Petition for Writ of Certiorari — Pacific Gas and Electric Co. v. San Luis Obispo Mothers for Peace (No. 06-466)
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_ 06-466 SEP 29 2006
No. 06-_ OPFICE OF THE CLERK
In the Supreme Court of the United States
PACIFIC GAS AND ELECTRIC COMPANY,
Petitioner
v.
SAN LUIS OBISPO MOTHERS FOR PEACE, et al.,
Respondents
On Petition For A Writ Of Certiorari
To The United States Court of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
WILLIAM V. MANHEIM GENE C. SCHAERR
ANTONIO FERNANDEZ Counsel of Record
Pacific Gas and Electric DAVID A. REPKA
Company LINDA T. COBERLY
77 Beale Street, B30A MARTIN J. O’ NEILL
San Francisco, CA 94105 Winston & Strawn LLP
1700 K Street, N.W.
Washington, D.C. 20006
(202) 282-5000
Counsel for Petitioner
a
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WaSHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether the National Environmental Policy Act
(“NEPA”) requires a federal agency to consider, as part of
its NEPA review of an agency action, the environmental
impact of potential sabotage whenever the possibility of
sabotage is anything more than “remote and highly
speculative,” regardless of whether the agency action lacks a
close, “proximate-cause” relationship to the potential
sabotage and its impacts.
2. Whether an agency is required to consider the risk of
sabotage in its NEPA review even if the agency reasonably
concludes that the risk is not sufficiently quantifiable to be
meaningful or to assist agency decision making under
NEPA.
PARTIES TO THE PROCEEDINGS
AND CORPORATE DISCLOSURE STATEMENT
1. Pursuant to Rule 14.1(b), the following list identifies
all of the parties appearing here and before the United States
Court of Appeals for the Ninth Circuit.
The petitioner here and an intervenor-respondent below
is Pacific Gas and Electric Company (“PG&E”).
The respondents below and respondents here are the
Nuclear Regulatory Commission and the United States of
America.
The petitioners below and respondents here are San Luis
Obispo Mothers for Peace, the Sierra Club (Santa Lucia
Chapter), and Peg Pinard.
2. Pursuant to Rule 29.6, petitioner states as follows:
PG&E is a corporation organized under the laws of
California, with its principal place of business in San
Francisco, California. PG&E is a public utility operating
throughout most of northern and central California. PG&E
is engaged primarily in the businesses of electricity
generation; electricity and natural gas_ distribution;
electricity transmission; and natural gas procurement,
transportation, and storage. PG&E serves approximately 4.9
million electricity distribution customers and approximately
4.1 million natural gas distribution customers. PG&E is a
subsidiary of PG&E Corporation, an energy-based holding
company organized under the laws of the State of
California, with its principal executive offices in San
Francisco, California. PG&E Corporation is the only
publicly held corporation owning ten percent (10%) or more
of PG&E's stock.
TABLE OF CONTENTS
CORTE a Ae FINN LED vitiiciresssccysinersivenctcvnersensosonpesnenenpseninianbae i
PARTIES TO THE PROCEEDINGS AND
CORPORATE DISCLOSURE STATEMENT...........ssscsssserseeseees ii
SAE OP AFT isis sisciscicsdnsseiicecnenssenscsncdsonsvobeveseesiuats v
ee IG scesieidiiierisasscvenivsdntiacsiscnduohiniohiebahinanoesadipeaaurcamtsinsl 1
I FIN ices cssininsnieniechennitebsineder siaubsvianehobieshationbohionde 3
eee. 3
STATUTES AND REGULATIONS INVOLVED..............:00000+ 3
SE Ta ORS Re BES i iin secccevscerssniovesenivsconpsovonsassesesomesenss 4
Bi, DE PR PA OE FOG isin nsseicsocsinenioneregnsvacnpovinintes +
B. Administrative Proceedings...........csssssessesseeees Wace 4
Os RE CRINGE CO asics cated ssveccocisnssvseninhcrmesadanmncoe 7
REASONS FOR GRANTING THE WRIT ............ssesesesesesesesesees 8
I. The Ninth Circuit’s Holding Regarding NEPA’‘s
“Causation” Standard Conflicts With Decisions Of
This Court As Well As Decisions In At Least Two
SS oss csstcsiinbicapcaindscbudshicavcaubtaubidecceinadoaabttne 9
A. The Decision Below Expressly Rejects This
Court’s Causation Standard, And Does So On
MARIE SIE isa cecbensionceennisieonbchessdonemidetnies 9
B. The Decision Below Conflicts With Decisions In
Two Other Circuits, And Is In Substantial
Tension With A Decision Of Yet Another Circuit.....14
Il. The Ninth Circuit’s Decision On The NRC’s Ability
To Exclude Unquantifiable Risks Conflicts With
Decisions Of This Court, With CEQ Regulations,
And With Decisions In Other Circuits .0.......0.cceesseeseseeees 18
iv
A. The Ninth Circuit's Decision Is Erroneous Under
The Controlling Authorities .............:ssssssessesseseesssesees 19
B. The Decision Below Placed The Ninth Circuit In
Conflict With The Third Circuit On This
SEITE OE iccosesicsonivsnesnsccsnnlcsvisescadctogenoinsacenshnicaibes 21
III. The Decision Below Will Have Widespread Adverse
FR TION 5s spiciccsconsslonsosslanibpinien caksesinniainvvones 24
A. The Ninth Circuit’s Decision Will Unduly
Burden PG&E and Other Participants In The
NRC Regulatory Process Without Advancing
ME FOLIO saiiissdcsndediss Wiciaarncipthcsstienssinccbeingnemnbniobindas 24
B. The Ninth Circuit’s Decision Would Adversely
Impact Other Private Applicants and Federal
PRQOTEY PARI iiiissarscastcnionivcspsisinserecives ciesh dhoviviniepsaceaes 27
C. The Ninth Circuit's Decision Creates
Uncertainty And Potential Delay for PG&E at
the Diablo Canyon Nuclear Power Plant................... 27
D. The Ninth Circuit’s Decision Raises Serious
National Security Concerns. ..............csscsssscsssesssssesserees 29
eG eS eeisccsnrcsnss sh ccatosipsossncev cad plonnaiddrsencrbanmesenatanedigeaioia 30
TABLE OF AUTHORITIES
CASES:
Amoco Prod. v. Vill. of Gambell, 480 U.S. 531 (1987)........:+000 28
Andrus v. Sierra Club, 442 U.S. 347 (1979) .....cccsccssersereseseeenes 19
Baltimore Gas & Elec. Co. v. NRDC.,
OE Rae Ci recirncrcevasessqesthensitpintansncbsdnaniniensipiness 21-22, 26
Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983) ........s:0:ccssseese 25
Citizens Awareness Network, Inc. v. United States,
ER a te CAE GE, BIO citsicncracimsssaceseceninutiincniesonevecinnnen 25
City of New York v. U.S. Dep’t of Transp., 715 F.2d 732
Se actly Me Siskind kas inaciaeiaetiacobetiad essen tiadilpatfecrntini 16, 17
City of Shoreacres v. Waterworth,
EID FS GEO (SR Cir, DIOS) oc cesesesssecsvesvecesovseiscsevereboouce ine
Dep't of Transp. v. Pub. Citizen,
SOR ee Fe LTE senapctnersirnicnmsinicbiedapcbecnssnteinnte-rensiniaiaiies passim
Glass Packaging Inst. v. Regan,
737 F.2d 1083 (D.C. Cir. 1984) ......-sssccsecseesssenreenteenenes 15, 16
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258 (1992) .......... 13
Limerick Ecology Action, Inc. v. NRC,
S69. F.2d 719 (Sed Cir. 1909) «....recceserccsorcocserseseoese 3, 21-23, 26 ©
Marsh v. Oregon Natural Res. Council,
cist incdenstsehonronncicihensenheriuisanesinastptonaiinas 18
Metropolitan Edison Co. v. People Against Nuclear
SPT, GEE Ss. FOO (AGG) hicerisestarcesntcsseresitvinetiseinsintes passim
Mid States Coal. for Progress v. Surface Trans. Bd.,
GEE © aR aEGAE GRE SIN GUIDE ivienicnsevscsaninenpovcinsnintecerncrnsi 17-18
No GWEN Alliance v. Aldridge,
ERD 0 Mn BO) CCIE CR. TSGD) on cestesccncensevncnnsoonniionnnses 2, 13-14
vi
Pac. Gas & Elec. Co. (Diablo Canyon Power Plant
Independent Spent Fuel Storage Installation),
CLE, SF BERR EGO sisicincivsanliesbconneiiebyesastoconnsmnnicttines 3
Pac. Gas & Elec. Co. (Diablo Canyon Power Plant
Independent Spent Fuel Storage Installation), -
CLI-06-23, 64 N.R.C. __ (Sept. 6, 2006) .............cessesseseeeee 28
Private Fuel Storage, L.L.C. (Independent Spent Fuel
Storage Installation), CLI-02-25, 56 NRC 340
GD vasiincicslaiaisassparcdeeaiensichgaesisciibasnisnidaulinipstatiadscenkvantaccolasiacaans 3
Robertson v. Methow Valley Citizens Council,
GAT Se (OOO asia tins siasasshindiipneahehanleionivvieitid 4, 20
Romer v. Carlucci, 847 F.2d 445 (8th Cir. 1988) ......... venivhiosensiin 26
San Luis Obispo Mothers for Peace v. NRC, ;
SE Fae FO a BI eiscticecrtincctestcaseedenintasiecennninncntins 3
Strycker's Bay Neighborhood Council, Inc. v. Karlen,
Sk: Ea OT ea tinncesesenicceseaiaianiesaconnsohimastninnectionioncniiied 4
Vermont Yankee Nuclear Power Corp. v. NRDC,
SS GI wit sacspinitninivinishcrctichntionmis eencnerbatatiinnvicbanuetoen 24
Warm Springs Dam Task Force v. Gribble,
ES Fie Fe CR ROD beietindicentiences em tacivhncciimainaes 14
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ..............000+ 28
STATUTES AND REGULATIONS:
Atomic Energy Act of 1954,
a. BR RI wieinsicrvecstchecrsninsinencencspoiciecbancseetadseiten 13
BF lic SRT vivsinwesnicesininintibicipeaniimnieiaandicivenesseidasonintiinaes 29
National Environmental Policy Act of 1969,
Be ee arena eihacicinshiessiascstcvnoreclanenenccneetnraiin 3
i Bi iisartictinetciinsteshenaicvioonmscnistiabopniasmeretcmninndaiiad 4
7 £5. 8 Cae | |. ESORDMSRMRtncmaer tools Suremmntanss Neivemseron area 29
a RO io 4
vii
Nuclear Waste Policy Act of 1982, as amended,
Sy oN eeteseeteicnncediterineibmieinonseciiecnnieane 5
CFs AE Ping AIEEE wisessistinsnertsriansionpiniinnnnienanen 5
KE A OEE FO sictoticscapricssielistininteniinhtibsbdiclacchuncepaebianipals 26
ph ak sg: AN 7. Sanson Wahl ee Ie In Ran TE AE Rin CT Ce 4,19
WCER AGS oi ican 4
TR Fi OE itisnhesstuiecnsinenidinsisiaeclemsienchgiaisiidaiael 4
PEGs Bp Se Oe sscccniscinss seinitusneneiackainteviametiantiogsiladcorbedaneiauds 4
TE i Tea ok RA) sipsscsssniescsetheitcniasepitsnnaaepbcicianconaeitiiasiacboliniate 21
EG Fae FO BARON vescsesvevin shspscessidecinasosavincldgonosacctoriaen 3-4
FB Be ECD eseviecvisntactcaccsceiasitctvinatinsasenipanatianuntaadoninnid 4
GG: BB e ices sissnsncsosssccdiotihininnistyshcirnbcanbaapeaisiianlidecaeicomnstan 4
MEFS FAs Th EP Mic scvivniscsciec assis acietrstialadscoapiinnninotsbieiinipiniscinuenaacninl 4
EF cis We BALE) vccissasssvictondinnimitontutiinentatachsnceiacniasmeitagan +
SG Fa Bi Gitiecosevendosicinepisnceabiucanesitincubtsenacsupelavunea tiie 19-20
BE Fe aR vinicintnicesinentapoesiicats siesta tines sonietialisuaietincdasaal 4
43 Fed. Reg. 55,978 (Nov. 29, 1978).......c.ccssorscsesesecsesesercevesnsseses 19
51 Fed. Reg. 15,618 (Apr. 25, 1966). ...-ccsessecrcevescsesorersoteceesees 19, 21
67 Fed. Reg. 19,600 (Apr. 22, 2002)............. dicsichsepiavioiaaddiineaet 5
MISCELLANEOUS:
W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts 264 (5th ed. 1984)................ 13
INTRODUCTION
In the decision below, the Ninth Circuit has overruled
the Nuclear Regulatory Commission (“NRC” or
“Commission”) on two issues of great importance to the
administration of the National Environmental Policy Act
(“NEPA”) —a statute that all too often is used by opponents
of nuclear power to delay and make more costly the
construction of all types of nuclear facilities. In so ruling,
the Ninth Circuit has spurned controlling decisions of this
Court and has placed itself in conflict with decisions in at
least three other circuits, even while threatening the NRC’s
efforts to make more efficient the approval process for all
nuclear facilities.
The NRC decision reviewed by the Ninth Circuit
concerns a storage installation for spent nuclear fuel at the
Diablo Canyon Power Plant (“Diablo Canyon”), a nuclear
power plant located in San Luis Obispo County, California
and owned and operated by petitioner Pacific Gas and
Electric Company (“PG&E”). The private respondent here,
San Luis Obispo Mothezs for Peace, argued that the agency
was required to review and address terrorism risks, not only
in its ongoing security review (which for security reasons
has only limited public participation), but also as part of the
public proceeding that the agency conducts under NEPA.
The NRC disagreed, in part because of the security risks
posed by a public vetting of terrorism issues.
The first issue on which the Ninth Circuit ruled against
the NRC concerns the legal threshold for determining the
scope of an agency’s NEPA review. The issue was
addressed by this Court in Metropolitan Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766 (1983), and then again
in Department of Transportation v. Public Citizen, 541 U.S. 752
(2004). Those decisions unanimously held that whether a
possible environmental effect must be assessed depends
upon whether there exists “’a reasonably close causal
relationship’ between the environmental effect and the
alleged cause.” Pub. Citizen, 541 US. at 767 (quoting
Metropolitan Edison, 460 U.S. at 774) (emphasis added). Both
decisions made clear that this standard is similar “to the
‘familiar doctrine of proximate cause from tort law’” (ibid.),
and that the Court intended it to set “‘a manageable line
between those causal changes that may make an actor [i.e.,
an agency] responsible for an effect and those that do not.’”
Ibid. (quoting Metropolitan Edison, 460 U.S. at 774 & n. 7).
Here, the NRC relied upon this standard in holding that it
was not required to address a potential terrorist attack in its
NEPA analysis in addition to its ongoing security review.
The Ninth Circuit, however, held that the NRC erred in
applying the Metropolitan Edison standard rather than the
stricter standard applied by the Ninth Circuit in No GWEN
Alliance v. Aldridge, 855 F.2d 1380 (9th Cir. 1988). Pet. App.
19a-21a. As a result of its analysis of these decisions, the
Ninth Circuit held tnat an agency must conduct a NEPA
analysis of any possible environmental effect—including
effects that could result from intervening criminal conduct
by third parties—unless the court can be convinced that the
cause and effect are “remote and highly speculative.” Id. at
21a. In so holding, the Ninth Circuit placed itself in conflict
with decisions of the D.C. and Second Circuits, both of
which have applied the Metropolitan Edison standard in
determining that the causal relationship between agency
decisions and potential acts of sabotage was not sufficiently
close to warrant inclusion in a NEPA analysis.
