# Petition for Writ of Certiorari — Hodges v. Abraham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0538%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 537 U.S. 1105 ## Text rr SUPTEMte LOTT, 8D. | ' FILES A nO2 544 WT -3 2004 Jn The Supreme Court of the GAnited States ¢ JIM HODGES, Governor of the State of South Carolina, in his official capacity, Petitioner, v. SPENCER ABRAHAM, Secretary of the Department of Energy, in his official capacity, and the UNITED STATES DEPARTMENT OF ENERGY, Respondents. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit + PETITION FOR A WRIT OF CERTIORARI * WILLIAM L. WANT LISA HEINZERLING 171 Church St., Suite 300 Counsel of Record - Charleston, SC 29401 GEORGETOWN UNIVERSITY (843) 723-5148 LAW CENTER 600 New Jersey Ave., NW STEPHEN P. BATES ‘ y Chief Legal Counsel Washington, DC 20001 OFFICE OF THE GOVERNOR (202) 662-9115 P.O. Box 11829 Columbia, SC 29211 (803) 734-6313 a COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTIONS PRESENTED 1. Whether the Fourth Circuit erred in holding, contrary to the decisions of this Court and of other cir- cuits, that agency compliance with the National Environ- mental Policy Act necessarily implies that agency action cannot be deemed arbitrary and capricious under the Administrative Procedure Act. 2. Whether the Fourth Circuit erred in holding that the National Environmental Policy Act (NEPA) did not require the United States Department of Energy to pre- pare any new NEPA documents when it decided to: desig- nate South Carolina as the nation’s only consolidated, long-term disposal site for weapons-grade plutonium; make storage of plutonium in South Carolina independent of any plans to process it for ultimate disposal; and elimi- nate one of the planned methods of disposal. ii LIST OF PARTIES In addition to the parties listed in the caption, the following were intervenors below: Media General Opera- tions, Incorporated, d/b/a Morning News (Florence), WBTW, WSPA, WCBD and WJBF; Aiken Communica- tions, Incorporated, d/b/a The Standard (Aiken); Osteen Publishing Company, Incorporated, d/b/a The Item (Sum- ter); East Coast Newspapers, Incorporated, d/b/a Island Packet, d/b/a The Herald (Rock Hill), d/b/a the Beaufort Gazette; The Evening Post Publishing Company, d/b/a The Post and Courier (Charleston); Columbia Newspapers, Incorporated, d/b/a The State (Columbia); the Sun Pub- lishing Company, Incorporated, d/b/a Sun News; The New York Times Company, d/b/a The Herald-Journal (Spartan- burg); Independent Publishing Company, Incorporated, d/b/a Anderson Independent-Mail; Landmark Community Newspapers of South Carolina, d/b/a The Lancaster News; Jefferson-Pilot Communications Company, d/b/a WCSC; Pacific and Southern Company, Incorporated, d/b/a WLTX; The South Carolina Press Association; South Carolina Broadcasters; Associated Press; and Lee Enterprises, Incorporated, d/b/a The Times and Democrat. RULE 14.1(b) AND 29.6 STATEMENT Petitioner Jim Hodges is the Governor of South Carolina. aS iii TABLE OF CONTENTS Page Fe PEG FIN EY E BBID vs sc0escevsccevecesessccseseseseseees i ee EE iL sss vinb-sunicbsannidendengsncevinesennnvtaesssess ii RULE 14.1(b) AND 29.6 STATEMENT..................... il OPINIONS BELOW ............cssssscssssssesserscsssscsosssoseess 1 I ovis donk sedadicceraksiexdebsesbesseibasesehabes 1 RELEVANT STATUTORY PROVISIONS ................. 1 isa ndenelbAebsdiveinenpesiinaoebbnanneatene 1 I sols csachcs abbas ovehadeheenantaduenssvenstuanyiate 1 2. Statutory and Regulatory Background........... 3 3. The Department of Energy’s Decisions........... 6 a. Decisions Before April 2002 ..................... 6 b. DOE’s Reversal of Course ...................0065 10 BS I ssi acescecisnnstninksveatekanstnessnnin 13 REASONS FOR GRANTING THE PETITION ......... 15 IIIT ac thi ciirnhesdhinnsvssavaddvnenssnevennenessissnevieess 27 iv TABLE OF AUTHORITIES CASES Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. Se 6 PO inikcssncseniantintnnnisnaniintienicaninnseenaannnnuaaannaiiiine Bennett v. Spear, 520 U.S. 154 (1997) ............cceceeeeeeeeees Blatchford v. Native Village of Noatak, 501 U.S. FF Ce ii ccc nceceniernesaedinisstoinenniniavanetinininnaninnasitinaiition Burlington Truck Lines, Inc. v. United States, 371 SS. ay A Iiaits pinissdcnicdlbccaseruiciiaialnalleleaintiaddcchenunsiabaadlaumiadeds Citizens to Preserve Overton Park v. Volpe, 401 U.S. Re CIT a Phiditivieeaciatncicscassencinracian chiieephiaisdapeetiotanceiaiebatanidguinabaiaibe Environmental Defense Fund, Inc. v. U.S. Envi- ronmental Protection Agency, 485 F.2d 780 (D.C. EIR Ta ice nssssin Scesndicasnhincasaabiiteachdesuaricndeceastadap andsiabiaiaiasieian Federal Maritime Commission v. South Carolina State Ports Authority, 122 S.Ct. 1864 (2002)............. Marsh v. Oregon Natural Resources Council, 490 Set I a vine necdacesilascussnstaacisa tiendaiiduiiasdialinaaaatidanminiieaiaie Maryland Dep’t of Human Res. v. United States Dep’t of Agric., 976 F.2d 1462 (4th Cir. 1992)........... Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000)............ Motor Vehicle Mfrs’ Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 2B (1GGS) ....cccescssecsccesccsccesess: Native Ecosystems Council v. Dombeck, 2002 U.S. App. LEXIS 18845 (9th Cir. Sept. 17, 2002) ............. New York v. United States, 505 U.S. 144 (1992).......... Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 SF ein SEA ME isnckiseniiicndhitisidarsisisenuaaisieaiinadiatanaenaiial Page arate TABLE OF AUTHORITIES -— Continued Page Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989).......... 26 Sierra Club v. U.S. Army Corps of Engineers, 701 ae B68 Fae City BONED tenccniomiindaaaeane 21 Strycker’s Bay Neighborhood Council v. Karlen, 444 SF ie SRE UIE svissssevininnicaecdcdiwniessaciccicenet mann manna 18 United States v. Students Challenging Regulatory f Agency Procedures (SCRAP), 412 U.S. 669 (1973)........ 17 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978) ..17, 18, 19 STATUTES D Ui a icvsochicctssinsscewbenvuieseialsiammassaladsandalaien 1 © EP AAs. © FI MIGIED iccesocspunonnsniewabendspeeianierariaiaaanaeeae 4,14 Be UTA D BRED Michccisnsccniencetesnintctieaiiaeaaniaanae CB UG. FG i cicicssnitnnictinneiniiaanineaeen 1 GES UA. F I ceesiiivniiscescvininntacactctaanbianpocdiameaenne 4 BR UDA 9 Gee i ccisinvesinnnitiitinaaee 16 Be UI Gi nesisnasnissccccustusttcedeaiteenuiseseiannassabannmeene 16 GE AE TAA EGE sesecsvncsccrssnscascnienuensimmapenniean aan 16 MISCELLANEOUS BO C.F FP ie circ 4 BO Co .0e. F ROR RD nsceienscsnirisarncecchnenssoeinnin aaa 4 10 C.F.R. § 1021.400 (Subpart D, Appendix D-10) ..... 25-26 BO CAF BR. BB Bet ivcensaiessisicthertsniasaiaaniataasanaae 4 6D CFT § SG vcccisssicensrinvciithiciniopmeailiiniien nies 4 TABLE OF AUTHORITIES — Continued Page DOE, Amended Record of Decision, Surplus Pluto- nium Disposition Program, 67 Fed. Reg. 19432 CAO, TE Bre ecsvinuscirgntesinetiandbiaameiidan 12, 26 DOE, Record of Decision for the Storage and Dispo- sition of Weapons-Usable Fissile Materials Final Programmatic Environmental Impact Statement, 62 Fed. Reg. 3014 (Jan. 21, 1907)......cccccscessssessesoserssssees 6 DOE, Record of Decision on Final E.I.S. Summary, 65 Fed. Reg. 1608 (Jan. 11, 2O01)........ccccrssesssssesscceeseees 7 DOE, Storage and Disposition of Weapons-Usable Fissile Materials Final Programmatic Environ- mental Impact Statement }t: 1-5, 1-6, 61 Fed. Reg. GSTROE CHORD, BE, Tee vvecessstspencekinstsanichaceeeesessnnnciainneenens 6 NNSA/DOE, Disposition of Surplus Plutonium at Savannah River Site 4-24-27 (Feb. 15, 2002) (available at http://www.nci.org/pdf/doe-pu- NG kei sccicsingesacsicncersssccennaienaeeaena aia 8 National Academy of Sciences, Management and Disposition of Excess Weapons Pu: Reactor- Related Options 417 (National Academy Press National Defense Authorization Act of Fiscal Year 2002, Pub. L. No. 107-117, § 3155, 115 Stat. BOER, SEO CE) iciniesnsussinticcenenetaseanaeeaain 1, 3, 20 Supplement Analysis for Storage of Surplus Pluto- nium in the KAMS Facility 3, D.O.E./E.1.S.-0229- ET CP, BI otiiaricriernssertesiemmbansanaaelaaiads 8 Supplement Analysis for Storing Plutonium in the Actinide Packaging and Storage Facility and Building 105-K at the Savannah River Site 4 CPI BIDE) vvecccssscennennsnsnsenceeeneeeinennsnininneinaneabaigmaaaae 7 ee OPINIONS BELOW The opinion of the Fourth Circuit Court of Appeals is available at 300 F.3d 432 (4th Cir. 2002). The opinion of the District Court for the District Court of South Carolina at Aiken is not published yet. The Fourth Circuit opinion is reproduced in the Appendix to this petition (hereafter “App.”) at page 1; the District Court is reproduced at App. 32. ¢ JURISDICTION The judgment of the Fourth Circuit was entered on August 6, 2002. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). ¢ RELEVANT STATUTORY PROVISIONS The relevant statutory provisions of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seg.; and the National Defense Authorization Act of Fiscal Year 2002, Pub. L. No. 107-117 § 3155; 115 Stat. 1012, 1378 (2001) are reproduced at App. 90. ¢ STATEMENT 1. Introduction The United States has determined that it has more plutonium than it needs for national defense. The De- partment of Energy (DOE) was charged with deciding 2 what to do with this “surplus” plutonium. After thorough study, DOE decided to convert some of the surplus pluto- nium into fuel for nuclear power plants and to immobilize the rest in secure containers buried in a deep geologic repository. The Savannah River Site (SRS) in South Carolina was chosen as the site to process the plutonium. Any plutonium delivered to SRS was to be converted into a fuel for commercial nuclear power plants or immobilized for transfer to a geologic site. None was to remain at SRS. Congress ratified this approach by directing DOE to devise a plan for surplus plutonium that would provide for removal “in a timely manner” of all plutonium shipped to South Carolina. Almost right up to the moment when DOE issued the decision challenged here, DOE itself thought it appropriate to assure a pathway out of South Carolina for the plutonium to be shipped there. However, when the Governor of South Carolina refused to promise, as de- manded by the Secretary of DOE, that he would not challenge DOE’s decisions concerning plutonium at SRS, DOE announced that it was canceling the immobilization program, putting off indefinitely the convezsion program, decoupling plutonium storage at SRS from plutonium processing, and sending surplus plutonium to South Carolina forthwith for long-term storage. The Fourth Circuit held that because it had found that DOE had complied with the National Environmental Policy Act in coming to its decision, the agency had perforce complied with the Administrative Procedure Act as well. In combination, the Department’s actions threaten to make the Savannah River Site in South Carolina the Yucca Mountain of the East, but without the benefit of the extensive environmental reviews that have attended the decisions concerning Yucca Mountain. Despite the 3 enormous implications of the lethality and longevity of plutonium for the human environment, despite the fact that the SRS facilities were not designed with long-term disposal of plutonium in mind, and despite the fact that the original purposes of shipping plutonium to and storing plutonium at SRS were no longer being actively pursued, DOE declined to perform an analysis of the environmental consequences of and alternatives to its decision to ship surplus plutonium to SRS and to store it there for the indefinite future. The Fourth Circuit held that DOE was not required to prepare any new NEPA documents regard- ing its change of policy because “it was apparent,” based on DOE’s explanation of its actions, “that the proposed change did not create a new environmental picture from that previously studied.” App. 30. 2. Statutory and Regulatory Background For decades, the federal government has assumed primary responsibility for the handling and disposal of nuclear materials. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commis- sion, 461 U.S. 190, 194 (1983). Nevertheless, on issues relating to long-term disposal of radioactive waste, Con- gress has made room for the involvement of states in the selection of disposal sites. New York v. United States, 505 U.S. 144 (1992). With respect to the plutonium at issue in this case, Congress specifically directed DOE to consult with the State of South Carolina in coming to its decisions on the management and disposal of surplus plutonium. National Defense Authorization Act of Fiscal Year 2002, Pub. L. No. 107-117, § 3155, 115 Stat. 1012, 1378 (2001). At the same 4 time, Congress also instructed DOE to develop a plan for disposition of surplus plutonium that would specify “the means by which all such defense plutonium and defense plutonium materials will be removed in a timely manner from the Savannah River Site for storage or disposal elsewhere.” Id. In making decisions about the handling and disposal of nuclear waste, DOE is also bound by NEPA and the APA. NEPA requires that an agency proposal on a major federal action significantly affecting the quality-of the human environment be accompanied by a detailed state- ment of the environmental consequences of, and alterna- tives to, the proposed action. 42 U.S.C. § 4332(C). Regulations issued under the Act require that federal agencies prepare an environmental assessment for their actions unless they decide at the outset to prepare an environmental impact statement or there is a specific exclusion for the action in question. 10 C.F.R. § 1021.104, 1021.321(a), 1021.400(d) and 40 C.F.R. § 1508.9. The prohibition on arbitrary or capricious agency action embodied in the APA, 5 U.S.C. § 706(2)(A), requires, among other things, that final agency action be based on “a consideration of the relevant factors,” Citizens to Pre- serve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), and on a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). Agency action will be deemed arbitrary where, for example, the agency “has relied on factors which Congress has not intended it to consider.” Motor Vehicle Mfrs’ Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). 