response Sheet from

Chairman Klein to Annette Vietti-Cook (Jan. 9, 2009)

(emphasis added), reprinted in J.A. 2.

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• “The staff . . . requests Commission authorization to

review and take action on TVA’s request. As

proposed, if the staff were to find the request

acceptable, it would prepare an order reinstating the

construction permits . . . .” Id. (emphasis added).

• “Therefore, as an alternative, if the request is found

acceptable, the staff should issue an order reinstating

the construction permits, which to my understanding

will de facto place the facility in ‘terminated

status’ . . . .” Id. (emphasis added).

• “I approve in part and disapprove in part the staff’s

recommendation to reinstate the construction permits

for Bellefonte Units 1 and 2. . . . [T]he agency can

fully accomplish its regulatory role, with no loss of

public involvement, through a path that utilizes

reinstatement of the construction permits, but to a

‘terminated plant’ status.” Response Sheet from

Commissioner Lyons to Annette Vietti-Cook (Jan. 7,

2009), reprinted in J.A. 10.

• “I approve in part and disapprove in part the staff’s

recommendation to reinstate the construction

permits . . . . In my view, however, it would be

premature to restore Bellefonte all the way to deferred

plant status immediately . . . .” Response Sheet from

Commissioner Svinicki to Annette Vietti-Cook (Dec.

22, 2008), reprinted in J.A. 12.

• “This does not lead me to conclude, however, that we

should allow TVA to jump immediately to deferred

plant status without a demonstration that Bellefonte

satisfies what we would have required under the Policy

Statement . . . .” Id., reprinted in J.A. 13.

• “Should physical deficiencies be identified, such as

hardware requiring replacement or records requiring

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reconstitution, I propose that TVA will need to address

those items to [the] staff’s satisfaction.” Id. (emphasis

added).

The Commission did not finally authorize the staff to issue an

order on behalf of the agency until February 18, 2009, and that

order was not published in the Federal Register until March 13,

2009. See In re Tenn. Valley Auth., 71 N.R.C. at 118.

Third, lest there is any possible doubt in this matter, it

cannot be gainsaid that the NRC’s order published on March 13

qualifies as final. The order marked the clear “consummation”

of the NRC’s “administrative process,” Natural Res. Def.

Council, Inc., 680 F.2d at 815 – a process that, here, featured the

staff’s request to proceed with an evaluation of TVA’s request,

and the Commission’s February 18, 2009 authorization which

allowed the staff to pursue its evaluation and then issue an order

on behalf of the agency. Furthermore, the order determined the

“rights [and] obligations” of affected parties. Bennett, 520 U.S.

at 178. The units were placed in “terminated,” rather than

“deferred,” status; interested parties were afforded the right to

“request a hearing . . . within 60 days”; and the scope of the

hearing was limited “to whether good cause exists for the

reinstatement of the [construction permits].” In the Matter of

TVA (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed.

Reg. at 10,969.

BREDL’s March 30, 2009 petition is not saved by

BREDL’s claim at oral argument that it had to treat the

Commissioners’ “Response Sheets” as constituting a final order,

because, as of the date that the last “Response Sheet” was

submitted, BREDL had no way of knowing that the NRC staff

would take subsequent action on TVA’s request. This argument

is belied by the fact that BREDL did not actually submit its

petition until after the NRC published its final order on March

13, 2009. Indeed, BREDL even cited that order in its March 30,

2009 petition for review. Therefore, BREDL easily could have

17

amended its petition and Statement of Issues To Be Raised

correctly to seek review of the agency’s order that was published

in the Federal Register on March 13, 2009. Or, at the very least,

BREDL could have filed a protective petition for review of the

March 13, 2009 order. Cf. Massachusetts v. U.S. Nuclear

Regulatory Comm’n, 924 F.2d 311, 315 (D.C. Cir. 1991)

(describing that petitioners filed a “third . . . [duplicative]

petition . . . as a precaution to preserve [their] opportunity for

appellate review of the full power issues”).

We recognize, however, that BREDL still might have

stepped into a jurisdictional frying pan. Under the law of this

circuit, when a party “petitions [an] agency for reconsideration

of an order or any part thereof, the entire order is rendered

nonfinal as to that party.” Bellsouth Corp. v. FCC, 17 F.3d

1487, 1489–90 (D.C. Cir. 1994). The NRC argues that

BREDL’s petition to intervene in the NRC’s good cause hearing

was the functional equivalent of a motion for reconsideration.

In other words, according to the NRC, once BREDL filed its

petition to intervene in the agency’s for cause hearing, its prior

petition for review was “incurably premature.” TeleSTAR, Inc.

v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989) (per curiam). We

need not address this claim, however, given our conclusion that

BREDL failed to seek review of a final order in its initial

petition.