The Ninth Circuit also rejected the NRC’s independent
conclusion that “the likelihood of [a criminal] attack cannot
be ascertained with confidence by any state-of-the-art
methodology” and, therefore, that the NRC had “no means
to assess, usefully, the risks of terrorism” in any way that
would be helpful to its NEPA analysis. Pet. App. 56a. The
Ninth Circuit held that an agency’s inability to quantify the
risk of sabotage does not allow the agency “to eliminate a
possible environmental consequence from analysis” (id. at
25a) and that, even if it did, the NRC “has not established
that the risk of a terrorist attack is unquantifiable.” Id. at
26a. The only authority the Ninth Circuit cited for this
proposition was the dissent in Limerick Ecology Action, Inc. v.
NRC, 869 F.2d 719, 754 (3rd Cir. 1989). Id. at 25a. Not
surprisingly, the Ninth Circuit's decision conflicts with the
majority opinion in that case. And the Ninth Circuit's
decision improperly shifts the burden of proof on the
quantifiability issue from the petitioner to the agency.
Given the conflicts that the decision below creates with
decisions of sister circuits and of this Court, and given the
immense practical importance of the issue to PG&E, to the
entire clear industry, and indeed to all industries
regulated by federal agencies subject to NEPA, the decision
below merits this Court's review.
OPINIONS BELOW
The decision of the court of appeals (Pet. App. 1a-31a) is
reported at 449 F.3d 1016. The order of the Nuclear
Regulatory Commission reviewed by the court of appeals
(Pet. App. 32a-41a) and a related Commission opini- > (Pet.
App. 42a-67a) are reported at 57 N.R.C. 1 and 56 N.R.C. 340.
JURISDICTION
The judgment of the court of appeals was entered on
June 2, 2006. Pet. App. 1a. No party to the proceeding filed
a petition for panel rehearing or rehearing en banc. By order
dated August 28, 2006, Justice Kennedy extended the time
within which to file a petition for writ of certiorari to and
including September 29, 2006. This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant provisions of the National Environmental
Policy Act of 1969, 42 U.S.C. §§ 4321-4437, Council on
Environmental Quality regulations, 40 C.F.R. §§ 1500.1-
1518.4, and Nuclear Regulatory Commission regulations, 10
C.F.R. §§ 51.1-.125 are reprinted at Pet. App. 75a-85a.
STATEMENT OF THE CASE
A proper understanding of the issues presented and
why they merit this Court’s review requires some
familiarity with: (a) NEPA and its purposes; (b) the
administrative proceedings before the NRC; and (c) the
Ninth Circuit's decision.
A. NEPA And Its Purposes
Congress enacted NEPA to ensure that agencies
consider the environmental consequences of proposed
major federal actions. 42 U.S.C. § 4321; 40 C.F.R. § 1500.1(c).
NEPA is a procedural statute; it does not mandate particular
substantive results. Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989); Strycker’s Bay Neighborhood
Council, Inc. v. Karlen, 444 U.S. 223, 227-228 (1980) (per
curiam). It requires an agency to prepare a detailed
environmental impact statement (“EIS”) only if a proposal is
a “major Federal action{] significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(2)(C).
Regulations promulgated by the NRC and by the
Council on Environmental Quality (“CEQ”), moreover,
provide that an agency may prepare an environmental
assessment (“EA”) to determine whether a proposed action
is likely to have a significant impact on the environment.
See 10 C.F.R. §§ 51.25, 51.30-.31; 40 C.F.R. §§ 1501.3, 1501.4.
If the agency determines through an EA that the proposed
action will not have a significant effect on the quality of the
human environment, the agency issues a “finding of no
significant impact,” and it does not need to prepare an EIS.
See 10 C.F.R. §§ 51.30-.35; 40 C.F.R. §§ 1501.4(e), 1508.13.
B. Administrative Proceedings
On December 21, 2001, PG&E filed an application with
the NRC for a license that would authorize PG&E to place
spent fuel and related radioactive materials from the Diablo
Canyon power plant into “dry” storage in a separately-
licensed, independent spent fuel storage installation
(“ISFSI”) at the Diablo Canyon site. The ISFSI is intended to
provide interim storage of spent fuel in accordance with
Congress’ direction in the Nuclear Waste Policy Act of 1982,
as amended (“NWPA”). See 42 U.S.C. § 10151(a)(1). !
On April 22, 2002, the NRC published in the Federal
Register a notice of opportunity . or a hearing on the PG&E
application. 67 Fed. Reg. 19,600 (Apr. 22, 2002). Respondent
San Luis Obispo Mothers for Peace and several others
(collectively “Mothers for Peace”) jointly submitted a
petition to intervene and a request for a hearing. On July 18,
2002, these parties filed an amended petition setting forth
proposed contentions for hearing. Pet App. 68a-74a.
Among other things, they argued that PG&E's
Environmental Report (“ER”) was inadequate because it did
not include an assessment of the environmental
consequences of deliberate acts of sabotage. Ibid.
On December 2, 2002, the NRC’s Atomic Safety: and
Licensing Board (“Licensing Board”) ruled that, under the
Commission’s hearing rules, the terrorism-related
contentions constituted impermissible challenges to the
Commission's security regulations. Pet App. 34a-36a. The
Licensing Board also concluded that license applicants are
not required to design facilities against destructive acts by
“enemies of the United States.” Id. at 35a. The Licensing
1 As at other nuclear power plants, spent fuel at Diablo Canyon is
initially (and still) stored in a “wet” spent fuel pool. Dry storage
allows spent fuel that has already been cooled for a time in a spent
fuel pool to be removed from the pool and stored in a leak-tight
steel cylinder bound within a robust concrete cask. An ISFSI is a
facility for maintaining a number of storage casks, up to a licensed
maximum. ISFSIs must meet NRC safety and_ security
requirements. See, e.g., 10 C.F.R. Part 72, Subpart H.
Board referred its ruling on these contentions to the
Commission, inasmuch as identical issues had been raised
in several other NRC proceedings and were pending before
the Commission at the time. Id. at 36a. None of those other
proceedings has generated a court decision.
The Commission accepted the Licensing Board’s referral
of the terrorism issues and, on January 23, 2003, affirmed the
result reached by the Licensing Board. Pet App. 32a-41a.
(Order CLI-03-1) In fact, in the interim between the
Licensing Board’s referral and the Commission’s decision in
this case, the Commission had already considered, in the
Private Fuel Storage proceeding, the issue of whether NEPA
requires evaluation of impacts caused by terrorist acts. Pet.
App. 42a-67a. (Order CLI-02-25)
In the decision at issue here, the Commission applied the
Private Fuel Storage precedent to hold as a matter of law that
NEPA does not require a review of the likelihood or
environmental impacts of a terrorist attack on the proposed
facility. Pet. App. 38a-4la. For one thing, applying the
“proximate cause” standard articulated by this court in
Metropolitan Edison, the NRC held that the possibility of a
terrorist attack at any one facility is speculative and too far
removed from the natural or expected consequences of the
agency’s action to require further study under NEPA. Id. at
38a-39a, 51a-55a. For another, the NRC concluded that the
risk of a terrorist attack at a nuclear facility cannot be
adequately quantified or determined, and that the agency
thus had “no means to assess, meaningfully, the risks of
terrorism” at any particular facility. Id. at 39a, 55a-57a. The
NRC also emphasized that the public NEPA process is an
inappropriate forum for considering sensitive threat
assessment issues, and that public NEPA reviews “may well
have the perverse effect of assisting terrorists seeking
effective means to cause a release of radioactivity.” Id. at
39a, 62a-65a.
In October 2003 the NRC issued an EA for the proposed
action. In that 26-page document, the NRC considered the
impacts of the proposed action, including the non-
radiological and radiological impacts of ISFSI construction,
as well as the potential impacts of operating the facility and
decommissioning it at the end of its useful life. The NRC.
concluded that an EIS was not warranted and issued a
finding of no significant impact. Pet. App. 10a. The NRC
then issued a license to PG&E on March 22, 2004.
C. The Decision Below
On December 11, 2003,.Mothers for Peace filed a petition
in the Ninth Circuit seeking review of the NRC’s decision.
They argued, among other things, that the NRC erroneously
declined to hold a hearing on whether the environmental
impacts of terrorist attacks and other “acts of malice or
insanity” against the ISFSI should be addressed in an EIS.
In its decision, issued June 2, 2006, the court of appeals
held that “the NRC's determination that NEPA does not
require a consideration of the environmental impact of
terrorist attacks does not satisfy a reasonableness review.”
Pet. App. 31a. In so holding, the court rejected each of the
independent reasons the NRC had given in Private Fuel
Storage for declining to consider the environmental impact
of terrorist attacks under NEPA. Id. at 17a-30a.
First, declining to apply this Court’s Metropolitan Edison
standard of causation, the court ruled that the exclusive
standard for determining whether a potential effect must be
considered under NEPA is whether the hypothetical effect
in question is something more than “remote and highly
speculative.” Pet. App. 21a. If it is, the agency must include
that effect in its NEPA review. Having thus found that the
NRC had erred in applying the “proximate cause” standard
articulated by this Court in Metropolitan Edison, the court
directed the NRC to conduct a new assessment applying the
Ninth Circuit's own “remote and highly speculative”
standard instead. Id. at 22a-24a, 31a.
Second, the court-rejected the NRC’s conclusion that it
need not conduct a full-scale NEPA analysis of a risk that
cannot be quantified in a manner sufficient to permit a
meaningful NEPA analysis. Pet. App. 26a. Accordingly, the
court held the agency’s EA inadequate, and remanded to the
agency for further proceedings on that issue. Id. at 31a.
REASONS FOR GRANTING THE WRIT
The Ninth Circuit's decision countermands the NRC on
two issues of great importance to the administration of
NEPA: the “causation” standard that must be met before the
NRC or any other agency is obligated to include a potential
environmental effect as part of its NEPA analysis; and
whether a NEPA review is required where the risks
associated with that potential effect are not sufficiently
quantifiable to allow a meaningful NEPA analysis. As we
show below, on the first issue the Ninth Circuit’s decision
squarely conflicts with decisions of this Court as well as
decisions in other circuits. And on the second issue, the
decision below conflicts with CEQ regulations that this
Court has previously endorsed, as well as a decision of the
Third Circuit.
In addition, the decision has widespread adverse
consequences. It threatens to impose a substantial burden
on PG&E and other private parties participating in future
NRC licensing proceedings for existing and new nuclear
power plants. It also will impose unnecessary burdens on
applicants for permits from other federal agencies subject to
the requirements of NEPA and on those agencies. The
decision also creates a cloud of uncertainty over PG&E's
plans for spent fuel storage at Diablo Canyon, which is the
most significant electrical generating facility in California.
And finally, as the NRC stressed, NEPA reviews of terrorist
threat scenarios would themselves create a risk that
classified information could be released, to the detriment of
public health and safety. For all of these reasons, this
Court’s review is warranted.
I. The Ninth Circuit’s Holding Regarding NEPA’s
“Causation” Standard Conflicts With Decisions Of
This Court As Well As Decisions In At Least Two
Other Circuits
As this Court recognized in Metropolitan Edison, an
agency's decision about the proper scope of its NEPA
analysis can have a major impact on the burdens that
analysis will impose on private applicants and on the
agency. See 460 US. at 776. On that issue, the decision
below is a clear departure from controlling decisions of this
Court adopting a NEPA “causation” requirement, and from
decisions in other circuits faithfully applying that
requirement.
A. The Decision Below Expressly Rejects This Court’s
Causation Standard, And Does So On Implausible
Grounds
In Metropolitan Edison, and then again in Public Citizen,
this Court unanimously held that whether a particular
environmental “effect” must be assessed under NEPA
depends at the threshold upon whether there exists “‘a
reasonably close causal relationship’ between the
environmental effect and the alleged cause” —i.e., the agency
action under consideration. Pub. Citizen, 541 U.S. at 767
(quoting Metropolitan Edison, 460 U.S. at 774). The Court
made clear that the standard for determining whether a
“reasonably close causal relationship” exists is a “ proximate
cause” standard akin to that typically applied in tort law.
Id. As in tort law, where the concept of “proximate cause”
is applied to define a point where an initial actor is no
longer responsible for a chain of ensuing events, the Court
intended to set “‘a manageable line between those causal
changes that may make an actor [i.e., an agency] responsible
10
for an effect and those that do not.” Id. (quoting
Metropolitan Edison, 460 U.S. at 774 & n. 7). Yet the decision
below expressly rejected this standard in favor of the Ninth
Circuit’s own, alternative standard.
1. Metropolitan Edison arose after a well-known accident
damaged one of two reactors at Three Mile Island, and after
the NRC authorized the restart of the undamaged reactor.
An association of local residents who opposed further
operation of the facility intervened in the restart
proceedings, alleging that NEPA required the NRC to
analyze in its supplemental EIS the potential effects of the
agency’s action on psychological health and community
well-being. 460 U.S. at 768-69.
This Court began by observing that “NEPA does not
require the agency to assess every impact or effect of its
proposed action, but only the impact or effect on the
environment.” 460 U.S. at 772 (emphasis in original). The
Court further reasoned that the term “environmental effect”
must be read to require “a reasonably close causal
relationship between a change in the physical environment
and the effect at issue.” Id. at 774. The Court emphasized
that “but for” causation is not sufficient to make an asserted
effect cognizable under NEPA. Ibid. Rather, the Court held
that the statute requires a “reasonably close causal
relationship,” similar to the tort law doctrine of proximate
cause. Ibid. The Court reasoned that “[t]ime and resources
are simply too limited” to further extend the statute and that
spreading agency resources too thin would inhibit, rather
than promote, protection of the environment. Id. at 776.
Applying this “proximate cause” test, the Court next
considered whether there was a proximate relationship
between resumed operation of the reactor (the change in the
physical environment permitted by the agency’s action) and
psychological distress and other health effects from the
perceived risk of a post-restart accident (the alleged effects
at issue). 460 US. at 774-75. The Court found the “causal
11
chain” to be “too attenuated” (id. at 774), inasmuch as “the
element of risk and its perception by [the concerned
residents] are necessary middle links.” Id. at 775. The Court
concluded that the alleged effect was “simply too remote
from the physical environment” to require an EIS under
NEPA. Id. at 774. And the Court observed that “[uJntil
Congress provides a more explicit statutory instruction than
NEPA now contains, we do not think agencies are obliged to
undertake the inquiry.” Id. at 778.
2. Public Citizen reaffirmed the Metropolitan Edison
proximate causation test and clarified that it extends to the
link between an agency action and a future effect. Pub.
Citizen, 541 U.S. at 759-60. The case arose after the President
announced his intent to lift a moratorium prohibiting
Mexican motor carriers from obtaining operating authority
within the United States. The Federal Motor Carrier Safety
Administration (“FMCSA”) subsequently proposed rules
establishing certain financial and safety requirements for
Mexican motor carriers. Id. at 759-60. The FMCSA also
issued an EA for the proposed rules, but the EA did not
consider the environmental impact of the Mexican carriers’
increased cross-border operations. Id. at 761. The agency
reasoned that any such impact would be the effect of the
President's modification of the moratorium, not the agency’s
implementation of the regulations. Ibid. The court of
appeals disagreed, and found the agency’s EA deficient
because it failed to consider. the “reasonably foreseeable”
effect of increased emissions caused by the entry of Mexican
trucks. Id. at 762-63.