5 The agency decisions at issue here arose out of the federal government’s efforts to deal with the problem of surplus plutonium, plutonium that the United States has determined is no longer needed for purposes of national defense. Beginning in the 1990s, the United States and the Russian Federation together concluded that they no longer needed all of the nuclear weapons they had stock- piled during the Cold War. In 1994, the Presidents of the two nations agreed to the goals of “safe, secure, long-term storage and disposition of surplus fissile materials” and to “irreversible” reduction of these materials. Joint State- ment Between the United States and Russia on Nonprolif- eration of Weapons of Mass Destruction and Means of their Delivery (January 14, 1994). The United States has committed, both bilaterally and unilaterally, to reducing the “surplus” weapons in its nuclear stockpile. There are at least two different ways to accomplish this goal. One is the conversion of weapons- grade plutonium into material that is not usable in nu- clear weapons. Plutonium would be combined with ura- nium to produce “mixed-oxide fuel” (MOX), which would be used at nuclear power plants to produce electricity. An- other way to reduce the accessibility of weapons-grade plutonium is to immobilize it in secure containers and bury it in a deep geologic repository. As explained below, both of these strategies were included in DOE’s policies for surplus plutonium until the reversal of course at issue in this case. 6 3. The Department of Energy’s Decisions a. Decisions Before April 2002 On January 21, 1997, the Department of Energy issued a Record of Decision (ROD) announcing a dual- track plan for plutonium disposition whereby pure forms of plutonium would be processed into MOX for use by commercial reactors and the remaining impure plutonium would be immobilized into a ceramic form and placed in a geologic site. DOE, Record of Decision for the Storage and Disposition of Weapons-Usable Fissile Materials Final Programmatic Environmental Impact Statement, 62 Fed. Reg. 3014 (Jan. 21, 1997). The National Academy of Sciences had recommended the dual approach in a 1995 report which states, “Since it is crucial that at least one of these options succeed, since time is of the essence, and since the costs of pursuing both in parallel are modest in relation to the security stakes, we recommend that project- oriented activities be initiated on both options, in parallel, at once.” National Academy of Sciences, Management and Disposition of Excess Weapons Pu: Reactor-Related Options 417 (National Academy Press 1995). Furthermore, the United States wanted the immobilization technology to deal with certain plutonium in the military complex that it deemed unsuitable for use in nuclear reactors. Id. The 1997 ROD had been preceded by a 1996 Pro- grammatic Environmental Impact Statement (PEIS). The PEIS divided its subject into three categories: storage, storage pending disposition and disposition. DOE, Storage and Disposition of Weapons-Usable Fissile Materials Final Programmatic Environmental Impact Statement, 1: 1-5, 1- 6, 61 Fed. Reg. 67001 (Dec. 19, 1996). DOE’s “preferred alternative” designated only the nonsurplus plutonium and highly enriched uranium, not surplus plutonium, for 2a WY ERR MISE ee Oe 7 long-term storage. Under DOE’s preferred approach, surplus plutonium was only to be stored “pending disposi- tion” through conversion to MOX or immobilization. To be sure, DOE concluded that it was best to transfer surplus plutonium from the Rocky Flats nuclear facility in Colo- rado to SRS — but for the purpose of disposition, not simply to move the plutonium to a different place. In addition, the facilities at SRS were to be upgraded and expanded to accommodate this new burden. Over the next several years, DOE made further refinements and adjustments to its policies for surplus plutonium. In 1998, DOE issued a supplement assessment in which it analyzed its proposal to ship surplus plutonium to SRS on an accelerated schedule and to store the pluto- nium in an existing building at SRS, called KAMS, pend- ing completion of a new facility specifically designed to handle the surplus plutonium. Supplement Analysis for Storing Plutonium in the Actinide Packaging and Storage Facility and Building 105-K at the Savannah River Site 4 (July 1998). (In January 2001, DOE canceled its plans for the new facility.) In its 1998 supplement assessment, DOE specifically explained that the transfer of plutonium to SRS “would not occur unless DOE decides to immobilize plutonium at the SRS.” Jd. Subsequently, in a federal register notice of January 11, 2000, DOE issued a ROD deciding to locate the MOX and immobilization facilities for processing surplus plutonium at SRS. DOE, Record of Decision on Final E.I.S. Summary, 65 Fed. Reg. 1608 (Jan. 11, 2001). Both of these decisions kept the basic structure of the 1997 ROD intact: surplus plutonium would be shipped to SRS for the purpose of rendering the material less accessible to anyone — in the U.S. government or 8 elsewhere — who might wish in the future to use it for aggressive purposes. In a February 2002 supplement analysis for storage of surplus plutonium at SRS, DOE noted that a 1998 sup- plement analysis on the subject had assumed storage of surplus plutonium would be “for up to 10 years,” pending disposition. Supplement Analysis for Storage of Surplus Plutonium in the KAMS Facility 3, D.O.E./E.1.S.-0229-SA2 (Feb. 2002). The February 2002 supplement assessment stated that storage of surplus plutonium at SRS may extend beyond the 10 years previously estimated, but made it clear that the storage would not be long-term, noting, “DOE plans to disposition its surplus plutonium as soon as practical and believes storage in KAMS would be necessary for less than 20 years.” Jd. at 8. At this time, then, DOE’s policy continued to be interim storage at SRS pending disposition. On February 15, 2002, DOE submitted to Congress a report Congress had requested on the status of the surplus plutonium program. The report stated that the agency rejected the long-term storage approach. NNSA/DOE, Disposition of Surplus Plutonium at Savannah River Site 4-24-27 (Feb. 15, 2002) (available at http://www.nci. org/pdf/doe-pu-2142002.pdf). The report also announced that DOE would eliminate the immobilization component of the surplus plutonium program and proceed exclusively by way of the MOX technology. The report provided a detailed schedule for implementing the MOX processing — and eventually deactivating it — at SRS. Two of the options considered in the report, but rejected, were storage of the surplus plutonium in the six places where it currently resides, and consolidated storage 9 in two. One of the disadvantages of the storage approach was said to be, “The U.S. plutonium disposition mission and parallel Russian disposition effort would not be achieved. Russian plutonium would remain subject to increasing risk of theft or diversion.” Id. at 4-24. Another disadvantage of the storage approach was said to be, “While the technologies for storing plutonium currently in use throughout the complex are considered mature, there is no experience for very long-term storage of pits and non- pit plutonium.” Jd. Yet another disadvantage of the stor- age approach came under the category, “sensitivities.” For the storage in place option, the report stated: “Both South Carolina and Colorado would strongly oppose this option.” Id. As to “sensitivities” if there were consolidated storage, the report stated: South Carolina would view this option as a fail- ure to provide a pathway out of SRS for surplus plutonium brought there for disposition (assum- ing that SRS was selected as one of the consoli- dation sites). Therefore, this option can be expected to be strongly opposed by the State of South Carolina and challenged in the courts. This option would likely require additional NEPA review and public meetings. [Id. at 4-26, emphasis added. ] As of February 2002, then, this is where things stood. DOE’s formal policy remained the one first announced five years before. Surplus plutonium was to be either con- verted to fuel or immobilized and placed in a geologic repository. Pending this activity, surplus plutonium was to be shipped to SRS for interim storage. Transfer of pluto- nium to SRS and interim storage of it there were to occur for the purpose of disposition. DOE had, in its report to Congress, proposed that the immobilization program be 10 canceled, but at that time it did not issue a formal decision to undertake this proposal. In the report to Congress, moreover, DOE specifically rejected the idea of transfer- ring plutonium to SRS independent of disposition. All this changed in April 2002. b. DOE’s Reversal of Course Beginning in 2001, Governor Jim Hodges of South Carolina became concerned about DOE’s plans for transfer of surplus plutonium to, and long-term storage of this plutonium at, SRS. He embarked upon a correspondence with the Secretary of DOE, Spencer Abraham, in which he stated his concerns about shipping plutonium to SRS and sought DOE’s assurance that the agency would meet its commitment to process, then remove, the surplus pluto- nium sent to SRS and not use the state as a permanent disposal ground for plutonium. This correspondence culminated in an extraordinary letter from Secretary Abraham to Governor Hodges on April 11 of this year. Along with that letter, Secretary Abraham sent a draft record of decision to Governor Hodges and an agree- ment, which he asked the Governor to sign, indicating his consent to the approach of the draft record of decision. The decision proposed by DOE committed the agency to ensur- _ ing a credible “exit strategy” for plutonium brought into South Carolina and provided specific dates by which DOE would remove the plutonium from the State if DOE’s commitments had not been met. In signing the agreement proffered by Secretary Abraham, Governor Hodges would have been agreeing not to file any legal challenge against the Secretary's decisions concerning SRS and surplus plutonium. 11 In the April 11, 2002 letter itself, Secretary Abraham wrote: As I have indicated in our various personal meet- ings and phone conversations, I appreciate your concerns that any plutonium that comes into the State have a credible pathway out. That is why when we spoke on February 23, I personally as- sured you that our new approach would not transport any plutonium to South Carolina unless our plans for fabricating it into MOX fuel were progressing in a fashion that assured that it would be able to be disposed of through this process. Letter from Secretary Abraham to Governor Hodges of 4/11/02, App. 103. Additionally, Secretary Abraham stated in the same letter that DOE had made a: commitment to maintain a pathway out of South Carolina for any plutonium brought into the State, including firm dates by which such mate- rial would be removed from the State if DOE, for any reason, were to be unable to secure the fund- ing necessary to build the MOX facility. Id., App. 104. Secretary Abraham coupled his offer of a pathway out of South Carolina with a warning about what would happen if Governor Hodges did not sign the agree- ment: I am prepared to authorize issuance of this Rec- ord of Decision immediately upon receiving a signed agreement from you... . If you are unable to accept this agreement, I will proceed to take the steps I believe necessary to meet our national security and environmental cleanup objectives. Consistent with applicable law, on April 15, I will authorize issuance of an amended Record of a F 12 Decision that does not incorporate the terms of the attached agreement and will direct issuance of the requisite 30-day notice of our intent to be- gin shipping. Id., App. 102 and 106-107. Thus Secretary Abraham threatened Governor Hodges that if he did not sign the agreement Abraham had profferred, none of the qualifica- tions and contingencies provided for in the agreement and the draft record of decision would be recognized. Governor Hodges, however, insisted that DOE make the agreement legally enforceable, and this DOE would nat do. Thus DOE and Governor Hodges did not execute an agreement concerning the shipment of plutonium to SRS. On April 19, 2002, DOE issued an amended ROD in final form. DOE, Amended Record of Decision, Surplus Plutonium Disposition Program, 67 Fed. Reg. 19432 (Apr. 19, 2002). It was dramatically different from the draft DOE had sent to Governor Hodges eight days earlier. The amended ROD announced the “immediate implementation of consolidated long-term storage at the Savannah River Site (SRS) of surplus non-pit plutonium now stored sepa- rately at the Rocky Flats Environmental Technology Site (RFETS) and SRS. .. .” Jd. at 19432. Whereas Secretary Abraham had guaranteed that the shipment of surplus plutonium to SRS was strictly tied with processing it there, the amended ROD stated: In addition to achieving the ultimate goal of permanent disposition of surplus plutonium ma- terials, DOE independently needs to improve the configuration of the storage system for these ma- terials pending disposition. These improvements 13 will allow DOE to significantly reduce storage costs, expedite closure and cleanup of sites and facilities in its nuclear complex, and enhance the security of these materials. [Jd. at 19433, empha- sis added. ] Secretary Abraham had made good on his threat to Gov- ernor Hodges: because the Governor had refused to sign an agreement DOE conceded — indeed, insisted — was legally unenforceable, DOE withdrew all of the protections it had been prepared to provide to South Carolina to assure implementation of DOE’s long-standing surplus plutonium disposition policy and replaced them with a . decision making South Carolina the nation’s only consoli- dated, long-term storage site for weapons-grade pluto- nium. 4. Proceedings Below Shortly after DOE announced its new policy for surplus plutonium, Governor Hodges sued Secretary Abraham and DOE in federal district court in South Carolina, alleging that the agency had failed adequately to analyze the consequences of and alternatives to its deci- sion under the National Environmental Policy Act (NEPA) and that its reversal of policy course was arbitrary and capricious under the Administrative Procedure Act (APA). Governor Hodges’ NEPA and APA claims reflected two very different lines of attack. His NEPA claims as- serted that DOE had violated NEPA by failing to