In sum, BREDL has insisted that its March 30, 2009

petition sought review only of the NRC Commissioners’

“Response Sheets” – documents which led to the NRC’s

February 18, 2009 action authorizing the staff to undertake an

evaluation of TVA’s proposed course of action and then to issue

a final order on behalf of the agency. Because these documents

do not constitute a “final order,” they are not the appropriate

subject of judicial review.

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2. BREDL’s March 8, 2010 Petition for Review

On May 8, 2009, BREDL petitioned to intervene in the

NRC’s good cause hearing on the reinstatement order. See Pet.

for Intervention and Req. for Hr’g by the Blue Ridge

Environmental Defense League, Its Chapter Bellefonte

Efficiency and Sustainability Team and the Southern Alliance

for Clean Energy 1, reprinted in J.A. 187. BREDL’s petition

advanced nine specific contentions against reinstatement: two

legal contentions regarding the NRC’s authority to reinstate

withdrawn construction permits under the AEA and seven

technical contentions regarding the safety of reinstating the

permits. See id. at 12–38.

The NRC viewed the legal contentions as “potentially

dispositive,” In re Tenn. Valley Auth., 71 N.R.C. at 118, and

consequently directed the parties to brief and argue them

exclusively, id. The remaining seven contentions were held in

abeyance. Id. at 118–19. On January 7, 2010, the NRC issued

an opinion rejecting BREDL’s legal contentions, holding that

the Commission has the authority to reinstate withdrawn

construction permits under the AEA. See id. at 115. The NRC

then “refer[red] the remainder of the petition to intervene and

request for hearing . . . to the [ASLB] Panel for further

proceedings.” Id. at 126. BREDL filed a petition for review

with this court on March 8, 2010, seeking review of the NRC’s

January 7 opinion. But once again, BREDL sought review of a

nonfinal action.

Even after the NRC issued its opinion on January 7, the

ASLB still had to consider BREDL’s outstanding nonlegal

contentions. Therefore, it is axiomatic that the January 7

opinion did not “dispose[] of all issues as to all parties,” Citizens

for a Safe Env’t, 489 F.2d at 1021, or fix the parties’ rights and

obligations. Instead, the NRC’s January 7 opinion was a

“nonfinal, interlocutory order,” similar to the order challenged

in City of Benton v. Nuclear Regulatory Commission, 136 F.3d

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824, 825 (D.C. Cir. 1998) (per curiam).

In City of Benton, the petitioners, several municipal utilities,

opposed an NRC amendment to an operating license on antitrust

grounds, see id. at 824–25, while another party challenged the

NRC’s initial licensing decision on safety grounds, see id. at

825. An individual NRC director issued a ruling on May 30,

finding no significant antitrust issues. Id. On June 8, the NRC

issued final orders allowing the proposed amendments to go into

effect. Id. The petitioners sought this court’s review of the May

30 antitrust ruling, not the final orders. But as this court

explained,

[a]lthough the Director’s May 30 finding addressed the

antitrust issues . . ., it did not discuss the NRC’s safety

determination which was still pending before the NRC.

Further, the Director’s May 30 finding did not result in the

grant or denial of [the] request to amend the license. Not

until the license amendments were issued on June 8 did the

NRC conclusively determine the antitrust and safety issues.

Id. Thus, the court dismissed for lack of jurisdiction. See id. at

826. The same reasoning compels dismissal here.

BREDL seeks refuge in this court’s cases carving out an

exception to the Hobbs Act’s finality rule when the Commission

issues an “immediate effectiveness” ruling. But this exception

is unavailing to Petitioner. In the context of NRC actions, an

order issued during ongoing administrative proceedings is

reviewable pursuant to this exception if, for example, it

authorizes a plant operator to operate at full power pending

further review by the Commission. See Massachusetts, 924 F.2d

at 322. But as BREDL concedes, even after the agency’s

issuance of its January 7, 2010 opinion, TVA remained many

steps away from even reinitiating construction, let alone

generating actual electricity. Thus, the NRC’s ruling was not

equivalent to an “immediately effective order”; instead, it

20

merely narrowed the issues confronting the ASLB in the good

cause hearing.

In sum, BREDL’s March 8, 2010 petition seeks review of

an interlocutory ruling by the NRC. And because the ruling was

not a final order subject to our jurisdiction under the Hobbs Act,

we must dismiss the petition for review.

III. Conclusion

The petitions for review are hereby dismissed for want of

jurisdiction.

It is so ordered.