On review, this Court first inquired whether the
Mexican carriers’ increased cross-border operations, with
the correlative release of emissions by Mexican trucks, was
an “effect” of FMCSA’s issuance of the proposed rules. 541
U.S. at 764. The Court characterized the respondents’
argument as “a particularly unyielding variation of ‘but for’
causation, where an agency’s action is considered a cause of
12
an environmental effect even when the agency has no
authority to prevent the effect.” Id. at 767 (citing Metropolitan
Edison, 460 U.S. at 774).
Instead of applying a “but-for” causation test, the Court,
reiterating Metropolitan Edison, held that whether a
particular environmental “effect” must be considered under
NEPA depends upon whether there exists “‘a reasonably
close causal relationship’ between the environmental effect
and the alleged cause.” Pub. Citizen, 541 U.S. at 767 (quoting
Metropolitan Edison, 460 U.S. at 774). Moreover, as in
Metropolitan Edison, the Court reiterated that this standard is
analogous “to the ‘familiar doctrine of proximate cause from
tort law,” and therefore provides “’a manageable line
between those causal changes that may make an actor [i.e.,
an agency] responsible for an effect and those that do not.’”
Ibid. (quoting Metropolitan Edison, 460 U.S. at’774 n. 7).
“ea
Applying this test, the Court found that the agency had
no authority to refuse admission of the Mexican motor
carriers if the carriers met certain requirements contained in
FMCSA regulations. 541 U.S. at 766-68. Accordingly, any
pollution from Mexican motor ‘carriers, even if foreseeable,
was not an “effect” that the agency needed to consider
because no “action” by the agency would “cause” Mexican
motor carriers to enter the United States. As in the past, the
Court also emphasized that inherent in NEPA is a “rule of
reason” that requires consideration of the usefulness of any
new potential information to the decision-making process.
Id. at 767-68.
3. Here, in applying a NEPA “rule of reason” to
determine whether it needed to analyze the environmental
impacts of terrorist attacks, the NRC expressly applied the
Metropolitan Edison causation standard. Relying upon that
standard, the NRC noted that “where the link between the
agency action and the claimed impact is too attenuated to
find the proposed federal action to be the ‘proximate cause’
of the impact,” NEPA requires no discussion of that impact.
13
Pet. App. 53a (citing Metropolitan Edison, 460 U.S. at 772-75)
(other citations omitted).
The NRC then correctly concluded that its licensing of
the ISFSI could not reasonably be viewed as the “proximate
cause” of the effects of a terrorist attack. Pet. App. 53a-54a.
As the agency put it, “the causal relationship between
approving the [] facility and a third party deliberately flying
a plane into it is too attenuated to require a NEPA review,
particularly where the terrorist threat is entirely
independent of the facility.” Id. at 55a. In other words, any
effects of terrorist attacks would be proximately caused by
terrorists, not the NRC.?
4. The Ninth Circuit held that the NRC erred in
applying the Metropolitan Edison standard and_ flatly
declared that “Metropolitan Edison and its proximate cause
analogy are inapplicable here.” Pet. App. 20a. Instead, the
Ninth Circuit held that the appropriate analytical approach
is the one the Ninth Circuit had used in No GWEN Alliance
2 As in tort law, a proximate cause analysis incorporates elements
of certainty, foreseeability, and probability. It also considers any
public policy considerations germane to the issue of legal
responsibility. See, e.g., Holmes v. Sec. Investor Prot. Corp., 503 U.S.
258, 268 (1992) (“[T]he notion of proximate cause reflects ‘ideas of
what justice demands, or of what is administratively possible and
convenient.””). See also W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts 264, 274-275 (5th ed.
1984). In effect, in imposing security requirements under the
Atomic Energy Act of 1954 (“AEA”), 42 U.S.C. §§ 2011-2297g, the
NRC has already made an expert determination on the extent of
its licensees’ responsibility for the security of nuclear facilities.
Although the Ninth Circuit found. it “difficult to reconcile” the
Commission's position on NEPA with its ongoing AEA-based
security reviews (Pet. App. 23a), it is those very AEA-based
reviews that make it unnecessary to stretch NEPA into threat
assessment and that provide an additional policy basis for the
4 “
NRC's “proximate cause” determination in the present case.
I4
v. Aldridge, 855 F.2d 1380 (9th Cir. 1988), which expressly
rejected the Metropolitan Edison standard in favor of a
“remote and highly speculative” probability standard. No
GWEN, 855 F.2d at 1385-86 (quoting Warm Springs Dam Task
Force v. Gribble, 621 F.2d 1017, 1026-27) (9th Cir. 1980)).
Under that standard, an alleged effect must be included in
the agency’s NEPA analysis unless that effect is “remote and
highly speculative.”
The court attributed its refusal to apply Metropolitan
Edison in this case to a footnote in that decision, which the
court read as limiting this Court’s holding to situations
involving “effects caused by the risk of accident.” Pet. App.
20a (quoting 460 U.S. at 775 n. 9) (emphasis added). But the
court of appeals failed even to acknowledge this Court's
holding in Public Citizen, which makes clear that the
Metropolitan Edison standard applies across the board. See
541 U.S. at 767.3
In sum, the decision below squarely rejected the legal
causation standard that this Court has twice held to govern
the determination whether a particular environmental effect
must receive plenary review under NEPA.
B. The Decision Below Conflicts With Decisions In
Two Other Circuits, And Is In Substantial Tension
With A Decision Of Yet Another Circuit
In rejecting this Court's “ proximate cause” standard, the
decision below also placed the Ninth Circuit in square
conflict with the D.C. and Second Circuits, and in
substantial tension with the Eighth Circuit.
3 The passages from Metropolitan Edison cited by the Ninth Circuit
related to this Court's specific application of the proximate cause
standard; they did not purport to limit the applicability of the
standard. Compare Pet. App. 20a-21a with Metropolitan Edison,
460 US. at 773-77.
15
1. The Ninth Circuit’s decision conflicts with the D.C.
Circuit’s opinion in Glass Packaging Institute v. Regan, 737
F.2d 1083 (D.C. Cir. 1984). There the D. C. Circuit rejected a
challenge to a decision of the Bureau of Alcohol, Tobacco,
and Firearms (“BATF”) to allow the packaging of liquor in
plastic bottles. In permitting the use of plastic bottles, the
BATF had prepared an environmental assessment that the
petitioners criticized for failing to consider the potential
injury or death that could result from sabotage of the bottles
by “deranged” criminals. 737 F.2d at 1091.
As one of two alternative holdings,* the D.C. Circuit
rejected as “specious” the claim that potential harm
resulting from such sabotage must be evaluated under
NEPA where it is caused by “reasonably foreseeable
criminal acts of third parties.” 737 F.2d at 1091-92. Relying
upon Metropolitan Edison’s “proximate cause” analysis, the
D.C. Circuit held that “mere foreseeability does not trigger a
duty to consider an alleged environmental effect” (id. at
1091), and that “[t]he limits to which NEPA’s causal chain
may be stretched before breaking must be defined by the
policies and legislative intent behind NEPA.” Id. at 1091-92.
The court concluded that, under a proximate cause analysis,
the causal link between possible sabotage of plastic bottles
and BATF’s approval of those bottles was simply too
attenuated to “tip the scale” in favor of mandatory NEPA
review. Id. at 1093 (citations omitted).
As noted above, by contrast, the Ninth Circuit expressly
rejected this Court’s proximate cause test and applied the
“remote and highly speculative” standard previously
articulated by the Ninth Circuit in No GWEN. Although the
Ninth Circuit did not explicitly state that “mere
* The court also held, in the alternative, that criminal tampering
with plastic beverage bottles “is definitely not an environmental
consequence under any reasonable interpretation of [NEPA].” 737
F.2d at 1094 (emphasis added).
16
foreseeability”—as opposed to the “reasonable
foreseeability” normally required in the tort-law context —is
enough for purposes of NEPA, that is the necessary
implication of its holding. Thus, in the D.C. Circuit,
“reasonable foreseeability” is required, whereas in the Ninth
Circuit it is not.
This difference, moreover, would clearly be outcome-
determinative in future cases. For example, if the D.C.
Circuit had applied the Ninth Circuit’s test in Glass
Packaging, it undoubtedly would have held that the BATF
was required to consider the possibility of sabotage as part
of its NEPA review. The risk of tampering with plastic
bottles was concededly foreseeable (in the “mere
foreseeability” sense) and, therefore, at least somewhat
greater than “remote and highly speculative.” By contrast,
if the Ninth Circuit had applied the stricter “proximate
cause” analysis from Metropolitan Edison, as the D.C. Circuit
did in Glass Packaging, it would have been constrained to
affirm the NRC’s finding that approving a spent fuel storage
facility is not the “proximate cause” of any sabotage that
might subsequently occur at that facility. Allowing for the
fact that these two decisions arose in the context of different
agency actions and different forms of sabotage, the conflict
between them could hardly be more stark.
2. The Ninth’s Circuit decision also conflicts with the
Second Circuit’s decision in City of New York v. U.S.
Department of Transportation, 715 F.2d 732 (2d Cir. 1983). The
court there rejected a challenge to a Department of
Transportation (“DOT”) rule designed to reduce the risk of
transporting large quantities of radioactive materials by
highway where, among other things, the agency had
determined that an EIS was not necessary. The Second
Circuit reversed a finding by the district court that DOT was
“obligated” to address the risk of sabotage in its NEPA
analysis. 715 F.2d at 750. The court stated that “[w]ith
respect to environmental consequences that are only remote
17
possibilities, an agency must be given some latitude to
decide what sorts of risks it will assess.” Ibid. (citations
omitted). The court found that DOT had correctly
concluded that “the risks of sabotage were too far afield for
consideration” under NEPA. Ibid. (emphasis added).
The Second Circuit’s use of the phrase “too far afield”
indicates that it applied a proximate cause analysis—i.e., it
believed there was no “reasonably close causal relationship”
between the environmental impacts of a terrorist attack and
the agency action at issue. In short, it followed an analysis
like that applied by this Court in Metropolitan Edison. And,
unlike the Ninth Circuit, the Second Circuit did not require
the agency to demonstrate that the risk of terrorist activity
was “remote” and “highly speculative” to avoid considering
the issue as part of its NEPA analysis.
Here again, the Second Circuit, if it followed its
precedent, would have decided this case differently than the
Ninth Circuit did. Conversely, if the Ninth Circuit followed
its reasoning in this case, it would almost certainly decide a
case like City of New York against the federal agency. The
risk that the highway transportation of large quantities of
radioactive materials could lead to sabotage may be low, but
that risk is no more “remote” or “speculative” than the risk
that a terrorist would attack one particular spent fuel
storage site. In short, there is a clear conflict between the
Ninth and Second Circuits.
3. The Ninth Circuit’s decision is also in substantial
tension with the Eighth Circuit’s decision in Mid States
Coalition for Progress v. Surface Transportation Board, 345 F.3d
520 (8th Cir. 2003), which involved a proposal to construct
and upgrade rail lines. There the Eighth Circuit rejected a
claim that the Surface Transportation Board (“Board”)
violated NEPA when it declined to reopen the record and
supplement its EIS to consider concerns arising from the
terrorist attacks of September 11, 2001. 345 F.3d at 544. The
Eighth Circuit held that such requests were subject to the
18
“rule of reason,” and that the agency should be accorded
deference as long as its decision is not arbitrary and
capricious. Ibid. (citing Marsh v. Oregon Natural Res. Council,
490 U.S. 360, 377 (1989)). In regard to the issue of terrorism,
the court acknowledged that “the events of September 11,
2001, have certainly raised awareness of the potential threats
to our nation’s transportation systems.” Ibid. The court
nonetheless held that “the Board exercised its permissible
discretion when it determined that any increased threat was
general in nature and did not bear specifically on
[petitioners] or the proposed * ** project.” Ibid.
Although the Eighth Circuit’s analysis focused on the
distinction between “general” and “specific” threats, it
clearly requires something more than the Ninth Circuit has
now held sufficient to trigger NEPA’s requirement—i.e.,
anything that is not “remote and highly speculative.” If the
Ninth Circuit had applied the Eighth Circuit's test here, it
would have been forced to concede as a matter of law that
the “increased threat” of terrorism was a “general” threat
that does “not bear specifically on the [PG&E] project.”
And, therefore, the Ninth Circuit would have had to
conclude that NEPA’s requirements were not triggered.5
II. The Ninth Circuit’s Decision On The NRC’s Ability To
Exclude Unquantifiable Risks Conflicts With
Decisions Of This Court, With CEQ Regulations, And
With Decisions In Other Circuits
The Ninth Circuit also encroached on the NRC’s broad
discretion in rejecting the agency’s conclusion that “the
likelihood of attack cannot be ascertained with confidence
5 See also City of Shoreacres v. Waterworth, 420 F.3d 440, 451-53 (Sth
Cir. 2005) (discussing Public Citizen in dictum and stating that “a
plaintiff mounting a NEPA challenge must establish that an
alleged effect will ensue as a ‘proximate cause,’ in the sense meant
by tort law, of the proposed agency action”).
19
by any state-of-the-art methodology” and, therefore, that
NRC had “no means to assess, usefully, the risks of
terrorism * * * “ for purposes of its NEPA review. Pet. App.
55a. The Ninth Circuit rejected that reasoning, holding that
an agency’s inability to quantify the risk of sabotage, in a
way that is meaningful under NEPA, does not allow the
agency “to eliminate a possible environmental consequence
from analysis” under NEPA. Pet. App. 25a-26a. The Ninth
Circuit’s holding warrants review because it is inconsistent
with NEPA, as implemented by the NRC and CEQ and as
construed by this Court, and because it conflicts with the
law of the Third Circuit.
A. The Ninth Circuit’s Decision Is Erroneous Under
The Controlling Authorities
CEQ regulations speak directly to this issue.6 Indeed,
the CEQ amended 40 C.F.R. § 1502.22 in 1986 (in light of
Metropolitan Edison) to require consideration of “reasonably
foreseeable” impacts in lieu of the “worst case” analysis that
the regulation had previously required. See 51 Fed. Reg.
15,618, 15,621-25 (Apr. 25, 1986). That regulation now
provides that where there is “incomplete or unavailable
information,” an EIS must still be “based upon theoretical
approaches or research methods generally accepted in the
scientific community, * * * provided that the analysis of the
6 The Commission has complied with NEPA by issuing its own
regulations governing its consideration of the environmental
impact of licensing actions. See 10 C.F.R. §§ 51.1-.125. The NRC’s
regulations are based on the CEQ regulations. Section 51.10(a)
refers to “the Commission’s announced policy to take account of
the regulations of the [CEQ] published November 29, 1978 (43
Fed. Reg. 55,978-56,007) voluntarily, subject to certain conditions.”
In the Private Fuel Storage case, the Commission noted that it gives
CEQ regulations “substantial deference.” Pet. App. 51a. See also
Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) (holding that CEQ
regulations are entitled to “substantial deference”).
C 20
impacts is supported by credible scientific evidence, is not based
on pure conjecture, and is within the rule of reason * * * .” 40
C.F.R. § 1502.22(b)(4) (emphasis added).”
The CEQ’s standard was explicitly approved by this
Court in Robertson v. Methow Valley Citizens Council, 490 US.
332 (1989). As the Court observed, the amended regulation
does not necessarily foreclose an agency’s duty to consider
remote but potentially severe impacts. 490 U.S. at 354. But
it “grounds the duty in evaluation of scientific opinion
rather than in the framework of a conjectural ‘worst case
analysis.” Id. at 354-55 (citation omitted). The Court further
explained that, by requiring an EIS to “focus on reasonably
foreseeable impacts,” (id. at 356), the amended rule “‘will
generate information and discussion on those consequences
of greatest concern to the public and of greatest relevance to
the agency’s decision * * * rather than distorting the
decisionmaking process by overemphasizing highly
speculative harms. Ibid. (citations omitted).