prepare either an environmental assessment (prepared in cases in which the need for an environmental impact statement is unclear) or a supplemental environmental impact state- ment in coming to its new decisions concerning surplus 14 plutonium. Complaint 7{ 71-84. In his APA claim, on the other hand, Governor Hodges contended that DOE’s reversal of course on surplus plutonium in April 2002 was arbitrary and capricious, not because of DOE’s treatment of environmental issues but because DOE’s abrupt change of policy was itself arbitrary and capricious. Complaint 17 89-93. The district court denied Governor Hodges’ motion for a preliminary injunction against DOE’s plutonium ship- ments into South Carolina and at the same time granted summary judgment in favor of DOE. In this decision, the district judge completely subsumed the APA claim within the NEPA claim; she asked only whether DOE’s decisions concerning the development of NEPA documents were arbitrary and capricious, not whether the decision an- nounced on April 19 was itself arbitrary and capricious. Finding no meritorious NEPA claim, the judge granted judgment for DOE without separate discussion of the APA. The Fourth Circuit followed a similar path. After rejecting the Governor’s NEPA claims, the appeals court rejected the APA claim as well: Governor Hodges also maintains that the DOE’s decisionmaking process violated the Administra- ~tive Procedure Act (the “APA”). Under the APA, we must uphold an agency decision if it is sup- ported by “substantial evidence,” and is not “ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E). In conducting our review under the APA, “we perform only the limited, albeit important, task of reviewing agency action to de- termine whether the agency conformed with con- trolling statutes, and whether the agency has committed a clear error of judgment.” Maryland 15 Dep’t of Human Res. v. United States Dep’t of Ag- ric., 976 F.2d 1462, 1475 (4th Cir. 1992) (internal quotations and citations omitted). In view of the DOE’s compliance with NEPA, the Governor's APA challenge is also without merit. Hodges v. Abraham, 300 F.3d 432, 449 n. 17 (4th Cir. 2002) (emphasis added). The Fourth Circuit’s holding was no accident: the Department of Justice had, in its brief on appeal, argued on behalf of just this result, stating flatly that the Governor had “no independent APA cause of action in this case” and that “(t]he APA here is simply the means for effectuating judicial review under the NEPA statute, which creates a purely procedural statute.” Brief for the Federal Appellees, Hodges v. Abraham, No. 02- 1639 (4th Cir.), at 56-57. In holding that compliance with NEPA excuses compliance with the APA, the Fourth Circuit parted company with the relevant statutory language, and with this Court’s established precedents and those of other lower courts, on a matter of great importance to the State of South Carolina and to the nation as a whole. On the NEPA issue, the Fourth Circuit determined that it was not necessary for DOE to prepare an environ- mental assessment for its new decision because DOE had decided that its previous environmental analyses covered its changed decision. On this point, too, the Fourth Circuit erred. + REASONS FOR GRANTING THE PETITION 1. The Department of Energy, perversely, treated its “consultation” with South Carolina, required by Congress emcees 16 in the National Defense Authorization Act of FY2002, as an opportunity to dangle one approach to the problem of surplus plutonium before South Carolina’s eyes and then to snatch that approach away when South Carolina failed to jump at it. By refusing to review Governor Hodges’ claim that the Department’s decision was arbitrary and capricious under the APA, merely because the court had found that the Department had complied with an entirely separate statute, NEPA, the Fourth Circuit gave its stamp of approval to the Department's petulant treatment of a sovereign State. The Fourth Circuit’s legal error in conflat- ing NEPA and the APA is plain; its decision conflicts with decisions of this Court and of other circuits; and it has ratified the Department of Energy’s rush to judgment on a matter of great national importance. This Court should grant the Governor's petition for a writ of certiorari. a. By its literal terms, NEPA disclaims any congres- sional intent to supplant other federal statutes. Other environmental standards, and requirements of coordina- tion or consultation with, and recommendations or certifi- cation of, other Federal or State agencies, are explicitly preserved by the statute. 42 U.S.C. § 4334. In addition, NEPA provides that “[t]he policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of Federal agencies.” 42 U.S.C. § 4335. Where the executive branch finds that existing regulatory programs are inadequate for the purposes of environmental protection, it is encouraged to make “rec- ommendations for legislation” to fix the problem. 42 U.S.C. § 4341. These provisions together leave no doubt that NEPA supplements, but does not supplant, other statutory regimes. rt 17 Nothing in the statute remotely suggests that the APA is an exception to this rule. The Fourth Circuit's holding that compliance with NEPA implies compliance with the APA thus flouts the plain language of NEPA. Indeed, as explained next, not only does the statute itself give no hint whatsoever of an intent to repeal the APA in cases where NEPA implies, but this Court's decisions strongly confirm that NEPA and the APA are two differ- ent, independently applicable, statutes. b. Ina series of decisions handed down in the decade or so after NEPA was enacted, this Court made plain that the APA and NEPA create two different statutory regimes. In fact, it would not be an overstatement to say that the interaction between the APA and NEPA was the predomi- nant question. in the early NEPA cases heard by this Court. These cases resoundingly affirmed what is plain from the statutory text: NEPA did not amend or repeal the APA. In its very first encounter with NEPA, this Court concluded that the statutory language “indicates that NEPA was not intended to repeal by implication any other statute.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 694 (1973); see also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 319 (1975). In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978), this Court unanimously rejected the argument that NEPA somehow enlarged the procedures otherwise required by the APA. “We search in vain,” the Court said, “for something in NEPA which would mandate such a result.... Thus, it is clear NEPA cannot serve as the basis for a substantial 18 revision of the carefully constructed procedural specifica- tions of the APA.” Id. at 548. Although Vermont Yankee is famous for its holding that NEPA did not add to the requirements of the APA, the case stands equally for the proposition that nothing in NEPA subtracts from APA requirements.’ The Court concluded that the Atomic Energy Commission had satis- fied NEPA’s requirements, id. at 549-55, but remanded the case to the Court of Appeals to review the question whether the agency had violated the APA by issuing a decision unsupported by the administrative record. Id. at 549. Nowhere did the Court intimate that the agency’s compliance with NEPA implied compliance with the APA, and its remand to the appeals court for further review under the APA signals just the opposite conclusion. This Court’s other leading NEPA cases reaffirm this result. In the per curiam opinion in Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980), the Court summarily reversed a Second Circuit decision requiring a federal agency to give “determinative weight” to environmental considerations pursuant to NEPA. Id. at 227. The Court also hinted, however, that it might have reached a different result — and certainly would have granted plenary review — if it had thought that the agency had acted “arbitrarily or capriciously.” Jd. at 228 n. 2. Because the court below had not found this to be the case, the Court rested with its NEPA analysis. The decision * Similarly, in Bennett v. Spear, 520 U.S. 154, 175 (1997), this Court held that the Endangered Species Act does not supplant APA requirements. - 19 plainly recognizes, as Vermont Yankee did, that federal agencies’ compliance with NEPA does not excuse compli- ance with the APA’s constraints on arbitrary agency action. In short, the Fourth Circuit departed from this Court’s long- and clearly established precedents by ending its analysis with NEPA and refusing to go on to consider whether the Department of Energy had violated the APA. Perhaps even more surprising than the Fourth Circuit’s erroneous decision is the fact that the United States asked for it: in responding to Governor Hodges’ APA claim in its appellate brief, the Department of Justice asked the court to reject the Governor’s attempt to “smuggle” arbitrary and capricious review into NEPA, and stated flatly that the Governor had “no independent APA cause of action in this case. The APA here is simply the means for effectuat- ing judicial review under the NEPA statute, which creates a purely procedural statute.” Brief for the Federal Appel- lees, Hodges v. Abraham, No. 02-1639 (4th Cir.), at 56-57. The Department of Justice is thus as confused as the Fourth Circuit is. NEPA simply does not supplant the APA. Even if a federal agency complies with NEPA, it must still comply with the APA by issuing decisions that are neither arbitrary nor capricious. NEPA and the APA are, to be sure, linked in the following way: the APA provides the statutory basis and standard of review for judicial review of agency analysis undertaken pursuant to NEPA. But agency action that complies with NEPA can nevertheless violate the APA by being arbitrary and capricious, where the agency operates under legal constraints that arise outside NEPA. Here, the authority under which DOE set surplus plutonium policy — including nonproliferation agreements and the National 20 Defense Authorization Act of Fiscal Year 2002, Pub. L. No. 107-117, § 3155, 115 Stat. 1012, 1378 (2001) — nowhere made South Carolina’s disagreement with federal pluto- nium policy a relevant consideration in setting that policy. Indeed, the National Defense Authorization Act of Fiscal Year 2002 specifically required DOE to} consult with South Carolina and to describe its plans for an exit strategy for the plutonium sent to SRS for disposition. Nevertheless, Governor Hodges’ simple disagreement with Secretary Abraham figured profoundly in Secretary Abraham’s April 2002 decisions concerning surplus plutonium. By relying on a consideration that the laws under which he operated deemed irrelevant, Secretary Abraham acted arbitrarily and capriciously according to this Court’s well-settled jurisprudence of administrative law. _¢. The Fourth Circuit’s decision also parted company with decisions from other federal circuits. The court’s error lay not in applying an APA standard of review to the NEPA claims in this case, but in concluding that the APA spoke only to the NEPA claims raised here and not to the issue of whether DOE had acted arbitrarily within the meaning of other relevant laws. The notion that the APA might constrain agency action outside the context of NEPA, even in settings where NEPA also applies, is so well accepted in other circuits that it is hard to find explicit statements to this effect. Plenty of evidence exists, however, to-conclude that the Fourth Circuit’s ruling on this issue is out of line with precedents from other lower federal courts. Particularly telling in this regard are the many cases from other courts confronting claims based on multiple statutes governing natural resources. In numerous cases concerning conflicts regarding natural resources, one finds 21 plaintiffs invoking not only NEPA, but also the Endan- gered Species Act, the National Forest Management Act, and others. Claims under these latter statutes typically invoke the APA, and courts other than the Fourth Circuit have consistently heard both the claims under NEPA and the claims asserting violations of the APA through actions under other statutes. See, e.g., Native Ecosystems Council v. Dombeck, 2002 U.S. App. LEXIS 18845 (9th Cir. Sept. 17, 2002) (reviewing separately claims arising under NEPA, National Forest Management Act, and Endangered Species Act); Environmental Defense Fund, Inc. v. U.S. Environmental Protection Agency, 485 F.2d 780 (D.C. Cir. 1973) (holding that NEPA claims, and APA claims arising out of agency’s actions under Federal Insecticide, Fungi- cide and Rodenticide Act, must be heard in D.C. Circuit); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983) (finding violations of NEPA and of APA through actions under Clean Water Act). Other courts have not held, as the Fourth Circuit did, that NEPA compliance necessarily implies APA compliance. In sum, the lower federal courts routinely consider legal claims under the APA even where NEPA also ap- plies. The Fourth Circuit’s square holding that compliance with NEPA perforce implies compliance with the APA is a clear departure from the approach of other circuits. d. Few issues in the modern era have so challenged the delicate balance between the States and the federal government as has the disposal of the dangerous and persistent byproducts of the nuclear age. This Court has insisted upon respectful treatment of the states by the federal government even where the “pressing national problem” of radioactive waste disposal is concerned, New nar 22 York v. United States, 505 U.S. 144, 187 (1992), and it has worked to preserve state authority wherever it can. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190 (1983) (upholding California’s refusal, on economic grounds, to license new nuclear power plants in the absence of a solution to the problem of nuclear waste). This case, unhappily, reflects shockingly cavalier treatment of a State by the federal government. Because Governor Hodges would not sign the agreement proffered to him by the Department of Energy, the Department turned around and reversed course on an issue of great national importance. Whereas in February of this year the Department reported to Congress that long-term storage independent of disposition was unacceptable, and whereas the Department was willing as of April 11 of this year to condition transfer of plutonium to South Carolina on the disposition of that plutonium and its removal from South Carolina upon disposition, by April 19 the Department had completely disconnected disposition from transfer of plutonium to, and storage of plutonium in, South Carolina, and had removed any assurances it had previously thought sensible concerning an “exit strategy” for the plutonium brought to South Carolina. All this because the Governor had not acceded to the Department’s demand for his signature on what the Department conceded was not a legally enforceable agreement. Nothing in the nonprolif- eration agreements upon which the Department’s work initially built, nor in the National Defense Authorization Act of Fiscal Year 2002, which refined the Department’s instructions concerning surplus plutonium, makes the Governor’s disinclination to sign the agreement proffered to him by Secretary Abraham a relevant consideration in a 23 the development of the nation’s policies concerning surplus defense plutonium. Indeed, it would hardly suit the system of “dual sovereignty” established by the Constitution, see Federal Maritime Commission v. South Carolina State Ports Authority, 122 S.Ct. 1864, 1870 (2002), nor would it respect the principle that “States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government,” id., but instead “ ‘entered the Union ‘with their sovereignty intact,’” Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991), to conclude that DOE may, without fear of legal reprisal, retaliate against a State for its expression of disapproval of federal policy by fundamentally reworking the structure of that policy in a way that disadvantages the State in question. The Administrative Procedure Act was designed to prevent just the kind of arbitrary and capricious action DOE exhibited here. It is no less arbitrary or capricious to consider factors not relevant to the agency’ mission — such as the honest disagreement of the Governor of a sovereign State with a proposed federal policy — than it is to fail to consider factors that are relevant to the agency’s mission. Overton Park, supra, 401 U.S. at 416. The Fourth Circuit erred in refusing even to address the question whether the Department’s high-handed and dispropor- tionate reaction to Governor Hodges’ qualms about the long-term storage of plutonium in his State was arbitrary and capricious within the meaning of the APA. 2. The Fourth Circuit’s error in finding that compli- ance with NEPA implies compliance with the APA was compounded by the fact that its finding regarding NEPA compliance was also erroneous. Thi, part of the court’s 24 decision is also out of step with this Court’s precedents, and the Fourth Circuit’s clear legal error ratified DOE’s unreflective reversal of course on a matter of such great national importance that the Court should grant review of this question as well. a. The Fourth Circuit found that DOE had complied with NEPA based on DOE’s representation that docu- ments prepared prior to its April 2002 decision adequately demonstrated that its April 2002 reversal of course would not cause significant environmental consequences, trigger- | ing new NEPA obligations. This Court has made clear that federal agencies have a continuing obligation to analyze the environmental consequences of, and alternatives to, their major propos- als. By focusing agency attention on the environmental consequences of agency action, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). “It would be incongruous with this approach to environmental protection, and with the Act’s manifest concern with preventing uninformed action,” the Court has observed, “for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to the completion of agency action simply because the rele- vant proposal has received initial approval.” Jd. Thus, the mere fact that DOE had previously prepared NEPA reports on its surplus plutonium program did not excuse it from preparing new reports when the agency profoundly altered its policy course. b. In April of this year, DOE changed its policy regarding surplus plutonium in two very large ways: First, 2 CH it decided that transfer of surplus plutonium to, and long- term storage of this plutonium at, SRS would no longer be dependent on disposition of this plutonium. The plutonium could, in other words, stay at SRS indefinitely — indeed, forever — without. doing violence to DOE’s new policy. Second, DOE canceled the immobilization portion of its plutonium program and decided to rely exclusively on MOX processing for disposition. Both of these abrupt policy changes had significant potential consequences for the environment, and yet neither has been evaluated under NEPA by DOE. Starting with the decision to disconnect storage at SRS from disposition, this choice makes SRS the nation’s only indefinitely long-term storage site for surplus pluto- nium. Much ink has been spilled in this case over whether DOE evaluated storage of plutonium at SRS for 10, 20, or 50 years, with the Fourth Circuit concluding (erroneously, in our view) that DOE had adequately considered the environmental consequences of plutonium storage at SRS for up to 50 years. But this fine parsing of the relevant temporal period misses the larger and more important point: nothing in DOE’s April 2002 Record of Decision makes 50 years the outer limit for storage of surplus plutonium at SRS. Plutonium could be stored at SRS until kingdom come and the April 2002 decision would have nothing to say about it. If DOE had come to this decision right off the bat, in its 1997 Record of Decision which started this whole process, there is no doubt that it would have been required to prepare an EIS. DOE’s own NEPA regulations deem the storage of high-level nuclear waste to be “categorically included” within NEPA’s EIS requirements; that is, an EIS is normally required for this category of decisions. 10 26 C.F.R. § 1021.400 (Subpart D, Appendix D-10). To allow DOE, as the Fourth Circuit did, to make this same deci- sion without an EIS merely because the agency had analyzed other decisions in previous EIS’s is nonsensical. Turning to DOE’s reversal of course on immobiliza- tion, DOE itself in April 2002 recognized that it would need to conduct further NEPA review of the consequences of canceling immobilization, insofar as this decision necessitates the processing of more impure plutonium through the MOX facility. DOE, Amended Record of Decision, Surplus Plutonium Disposition Program, 67 Fed. Reg. 19435 (April 19, 2002). DOE cannot make a decision first and then analyze its environmental consequences later. In ratifying DOE’s decision to do just this, the Fourth Circuit once again parted company with other circuits. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (requiring federal agencies to consider environ- mental consequences of allowing Makah Indian Tribe to hunt whales before coming to its decision on whale hunt- ing); Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989) (Breyer, J.) (in explaining that NEPA documents must be prepared before decision on agency action is made, the court observes: “[g]iven the realities, the farther along the initially chosen path the agency has trod, the more likely it becomes that any later effort to bring about a new choice, simply by asking the agency administrator to read some new document, will prove an exercise in futility”). c. The decision to make SRS the nation’s consoli- dated long-term storage facility for surplus plutonium is too important a decision to be made without at least an environmental assessment. The Defense Nuclear Facilities Safety Board, an independent organization established by Congress to provide oversight of DOE, has raised 27 questions whether the KAMS facility at SRS where the storage will take place is capable of accomplishing this mission. In a letter of November 21, 2001, the Defense Nuclear Facilities Safety Board stated the KAMS facility “is an aged facility and was never intended to provide more than interim storage.” App. 117. Similarly, in a report of February, 2002, it stated, “... KAMS is an aged facility with no confinement features for potentially extended storage of plutonium.” App. 122. Before South Carolina indeed becomes the Yucca Mountain of the East, DOE should be required to analyze the environmental consequences of its new policy and to explore alternative, safer arrangements for plutonium storage at SRS. €é v CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. WILLIAM L. WANT ' LISA HEINZERLING 171 Church St., Suite 300 Counsel of Record Charleston, SC 29401 Georgetown University (843) 723-5148 Law Center 600 New Jersey Ave., NW Chief Legal Counsel Washington, DC 20001 Office of the Governor (202) 662-9115 P.O. Box 11829 o Columbia, SC 29211 (803) 734-6313 STEPHEN P. BATES September 2002 ho ~ wo i HODGES V. ABRAHAM APPENDIX FOR CERT PETITION SE CE SI ieirninctntcsecincininnsinistinssinnnni App. South Carolina District Court Opinion ............ App. Statutes and Regulations Involved................... App. Letter of April 11, 2002 from Secretary of Energy Spencer Abraham to Governor Jim BEOGIOD GF HOUR CRTOTIIIR, cccccccesonsscecosesscccnssesesee App. Proposed Agreement (Attachment to April 11, EE BND ccricstncvintnntinntinincioncdninmmnmemaialan App. Letter of November 21, 2001 from Defense Nuclear Facilities Safety Board to Secretary of eS Be iviccernenicesibniiteiasemae App. Excerpt from Twelfth Annual Report to Con- gress, Defense Nuclear Facilities Safety Board SEA: Sere cicukchianeacnennessacnannasnchniansatbiiebiadaas App. 32 90 121 App. 1 300 F.3d 432 (4th Cir. 2002) PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-1639 JIM HODGES, Governor of the State of South Carolina, in his official capacity, Plaintiff-Appellant, versus SPENCER ABRAHAM, Secretary of the Depart- ment of Energy, in his official capacity; UNITED STATES DEPARTMENT OF ENERGY, Defendants-Appellees, and MEDIA GENERAL OPERATIONS, INCORPO- RATED, d/b/a Morning News (Florence), WBTW, WSPA, WCBD and WJBF; Aiken Communica- tions, Incorporated, d/b/a The Standard (Aiken); OSTEEN PUBLISHING COMPANY, INCOR- PORATED, d/b/a The Item (Sumter); EAST COAST NEWSPAPERS, INCORPORATED, d/b/a Island Packet, d/b/a The Herald (Rock Hill), d/b/a The Beaufort Gazette; THE EVENING POST PUBLISHING COMPANY, d/b/a The Post and Courier (Charleston); COLUMBIA NEWSPA- PERS, INCORPORATED, d/b/a The State (Co- lumbia); THE SUN PUBLISHING COMPANY, INCORPORATED, d/b/a Sun News; THE NEW YORK TIMES COMPANY, d/b/a The Herald- Journal (Spartanburg); INDEPENDENT PUB- LISHING COMPANY, INCORPORATED, d/b/a Anderson Independent-Mail; LANDMARK COMMUNITY NEWSPAPERS OF SOUTH App. 2 CAROLINA, d/b/a The Lancaster News; JEF- FERSON-PILOT COMMUNICATIONS COM- PANY, d/b/a WCSC; PACIFIC AND SOUTHERN : COMPANY, INCORPORATED, d/b/a WLITX; THE SOUTH CAROLINA PRESS ASSOCIA- TION; SOUTH CAROLINA BROADCASTERS; ASSOCIATED PRESS; LEE ENTERPRISES, IN- CORPORATED, d/b/a The Times and Democrat, Parties in Interest, and David R. Black, individually and on behalf of a class of Citizens of the State of South Carolina; David G. Cannon, individually and on behalf of a class of citizens of the State of South Carolina; Hugh Car] Gooding, individually and on behalf of a class of citizens of the State of South Carolina; Edward Lemon, individually and on behalf of a class of citizens of the State of South Carolina, Movants. ENVIRONMENTALISTS, INCORPORATED, Amicus Curiae. Appeal from the United States District Court for the District of South Carolina, at Aiken. Cameron McGowan Currie, District Judge. (CA-02-1426-1-22) Argued July 10, 2002 Decided Aug. 6, 2002 ARGUED: William LeRoy Want, Charleston, South Carolina, for Appellant. Jeffrey Bossert Clark, Deputy Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Stephen P. Bates, Office of the Governor, Columbia, South Carolina, for Appellant. Thomas L. Sansonetti, Assistant Attorney App. 3 General, Gregory D. Page, Lisa E. Jones, Environment and Natural Resources Division, United States Depart- ment of Justice, Washington, D.C.; J. Strom Thurmond, Jr., United States Attorney, Robert F. Daley, Jr., Assistant United States Attorney, Christie Newman Barrett, Assis- tant United States Attorney, Columbia, South Carolina; Lee L. Otis, General, Marc Johnston, Office of General, Department Of Energy, Washington, D.C., for Appellees. Ruth Thomas, Pro Se, for Amicus Curiae. Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WIDENER and Judge NIE- MEYER joined. KING, Circuit Judge. Jim Hodges, the Governor of South Carolina, has appealed the June 13, 2002, Order of the district court, which awarded summary judgment to the United States Department of Energy and its Secretary, Spencer Abraham (collectively, the “DOE”). Governor Hodges contends that the DOE has failed to comply with the National Environ- mental Policy Act (“NEPA”) in connection with its transfer of surplus plutonium from Colorado to South Carolina. In response, the DOE maintains that Governor Hodges lacks standing to pursue this case and that, in any event, it has complied with the mandate of NEPA. As explained below, we conclude that, although the Governor possesses stand- ing to maintain this action, NEPA has not been contra- vened. We therefore affirm. I. In 1995, the DOE began to consider the issues of whether and how to close its Rocky Flats Environmental App. 4 Technology Site near Denver, Colorado (“Rocky Flats”). In order to carry out such a closing, the DOE must transfer the plutonium at Rocky Flats to other DOE sites for storage and eventual disposition.’ As such, the DOE considered utilizing its Savannah River Site (the “SRS”), located near Aiken, South Carolina, for the storage and disposition of the Rocky Flats plutonium. It prepared various NEPA compliance documents and materials analyzing and explaining the potential use of SRS for these purposes. After nearly seven years of study, the DOE announced, in its April 19, 2002, Amended Record of Decision (the “April 19 ROD”), that six metric tons’ of surplus plutonium will be transferred from Rocky Flats to SRS for long-term storage. On May 1, 2002, Governor Hodges initiated this lawsuit, seeking to enjoin the DOE from shipping the Rocky Flats plutonium into the Palmetto State. He main- tained that the DOE violated NEPA in failing to properly consider the environmental consequences of its April 19 ROD, and that it had failed to comply with NEPA proce- dures prior to issuance of the ROD. On cross-motions for summary judgment, the district court rejected the posi- tions of Governor Hodges in their entirety, and it declined ' Plutonium is a highly radioactive, metallic element that exists in approximately fifteen different variations. The explosive triggers (i.e., pits) at the core of modern nuclear weapons are largely composed (at least 93%) of a particular type of plutonium — Plutonium 239. In discussing this “weapons-grade” plutonium, we refer to it simply as plutonium. * A metric ton weighs approximately 2,204.6 pounds. App. 5 to award injunctive relief against the DOE: Hodges v. Abraham, CA No. 1:02-1426-22, Memorandum Opinion and Order, (D.S.C. June 17, 2002) (the “Opinion”).‘ On appeal, the DOE contends, for the first time, that Gover- nor Hodges lacks standing to pursue his claims in this case. Before analyzing the standing question (which implicates our jurisdiction in this proceeding) and the merits of Governor Hodges’s appeal, we will review the pertinent facts and legal principles governing the NEPA issues presented.” II. A. The events giving rise to this dispute began over fifty years ago, with the advent of nuclear technology and * After being unsuccessful in district court, Governor Hodges sought an injunction pending appeal and a stay pending appeal from that court. When these requests were denied, the Governor sought an injunction pending appeal in this Court. By Order of June 20, 2002, we denied the Governor’s request for such an injunction. However, we expedited his appeal and heard oral argument in Abingdon, Virginia, on July 10, 2002. * Acknowledging the urgency of this proceeding, the district court rendered its decision orally from the bench on June 13, 2002, advising that it would file a written decision shortly thereafter. The court filed its Opinion on June 17, 2002. * Certain national and local media were Parties in Interest in the district court, in connection with an effort by the DOE to seal certain parts of its administrative record. On June 14, 2002, the district court granted in part the DOE’s request to seal. That ruling is not at issue in this appeal. In addition, several citizens of South Carolina sought to intervene in the district court on behalf of themselves and other residents of South Carolina. The court denied their motion on June 4, 2002, and that ruling is also not before us. App. 6 nuclear weapons. During the Cold War — from the late 1940s to the late 1980s — the United States and the Soviet Union engaged in a nuclear arms race, and they produced thousands of nuclear weapons powered by tons of pluto- nium. Following the demise of the Soviet Union and the end of the Cold War, our country and the post-Soviet government of Russia acted both bilaterally and unilater- ally to reduce their nuclear weapons stockpiles. In Janu- ary 1994, they issued a Joint Statement Between the United States and Russia on NonProliferation of Weapons of Mass Destruction and Means of their Delivery, which established the mutual goal of “safe, secure, long-term storage and disposition of surplus fissile materials.” In order to demonstrate our nation’s commitment to this goal, President Clinton, on March 1, 1995, unilaterally an- nounced that a total of 38.2 metric tons of our plutonium was no longer necessary for defense purposes, and that it therefore constituted “surplus plutonium.” In September 2000, the United States and Russia formally pledged in writing that each would dispose of thirty-four metric tons of surplus plutonium. Agreement Between the Government of the United States of America and the Government of the Russian Federation Concerning the Management and Disposition of Plutonium Designated as No Longer Re- quired for Defense Purposes and Related Cooperation. Pursuant to this Agreement, each country committed to * The use of the terms “surplus” and “non-surplus” in referring to plutonium have no technical or scientific significance. Surplus pluto- nium is that which our Government has determined to be unnecessary for the national defense, while non-surplus plutonium remains essen- tial. App. 7 “seek to begin operation of facilities [to dispose of the surplus plutonium]... not later than December 31, 2007.” B. In this country, the responsibility for monitoring, storing, and disposing of nuclear materials, including plutonium, necessarily rests with the federal Government, specifically the DOE. 42 U.S.C. §§ 7112(10), 7133(a)(8). Since the President’s 1995 pledge, the DOE has studied and explored several options aimed at determining the most effective way to fulfill its responsibility to store and .. dispose of our nation’s surplus plutonium. Throughout this effort, the DOE has been subject to the requirements of NEPA, a statute enacted in 1969 to ensure that environ- mental concerns play a role in government decisionmak- ing. A NEPA establishes “a national policy of protecting and promoting environmental quality.” Hughes River Water- shed Conservancy v. Glickman, 81 F.3d 487, 443 (4th Cir.1996). Although NEPA does not place substantive requirements on federal agencies, it requires them to follow certain procedures prior to undertaking any “pro- posed action,” “proposal,” or “project” that may affect the environment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Once the proper NEPA procedures are completed, i.e., “the adverse environmental effects of the proposed action are . adequately identified and evaluated,” a federal agency is entitled to “decid[e] that other values outweigh the envi- ronmental costs.” Jd. As the Supreme Court has observed, App. 8 “NEPA merely prohibits uninformed — rather than unwise — agency action.” Id. at 351, 109 S.Ct. 1835. The purpose of NEPA is two-fold. First, it ensures that an “agency, in reaching its decision, will have available, and will carefully consider, detailed information concern- ing significant environmental impacts.” Id. at 349, 109 S.Ct. 1835. In other words, NEPA guarantees that an agency will take “a ‘hard look’ at environmental conse- quences” before making a decision that may affect the environment. Jd. at 350, 109 S.Ct. 1835 (quoting Kleppe uv. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). Second, compliance with NEPA procedures “ensures that relevant information about a proposed project will be made available to members of the public so that they may play a role in both the decision- making process and the implementation of the decision.” Hughes River, 81 F.3d at 443. . Pursuant to Section 102 of NEPA, a federal agency must prepare an environmental impact statement (“EIS”) for every “recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The Coun- cil on Environmental Quality (“CEQ”), a governmental body created by NEPA for the purpose of advising the President on environmental matters, has promulgated extensive regulations to aid federal agencies in determin- ing whether a proposed action might significantly affect the quality of the human environment. 40 C.F.R. § 1500.3 (providing that CEQ guidelines are binding on all federal agencies); 10 C.F.R. §§ 1021.100-103 (incorporating CEQ App. 9 guidelines into DOE regulations).’ In determining whether an environmental impact is significant, the CEQ regula- tions require agencies to consider both the “context” and the “intensity” of the potential impact of a proposed action, with the former focusing on the affected geographical region and its interests, and the latter looking to the severity of the proposal’s environmental impact. 40 C.FR. § 1508.27. If, in the circumstances, it is unclear whether an KIS is necessary, the agency is obliged to complete what is known as an environmental assessment (“EA”), which is a “concise public document” reviewing and analyzing whether an EIS is required. 40 C.F R. § 1508.9. A federal agency’s responsibilities under NEPA do not end with the preparation of an EIS. If an agency’s plans change, or if the circumstances surrounding a project are altered, NEPA obligations may be triggered. As the Su- preme Court has observed, “[i]t would be incongruous with [NEPA’s] approach to environmental protection ... for the blinders to adverse environmental effects, once unequivo- cally removed, to be restored prior to completion of agency action simply because the relevant proposal has received initial approval.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The CEQ regulations mandate that a federal agency prepare a supplemental environmental impact statement (“SEIS”) if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns,” or if " The CEQ requires each federal agency to adopt its own proce- dures for implementing NEPA requirements. 40 C.F.R. § 1507.3. The CEQ’s NEPA regulations are found at 40 C.F.R., pts. 1500-08, while the DOE’s regulations implementing NEPA are found at 10 C.F.R., pt. 1021. App. 10 “(t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1). In addition, the DOE’s regulations for the implementation of NEPA provide that it “shall prepare [an SEIS] if there are substantial changes to [a] proposal or significant new circumstances or information relevant to environmental concerns.” 10 C.F.R. § 1021.314(a). If it is unclear whether an SEIS is required in connection with one of its projects, the DOE is obliged to prepare what is called a supplement analysis (“SA”). 10 C.F.R. § 1021:314(c). Under the DOE’s regulations, an SA must contain sufficient information for the DOE to determine (1) whether an existing EIS should be supplemented, (2) whether a new EIS should be pre- pared, or (3) whether no further NEPA documentation is necessary. 10 C.FR. § 1021.314(c)(2). In sum, NEPA requires the DOE, before undertaking a proposed action or altering an existing one, to examine the environmental consequences thereof.” 2. In the wake of the President’s 1995 pledge that the United States would dispose of 38.2 metric tons of surplus plutonium, the DOE began exploring its options with respect to the storage and disposition of the surplus plutonium at Rocky Flats. The DOE’s continuing effort to * Under its regulations, DOE is not required to study the environ- mental effects of a proposed action when that action fits a categorical exclusion, i.e., an activity that the DOE has already determined to be environmentally inconsequential. 10 C.F.R. § 1021.410. App. 11 comply with NEPA included the following statements, analyses, and records of decision: * in December 1996, the Storage and Disposi- tion of Weapons-Usable Fissile Materials Final Programmatic Environmental Impact Statement (the “1996 PEIS”)’ ° in July 1998, the Supplement Analysis for Storing Plutonium in the Actinide Packaging and Storage Facility and Building 105-K at the Sa- vannah River Site (the “1998 SA”): * in November 1999, the Surplus Plutonium _ Disposition Final Environmental Impact State- ment (the “November 1999 EIS”); * in January 2000, the Record of Decision for the Surplus Plutonium Disposition Final Envi- ronmental Impact Statement (the “2000 ROD”); ¢ in January 2001, the Amended Record of De- cision (the “2001 ROD”); * in February 2002, the Supplement Analysis for Storage of Surplus Plutonium Materials in the K-Area Material Storage Facility at the Sa- vannah River Site (the “2002 SA”): e in April 2002, the Amended Record of Deci- sion (the April 19 ROD). We now turn to the contents and conclusions of these NEPA materials. ° A programmatic environmental impact statement is a “broad- scope EIS . . . that identifies and assesses the environmental impacts of a DOE program.” 10 C.F.R. § 1021.104(b). App. 12 a. In December 1996, the DOE issued its 1996 PEIS, which studied various alternatives for the storage and disposition of this country’s surplus and non-surplus plutonium. One of the goals of the 1996 PEIS was the reduction of the number cf sites utilized by the DOE as federal storage facilities for plutonium. Toward that end, the 1996 PEIS proposed closing Rocky Flats and transfer- ring its plutonium to other DOE sites. The DOE’s pre- ferred alternative contemplated, inter alia, the possibility of building three new facilities at SRS and the prompt transfer of some of the Rocky Flats plutonium to the new SRS facilities. The additional SRS facilities contemplated by the 1996 PEIS were: (1) A plutonium storage facility known as the Actinide Packaging and Storage Facility (“APSF”). The decision to build APSF had actu- ally been made in 1995, and its original purpose was to stabilize, package, and store materials al- ready located at SRS. 60 Fed.Reg. 65,800 (Dec. 12, 1995). The 1996 PEIS, however, proposed modifying the construction plans for APSF to al- low for the receipt of plutonium from Rocky Flats. (2) A facility that could dispose of surplus plutonium through “immobilization.” The process of immobilization calls for surplus plutonium to be placed “in glass or ceramic material for dis- | posal in a geologic repository pursuant to the Nuclear Waste Policy Act.” 62 Fed.Reg. 3014 | (Jan. 21, 1997). In 1996, SRS already had waste- processing facilities that could be dedicated to immobilization, but the 1996 PEIS contemplated modifying those facilities or constructing new App. 13 ones to handle the immobilization of some of the nation’s surplus plutonium. (3) A facility to convert surplus plutonium into mixed oxide fuel (“MOX Fuel”). The 1996 PEIS proposed utilizing a MOX Fuel disposition strategy in conjunction with immobilization, by which surplus plutonium would be mixed with uranium dioxide and burned “in existing[ ] do- mestic, commercial reactors, with subsequent disposal of the spent fuel in a geologic repository pursuant to the Nuclear Waste Policy Act.” 62 Fed.Reg. 3014 (Jan. 21, 1997). As with immobili- zation, the 1996 PEIS did not rule out simply modifying existing buildings at SRS to create the MOX Fuel fabrication facility. Although the preferred alternative of the 1996 PEIS addressed only the short-term storage of surplus pluto- nium at SRS pending its disposition, the 1996 PEIS also studied other options. One such proposal was to upgrade the contemplated APSF to handle the long-term storage of surplus plutonium from several DOE sites, including Rocky Flats, for up to fifty years pending its disposition. b. In July 1998, the DOE prepared the 1998 SA, an- nouncing that it could save the Government approxi- mately $1.3 billion by