Here, acting within the “rule of reason” and permissible
discretion under NEPA, the NRC determined that “attempts
to evaluate thfe] risk” of a terrorist attack, “even in
qualitative terms are likely to be meaningless and
consequently of no use in the agency’s decisionmaking”
under NEPA. Pet. App. 39a. (Indeed, Mothers for Peace
had conceded that any such analysis would be “qualitative.”
Pet. App. 72a-74a.) The agency observed that it has no way
to calculate the probability of an attack on a specific facility
and declined merely to assume that the facility is at risk. Pet.
7 Although these CEQ regulations expressly govern an EIS rather
than an EA, the same principles apply a fortiori to an EA. If, as the
regulation shows, an agency cannot be required to consider in an
EIS an alleged risk that is based on “pure conjecture” and that is
not “supported by credible scientific evidence,” it cannot be
required to consider such a risk inan EA. The standard for an EA
cannot be broader than for an EIS.
21
App. 57a. Such an assumption, the NRC stated, “would
transform the NEPA analysis into a form of guesswork and
distort NEPA’s cost-benefit calculus.” Ibid. Such an
approach would contravene the CEQ regulations, as well as
this Court’s decisions approving those regulations, insofar
as the regulations clearly reject any need for conjectural and
“worst case” analysis. See 51 Fed. Reg. at 15,621-24.
But the Ninth Circuit refused to accord the NRC’s
determination the deference it deserves. See, e.g., Baltimore
Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983). Instead,
substituting its judgment for that of the NRC, the Ninth
Circuit held that the NRC’s inability to quantify the risk of
sabotage does not allow it “to eliminate a possible
environmental consequence from analysis” under NEPA.
Pet. App. 25a.8 Even worse, rather than requiring those
challenging the NRC’s conclusions to demonstrate, through
reliable evidence, that a terrorist attack on the specific
proposed facility is “reasonably foreseeable,” the Ninth
Circuit improperly reallocated the burden of proof to the
NRC in holding that the NRC “has not established that the
risk of a terrorist attack is unquantifiable.” Id. at 26a.
B. The Decision Below Placed The Ninth Circuit In
Conflict With The Third Circuit On This Important
Issue
The Ninth Circuit's decision is directly contrary to the
majority opinion of the Third Circuit in Limerick Ecology
Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir. 1989). On the
8 The Ninth Circuit erred for an additional reason. Consistent
with NRC regulations that direct qualitative analysis of factors
that cannot be quantified (see, e.g., 10 C.F.R. § 51.71(d)), the NRC
specifically noted that “stochastic” criminal terrorist acts are not
within the “range of likely impacts” which, even if not subject to
precise measurement or quantification, the agency “can say with
some degree of certainty * * * will take place.” Pet. App. 49a-50a,
59a. The Ninth Circuit ignored this assessment.
22
NRC's argument regarding its ability to quantify risk and
perform a meaningful analysis, the court cited as its only
authority the dissent in Limerick. Pet. App. 25a. The Ninth
Circuit’s decision, however, squarely conflicts with the
majority opinion in Limerick, and in two separate respects.
First, the majority opinion is flatly inconsistent with the
Ninth Circuit’s holding that an inability to quantify the risk
of sabotage cannot justify exclusion of that risk from the
agency's NEPA analysis. In Limerick, the majority held that
the NRC had not acted arbitrarily and capriciously in
deciding not to evaluate the risk of sabotage in an EIS, based
on the agency’s conclusion that “sabotage risk analysis is
beyond current probabilistic risk assessment methods and
that there is no current basis by which to measure such
risk.” 869 F.2d at 743. The Third Circuit found that this
agency conclusion satisfied NEPA’s “hard look”
requirement and emphasized that this was a determination
in an area where courts are to “be at [our] most deferential.”
Ibid. (quoting Baltimore Gas, 462 U.S. at 103). The Ninth
Circuit failed even to mention this holding, although its
citation of the Limerick dissent strongly suggests an
awareness of the majority’s opinion.
Second, even assuming that an inability to perform a
meaningful analysis would not foreclose a NEPA review as
a matter of law, the Ninth Circuit's decision conflicts with
Limerick in holding that it is the agency, not the party
challenging the decision, that bears the burden of proof on
the issue of quantifiability. Pet. App. 26a. Throughout this
portion of its opinion, the Ninth Circuit made clear that it
was placing this burden on the NRC. For example, at one
point the Ninth Circuit held that “the agency fails to
adequately show that the risk of a terrorist act is
unquantifiable.” Pet. App. 25a (emphasis added). And then
at the end of that discussion, the Ninth Circuit reiterated its
holding that “the NRC has not established that the risk of a
terrorist attack is unquantifiable.” Id. at 26a (emphasis
23
added). Nowhere did the Ninth Circuit suggest that NRC
critics and project opponents bear any burden on this issue.
This too flatly conflicts with the majority decision in
Limerick. The majority there repeatedly made clear that,
once the expert agency articulates its view that the risk is
not quantifiable, the party challenging that conclusion bears
the burden of procf on that issue. Early in its discussion, for
example, the majority stated: “[W]e believe that LEA” —the
petitioner there —“has mischaracterized this issue by casting
it in terms of the NRC’s burden to prove its asserted inability
to quantify or predict sabotage risk.” 869 F.2d at 743
(emphasis added). The majority continued that, “[t]o
prevail here, LEA should have advanced some method or
theory by which the NRC could have entered into a
meaningful analysis of the risk of sabotage despite its
asserted inability to quantify the risks.” Id. at 744. The
majority concluded that, “[w]here LEA failed to meet its
burden * * * we cannot conclude that the NRC acted
arbitrarily and capriciously by refusing to litigate this
issue.” ibid. (emphasis added); accord id. at 744 n. 31 (noting
that “LEA has failed to carry its burden to rebut the NRC's
claim that it cannot meaningfully consider the issue”).
This difference in approach is dispositive on this point
as well. Had the Ninth Circuit followed the Third Circuit's
approach, it would have been forced to concede that a
proper conclusion by the NRC that the risk of sabotage
cannot be meaningfully quantified would be sufficient to
exclude the sabotage issue from the agency’s NEPA review.
And the Ninth Circuit could not simply have granted the
petition on the ground that the NRC had failed to carry its
burden of establishing this point. To the contrary, if the
Ninth Circuit felt that Mothers for Peace (notwithstanding
the NRC’s unimpeachable conclusion to the contrary) had
legitimate evidence that the risk of a terrorist attack is
quantifiable, the most the court could have done would
have been to remand to the agency to determine, in the first
24
instance, whether the petitioner had carried its burden of
establishing quantifiability.
III. The Decision Below Will Have Widespread Adverse
Practical Consequences
Certiorari is also warranted because the Ninth Circuit's
decision, if left to stand, will have far-reaching, adverse
ramifications for PG&E and private applicants before the
NRC and other federal agencies, for government resources, —
_ and for national security.
A. The Ninth Circuit’s Decision Will Unduly Burden
PG&E and Other Participants In The NRC
Regulatory Process Without Advancing NEPA’s
Goals
The Ninth Circuit’s decision threatens to increase
substantially the burdens of the NEPA review in this and
other NRC proceedings and thus flouts this Court's
observation that “[t]he scope of the agency’s inquiries must
remain manageable if NEPA’s goal of ‘ensur[ing] a fully
informed and well considered decision’ * * * is to be
accomplished.” Metropolitan Edison, 460 U.S. at 776 (citing
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
551, 558 (1978).
1. Nominally, the Ninth Circuit’s decision requires the
NRC to consider further the petitioners’ “factual
contentions” that the licensing of the Diablo ISFSI “would
lead to or increase the risk of a terrorist attack because (1)
the presence of the [ISFSI] would increase the probability of
a terrorist attack on the Diablo Canyon nuclear facility, and
(2) the Storage Installation itself would be a primary target
for a terrorist attack.” Pet. App. 21a. However, by its
nature, an assessment of these issues would require a
detailed terrorist threat assessment focusing on such issues
as the current and future threat environment, the relative
“attractiveness” of the ISFSI as a terrorist target, and the
vulnerability (or relative “hardness”) of the facility as a
25
terrorist target. Such assessments almost inevitably would
lead to a further assessment of the capabilities of putative
attackers, the consequences of postulated attacks, fanciful
mitigation measures, and alternative design concepts. Such
an extension of NEPA into the realm of threat assessment
would place an unnecessary and duplicative burden on
PG&E (and, indeed, other private parties) that are already
addressing many of these issues through post-9/11 security
reviews and inspections, security upgrades, security orders,
and a rulemaking. It may also divert resources of the
agency staff and other federal law enforcement agencies to
participate in a potentially open-ended remand process.
2. The impact of the Ninth Circuit's decision, moreover,
would not be limited to this NRC licensing proceeding. The
logic of the Ninth Circuit’s decision would compel the NRC
to consider the risk of terrorism in all pending and future
power reactor licensing actions—for PG&E and other
applicants. Those proceedings would include waste storage
licensing and amendment proceedings, power plant license
renewal applications, new power plant license applications,
and the Yucca Mountain high-level waste repository project.
This would have a substantial impact on PG&E, the
industry, and NRC resources as well as the predictability
and efficiency of NRC licensing proceedings. The resultant
transformation of NRC proceedings into “amorphous public
extravaganzas” on the speculative effects of postulated
terrorist attacks would impede the important national policy
objective of streamlining NRC licensing processes. See
Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983); see also
Citizens Awareness Network, Inc. v. United States, 391 F.3d 338,
343 (1st Cir. 2004) (noting the “very lengthy” duration of
past NRC hearings and NRC efforts to improve hearing
efficiency).
3. On the other hand, the adjudication of speculative
claims positing terrorist attacks on the Diablo Canyon ISFSI,
or on any other nuclear facility, would yield no benefit to
26
the applicants, the NRC or the public, especially when
considered in light of the additional burden imposed by
such a review. As the Limerick majority recognized, without
reasonable estimates of an event's probability, the “risk”
cannot be properly characterized. 869 F.3d at 743-44. And,
as the NRC recognized, any attempt to analyze such “risks”
without meaningful data will tend to “exaggerate a project's
risks and unduly alarm the public.” Pet. App. 58a.
Moreover, as noted above, the NRC and the nuclear
industry have enhanced substantially the already robust
security measures required by the AEA and NRC
regulations in response to the events of September 11, 2001.
See, e.g., 10 C.F.R. Part 73. The agency’s review and
enhancement of its security requirements is an ongoing
process, intended to ensure that the risk of a terrorist attack
remains remote. Because a process is already in place to
address nuclear security, the assessment of hypothetical
terrorist attacks under the rubric of NEPA would not add
meaningfully, if at all, to NRC decision making. Cf. Romer
v. Carlucct, 847 F.2d 445, 457 (8th Cir. 1988) (finding that
NEPA review of nuclear missile basing decision would not
be of “decisional significance” given the availability of
“comprehensive information”).
4. Similarly, additional review would not serve
NEPA’s informational purpose. The sensitivity of the
information pertinent to such a review would generally
preclude its release to the public. Therefore, the
development of an EIS that addresses terrorism impacts
likely would not provide a useful “springboard for public
comment,” nor would it ensure that “the larger audience”
can provide input as necessary to the NRC. Pub. Citizen, 541
US. at 768 (quoting Baltimore Gas, 462 U.S. at 97).
27
B. The Ninth Circuit’s Decision Would Adversely
Impact Other Private Applicants and Federal
Agency Actions
The Ninth Circuit’s decision also has implications for
activities authorized or conducted by other federal agencies.
The prospect of terrorist attacks is not confined to any one
industry. Adoption of the court’s logic would necessitate
that any agency conducting a NEPA review for a proposed
chemical plant, oil pipeline, liquefied natural gas pipeline,
skyscraper, dam, bridge, or tunnel somehow establish that
terrorist attacks on such a facility are highly speculative or
else postulate a successful attack and evaluate its
environmental consequences. This will place new burdens
on many future private applicants.
For most private parties and many federal agencies,
requiring terrorism reviews under NEPA would strain
resources and erode the efficacy of permitting, licensing,
and other approval processes. This would require
applicants and agencies to expend “considerable resources”
developing security expertise “not otherwise relevant to
their congressionally assigned, functions.” Metropolitan
Edison, 460 U.S. at 776. And ironically, the Ninth Circuit's
extraordinary expansion of NEPA—the result of its failure
to perform the requisite causation analysis—would do
nothing to further protection of the environment.
C. The Ninth Circuit’s Decision Creates. Uncertainty
And Potential Delay for PG&E at the Diablo
Canyon Nuclear Power Plant
The Ninth Circuit’s decision creates uncertainty for the
timing of the operation of the Diablo Canyon spent fuel
storage facility at issue here. Consistent with its obligations
under the NWPA and to electricity consumers in California,
PG&E must provide additional spent fuel storage capacity
to support the continued, productive operation of the Diablo
Canyon power plant. Accordingly, PG&E designed and
28
licensed the ISFSI to meet this need and plans to begin
loading spent fuel from the wet pools into dry storage casks
in November 2007. Presently, however, it is not known
whether the NRC will foreclose operation of the ISFSI in
2007.9 It is also not known how long the remand
proceedings required by the decision below (or any related
judicial review) will last. Clearly, PG&E’s dry storage plans
could be adversely impacted by the remand.’° Review by
this Court is needed to resolve the uncertainties and
practical problems the Ninth Circuit decision poses for
PG&E and its customers.
9 The Ninth Circuit decision did not invalidate, vacate or stay the
license for the ISFSI, and therefore does not affect PG&E's
authority to load fuel in that facility. See Amoco Prod. v. Vill. of
Gambell, 480 U.S. 531, 542 (1987)) (citing Weinberger v. Romero-
Barcelo, 456 U.S. 305, 311 (1982)) (injunctive relief is an
“extraordinary” equitable remedy that “does not issue as of
course”). However, the petitioners have requested from the NRC
declaratory or equitable relief that would prevent PG&E from
loading spent fuel. While the NRC has denied the immediate
request for such relief, it has deferred the question of PG&E’s
authority to begin operation of the ISFSI. See Pac. Gas & Elec. Co.
(Diablo Canyon Power Plant Independent Spent Fuel Storage
Installation), CLI-06-23, 64 N.R.C.__, slip op. (Sept. 6, 2006).
10 As a contingency, PG&E has obtained NRC approval of a “wet
storage” alternative that would provide storage to support
continued plant operation until 2010-2011. The failure to resolve
fully the remanded issue by the 2010-2011 timeframe could result
in an interruption of service at Diablo Canyon. This alternative
involves the installation and use of temporary spent fuel storage
racks in the existing spent fuel pools at Diablo Canyon. These
racks have yet to be installed. The wet storage option is decidedly
not the preferred storage option from the operational, public
safety, security, or economic perspectives.
29
D. The Ninth Circuit's Decision Raises Serious
National Security Concerns
The Ninth Circuit's holding also raises significant
national security concerns. The Ninth Circuit's decision
requires some level of public participation in the remand
process, and the NRC traditionally has addressed NEPA
reviews through the formal adjudicatory process. As the
NRC noted, “[a] full-scale NEPA process inevitably would
require examination not only of how terrorists could cause
maximum damage but also of how they might best be
thwarted.” Pet. App. 64a. Such an assessment would
require access to highly sensitive national security
information held by the licensees, the NRC, and other
government agencies. Disclosure of such information to
members of the public, though subject to rigorous (and
cumbersome) procedural protections, would create a very
real risk that classified or security information could be
released, possibly to the detriment of nuclear safety and
security.
As the NRC explained, such a result would be contrary
to the NRC’s statutory mandate under the AEA to withhold
from the public domain any information that could
jeopardize the common defense and security. Pet. App. 64a-
65a. Section 147 of the AEA requires the NRC to prohibit
unauthorized disclosures of security-related information.