closing Rocky Flats in 2006, four years earlier than had been previously contemplated. Prior to closing Rocky Flats, however, it was necessary for the DOE to transfer all of that facility’s plutonium to other DOE sites. This planned plutonium transfer was compli- cated by the fact that the APSF, which was to serve as the SRS storage facility for the plutonium from Rocky Flats, App. 14 was not scheduled to be completed by the time such plutonium shipments were to commence. The 1998 SA consequently analyzed whether an existing building at SRS - Building 105-K, also known as KAMS (“SRS- KAMS”) — could be expanded and modified for interim storage of the Rocky Flats plutonium for a period of up to ten years. The 1998 SA concluded that there would be no environmentally significant difference in storing the Rocky Flats plutonium at SRS-KAMS for up to ten years, rather than (as the 1996 PEIS had contemplated) at APSF. Thus, in the 1998 SA, the DOE concluded that no further NEPA study or documentation was necessary with respect to the temporary storage of the Rocky Flats plutonium at SRS- KAMS. c. In its November 1999 EIS, the DOE took the next step in the NEPA process leading to the present controversy, by examining how to dispose of up to fifty metric tons of plutonium.” Specifically, the November 1999 EIS analyzed the utilization of a “hybrid approach” to surplus plutonium disposition, whereby thirty-three metric tons of plutonium would be converted into MOX fuel and seventeen metric tons would be immobilized. Thereafter, on January 11, The November 1999 EIS stated that this fifty metric tons included “[the] 38.2 [metric tons] of weapons-grade plutonium already declared by the President as excess to national security needs, ... weapons-grade plutonium that may be declared surplus in the future, as well as weapons-usable, reactor-grade plutonium that is surplus to the programmatic and national defense needs of DOE.” The six metric tons from Rocky Flats, which is at issue in this proceeding, was included in the fifty metric tons referred to in the November 1999 EIS. ee App. 15 2000, the DOE issued its 2000 ROD, announcing that it intended to pursue the hybrid disposition approach stud- ied in the November 1999 EIS. 65 Fed.Reg. 1608 (Jan. 11, 2000). Pursuant thereto, SRS was designated as the site for both the immobilization facility and the MOX Fuel facility. The 2000 ROD provided, however, that “[t]he construction of new facilities for the disposition of surplus U.S. plutonium would not take place unless there is significant progress on plans for plutonium disposition in Russia.” Jd. at 1620. d. In January 2001, the DOE again altered its plans. In the 2001 ROD, it abandoned its plan to construct the APSF at SRS; and it instead decided to modify an existing building at SRS for the interim storage of surplus pluto- nium, pending its disposition. 66 Fed.Reg. 7888 (Jan. 26, 2001). As we have noted, the DOE, in its 1998 SA, had contemplated storage of the Rocky Flats plutonium at the SRS-KAMS facility for up to ten years. With the cancella- tion of the APSF project, however, the DOE recognized that it might be necessary to store surplus plutonium in the SRS-KAMS facility for a longer period of time, and it then proceeded to assess the feasability of long-term plutonium storage at SRS-KAMS. As a result, the DOE issued the 2002 SA. The DOE therein examined whether the long-term storage of plutonium at SRS-KAMS created any new environmental impacts not previously considered in the 1996 PEIS and the 1998 SA, and it determined that none existed. The DOE therefore concluded that the “safe storage of surplus plutonium in KAMS can continue beyond 10 years pending disposition,” and that no further NEPA study was necessary. 2002 SA at 8. App. 16 e. During 2001, the schedule for design, construction, and operation of the immobilization facility at SRS was delayed indefinitely by budgetary constraints. The DOE thereafter announced, inter alia, in its April 19 ROD: (1) that it was cancelling its plans to immobilize plutonium at SRS; and (2) that SRS-KAMS had been selected as the consolidated long-term storage site for the surplus pluto- nium at Rocky Flats. 67 Fed.Reg. 19,432 (Apr. 19, 2002). The April 19 ROD also stated that the prospect of dispos- ing of surplus plutonium by converting it into MOX Fuel was still under consideration by the DOE and would be determined after further study. In reaching the decisions set forth in the April 19 ROD, the DOE expressly relied on the fact that it had “reviewed the [1996] PEIS and related Supplement Analyses and ... determined that the analy- ses remain valid for the decisions announced herein.” Jd. at 19,434. Observing that those analyses had explored the impact of the long-term storage of plutonium at SRS generally, and at SRS-KAMS in particular, the DOE concluded that the environmental effects of the long-term storage of the Rocky Flats plutonium at SRS-KAMS had been adequately considered. Jd. The DOE therefore de- termined that it need not perform any further study of the environmental consequences of its decision. Upon issuance of the April 19 ROD, the DOE indicated that it would immediately begin shipment of the Rocky Flats plutonium to SRS. C. On May 1, 2002, Governor Hodges filed his complaint against the DOE in the District of South Carolina. The Governor sought a declaratory judgment that the DOE’s a | App. 17 April 19 ROD contravened NEPA, and he also sought an injunction prohibiting the DOE from transferring surplus plutonium from Rocky Flats to SRS. Following a hearing conducted in Aiken on June 13, 2002, the district court orally ruled against the Governor. In so doing, the court granted the DOE’s motion for summary judgment and declined to enjoin the DOE’s transfer of the Rocky Flats plutonium to SRS. Four days later, the court filed its Opinion, reducing its bench ruling to writing.” Governor Hodges then filed a timely appeal from the adverse rulings of the district court. He also moved for an injunction pending appeal, seeking to have us enjoin the DOE from shipping the Rocky Flats plutonium to SRS during his appeal. By Order of June 20, 2002, we declined to award the Governor such an injunction, and we expe- dited this proceeding. On appeal, Governor Hodges main- tains that the DOE failed to comply with NEPA before issuing its April 19 ROD, and he requests that we enjoin the DOE from shipping the Rocky Flats plutonium to SRS until the DOE has fulfilled its NEPA obligations.” In " According to media reports issued prior to the district court’s Opinion, Governor Hodges asserted that he would lie down in the highway to block any shipment of plutonium into South Carolina. After the court rejected his request for injunctive relief, the Governor issued an executive order declaring that the “transportation of plutonium on South Carolina roads and highways is prohibited.” The court, on June 18, 2002, issued a permanent injunction against the Governor, prohibit- ing him from interfering with the DOE’s plutonium shipments “into or through South Carolina.” Dep’t of Energy v. Hodges, C.A. No. 1:02-2078- 22, Order (D.S.C. June 18, 2002). We are not called on to address any issues concerning that injunction. * In his complaint, Governor Hodges asserts that the April 19 ROD makes SRS the nation’s long-term storage site for surplus plutonium, and he seeks an injunction prohibiting the DOE from shipping “any (Continued on following page) App. 18 response, the DOE asserts that Governor Hodges lacks standing to initiate and pursue this case, and that it has complied with NEPA.” III. Because our jurisdiction has been called into question, we must, before turning to the merits of Governor Hodges’s appeal, first examine whether he possesses the necessary standing to pursue this action. While the DOE did not raise the issue of standing in the district court, standing to sue is a jurisdictional issue of constitutional dimensions, and it may be raised and addressed for the first time on appeal. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). surplus plutonium from Rocky Flats or anywhere else to SRS unless and until DOE complies with applicable law.” The April 19 ROD, however, dealt solely with the shipment and storage of the six metric tons of Recky Flats plutonium. As such, we are called on to address only that decision. * This dispute does not relate to the storage of nuclear waste at Yucca Mountain, Nevada. The Yucca Mountain facility is intended to serve aS a permanent repository for spent nuclear fuel and high-level radioactive waste, while this case involves the storage of surplus weapons-grade plutonium. ‘ The DOE initially raised the issue of standing on July 2, 2002, when it submitted its brief on appeal. Governor Hodges was thereby first able to respond to the issue in his reply brief of July 5, 2002. In these circumstances, interests of professional courtesy and judicial efficiency dictate that the DOE should have communicated its intention to challenge standing more promptly. That said, we appreciate the diligence and able assistance of all counsel in this expedited proceeding. c—-——- App. 19 Pursuant to Article III of the Constitution, federal courts may only adjudicate actual cases and controver- sies.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The standing doctrine is designed to ensure that federal litigants possess a sufficiently personal stake in the outcome of any litigation they pursue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Valley Forge Christian College v. Americans United for Separa- tion of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (observing that federal courts are not “publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding”). As spelled out by the Supreme Court, the “irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. In order to possess standing to sue, a plaintiff must show (1) that he has suffered an “injury in fact that is (a) concrete and particularized and (b) actual or immi- nent, not conjectural or hypothetical”; (2) that his injury is “fairly traceable to the challenged action of the defendant”; and (3) that his injury will likely be redressed by a favor- able decision. Friends of the Eartk, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81; 120-S.Ct. 693, 145 L.Ed.2d 610 (2000) (quotation and citation omitted); ‘* The constitutional underpinning of the doctrine of standing to sue is found in Section 2 of Article III of the Constitution of the United States, which provides in pertinent part that: The judicial Power shall extend to all Cases ... arising un- der this Constitution, the Laws of the United tes,and— Treaties made ... under their Authority ... [and] to Con- troversies to which the United States shall be a Party[.] App. 20 Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. In this case, Governor Hodges is plainly capable of satisfy- ing the last two elements of the standing test enunciated by the Court. The DOE asserts, however, that the Gover- nor falls short on the first element, because he has not suffered an “injury in fact” as a result of the DOE’s pro- posed actions. The DOE contends that Governor Hodges’s sole interest in this action derives from his responsibility to protect the health and well-being of the residents of South Carolina, and that this lawsuit is therefore a parens patriae action. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600-02, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (observing that parens patriae suit is one in which state asserts injury to well-being of its populace). The Supreme Court has clearly established that a parens patriae action cannot be maintained against the Federal Government. Jd. at 610 n. 16, 102 S.Ct. 3260; Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (“(I]t is no part of [a state’s] duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae.”). As such, if Governor Hodges seeks only to protect the health and well-being of the residents of South Carolina, his action is of the parens patriae variety, and it may not be pursued. Governor Hodges maintains, however, that the inter- ests underlying his challenge to the DOE are not simply in protecting the well-being of South Carolinians. Rather, he contends that he has suffered an injury to his procedural rights, and that such an injury is sufficient to provide him with standing to sue. Pursuant to the Court’s decision in App. 21 Defenders of Wildlife, a person entitled to a “procedural right,” e.g., the right to have the Executive observe proce- dures mandated by law, can thereby possess Article III standing “without meeting all the normal standards for redressability and immediacy.” 504 U.S. at 572 n. 7, 112 S.Ct. 2130. A plaintiff only possesses such standing, however, if “the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Jd. at 573 n. 8, 112 S.Ct. 2130. In addition, such an interest must be one that falls within the “zone of interests” that the challenged statute is designed to protect. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (“The essential inquiry is whether Congress intended for a particular class of plaintiffs to be relied upon to challenge agency disregard of the law.”). Governor Hodges contends that he possesses a “threatened concrete interest” deriving from his proprie- tary interest and control, as Governor, over vast swaths of land and natural resources owned by South Carolina, including the State’s highways, its streams, and its wood- lands. In addition, the Governor notes that, under the South Carolina Pollution Control Act, S.C.Code § 48-1-10 et seq., he bears official responsibility for preserving the State’s groundwater, and that under the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j, he has a similar duty to preserve and protect public drinking water. Governor Hodges maintains that these interests are all threatened by the DOE’s uninformed shipment of plutonium into South Carolina and its proposed storage of such plutonium at SRS. He therefore contends that he has shown a suffi- cient procedural injury to accord him standing, in his capacity as Governor, to sue the DOE. App. 22 Thus, whether Governor Hodges possesses standing to sue the DOE turns on whether his asserted proprietary interests in the land, streams, and drinking water of South Carolina are sufficiently concrete to qualify as the bases for a recognized procedural right. As Justice Scalia observed in Defenders of Wildlife, an individual living next to the proposed site for a federally licensed dam would possess standing to challenge a failure to comply with NEPA, while an individual living across the country from the dam would not possess any such standing. 