See 42 U.S.C. § 2167(a). NEPA does not override that
statutory obligation. To the contrary, NEPA requires
agencies to implement the statute’s policies using “all
practicable means, consistent with other essential
considerations of national policy.” 42 U.S.C. § 4331(b).
The NRC expressed deep concerns regarding any
process with public participation on security issues. Pet.
App. 39a, 62a-65a. The Ninth Circuit dismissed those
concerns and suggested that they could be mitigated by
procedural controls. Pet. App. 29a-30a. However, it is the
NRC that Congress has charged with ensuring the safety
30
and integrity of nuclear facilities. And, it is the NRC that
has conducted proceedings on nuclear security matters and
accumulated experience on the risks and benefits of the
process. Accordingly, the NRC’s judgments about these
issues are entitled to the highest respect and deference —
deference that was completely absent from the decision
below.
e273 @
Especially in the post-9/11 world, courts should be
solicitous of the views of federal agencies charged with
protecting the public from terrorist threats. The Ninth
Circuit’s decision not only flouts the views of the federal
agency charged by Congress with regulating nuclear
energy, it does so in a manner that flouts controlling
decisions of this Court and creates needless conflicts with
sister circuits. The decision needs to be reversed, either
summarily or as a result of plenary review.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
WILLIAM V. MANHEIM GENE C. SCHAERR
ANTONIO FERNANDEZ Counsel of Record
Pacific Gas and Electric DAVID A. REPKA
Company LINDA T. COBERLY
77 Beale Street, B30A MARTIN J. O’ NEILL
San Francisco, CA 94105 Winston & Strawn LLP
1700 K Street, N.W.
Washington, D.C. 20006
(202) 282-5000
SEPTEMBER 2006
APPENDIX
se
ae ee
la
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 03-74628
SAN LUIS OBISPO MOTHERS FOR PEACE;
SANTA LUCIA CHAPTER OF THE SIERRA CLUB;
PEG PINARD
PETITIONERS
PACIFIC GAS AND ELECTRIC COMPANY,
INTERVENOR
v.
NUCLEAR REGULATORY COMMISSION;
UNITED STATES OF AMERICA
RESPONDENTS
On Petition for Review of an Order of the Nuclear
Regulatory Commission.
NRC No. CLI-03-01; CLI-02-23.
Argued and Submitted Oct. 17, 2005.
Filed June 2, 2006.
Before REINHARDT and THOMAS, Circuit Judges, and
JANE A. RESTANI,” Chief Judge, United States Court of
International Trade.
* The Honorable Jane A. Restani, Chief Judge, United States Court
of International Trade, sitting by designation.
2a
THOMAS, Circuit Judge.
This case presents the question, inter alia, as to whether
the likely environmental consequences of a_ potential
terrorist attack on a nuclear facility must be considered in an
environmental review required under the National
Environmental Policy Act. The United States Nuclear
Regulatory Commission (“NRC”) contends that the
possibility of a terrorist attack on a nuclear facility is so
remote and speculative that the potential consequences of
such an attack need not be considered at all in such a review.
The San Luis Obispo Mothers for Peace and other groups
disagree and petition for review of the NRC’s approval of a
proposed Interim Spent Fuel Storage Installation. We grant
the petition in part and deny it in part.
I
The NRC is an independent federal agency established
by the Energy Reorganization Act of 1974 to regulate the
civilian use of nuclear materials. Intervenor Pacific Gas and
Electric Company (“PG&E”) filed an application with the
NRC under 10 C.F.R. Part 72 for a license to construct and
operate an Interim Spent Fuel Storage Installation (“Storage
Installation” or “ISFSI”) at PG&E’s Diablo Canyon Power
Plant (“Diablo Canyon”) in San Luis Obispo, California.
The NRC granted the license. The question presented by
this petition for review is whether, in doing so, the NRC
_complied with federal statutes including the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C.
§§ 4321-4437, the Atomic Energy Act of 1954 (“AEA”), 42
U.S.C. §§ 2011-2297g, and the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551-706.
NEPA establishes a “national policy [to] encourage
productive and enjoyable harmony between man and his
environment,” and was intended to reduce or eliminate
environmental damage and to promote “the understanding
of the ecological systems and natural resources important
3a
to” the United States. Dept. of Transp. v. Pub. Citizen, 541 U.S.
752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42
U.S.C. § 4321). The Supreme Court has identified NEPA’s
“twin aims” as “plac[ing] upon an agency the obligation to
consider every significant aspect of the environmental
impact of a proposed action[, and] ensur[ing] that the agency
will inform the public that it has indeed considered
environmental concerns in its decisionmaking process.”
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462
USS. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).
Rather than mandating particular results, NEPA imposes
on federal agencies procedural requirements that force
consideration of the environmental consequences of agency
actions. Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204. At
NEPA’s core is the requirement that federal agencies prepare
an environmental impact statement (“EJS”), or:
include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the
human environment, a detailed statement by the
responsible official on-(i) the environmental impact of
the proposed action, (ii) any adverse environmental
effects which cannot be avoided should the proposal
be implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-term
uses of man’s environment and the maintenance and
enhancement of long-term productivity, and (v) any
irreversible and _ irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
Id. at 757 (quoting 42 U.S.C. § 4332(2)(C)).
As an alternative to the EIS, an agency may prepare a
more limited environmental assessment (“EA”) concluding
in a “Finding of No Significant Impact” (“FONSI”), briefly
presenting the reasons why the action will not have a
4a
significant impact on the human environment. Id. at 757
(citing 40 C.F.R. §§ 1501.4(e), 1508.13). If, however, the EA
does not lead to the conclusion that a FONSI is warranted,
the agency remains obligated to prepare an EIS. Id. at 757.
While NEPA requires the NRC to. consider
environmental effects of its decisions, the AEA is primarily
concerned with setting minimum safety standards for the
licensing and operation of nuclear facilities. The NRC does
not contest that the two statutes impose independent
obligations, so that compliance with the AEA does not
excuse the agency from its NEPA obligations. The AEA lays
out the process for consideration of the public health and
safety aspects of nuclear power plant licensing, and requires
the NRC to determine whether the licensing and operation
ot a proposed facility is “in accord with the common defense
and security and will provide adequate protection to the
health and safety of the public.” 42 U.S.C. § 2232(a).
The NRC is not, however, required to make this
determination without assistance; federal law provides a
framework for hearings on material issues that interested
persons raise by specific and timely petition. 42 U.S.C.
§ 2239(a); 10 C.F.R. §§ 2.308-.348; 5 U.S.C. §§ 551-706. The
initial hearing is held before a three-person Atomic Safety
and Licensing Board (“Licensing Board”). 10 C.F.R. § 2.321.
The Licensing Board's findings and decision constitute the
agency’s initial determination, although a party may file a
petition for review with the Commission within 15 days of
the Licensing Board’s decision. 10 C.F.R. § 2.341. If the
petition is granted, the Commission specifies the issues to be
reviewed and the parties to the review proceedings, 10
C.F.R. § 2.341(c)(1), and renders a final decision. 10 C.F.R.
§ 2.344. A party may then petition this court for review of
the Commission’s final decision. 28 U.S.C. § 2344.
Sa
II
With this general statutory background, we turn to the
facts underlying the petition for review. On December 21,
2001, PG&E applied to the NRC pursuant to 10 C-F.R. Part 72
for a license to construct and operate a Storage Installation at
Diablo Canyon. The Storage Installation would permit the
necessary and on-site storage of spent fuel, the byproduct of
the two nuclear reactors at that site. PG&E expects to fill its
existing spent fuel storage capacity at Diablo Canyon
sometime this year. Therefore, unless additional spent fuel
storage capacity is created, the Diablo Canyon reactors
cannot continue to function beyond 2006.
PG&E proposes to build a dry cask storage facility. The
basic unit of the storage system is the Multi-Purpose
Canister (“Canister”), a stainless steel cylinder that is filled
with radioactive waste materials and welded shut. The
Canisters are loaded into concrete storage overpacks that are
designed to permit passive cooling via the circulation of air.
The storage casks, or the filled Canisters loaded into
overpacks, are then placed on one of seven concrete pads.
The Storage Installation would house a total of 140 storage
casks, 2 more than the 138 projected to be required for
storage of spent fuel generated at Diablo Canyon through
2025.
On April 22, 2002, the NRC published a Notice of
Opportunity for Hearing. Under the regulatory scheme,
interested parties could then request a hearing or petition for
leave to intervene. 10 C.F.R. § 2.309(a). A written hearing
request, which must contain the contentions the party wants
litigated at the hearing, will be granted if the petitioner has
standing, and has posed at least one admissible contention.!
Id.
1 In order to be admissible, a contention must: be set forth with
particularity, 10 C.F.R. § 2.309(f)(1); provide a specific statement of
the disputed issue of law or fact, 10 C.F.R. § 2.309(f)(1)(i); provide
6a
On July 19, 2002, the San Luis Obispo Mothers for Peace,
a non-profit corporation concerned with Diablo Canyon’s
local impact, the Sierra Club, a non-profit corporation
concerned with national environmental policy, and Peg
Pinard, an individual citizen, (collectively “Petitioners”)
submitted a hearing request and a petition to intervene,
asserting contentions for admission.
In Licensing Board Proceeding LBP-02-23, 56 NRC 413
(“LBP 02-23”), the Atomic Safety and Licensing Board
addressed the admissibility of the July 19 petition’s five
Technical and three Environmental Contentions.2, One
Technical Contention, TC-1, dealing with the state of PG&E’s
finances, was deemed admissible; the acceptance of at least
one contention meant that the petition was granted.
Although the Licensing Board deemed two Environmental
Contentions, EC-1, dealing with the failure to address
the basis for the contention, 10 C.F.R. § 2.309(f)(1)(ii); demonstrate
that the issue is within the scope of the proceeding, 10 C.F.R.
§ 2.309(f)(1)(iii); demonstrate that the issue is material to the
findings the NRC must make, 10 C.F.R. § 2.309(f)(1)(iv); provide
supporting references and expert opinions, 10 CFR.
§ 2.309(f)(1)(v); and provide sufficient information to show the
existence of a genuine issue of law or fact, 10 CFR.
§ 2.309(F)(1)(vi).
2 Technical Contention Number One (“TC-1”) alleged Inadequate
Seismic Analysis. TC-2 alleged PG&E’s Financial Qualifications
Are Not Demonstrated. TC-3 alleged PG&E May Not Apply for a
License for a Third Party. TC-4 alleged Failure to Establish
Financial Relationships Between Parties Involved in Construction
and Operation of Installation. TC-5 alleged Failure to Provide
Sufficient Description of Construction and Operation Costs.
Environmental Contention Number One (“EC-1”) alleged Failure
to Address Environmental Impacts of Destructive Acts of Malice or
Insanity. EC-2 alleged Failure to Fully Describe Purposes of
Proposed Action or to Evaluate All Reasonably Associated
Environmental Impacts and Alternatives. EC-3 alleged Failure to
Evaluate Environmental Impacts of Transportation.
7a
environmental impacts of terrorist or other acts of malice or
insanity, and EC-3, dealing with the failure to evaluate
environmental impacts of transportation of radioactive
materials? inadmissible, the Licensing Board nonetheless
referred the final ruling as to the admissibility of these two
contentions to the NRC, “in light of the Commission's
ongoing ‘top to bottom’ review of the agency’s safeguards
and physical security programs.” 56 NRC at 448.
In a memorandum and order, CLI-03-1, 57 NRC 1 (“CLI
03-01”), the NRC accepted the Licensing Board’s referral of
its decision to reject the environmental contentions related to
terrorism. Although the Commission affirmed the Licensing
Board’s rejection of the contentions, it based its decision on a
different rationale. The NRC relied on four prior decisions
in which it held that the NEPA does not require a terrorism
review. These decisions, most particularly Private Fuel
Storage, CLI-02-25, 56 NRC 340 (2002), outlined four reasons
for this holding: (1) the possibility of terrorist attack is too far
removed from the natural or expected consequences of
agency action to require study under NEPA; (2) because the
risk of a terrorist attack cannot be determined, the analysis is
3 Because the Storage Installation is not a permanent repository,
this contention assumes the eventual transport of the materials
stored there to a permanent site. Among the materials submitted
to support the contention were some dealing with possible
terrorist or other malicious attacks on the spent fuel while in
transit. The ruling on the contention was “referr[ed] * * * to the
Commission to the extent terrorism and sabotage matters are
proffered in support of its admission.” 56 NRC at 453.
* Those cases include: Private Fuel Storage, L.L.C., CLI-02-25, 56
NRC 340 (2002) (Storage Installation); Duke Cogema Stone & Webster
(Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335
(2002); Dominion Nuclear Connecticut, Inc. (Nuclear Power Station),
CLI-02-27, 56 NRC: 367 (2002); and Duke Energy Corp. (Nuclear
Power Station), CLI-02-26, 56 NRC 358 (2002). All four cases were
decided on December 18, 2002.
8a
likely to be meaningless; (3) NEPA does not require a
“worst-case” analysis; and (4) NEPA’s public process is not
an appropriate forum for sensitive security issues. The NRC
concluded:
Our decision today rests entirely on our
understanding of NEPA and of what means are best
suited to dealing with terrorism. Nonetheless, our
conclusion comports with the practical realities of
spent fuel storage and the congressional policy to
encourage utilities to provide for spent fuel storage at
reactor sites pending construction of a permanent
repository. Storage of spent fuel at commercial
reactor sites offers no unusual technological
challenges. Indeed, it has been occurring at Diablo
Canyon for many years and will continue whether or
not we license the proposed Installation. :
57 NRC at 7.
In September of 2002, prior to the NRC’s decision on the
first petition, Petitioners submitted a second petition, this
time requesting suspension of the Storage Installation
licensing proceeding pending comprehensive review of the
adequacy of Diablo Canyon’s design and operation
measures for protection against terrorist attack and other
acts of malice or insanity. Unlike the July 19 petition, this
one addressed security measures for the entire Diablo
Canyon complex, not merely the Storage Installation.
Petitioners explained that 10 C.F.R. § 2.335, which prohibits
challenges to any NRC rule or regulation in an adjudicatory
proceeding involving initial or renewal licensing, prevented
the raising of contentions contesting the adequacy of NRC
safety requirements protecting against terrorist or other
malicious attacks on the entire complex in the July 19
Petition. Petitioners also stated that 10 C.F.R. § 72.32
prevented them from _ raising emergency planning
contentions in the earlier petition. Thus, Petitioners insisted
that the second petition “d[id] not constitute a request for
9a
rulemaking, nor for enforcement action,” and instead
defined it, without reference to any particular hearing-
granting provision of the regulations, as “a request for
actions that are necessary to ensure that any licensing
decision made by the Commission with respect to the
proposed Diablo Canyon Installation complies with the
Commission’s statutory obligations under the Atomic
Energy Act.”
In a memorandum and order, CLI-02-23, 56 NRC 230
(“CLI 02-23”), the NRC denied the September 2002 petition.
Because the petition did not, according to the NRC, “fit
comfortably in any specific category, [the Commission]
treat[ed] it as a general motion brought under the procedural
requirements of 10 C.F.R. § 2.730.”5 In rejecting the petition,
the Commission reasoned that by not suspending operating
licenses at installations and power plants following the
September 11, 2001 terrorist attacks, it had demonstrated its
implicit conclusion that the continued operation of these
facilities neither posed an imminent risk to the public health,
nor was inimical to the common defense. Further, the
Commission concluded that because it had already initiated
a thorough review of its safeguards and physical security
program, there was no reason to suspend the Diablo Canyon
licensing proceeding to address the terrorism-related
concerns raised by the Petitioners. It stated that “[t]here
certainly is no reason to believe that any danger to public
health and safety would result from mere continuation of
this adjudicatory proceeding,” given that the proceeding
was in its initial stages, that construction was not scheduled
to begin for several years, and that the Petitioners would be
able to comment on any changes in the rules resulting from
the Commission’s ongoing review of terrorism-related
matters if and when they were to occur.