504 U.S. at 572 n. 7, 112 S.Ct. 2130. It is uncontroverted that at least one state highway runs through SRS, and that several streams and wildlife habitats are located near SRS. In these circumstances, the Governor, in his official capacity, is essentially a neighboring landowner, whose property is at risk of environmental damage from the DOE’s activities at SRS. Governor Hodges therefore has a concrete interest that NEPA was designed to protect; as such, he is not merely pursuing a parens patriae action, and he possesses the requisite standing to enforce his procedural rights under NEPA. Because Governor Hodges has standing to initiate and maintain his NEPA challenges to the DOE’s actions, we possess jurisdiction, pursuant to 28 U.S.C. § 1291, to consider his appeal. We therefore turn to the merits thereof. IV. We review de novo an award of summary judgment by a district court. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). In reviewing an agency’s efforts to comply with NEPA, we are required to perform a two-step analysis. App. 23 First, we examine whether the agency took a “hard look” at a proposed project’s environmental effects before acting. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). In essence, we assess whether “the adverse environmental effects of the proposed action [have been] adequately identified and evaluated” prior to final decisionmaking. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). If we are satisfied that the agency has taken the mandated “hard look” at the environmental effects of a proposed agency action, we must then consider whether the agency’s conclusions are arbitrary or capricious. Hughes River, 81 F.3d at 443. Thus, in conducting our NEPA inquiry, we must “make a searching and careful inquiry into the facts and review whether the decision [of the agency at the time it was made] was based on consid- eration of the relevant factors and whether there has been a clear error of judgment.” City of Alexandria v. Fed. Highway Admin., 756 F.2d 1014, 1017 (4th Cir.1985) (internal quotations and citations omitted). If the agency has followed the proper procedures, and if there is a rational basis for its decision, we will not disturb its judgment. V. In his assertion that the DOE failed to comply with NEPA, Governor Hodges raises three separate conten- tions. Two of these contentions are of a substantive nature, while the third involves a procedural point. First, he maintains that the 2002 SA failed to fully evaluate the risks of long-term storage of surplus plutonium at SRS- KAMS. Second, the Governor contends that the 2002 SA only considered the potential effects of storing plutonium App. 24 at SRS- KAMS for up to twenty years, rather than evalu- ating the fifty-year storage period selected by the DOE in its April 19 ROD. Finally, as a procedural matter, the Governor asserts that the DOE failed to complete the required NEPA documents before issuing the April 19 ROD. A. Before proceeding to address the specific contentions of Governor Hodges, it bears emphasizing that NEPA is an “action-forcing” statute. It requires federal agencies to identify and evaluate the environmental consequences of their proposed actions. Robertson, 490 U.S. at 350, 109 S.Ct. 1835; Hughes River, 81 F.3d at 443. Under NEPA, an agency is obliged to take a “hard look” at a proposal’s environmental consequences before deciding to proceed; however, once it has taken such a look, the agency is not obligated to choose any particular course of action. Robert- son, 490 U.S. at 350, 109 S.Ct. 1835. Moreover, if the agency has taken the required “hard look,” we must defer to it unless its decisions were arbitrary or capricious. Hughes River, 81 F.3d at 443. Therefore, in assessing the merits of Governor Hodges’s contentions, we must consider whether the DOE adequately identified and evaluated, prior to its April 19 ROD, the environmental consequences of storing the Rocky Flats plutonium at SRS-KAMS. If we conclude that the DOE acted properly in that connection, we must then determine whether the decisions it premised on that analysis were arbitrary or capricious. ™ * The DOE asserts that its decisionmaking with respect to the storage and disposition of plutonium implicates foreign policy and (Continued on following page) App. 25 In most instances, the DOE will discharge its NEPA responsibility to take a “hard look” at potential environ- mental consequences by completing, prior to undertaking a proposed action, either an EIS, an SEIS, an EA, or an SA. However, in order to make an “initial determination about whether a change or new information meets the threshold of ‘significance’ or ‘uncertainty’ needed to require further environmental documentation,” the DOE may also review and consider previously-issued NEPA documents. See Piedmont Envtl. Council v. United States Dep’ of Transp., 159 F.Supp.2d 260, 270-71 (W.D.Va.2001). In essence, the DOE is entitled to conduct a preliminary inquiry into whether the environmental impact of a change in an existing proposal is even possibly significant. If the DOE concludes, based on such a preliminary inquiry, that the environmental effect of the change is clearly insignificant, it has taken the “hard look” required by NEPA, and no further NEPA documentation is necessary. See Idaho Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir.2000) (concluding that agency may use national security concerns. As such, it contends that our review of the NEPA compliance issues should be more deferential than our normal standard of review. See Envtl. Defense Fund, Inc. v. Massey, 986 F.2d 528, 535 (D.C.Cir.1993); cf. Hamdi v. Rumsfeld, 296 F.3d 278, 2002 WL 1483908, slip op. at 5 (4th Cir.2002) (“(IJn the context of foreign relations and national security ... a court’s deference to the political branches of our national government is considerable.”). As the D.C. Circuit has explained, the Government, in such circumstances, “may avoid the EIS requirement where U.S. foreign policy interests outweigh the benefits derived from preparing an EIS.” Jd. Because we are satisfied, applying our normal standard of review, that the DOE did not contravene NEPA, we need not consider whether foreign policy and national security considerations warrant some heightened deference to the DOE’s decisions. App. 26 “non-NEPA environmental evaluation procedures” to determine “whether new information or changed circum- stances require the preparation of a supplemental EA or EIS”); Price Rd. Neighborhood Ass’n v. United States Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir.1997). The DOE’s authority to conduct such a review is limited; it may only conduct such a preliminary inquiry to determine whether it is possible that the altered proposal’s environmental impact will be significant. Idaho Sporting Congress, 222 F.3d at 566. If “the environmental impacts resulting from the design change are significant or uncertain, as com- pared with the original design’s impacts,” then the DOE must complete additional NEPA documentation. Price, 113 F.3d at 1508-09. B. In his first contention on the merits, Governor Hodges maintains that the DOE failed to adequately consider the risks of long-term storage of the Rocky Flats plutonium at SRS-KAMS. Contrary to his position, however, the 2002 SA evaluated whether the long-term storage of surplus plutonium at SRS-KAMS would create any environmental consequences not considered by the DOE in its earlier NEPA compliance documents. In performing this evalua- tion, the 2002 SA explicitly incorporated the DOE’s 1996 PEIS and its 1998 SA, as well as other NEPA materials relating to the potential environmental effects of surplus plutonium being shipped into South Carolina and stored at SRS. See 40 C.F.R. § 1502.21 (permitting incorporation of materials by reference to “cut down on bulk without impeding agency and public review of the action”). By its 1996 PEIS, the DOE had examined various options for the long-term storage of surplus plutonium, including its App. 27 possible storage at the proposed APSF facility at SRS for up to fifty years. And the 1998 SA had explored whether temporary storage of the surplus plutonium at SRS- KAMS, for a period of up to ten years, would create any environmental consequences not contemplated in the 1996 PEIS. In the 2002 SA, the DOE examined whether storage of surplus plutonium at SRS-KAMS for a period longer than ten years would create any additional impacts on the environment or would increase the risk of a nuclear accident. 2002 SA at 5-6. After performing this evaluation, the DOE concluded in the negative, stating that: The potential impacts from the storage of surplus plutonium materials in the KAMS facility at SRS, pending final disposition, are not signifi- cantly different than or are bounded by the im- 7 pacts identified in the [1996 PEIS]. ° Id. at 8 (emphasis added). In view of the foregoing, Governor Hodges has failed to identify any particular risk arising from the long-term storage of surplus plutonium at SRS-KAMS that was not addressed by the 2002 SA or the NEPA materials incorpo- rated by reference therein. As such, we must conclude that the DOE, in the 2002 SA, fulfilled its NEPA obligations by taking a “hard look” at the risks of long-term plutonium storage at SRS-KAMS. C. Governor Hodges next contends that the 2002 SA only contemplated storage of the Rocky Flats plutonium at SRS-KAMS for a period of twenty years, rather than for a period of fifty years. In support of this contention, he points to its statement that the “DOE plans to [dispose of] App. 28 its surplus plutonium as soon as practical and believes storage in KAMS would be necessary for less than 20 years.” Id. Although this provision suggests that the DOE hoped (and perhaps continues to hope) to dispose of the surplus plutonium within twenty years, this isolated statement, standing alone, does not resolve the question of whether the DOE had analyzed the potential environ- mental consequences of plutonium storage at SRS-KAMS for a longer period. Indeed, the 2002 SA specifically analyzed the environmental impact of plutonium storage at SRS-KAMS for up to fifty years. See id. at 5-6 (“For the SRS workforce, storage operations at KAMS will add 0.13 Latent Cancer Fatality (LCF) for up to 50 years... .”). Moreover, and importantly, the 2002 SA incorporated the 1996 PEIS into its assessment and findings, and it explic- itly compared the 1996 PEIS’s study of long-term storage of surplus plutonium at APSF (for up to fifty years) with the DOE’s new plan to store the plutonium at SRS-KAMS. We therefore find ourselves in agreement with the district court, which concluded after careful analysis that “it is clear that the fifty-year impacts of storage in general, and storage at KAMS, in particular, were examined.” Opinion at 26. D. Governor Hodges’s final contention on appeal is that, even if the DOE substantively examined the environ- mental effects of its proposed action, it failed to comply with NEPA’s procedures in connection with its April 19 ROD. As the district court properly observed, “the April 19 ROD decouples storage and disposition, taking away a precondition to storage of Rocky Flats plutonium at SRS which had been found in all prior RODs (approval of SRS App. 29 for the immobilization facility).” Id. at 23. The Governor asserts that this change in the DOE’s proposal — from storage at SRS-KAMS pending disposition to storage at SRS-KAMS without regard to disposition — required the DOE to prepare and file another NEPA compliance docu- ment, such as an SA. He maintains that the DOE was required to examine whether this change in its proposal created any significant environmental impacts not previ- ously studied, and that it had therefore failed to take a “hard look” at the environmental consequences of its April 19 ROD. In fact, however, the DOE properly explored, prior to issuance of the April 19 ROD, whether the decoupling of plutonium storage from plutonium disposition created any new environmental concerns. The April 19 ROD specifi- cally referenced those earlier NEPA compliance materials, and it explained the analyses they had made. After noting that the 1998 SA had analyzed the impact of storage of the Rocky Flats plutonium at SRS-KAMS for a period of ten years, the April 19 ROD made the following pertinent observation: [T]he storage of surplus plutonium in the KAMS facility could extend beyond the 10-year period _ estimated in [the 1998 SA]. Therefore, DOE pre- pared [the 2002 SA] ... which evaluated the po- tential for storage beyond 10 years at the KAMS facility. That SA concluded that potential impacts from the continued storage of surplus plutonium in the KAMS facility at SRS for this additional period are not substantially different from those addressed in the original analysis of storage in APSF contained in [the 1996 PEIS]. App. 30 67 Fed.Reg. 19,434 (Apr. 19, 2002). As this provision makes clear, the DOE, prior to issuing its April 19 ROD, conducted a preliminary inquiry by examining its previous NEPA documents, and it concluded that its decision to decouple the storage of surplus plutonium from the dispo- sition clearly did not create any significant environmental impacts. Idaho Sporting Congress, 222 F.3d at 566; Pied- mont Envtl. Council, 159 F.Supp.2d at 270-71. As such, because it was apparent that the proposed change did not create a new environmental picture from that previously studied, the DOE decided that no further NEPA documen- tation was necessary. In these circumstances, we are satisfied that the DOE took a “hard look” at the environ- mental consequences of its proposed course of action prior to promulgating its April 19 ROD. Idaho Sporting Con- gress, 222 F.3d at 566 (recognizing limited role for non- NEPA environmental evaluation procedures to determine whether supplemental! EA or EIS is required). Therefore, because the DOE has complied with the requirements of NEPA, and because its decision to place the Rocky Flats plutonium in long-term storage at SRS-KAMS was neither arbitrary nor capricious, we will not disturb it.” ‘’ Governor Hodges also maintains that the DOE’s decisionmaking process violated the Administrative Procedure Act (the “APA”). Under the APA, we must uphold an agency decision if it is supported by “substantial evidence,” and is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E). In conducting our review under the APA, “we perform only the limited, albeit important, task of reviewing agency action to determine whether the agency conformed with controlling statutes, and whether the agency has committed a clear error of judgment.” Mary- land Dep't of Human Res. v. United States Dep’t of Agric., 976 F.2d 1462, 1475 (4th Cir. 1992) (internal quotations and citations omitted). In (Continued on following page) App. 31 VI. Pursuant to the foregoing, Governor Hodges’s NEPA challenge is without merit and the district court’s award of summary judgment to the DOE is affirmed. AFFIRMED. view of the DOE’s compliance with NEPA, the Governor’s APA chal- lenge is also without merit. App. 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION Jim Hodges, Governor of the State of South Carolina, in His Official Capacity, hcaaaiaaas CIVIL ACTION NO. 1:02-1426-22 Vs Spencer Abrahan, Secretary of the Department of Energy, in His Official Capacity and the United States Department of Energy, ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants. MEMORANDUM OPINION AND ORDER GRANTING DOE’S MOTION FOR SUMMARY JUDGMENT AND DENYING GOVERNOR HODGES’ MOTION FOR A PRELIMINARY INJUNCTION (Filed Jun. 17, 2002) TABLE OF CONTENTS SE NITE eennsiscnnssspisnverecvecsnensarecseteppaaineaea 3 a cic cane vadovsncipscvenrsieenaseehetinitommmeae 5 I. DOE’S MOTION FOR SUMMARY JUDG- MENT ON HODGES’ COMPLAINT ........... 5 A. National Environmental Policy Act IND sbiviskxinaconciiuyesavessemsiacboveaasomaneelie 6 App. 33 B. Standard of Review Under Adminis- trative Procedure Act (APA)............... 10 C. History of NEPA Compliance in this Nee ilcidssnpcckvineersnscseovsceece 12 Re RE MD BMEED 000 cc ccnecceccssnevseeess 14 2. July 1998 Supplement Analysis ...... 15 3. February 2002 Supplement Analy- ee cdesdnarkassuhecsvesvevevesesee 17 4. April 19, 2002 Amended Record of EN 19 D. Analysis of NEPA Compliance............ 20 II. HODGES’ MOTION FOR PRELIMINARY Nee TN aresavsnebscsenenesesvseseeess 26 A. Likelihood of Irreparable Harm to Na iiivasadanenseasssensnsecsees 27 B. Likelihood of Harm to Defendant...... 31 1. DOE’s Arguments as to Harm to DOE Caused by Injunction............ 31 a. Foreign Policy Interests ............ 32 b. National Security Interests....... 34 c. Costs and Delay in Rocky Flats Nee i duskcharsskewnhsensevses 34 2. Hodges’ Arguments as to Harm to DOE Caused by Injunction............ 35 a. Foreign Policy Interests ............ 35 b. National Security Interests....... 37 c. Costs & Delay in Rocky Flats eet ibaidceseteesentesconsesce 38 3. Court’s Analysis of Harm to DOE if Injunction Granted ..................... 39 App. 34 a. Harm to Foreign Policy Inter- IEE pxcidshn imine vaeinuievehes taken alenansenses 39 b. Harm to National Security ........ 41 c. Substantial Additional Costs and Delay in Rocky Flats III wits vig ubevaawascaceavassauesesensces 42 d. Disruption of Planned Activi- Ce I beets rmctntcarectsaunedeecumens 42 e. Conclusion as to Harm to De- SING gah tar tanseat ciel eueenesensrearsans 42 C. Balance of Harms to Parties............... 43 D. Likelihood of Success on the Merits.. 44 i ee een 45 F. The Equitable Balance........................ 45 na cs enssrcuacocuen ccs anseusuaciesiibiscavecmeareracs 45 INTRODUCTION Plaintiff Jim Hodges, the Governor of South Carolina (Hodges), initiated this action on May, 1, 2002, challenging the April 19, 2002, Amended Record of Decision (April 19, 2002 ROD) by Defendants, Spencer Abraham, Secretary of the Department of Energy and the United States Depart- ment of Energy (collectively DOE), to, inter alia, transfer six metric tons of surplus plutonium from Rocky Flats Environmental Technology Site (“Rocky Flats”) to the Savannah River Site (“SRS”) in South Carolina for long- term storage. Specifically, Hodges asserts that the April 19, 2002 ROD was issued in violation of both the Na- tional Environmental Policy Act, 42 U.S.C. §§ 4321-4370d (NEPA), and the Administrative Procedure Act, 5 U.S.C. § 702 et seq. (APA). App. 35 This matter came before the court for hearing on June 13, 2002, on Hodges’ motion for preliminary injunction and DOE’s motion for summary judgment on the complaint. At the conclusion of the hearing, the court ruled from the bench, granting DOE’s motion for summary judgment and denying Hodges’ motion for a preliminary injunction.’ Two other pending motions were also ruled on orally at the time of the hearing and have been dealt with by separate orders: DOE’s motion for summary judgment on its coun- terclaim; and DOE’s motion to seal certain portions of the record. At the time of the hearing DOE had indicated an intent to begin immediate shipments of the Rocky Flats plutonium to SRS as early as June 15, 2002. DOE has since agreed to defer shipments to no sooner than June 22, 2002. The long-term storage addressed by the April 19, 2002 ROD is independent of any plan to process the surplus plutonium for disposition (at SRS or elsewhere). Prior to April 19, 2002, existing RODs addressed storage pending disposition under a hybrid approach consisting of both immobilization and a program for converting the pluto- nium to Mixed Oxide Fuel (MOX). Prior RODS also placed conditions on transfer of Rocky Flats plutonium to SRS relative to insuring transfer would not occur unless an ‘ The court stated its intention to prepare a written order as soon as possible. ? DOE initially indicated that the first shipment might be sent on or after May 15, 2002. DOE subsequently agreed to defer shipment until on or after June 15, 2002, in order to allow this court to receive full briefing on these motions. App. 36 immobilization facility was to be located in South Caro- lina. The most recent ROD, however, cancels plans for immobilization. It also acknowledges that plans for the MOX conversion process are no longer certain as cancella- tion of immobilization has resulted in the need to redesign MOX with a concomitant need to perform proper environ- mental studies of the new MOX process as required by NEPA.’ Thus, the storage authorized by the challenged April 19, 2002 ROD must be analyzed as approval of long- term storage which might extend indefinitely. In his complaint, Hodges argues that the April 19, 2002 ROD is illegal because: (1) no proper environmental analysis of the potential impact of the currently planned long-term storage has been conducted as required by NEPA (first cause of action); (2) no supplemental environ- mental impact statement (SEIS) was prepared to address the changes relative to an earlier Environmental Impact Statement (EIS) (second cause of action); (3) prior RODS which imposed conditions on storage of additional surplus plutonium at SRS have not been properly amended to * Prior environmental studies and RODS covered both MOX and immobilization. At the time of those studies and decisions, certain categories of surplus plutonium were considered inappropriate for MOX processing. In cancelling the immobilization program, DOE also decided to modify MOX to process these previously excluded categories of plutonium. All parties agree that these modifications require new environmental studies under NEPA. Thus, DOE, at present, still hopes to implement MOX at some time in the future. It cannot, however, state at this time if and when it will be able to do so. * If DOE had not designated the current ROD as selection of the alternative of long-term storage at SRS, it ran the risk of a determina- tion of improper segmentation under NEPA. See, e.g., South Carolina ex rel. Campbell v. O'Leary, 64 F.3d 892, 898 (4th Cir. 1995). App. 37 eliminate the conditions (third cause of action); (4) the decision contained in the ROD violates the APA as it is arbitrary and capricious; and (5) the manner in which the decision was made violates the APA because it violates the due process rights of the State.’ DISCUSSION I. DOE’S MOTION FOR SUMMARY JUDGMENT ON HODGES’ COMPLAINT Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. Civ. P. 56(c). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F. 2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. * The complaint also challenged transport of the plutonium in a particular form of container for which DOE was seeking a national security waiver. That issue is now moot as DOE is no longer seeking the waiver. App. 38 Diebold, Inc., 369 U.S. 654, 655 (1962). When the defen- dant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the piaintiff lacks sufficient evidence. The nonmoving party, here the plain- tiff, must then go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” FED. R. Civ. P. 56(e); see also generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, “[mJere unsupported speculation ... is not enough to defeat a summary judgment motion.” Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). | In ruling on summary judgment in the present case, the court must also bear in mind the standard of review applicable to the underlying action which is conducted under Section 706 of the Administrative Procedure Act (APA) and provides in part that “a reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Further, the Fourth Circuit has clarified: In determining whether agency action violates § 706(2)(A) of the APA, we perform only the lim- ited, albeit important, task of reviewing agency action to determine whether the agency con- formed with controlling statutes, and whether the agency has committed a clear error of judg- ment.... [T]he ultimate standard of review is a App. 39 narrow one. The court is not empowered to sub- stitute its judgment for that of the agency. Zeneca, Inc. v. Shalala, 213 F.3d 161, 167 (4th Cir. 2000) (internal quotations and citations omitted). See also infra “Standard of Review Under Administrative Procedure Act.” A. National Environmental Policy Act (NEPA) The National Environmental Policy Act (NEPA) “declares a national policy of protecting and promoting environmental quality.” Hughes River Watershed Conser- vancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). See also 42 U.S.C. §§ 4321, 4331 (a) (stating that NEPA’s policy is “to use all practicable means and measures... to create and maintain conditions under which man and nature can exist in productive harmony”); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). To ensure that environmental quality is protected and promoted, NEPA requires federal agencies undertaking projects that will affect the environment to follow certain procedures. Thus, “it is well settled that NEPA does not mandate that agencies reach particular substantive results,” only that agencies follow certain procedures befere taking action. Hughes, 81 F.3d at 443. “If the adverse environmental effects of the proposed action are adequately identified and evaluated, [agencies are] not constrained by NEPA from deciding that other values outweigh the environmental costs.” Robertson, 490 U.S. at 350. Procedurally, NEPA requires that federal agencies prepare an environmental impact statement (EIS) “in App. 40 every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). In determining whether a proposed action might significantly affect the quality of the human environment and necessar- ily be studied in an EIS, the Council on Environmental Quality (CEQ) requires agencies to consider both the significance of the “context” and the “intensity” of the proposed action. Considering a proposed action in context means: that the significance of an action must be ana- lyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the ef- fects in the locale rather than the world as a whole. Both short- and long-term effects are rele- vant. 40 C.FR. § 1508.27(a). Evaluating the intensity of the proposed action refers to the “severity of impact.” Id. § 1508.27(b). CEQ regulations also provide several factors to consider when determining the “severity of the impact” * The Council on Environmental Quality, created for the purpose of researching and advising the President on environmental matters, see 42 U.S.C. §§ 4341-47, has issued guidelines for implementing NEPA. These guidelines are to be followed by all federal agencies. See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). The specific CEQ regulations at issue here are explicitly incorporated into DOE’s regulations. See 10 C.F.R. §§ 1021.100-103 (1992). ee ee App. 41 or intensity of the proposed action. The court finds the following factors most relevant to this case: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on bal- ance the effect will be beneficial. (2) The degree to which the proposed action af- fects public health and safety. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncer- tain or involve unique or unknown risks. _ (8) The degree to which the action ... may cause loss or destruction of significant sci- entific, cultural, or historical resources. (10) Whether the action threatens a violation of Federal, State, or local law or require- ments imposed for the protection of the en- vironment. Id. §§ 1508.28(b)(1)-(2), (4)-(5), (8), (10). Courts have viewed the presence of one or more of these factors as an indication that an agency should prepare an EIS. See Public Serv. Co. of Colo. v. Andrus, 825 F. Supp. 1483, 1495 (D. Idaho 1993) (quoting LaFlamme v. FERC, 852 F.2d 389, 398 (9th Cir. 1988)). An EIS serves two purposes: (1) when deciding whether to take a proposed action, an EIS ensures that an agency will carefully consider the project’s environmental effects, and (2) an EIS ensures that the public will re- ceived [sic] relevant information about a proposed project App. 42 and play a role in both the decision making process and the implementation of a decision. See 40 C.F.R. §§ 1500.1 (b) (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. .. . Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.”), 1502.1 (stating that an EIS must “provide full and fair discussion of significant environmental impacts and shall inform the decision makérs and the public of reasonable alternatives”); Robertso [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0538%3A1. Public record. Not legal advice.