5 Since renumbered as 10 C.F.R. § 2.323, this regulation provides,
simply, for “motions.”
10a
In a memorandum and order, CLI-03-12, 58 NRC 185.
(2003) (“CLI 03-02”), the NRC denied the petitions for
agency review of the Licensing Board’s decisions that
“cumulatively, rejected challenges to [the PG&E] Installation
application.” This denial thus became a final order,
reviewable by this court on petition for review. 28 U.S.C.
§ 2344.
In October of 2003, the Spent Fuel Project Office of the
NRC’s Office of Material Safety and Safeguards released its
Environmental Assessment Related to the Construction and
Operation of the Diablo Canyon Independent Spent Fuel
Storage Installation. The 26-page document contains the
NRC’s conclusion “that the construction, operation, and
decommissioning of the Diablo Canyon Installation will not
result in significant impact to the environment,” and
therefore that “an [EIS] is not warranted for the proposed
action, and pursuant to 10 C.F.R. [§] 51.31, a Finding of No
Significant Impact is appropriate.”
The EA is not devoid of discussion of terrorist attacks.
Indeed, the document contains the Commission’s response
to a comment submitted by the California Energy
Commission in response to an earlier draft that “there is no
discussion in the EA of the potential destruction of the casks
or blockage of air inlet ducts as the result of sabotage or a
terrorist attack * * * [nor is there] a description of how
decisions are being made regarding the configuration,
design and spacing of the casks, the use of berms, and the
location of the ISFSI to minimize the vulnerability of the
ISFSI to potential attack.” The NRC responded:
In several recent cases, * * * the Commission has
determined that an NRC environmental review is not
the appropriate forum for the consideration of
terrorist acts. The NRC staff considers the security of
spent fuel as part of its safety review of each
application for an ISFSI license. In addition to
reviewing an ISFSI application against the
lla
requirements of 10 CFR Part 72, the NRC staff
evaluates the proposed security plans and facility
design features to determine whether the
requirements in 10 CFR Part 73, “Physical Protection
of Plants and Materials,” are met. The details of
specific security measures for each facility are
Safeguards Information, and as such, can not be
released to the public.
The NRC has also initiated several actions to
further ensure the safety of spent fuel in storage.
Additional security measures have been put in place
at nuclear facilities, including ISFSIs currently storing
spent fuel. These measures include increased security
patrols, augmented security forces and weapons,
additional security posts, heightened coordination
with law enforcement and military authorities, and
additional limitations on vehicular access. Also, as
part of its’ comprehensive review of ite security
program, the NRC is conducting several technical
studies to assess potential vulnerabilities of spent fuel
storage facilities to a spectrum of terrorist acts. The
results of these studies will be used to determine if
revisions to the current NRC security requirements
are warranted.
Petitioners argue that, in denying their petitions, the
NRC violated the AEA, the APA, and NEPA. Although we
reject the AEA and APA claims, we agree with Petitioners
that the agency has failed to comply with NEPA. We have
jurisdiction over those final orders of the NRC made
reviewable by 42 U.S.C. § 2239, which includes final orders
entered in licensing proceedings, under 28 U.S.C. § 2342(4).
Ill
We turn first to Petitioners’ AEA argument. Specifically,
Petitioners argue that the NRC violated its regulations
implementing the AEA, as well as the AEA’s hearing
12a
provisions, when it denied Petitioners a hearing on whether
NEPA required consideration of the environmental impact
of a terrorist attack on the Storage Installation; they also
argue that the NRC violated the AEA’s hearing provisions in
denying Petitioners a hearing on post-September 11th
security measures for the entire Diablo Canyon complex.
Both of these challenges fail.
A
The NRC did not violate the AEA or its implementing
regulations when it failed to explain its rejection of
Petitioners’ contentions by addressing each of their
arguments. Nothing in the regulations or the AEA requires
the NRC to provide such an explanation.
Section 189(a) of the AEA grants public hearing rights
“upon the request of any person whose interest may be
affected” by an NRC licensing proceeding. 42 U.S.C. § 2239.
The NRC public hearing regulations, at 10 C.F.R. § 2.309,
“promulgated pursuant to the AEC’s® power to make,
promulgate, issue, rescind, and amend such rules and
regulations as may be necessary to carry out the purposes
of” the AEA, 42 U.S.C. § 2201(p), specify the procedures
required of both petitioners and the NRC in making and
_ deciding hearing petitions.
Petitioners correctly observe that the NRC, in its
decision, did not discuss whether Petitioners satisfied the
regulatory standard. They are mistaken, however, in their
unsupported contention that this omission amounts to the
agency's failure to follow its own regulations and thus is
“reversible error.” The regulations simply do not require the
6 In 1974, Congress eliminated the Atomic Energy Commission
(“AEC”). Regulatory functions went to the NRC, and promotional
functions to the Energy Research and Development
Administration. See Energy Reorganization Act of 1974, 42 U.S.C.
§ 5814.
13a
NRC to explain its decisions in any particular manner.
Although the NRC regulations are specific and demanding
in what they require of petitioners, they demand far less of
the NRC in responding to a petition: the regulations require
only a timely “decision.” See 10 C.F.R. § 2.714(i) (“Decision
on request/ petition. The presiding officer shall, within 45
days after the filing of answers and replies * * * issue a
decision on each request for hearing/ petition to intervene.”).
Because Petitioners do not claim that the NRC violated this
requirement, we must reject this challenge.
B
The NRC’s denial of a hearing on whether NEPA
requires consideration of the environmental effects of a
terrorist attack on the Storage Installation did not violate the
AEA’s hearing provisions.
Petitioners contend that the NRC relied on an improper
ground in denying their request for a hearing on whether
NEPA requires the Commission to consider the
environmental impacts of terrorism — namely, the ground
that it had determined in earlier decisions that NEPA
imposes no such obligation. Thus, Petitioners do not
challenge the substantive validity or coherence of those
earlier opinions in making their AEA claim, but rather the
reliance upon a prior determination of the merits in order to
reject a petition presenting the same issues. As such, Sierra
Club v. NRC, 862 F.2d 222 (9th Cir. 1988), on which
Petitioners rely, does not apply. In that case, the NRC
rejected the petitioners’ contentions as lacking in reasonable
specificity, and yet went on to analyze the merits of those
supposedly unacceptable contentions. Id. at 228. Here,
however, where the agency is rejecting the contentions as
contrary to a prior decision, the “merits” and the reason for
the inadmissibility of the contention collapse. Put
differently, the NRC did not reach the merits of the petition
as much as it assessed the issues raised against issues
resolved by prior decisions. We hold that in doing so, the
l4a
Commission complied fully with the AEA. To hold
ctherwise would unduly restrict the agency’s evaluation of
hearing petitions, by requiring it to grant a hearing on issues
it has already resolved whenever a petitioner claims to have
new evidence. We can find, and Petitioners point to, nothing
in the AEA that would require this result.
Cc
The NRC’s denial of a hearing on security measures for
Diablo Canyon as a whole also did not violate the AEA.
Petitioners argue that the AEA requires the NRC to grant
petitioners a hearing on all issues of material fact, including
the security of the entire Diablo Canyon complex.
Petitioners therefore conclude, citing Union of Concerned
Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), that the NRC
violated the AEA when it denied a hearing on that issue.
Petitioners’ argument misreads Union of Concerned
Scientists, in which the D.C. Circuit held only that the agency
cannot by rule presumptively eliminate a material issue from
consideration in a hearing petition. Union of Concerned
Scientists requires the agency to consider a petition, it does
not require that the agency grant it.
The NRC in CLI 02-23 did not deny that security
requirements for the entire complex might need to be
upgraded, but rather maintained that a licensing proceeding
hearing (and one regarding an installation, not the entire
complex) was not the correct forum in which to address the
issue. The Commission directed Petitioners to participate in
a rulemaking or to raise their concerns in a hearing then
pending before the Licensing Board. Petitioners contend
that these alternative fora are illusory, and that rejection of
their petition amounted to the denial of any opportunity to
participate in the consideration of post-9/11 security
measures for the Diablo Canyon complex.
Petitioners argue “[iJf the NRC were going to resolve
Petitioners’ concerns that grossly inadequate security made
lSa
the Diablo Canyon facility vulnerable to terrorist attacks
generically, through a rulemaking, such a rulemaking would
have been initiated as a result of the ‘comprehensive security
review undertaken by the NRC.” Thus, Petitioners argue
that it would have been futile to submit a rulemaking
petition. This argument must fail, as Petitioners did not use
the available procedures for initiating a rulemaking.
Petitioners cannot complain that NRC failed to institute a
rulemaking they never requested.
Given that rulemaking may have been an avenue for
Petitioners’ participation, had they chosen to pursue it, their
argument that they had no forum in which to raise their
contentions loses its force. However, even were Petitioners
correct in their assertion that they were unfairly denied the
opportunity to participate in a rulemaking proceeding, the
argument that the Licensing Board hearing was similarly
illusory would fail. In fact, Petitioners were attempting to
use the present Storage Installation licensing proceeding as a
means of launching a much broader challenge to the Diablo
Canyon complex. The NRC correctly observes that a
petition alleging that existing NRC regulations are “grossly
inadequate to protect against terrorist attack, and therefore
must be supplemented by additional requirements” cannot
in fact be raised before the Licensing Board, which cannot
hear challenges to NRC rules. The limited scope of licensing
proceedings does not, however, amount to the arbitrary
denial of a forum, as Petitioners claim. While Petitioners
could have raised site-specific issues “relating to the
‘common defense and security’” that were not controlled by
existing rules or regulations to the Licensing Board, they are
not entitled to expand those proceedings to include the
entire complex, and issues already covered by agency rules.
D
In short, the NRC did not violate the AEA in denying the
petitions for a hearing. Neither the AEA nor its
implementing regulations required the NRC to grant
l6a
Petitioners a hearing on whether NEPA required a
consideration of the environmental impact of a terrorist
attack on the Storage Installation or the security measures
adopted for the entire Diablo Canyon complex. -
IV
The NRC’s reliance on its own prior opinions in its
decision in this case does not violate the APA’s notice and
comment provisions. Petitioners argue that the decisions in
CLI 03-01 and PFS amount to the announcement “of a
general policy of refusing to consider the environmental
impacts of terrorist attacks in Environmental Impact
Statements.” Petitioners rely on Mada-Luna v. Fitzpatrick, 813
F.2d 1006, 1014 (9th Cir. 1987) to claim that this policy
depends on factual determinations not found subsequent to
an evidentiary proceeding, and constitutes a “binding
substantive norm,” the promulgation of which, without a
public hearing, violates the APA notice and comment
provisions contained in 5 U.S.C. §§ 553(b), (c).?. The flaw in
Petitioners’ argument is the mistaken assertion that the
NRC’s decisions were factual and not legal. If the NRC’s
conclusion that terrorism need not be examined under
NEPA were factual, then Petitioners would be correct that its
determination would have to comply with APA rulemaking
requirements, including notice and comment, or else the
agency would have to permit petitioners to challenge it in
every proceeding where it was disputed.
That NEPA does not require consideration of the
environmental impacts of terrorism is a legal, and not a
7 US.C. § 553(b) states that “[gleneral notice of proposed
rulemaking shall be published in the Federal Register,” and
outlines the requirements that such notice must meet. 5 U.S.C. §
553(c) states that after such notice has been given, “the agency
shall give interested persons an opportunity to participate_in the
rulemaking through submission of written data, views, or
arguments with or without opportunity for oral presentation.”
17a
factual, conclusion. Cf. Greenpeace Action v. Franklin, 14 F.3d
1324, 1331 (9th Cir. 1993) (reasoning that a challenge to the
adequacy of an EA turned om factual, not legal, principles
where both NEPA’s applicability and the requirements it
imposed were uncontested); see also Alaska Wilderness
Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727 (9th -
Cir. 1995) (noting that although “challenges to agency
actions which raise predominantly legal, rather than
technical questions, are rare,” the court was there required to
address “just such a challenge”). Petitioners’ analysis is
therefore inapposite. The agency has the discretion to use
adjudication to establish a binding legal norm. See Sec. &
Exch. Comm'n v. Chenery, 332 U.S. 194, 199-203, 67 S.Ct. 1575,
91 L.Ed. 1995 (1947) (“[T]he choice made between
proceeding by general rule or by individual, ad hoc
litigation, is one that lies primarily in the informed discretion
of the administrative agency.”). We therefore agree with the
NRC’s characterization in its brief to this court: having come
to the legal conclusion that NEPA does not require
consideration of the environmental consequences of terrorist
attacks, “[w]hen petitioners in this case presented a
proposed contention seeking an EIS that analyzed the
impacts of possible terrorist acts at the proposed Diablo
Canyon Installation, the NRC reasonably concluded that this
request was sufficiently similar to the request in PFS to
justify the application of that decision here.”
V
Although we hold that the agency did not violate the
APA when it relied on the prior resolution of a legal issue
through adjudication, we come to a different conclusion as
to that determination’s compliance with NEPA. Because the
issue whether NEPA requires consideration of the
environmental impacts of a terrorist attack is primarily a
legal one, we review the NRC’s determination that it does
not for reasonableness. See Alaska Wilderness Recreation &
Tourism Ass’n, 67 F.3d at 727 (reviewing predominately legal
18a
issue for reasonableness because “it makes sense to
distinguish the strong level of deference we accord an
agency in deciding factual or technical matters from that to
be accorded in disputes involving predominately legal
questions”); Ka Makani’O Kohala Ohana, Inc. v. Water Supply,
295 F.3d 955, 959 n. 3 (9th Cir.2002) (“Because this case
involved primarily legal issues * * * based on undisputed
historical facts, we conclude that the ‘reasonableness’
standard should apply to this case.”).
Here, the NRC decided categorically that NEPA does not
require consideration of the environmental effects of
potential terrorist attacks. In making this determination, the
NRC relied on PFS, where it “consider[ed] in some detail the
legal question whether NEPA requires an inquiry into the
threat of terrorism at nuclear facilities.” 56 NRC 340, 343
(2002). In that case, intervenor State of Utah filed a
contention claiming that the September 11 terrorist attacks
“had materially changed the circumstances under which the
Board had rejected previously proffered terrorism
contentions by showing that a terrorist attack is both more
likely and potentially more dangerous than previously
thought.” Id. at 345. The NRC concluded that even
following the September 11th attacks, NEPA did not impose
such a requirement, reasoning:
In our view, an EIS is not an appropriate format to
address the challenges of terrorism. The purpose of
an EIS is to inform the decisionmaking authority and
the public of a broad range of environmental impacts
that will result, with a fair degree of likelihood, from
a proposed project, rather than to speculate about
‘worst-case’ scenarios and how to prevent them.
Id. at 347.
The NRC determined that four grounds “cut[ ] against
using the NEPA framework” to consider the environmental
effects of a terrorist attack: (1) the possibility of a terrorist
19a
attack is far too removed from the natural or expected
consequences of agency action; (2) because the risk of a
terrorist attack cannot be determined, the analysis is likely to
be meaningless; (3) NEPA does not require a “worst-case”
analysis; and (4) NEPA’s public process is not an
appropriate forum for sensitive security issues. Id. at 348.
We review each of these four grounds for reasonableness,
and conclude that these grounds, either individually or
collectively, do not support the NRC’s categorical refusal to
consider the environmental effects of a terrorist attack.
A
The Commission relied first on finding that the
possibility of a terrorist attack is too far removed from the
natural or expected consequences of agency action. Id. at
347. Section 102 of NEPA requires federal agencies to
prepare “a detailed statement * * * on the environmental
impact” of any proposed major federal action “significantly
affecting the quality of the human environment.” 42 U.S.C. §
4332(1)(C)(i). The question thus becomes whether a given
action “significantly affects” the environment.
The NRC claims that the appropriate analysis of Section
102 is that employed by the Supreme Court in Metropolitan
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773,
103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). In Metropolitan Edison,
the Court noted that “[t]o determine whether Section 102
requires consideration of a particular effect, we must look to
the relationship between that effect and the change in the
physical environment caused by the major federal action at
issue,” looking for “a reasonably close causal relationship _
*** like the familiar doctrine of proximate cause from tort
law.” 460 US. at 774, 103 S.Ct. 1556. The Commission
claims that its conclusion that the environmental impacts of
a possible terrorist attack on an NRC-licensed facility is
beyond a “reasonably close causal relationship” was a
reasonable application of this “proximate cause” analogy.
20a
The problem with the agency’s argument, however, is
that Metropolitan Edison and its proximate cause analogy are
inapplicable here. In Metropolitan Edison, the petitioners
argued that NEPA required the NRC to consider the
potential risk of psychological damage upon reopening the
Three Mile Island nuclear facilities to those in the vicinity.
Noting that NEPA is an environmental statute, the Supreme
Court held that the essential analysis must focus on the
“closeness of the relationship between the change in the
environment and the ‘effect’ at issue.” 460 U.S. at 772, 103
S.Ct. 1556.
The appropriate analysis is instead that developed by
this court in No GWEN Alliance v. Aldridge, 855 F.2d 1380 (9th
Cir. 1988). In No GWEN, the plaintiffs argued that NEPA
required the Air Force to consider the threat of nuclear war
in the implementation of the Ground Wave Emergency
Network (“GWEN”). We held “that the nexus between
construction of GWEN and nuclear war is too attenuated to
require discussion of the environmental impacts of nuclear
war in an [EA] or [EIS].” 855 F.2d at 1386.
The events at issue here, as well as in Metropolitan Edison |
and No GWEN, form a chain of three events: (1) a major
federal action; (2) a change in the physical environment; and
(3) an effect. Metropolitan Edison was concerned with the
relationship between events 2 and 3 (the change in the
physical environment, or increased risk of accident resulting
from the renewed operation of a nuclear reactor, and the
effect, or the decline in the psychological health of the
human population). The Court in Metropolitan Edison
explicitly distinguished the case where the disputed
relationship is between events 1 and 2: “we emphasize that
in this case we are considering effects caused by the risk of
accident. The situation where an agency is asked to consider
effects that will occur if a risk is realized, for example, if an
accident occurs * * * is an entirely different case.” Id. at 775
n. 9, 103 S.Ct. 1556. In No GWEN, we followed the Court's
2la
admonition and, in addressing the relationship between
events 1 and 2, we held that the Metropolitan Edison analysis
did not apply “because it discusse[d] a different type of
causation than that at issue in this case * * * [which]
require[d] us to examine the relationship between the
agency action and a potential impact on the environment.”
Id. at 1386. No GWEN relied on our decision in Warm Springs
Dam Task Force v. Gribble, 621 F.2d 1017, 1026 (9th Cir.1980),
which held that “an impact statement need not discuss
remote and highly speculative consequences.” Applying
that standard to the plaintiffs’ claims that the military
GWEN system’s installation would “increase the probability
of nuclear war,” and “that GWEN would be a primary target
in a nuclear war,” we held both propositions to be “remote
and highly speculative,” and, therefore, NEPA did not
require their consideration.
In the present case, as in No GWEN, the disputed
relationship is between events 1 and 2 (the federal act, or the
licensing of the Storage Installation, and the change in the
physical environment, or the terrorist attack). The
appropriate inquiry is therefore whether such attacks are so
“remote and highly speculative” that NEPA’s mandate does
not include consideration of their potential environmental
effects.
The NRC responds by simply declaring without support
that, as a matter of law, “the possibility of a terrorist attack
*** is speculative and simply too far removed from the
natural or expected consequences of agency action to require
a study under NEPA.” 56 NRC at 349. In doing so, the NRC
failed to address Petitioners’ factual contentions that
licensing the Storage Installation would lead to or increase
the risk of a terrorist attack because (1) the presence of the
Storage Installation would increase the probability of a
terrorist attack on the Diablo Canyon nuclear facility, and (2)
the Storage Installation itself would be a primary target for a
terrorist attack. We conclude that it was unreasonable for
22a
the NRC to categorically dismiss the possibility of terrorist
attack on the Storage Installation and on the entire Diablo
Canyon facility as too “remote and highly speculative” to
warrant consideration under NEPA.
In so concluding, we also recognize that the NRC's
position that terrorist attacks are “remote and highly
speculative,” as a matter of law, is inconsistent with the
government's efforts and expenditures to combat this type of
terrorist attack against nuclear facilities. In the PFS opinion,
the NRC emphasized the agency’s own post-September 11th
efforts against the threat of terrorism:
At the outset, however, we stress our determination,
in the wake of the horrific September 11th terrorist
attacks, to strengthen security at facilities we regulate.
We currently are engaged in a comprehensive review
of our security regulations and programs, acting
under our AEA-rooted duty to protect “public health
and safety” and the “common defense and security.”
We are reexamining, and in many cases have already
improved, security and safeguards matters such as
guard force size, physical security exercises, clearance
requirements and background investigations for key
employees, and fitness-for-duty requirements. More
broadly, we are rethinking the NRC's threat
assessment framework and design basis threat. We
also are reviewing our own infrastructure, resources,
and communications.
Our comprehensive review may also yield
permanent rule or policy changes that will apply to
the proposed PFS facility and to other NRC-related
facilities. The review process is ongoing and
cumulative. It has already resulted in a number of
security-related actions to address terrorism threats at
both active and defunct nuclear facilities.
23a
56 NRC at 343. Among these actions is the establishment of
an Office of Nuclear Security and Incident Response,
“responsible for immediate operational security and
safeguards issues as well as for long-term policy
development[,] work[ing] closely with law enforcement
agencies and the Office of Homeland Security[,] * * *
coordinat[ing] the NRC’s ongoing comprehensive security
review.” Id. at 344-45.
We find it difficult to reconcile the Commission's
conclusion that, as a matter of law, the possibility of a
terrorist attack on a nuclear facility is “remote and
speculative,” with its stated efforts to undertake a “top to
bottom” security review against this same threat. Under the
NRC’s own formulation of the rule of reasonableness, it is
required to make determinations that are consistent with its
policy statements and procedures. Here, it appears as
though the NRC is attempting, as a matter of policy, to insist
on its preparedness and the seriousness with which it is
responding to the post-September 11th terrorist threat, while
concluding, as a matter of law, that all terrorist threats are
“remote and highly speculative” for NEPA purposes.
8 The view that a terrorist attack is too speculative to be a required
part of NEPA review would seem to be inconsistent with the
NRC’s pre-9/11 security procedures. Since 1977, the NRC has
required licensed plants to have a security plan that is designed to
protect against a “design basis threat” for radiological sabotage.
See General Accounting Office, Nuclear Regulatory Commission:
Oversight of Security at Commercial Nuclear Power Plants Needs to be
Strengthened, GAO-030752 (2003) at 6. “The design basis threat
characterizes the elements of a postulated attack, including the
number of attackers, their training, and the weapons and tactics
they are capable of using.” Id.
Thus, the NRC — even before the terrorist attacks of 9/11 —
did not consider such attacks too “remote and speculative” to be
considered in agency planning. To the contrary, the agency has
long required analysis of means and methods of hypothetical
24a
In sum, in considering the policy goals of NEPA and the
rule of reasonableness that governs its application, the
possibility of terrorist attack is not so “remote and highly
speculative” as to be beyond NEPA’s requirements.
The NRC's reliance upon the second PFS factor, that the
Risk of a Terrorist Attack Cannot be Adequately
Determined, 56 NRC at 350, is also not reasonable. First, the
NRC’s_ dismissal of the risk of terrorist attacks as
“unquantifiable” misses the point. The numeric probability
of a specific attack is not required in order to assess likely
modes of attack, weapons, and vulnerabilities of a facility,
and the possible impact of each of these on the physical
environment, including the assessment of various release
scenarios. Indeed, this is precisely what the NRC already
analyzes in different contexts. It is therefore possible to
conduct a low probability-high consequence analysis
without quantifying the precise probability of risk. The NRC
itself has recognized that consideration of uncertain risks
may take a form other than quantitative “probabilistic”
assessment. In its “Proposed Policy Statement on Severe
Accidents and Related Views on Nuclear Reactor
Regulation,” 48 Fed. Reg. 16,014 (1983), the Commission
stated that:
In addressing potential accident initiators (including
earthquakes, sabotage, and multiple human errors)
where empirical data are limited and _ residual
uncertainty is large, the use of conceptual modeling
and scenario assumptions in Safety Analysis Reports
will be helpful. They should be based on the best
qualified judgments of experts, either in the form of
subjective numerical probability estimates or
attacks against specific facilities, with the goal of establishing
effective counter-measures.
25a
qualitative assessments of initiating events and casual [sic]
linkages in accident sequences.
48 Fed. Reg. at 16,020 (emphasis added).
No provision of NEPA, or any other authority cited by
the Commission, allows the NRC to eliminate a possible
environmental consequence from analysis by labeling the
risk as “unquantifiable.” See Limerick Ecology Action, Inc. v.
NRC, 869 F.2d 719, 754 (3rd Cir.1989) (J. Scirica, dissenting)
(finding no “statutory provision, no NRC regulation or
policy statement, and no case law that permits the NRC to
ignore any risk found to be unquantifiable”). If the risk of a
terrorist attack is not insignificant, then NEPA obligates the
NRC to take a “hard look” at the environmental
consequences of that risk. The NRC’s actions in other
contexts reveal that the agency does not view the risk of
terrorist attacks to be insignificant. Precise quantification is
therefore beside the point.
Even if we accept the agency’s argument, the agency fails
to adequately show that the risk of a terrorist act is
unquantifiable. The agency merely offers the following
analysis as to the quantifiability of a potential terrorist
attack:
The horrors of September 11 notwithstanding, it
remains true that the likelihood of a terrorist attack
being directed at a particular nuclear facility is not
quantifiable. Any attempt at quantification or even
qualitative assessment would be highly speculative.
In fact, the likelihood of attack cannot be ascertained
with confidence by any state-of-the-art methodology.
That being the case, we have no means to assess,
usefully, the risks of terrorism at the PFS facility.
56 NRC at 350. The agency nonetheless has simultaneously
shown the ability to conduct a “top to bottom” terrorism
review. This leaves the Commission in the tenuous position
of insisting on the impossibility of a meaningful, i.e.
26a
quantifiable, assessment of terrorist attacks, while claiming
to have undertaken precisely such an assessment in other
contexts. Further, as we have noted, the NRC has required
site-specific analysis of such threats, involving numerous
recognized scenarios.?
Thus, we conclude that precise quantification of a risk is
not necessary to trigger NEPA’s requirements, and even if it
were, the NRC has not established that the risk of a terrorist
attack is unquantifiable.
Cc
The NRC’s third ground, that it is not required to
conduct a “worst-case” analysis, is a non sequitur. Although
it is a true statement of the law, the agency errs in equating
an assessment of the environmental impact of terrorist attack
with a demand for a worst-case analysis.
The Council on Environmental Quality (“CEQ”)
regulations, 40 C.F.R. §§ 1500.1-1518.4, promulgated with
the “purpose [of] tell[ing] federal agencies what they must
do to comply with [NEPA] procedures and achieve the goals
of [NEPA],” have been interpreted by the Supreme Court as
“entitled to substantial deference.” Robertson v. Methow
Valley-Citizens Council, 490 U.S. 332, 355, 109 S.Ct. 1835, 104
L.Ed.2d 351 (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99
S.Ct. 2335, 60 L.Ed.2d 943 (1979)). These regulations
mandated worst-case analyses until 1986, when CEQ
replaced the former 40 C.F.R. § 1502.22, requiring an agency,
when relevant information was either unavailable or too
costly to obtain, to include in the EIS a “worst-case analysis
9 The NRC’s assertion that a risk of terrorism cannot be quantified
is also belied by the very existence of the Department of Homeland
Security Advisory System, which provides a general assessment of
the risk of terrorist attacks. See, e.g, World Market Research
Centre, Global Terrorism Index 2003/4 (offering a probabilistic
risk assessment of terrorist activities over a 12-month period).
27a
and an indication of the probability or improbability of its
occurrence,” with the new and current version of the
regulation, which requires an agency to instead deal with
uncertainties by including within the EIS “a summary of |
existing credible scientific evidence which is relevant to
evaluating the reasonable foreseeable significant adverse
impacts on the human environment, and.* * * the agency’s
evaluation of such impacts based upon _ theoretical
approaches or research methods generally accepted in the
scientific community.” 40 C.F.R. §§ 1502.22(b)(3), (4). The
current requirement applies to those events with potentially
catastrophic consequences “even if their probability of
occurrence is low, provided that the analysis of impacts is
supported by credible scientific evidence, is not based on
pure conjecture, and is within the rule of reason.” 40 C.F.R.
§ 1502.22(b)(4). The Supreme Court held in Robertson that
the amendment of the regulations had nullified the worst-
case analysis requirement. 490 U.S. at 355, 109 S.Ct. 1835;
Edwardsen v. U.S. Dep't of Interior, 268 F.3d 781, 785 (9th Cir.
2001).
The Commission is therefore correct when it argues that
NEPA does not require a worst-case analysis. It is mistaken,
however, when it claims that “Petitioners’ request for an
analysis of [the environmental effects of] a successful
terrorist attack at the Diablo Canyon ISFSI approximates a
request for a ‘worst-case’ analysis that has long since been
discarded by the CEQ regulations * * * and discredited by the
Federal courts.” According to the NRC, “[mlJaking the
various assumptions required by [Pl]etitioners’ scenario
requires the NRC to venture into the realm of ‘pure
conjecture.” We disagree.
An indication of what CEQ envisioned when it imposed
the worst-case analysis requirement can be gleaned from a
1981 CEQ memorandum, Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy Act
Regulations, reprinted at 46 FR 18026-01 (March 23, 1981).
28a
CEQ answered one of those questions, “[w]hat is the
purpose of a worst-case analysis? How is it formulated and
what is the scope of the analysis?” with the following:
The purpose of the analysis is to * * * cause agencies
to consider th{ Je potential consequences [of agency
decisions} when acting on the basis of scientific
uncertainties or gaps in available information. The
analysis is formulated on the basis of available
information, using reasonable projections of the worst
possible consequences of a proposed action.
For example, if there are scientific uncertainty and
gaps in the available information concerning the
numbers of juvenile fish that would be entrained in a
cooling water facility, the responsible agency must
disclose and consider the possibility of the loss of the
commercial or sport fishery. In addition to an
analysis of a low probability/catastrophic impact
event, the worst-case analysis should also include a
spectrum of events of higher probability but less
drastic impact.
46 FR 18026, 18032. While it is true that the agency is not
required to consider consequences that are “speculative,”
the NRC’s argument wrongly labels a terrorist attack the
worst-case scenario because of the low or indeterminate
probability of such an attack. The CEQ memo, by including
10 Because we disagree with the agency's interpretation of worst-
case analysis, we do not reach the agency's characterization of the
possibility of terrorist attack as “speculative.” We note, however,
that this characterization stands out as contrary to the vigilant
stance that Americans are encouraged to take by the Department
of Homeland Security. See © www.dhs.gov/dhspublic/
display?theme=29 (urging that “[a]ll Americans should continue to
be vigilant” and noting that “(t]he country remains at an elevated
risk * * * for terrorist attack.”)
29a
as worst-case scenarios events of both higher and lower
probability, reveals that worst-case analysis is not defined
solely by the low probability of the occurrence of the events
analyzed, but also by the range of outcomes of those events.
See also Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250,
1260 (10th Cir. 2003) (citing a witness’s testimony that the
loss of bald eagle nesting sites was both “likely” and “a
worst-case scenario”). Petitioners do not seek to require the
NRC to analyze the most extreme (i.e., the “worst”) possible
environmental impacts of a terrorist attack. Instead, they
seek an analysis of the range of environmental impacts likely
to result in the event of a terrorist attack on the Storage
Installation. We reject the Commission’s characterization of
this request as a demand for a worst-case analysis.
D
The NRC’s reliance on the fourth PFS factor, that it
cannot comply with its NEPA mandate because of security
risks, is also unreasonable. There is no support for the use of
security concerns as an excuse from NEPA’s requirements.
While it is true, as the agency claims, that NEPA’s
requirements are not absolute, and are to be implemented
consistent with other programs and requirements, this has
never been interpreted by the Supreme Court as excusing
NEPA’s application to a particularly sensitive issue. See
Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 102 S.Ct.
197, 70 L.Ed.2d 298 (1981) (holding that the Navy was
required to perform a NEPA review and to factor its results
into decisionmaking even where the sensitivity of the
information involved meant that the NEPA results could not
be publicized or adjudicated). Weinberger can support only
the proposition that security considerations may permit or
require modification of some of the NEPA procedures, not
the Commission’s argument that sensitive security issues
result in some kind of NEPA waiver.
The application of NEPA’s requirements, under the rule
of reason relied on by the NRC, is to be considered in light of
30a
the two purposes of the statute: first, ensuring that the
agency will have and will consider detailed information
concerning significant environmental impacts; and, second,
ensuring that the public can both contribute to that body of
‘information, and can access the information that is made
public. Pub. Citizen, 541 U.S. at 768, 124 S.Ct. 2204. To the
extent that, as the NRC argues, certain information cannot be
publicized, as in Weinberger, other statutory purposes
continue to mandate NEPA’s application. For example, that
the public cannot access the resulting information does not
explain the NRC's determination to prevent the public from
contributing information to the decisionmaking process. The
NRC simply does not explain its unwillingness to hear and
consider the information that Petitioners seek to contribute
to the process, which would fulfill both the information-—
gathering and the public participation functions of NEPA.
These arguments explain why a Weinberger-style limited
proceeding might be appropriate, but cannot support the
NRC’s conclusion that NEPA does not apply. As we stated
in Ne GWEN: “There is no ‘national defense’ exception to
NEPA * * * ‘The Navy, just like any federal agency, must
carry out its NEPA mandate to the fullest extent possible and
this mandate includes weighing the environmental costs of
the [project] even though the project has serious security
implications.” 855 F.2d at 1384 (quoting Concerned About
Trident v. Rumsfeld, 555 F.2d 817, 823 (D.C. Cir. 1977)).
E
In sum, none of the four factors upon which the NRC
relies to eschew consideration of the environmental effects of
a terrorist attack satisfies the standard of reasonableness.
We must therefore grant the petition in part and remand for
the agency to fulfill its responsibilities under NEPA.
Our identification of the inadequacies in the agency’s
NEPA analysis should not be construed as constraining the
NRC’s consideration of the merits on remand, or
circumscribing the procedures that the NRC must employ in
3la
conducting its analysis. There remain open to the agency a
wide variety of actions it may take on remand, consistent
with its statutory and regulatory requirements. We do not
prejudge those alternatives. Nor do we prejudge the merits
of the inquiry. We hold only that the NRC’s stated reasons
for categorically refusing to consider the possibility of
terrorist attacks cannot withstand appellate review based on
the record before us.
We are:also mindful that the issues raised by the petition
may involve questions of national security, requiring
sensitive treatment on remand. However, the NRC has dealt
with our nation’s most sensitive nuclear secrets for many -
decades, and is well-suited to analyze the questions raised
by the petition in an appropriate manner consistent with
national security.
VI
We deny the petition as to the claims under the AEA and
the APA. However, because we conclude that the NRC’s
determination that NEPA does not require a consideration of
the environmental impact of terrorist attacks does not satisfy
reasonableness review, we hold that the EA prepared in
reliance on that determination is inadequate and fails to
comply with NEPA’s mandate. We grant the petition as to
that issue and remand for further proceedings consistent
with this opinion.
PETITION GRANTED IN PART; DENIED IN PART;
REMANDED. |
32a
APPENDIX B
CLI-03-1
Cite as 57 NRC 1 (2003)
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve, Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 72-26-ISFSI
PACIFIC GAS AND ELECTRIC
COMPANY
(Diablo Canyon Power Plant
Independent Spent Fuel Storage
Installation) January 23, 2003
MEMORANDUM AND ORDER
The Licensing Board, in a recent ruling on standing,
admissibility of contentions, and admission of interested
governmental entities in this independent spent fuel storage
installation (“ISFSI’’) licensing proceeding, referred its
decision on one environmental contention and portions of
three other contentions to the Commission.! We accept the
Board’s referral and affirm its rejection of the contentions.
i. BACKGROUND
Pacific Gas & Electric Company (“PG&E”) filed an
application on December 21, 2001, for a materials license
1 See LBP-02-23, 56 NRC 413 (2002).
33a
authorizing construction and operation of a dry storage cask
ISFSI to be located at its Diablo Canyon Nuclear Power Plant
(“DCPP”) site. In response to a notice of opportunity for
hearing, the Secretary of the Commission received petitions
to intervene from numerous petitioners.2 The San Luis
Obispo Mothers for Peace, acting as Lead Petitioner,
submitted five technical and three environmental
contentions. The County of San Luis Obispo (“County’’),
previously granted governmental participant _ status,
submitted one environmental and two technical issues.? The
Board heard oral argument on the issues of standing of the
Petitioners and admissibility of their contentions on
September 10-11, 2002. In addition to the Lead Petitioner, the
Board found that the Santa Lucia Chapter of the Sierra Club,
San Luis Obispo Cancer Action Now, Peg Pinard, the Avila
Valley Advisory Council, and the Central Coast Peace and
Environmental Council have standing.‘ We shall refer to the
2 In addition, five entities sought leave to participate as interested
governmental entities pursuant to 10 C.F.R. § 2.715(c): “The
presiding officer will afford representatives of an interested State,
county, municipality, Federally-recognized Indian Tribe, and/or
agencies thereof, a reasonable opportunity to participate and to
introduce evidence, interrogate witnesses, and advise the
Commission without requiring the representative to take a position
with respect to the issue.” Of the five requests, only that of the
County of San Luis Obispo is relevant to today’s decision.
3 See unpublished Memorandum and Order (Establishing Schedule
for Identification of Issues by Interested Governmental Entities;
Limited Appearance Participation) (Aug. 7, 2002). The Board also
granted governmental participant status to the Port San Luis
Harbor District. See id.
4 The Board also determined that the following groups had not
demonstrated standing: the Environmental Center of San Luis
Obispo, Cambria Legal Defense Fund, Santa Margarita Area
Residents Together, San Luis Obispo Chapter of Grandmothers for
Peace International, Nuclear Age Peace Foundation, and the
Ventura County Chapter of the Surfrider Foundation.
34a
admitted Intervenors collectively as ‘“SLOMFP.” The Board
granted governmental participant status to the California
Energy Commission and the Avila Beach Community
Services District, but denied the request of the Diablo
Canyon Independent Safety Committee.
The Board admitted one of SLOMFP’s five technical
contentions for litigation in this proceeding and rejected
SLOMFP’s three environmental contentions. In accordance
with 10 C.F.R. § 2.730(f), the Board referred its rulings
regarding the sabotage and terrorism aspects of SLOMFP’s
three environmental contentions and San Luis Obispo
County’s environmental issue to the Commission for further
consideration and action as appropriate.5 We accept the
Board's referral and affirm the Board’s denial of admission of
the contentions, albeit for different reasons than those the
Board expressed.
II; DISCUSSION
A. The Referred Terrorism Issues®
SLOMFP’s three environmental contentions address, at
varying levels of prominence, the threat of terrorism.
Contention EC-1, the primary terrorism contention, states:
“The Environmental Report’s discussion of environmental
impacts is inadequate because it does not include the
consequences of destructive acts of malice or insanity against
5 See LBP-02-23, 56 NRC at 462. See also 10 C.F.R. § 2.730(f): “When
in the judgment of the presiding officer prompt decision is
necessary to prevent detriment to the public interest or unusual
delay or expense, the presiding officer may refer the ruling
promptly to the Commission * * * .”
6 We recently denied the direct request of the San Luis Obispo
Mothers for Peace and several other petitioners to suspend this
proceeding pending completion of the Commission’s
comprehensive review of measures to protect against terrorist
attack. See CLI-02-23, 56 NRC 230 (2002).
35a
the proposed ISFSI.”7 SLOMFP believes that PG&E's
environmental report should evaluate a range of alternatives
to the proposed ISFSI, including dispersal of casks,
protection of casks by berms or bunkers, and use of more
robust storage casks.
The Board found the contention inadmissible because it
“directly challenge[s] the Commission’s rules regarding
destructive acts of malice or insanity by enemies of the
United States ** * . [C]ontentions that question existing NRC
regulations are inadmissible as a matter of law.’’* Thus, the
Board relied in part on 10 C.F.R. § 2.758(a), which prohibits
adjudicatory challenges to NRC rules,? and in part on 10
C.F.R. § 50.13, which provides that an applicant for a license
to construct and operate a production or utilization facility
“is not required to provide for design features or other
measures for the specific purpose of protection against the
effects of * * * attacks and destructive acts, including
sabotage, directed against the facility by an enemy of the
United States, whether a foreign government or other
person.’’10
7 “Supplemental Request for Hearing and Petition To Intervene by
[SLOMFP}” at 24 (July 18, 2002).
8 LBP-02-23, 56 NRC at 448.
9 “[A]ny rule or regulation of the Commission, or any provision
thereof * * * is not subject to attack by way of discovery, proof,
argument, or other means in any adjudicatory proceeding
involving initial or renewal licensing * * * .” 10 C.F.R. § 2.758(a).
1010 C.F.R. § 50.13. Although section 50.13 does not, on its face,
apply to an ISFSI, an applicant for an ISFSI must describe physical
security protection plans, which must meet the requirements set
forth in 10 C.F.R. § 73.51. Adopting section 73.51 in 1998, the
Commission specifically rejected a requirement that ISFSIs be
protected against malevolent attacks by land-based or airborne
vehicles. See Final Rule: “Physical Protection for Spent Nuclear
36a
Because EC-1 is an environmental contention based on
the National Environmental Policy Act (“NEPA”) rather
than a safety contention, SLOMFP argued that 10 C.F.R.
§ 2.758 is not applicable. The Board, however, reasoned that
“the rationale for 10 C.F.R. § 50.13 [is] as applicable to the
Commission’s NEPA responsibilities as it is to its health and
safety responsibilities.’”12 The Board thus found contention
EC-1 inadmissible, but referred its ruling to the
Commission. !5
Fuel and High-Level Radioactive Waste,” 63 Fed. Reg. 26,955,
26,956 (May 15, 1998).
1! See 42 U.S.C. §§ 4321 et seq.
12 LBP-02-23, 56 NRC at 448, quoting Long Island Lighting Co.
(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 851
(1973) and citing Private Fuel Storage, L.L.C. (Independent Spent
Fuel Storage Installation), LBP-01-37, 54 NRC 476, 487 (2001),
referral accepted, CLI-02-3, 55 NRC 155 (2002).
1S See LBP-02-23, 56 NRC at 448. In making the referral, the Board
alluded to the Commission’s ongoing comprehensive review of
NKC’s safeguards and physical security programs in the wake of
the Sept. 11, 2001 terrorist attacks. Moreover, the Commission, at
the time of the Board’s referral, was considering terrorism
contentions we had agreed to review in four other cases. See Private
Fuel Storage, LBP-01-37, 54 NRC 476 (denying admission of
terrorism contention and referring issue to the Commission),
referral accepted, CLI-02-3, 55 NRC 155; Duke Energy Corp. (McGuire
Nuclear Station, Units 1 and 2; Catawba Nuclear Station Units 1
and 2), LBP-02-4, 55 NRC 49 (2002) (certifying terrorism issue to the
Commission), certification accepted, CLI-02-6, 55 NRC 164 (2002);
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel
Fabrication Facility), LBP-01-35, 54 NRC 403 (2001), reconsideration
denied, unpublished Memorandum and Order (Jan. 16, 2002),
petition for Commission review granted in part, CLI-02-4, 55 NRC 158
(2002); and Dominion Nuclear Connecticut, Inc. (Millstone Nuclear
Power Station, Unit 3), LBP-02-5, 55 NRC 131 (2002) (denying
admission of terrorism contention and referring contention to the
Commission), referral accepted, CLI-02-5, 55 NRC 161 (2002).
37a
Contention EC-2 asserts that PG&E has failed to fully
describe the purposes of the proposed ISFSI or to evaluate all
reasonably associated environmental impacts and
alternatives. SLOMFP’s focus in this contention is its
allegation that PG&E might have an unstated purpose for the
proposed ISFSI; i.e., to provide spent fuel storage capacity
during a license renewal term for the Diablo Canyon units.
The Board found the contention inadmissible, but noted that,
in several of the contention’s bases, SLOMFP repeated
arguments concerning acts of destruction or sabotage that
were discussed in support of EC-1. Therefore, the Board
referred its ruling on admissibility of contention EC-2 to the
Commission “to the extent destruction and sabotage matters
are proffered in support of admission.” 4
In Contention EC-3, SLOMFP asserts that PG&E has
failed to evaluate the environmental impacts of transporting
fuel away from the proposed ISFSI at the end of its license
term. SLOMFP claims that the ER must consider impacts of
such transportation, including sabotage and terrorist attacks
against transportation casks. The Board rejected contention
EC-3 but, as with EC-2, referred its ruling to the Commission
“to the extent terrorism and sabotage matters are proffered
in support of its admission.” 5
Similar to SLOMFP’s EC-1, the County’s environmental
issue asserted that the environmental report does not contain
an adequate analysis of alternatives. Specifically, in its
subissue regarding alternative sites and associated security
measures, the County argues that PG&E did not consider
vulnerability to offshore attacks when it selected the site for
the proposed ISFSI. Because this subissue “appears to
challenge the Commission’s rules regarding acts of
destruction and sabotage,” the Board denied it as a matter of
4 LBP-02-23, 56 NRC at 451.
5 Id. at 453.
38a
law, but made the terrorism aspects of the issue part of .its
referral to the Commission.1*
B. The Commission’s Ruling
We accept the Board's referral of the terrorism issues in
SLOMFP’s three environmental contentions and the County’s
environmental subissue and affirm the result the Board
reached.
We recently decided similar issues in four other cases in
four different contexts: Private Fuel Storage (a dry cask
independent spent fuel storage installation), Savannah River
(a mixed oxide fuel fabrication facility), Millstone (expansion
of the spent fuel storage pool capacity at a commercial
reactor site), and McGuire/Catawba (license renewal for four
commercial reactors).'7_ In each of these settings, we
considered whether NEPA requires the NRC, in rendering
licensing decisions, to consider the impacts of terrorism. We
held that NEPA does not require a terrorism review, and that
an environmental impact statement is not the appropriate
format in which to address the challenges of terrorism.
In the lead Private Fuel Storage case, involving a large
away-from-reactor ISFSI, we detailed four principal reasons
for our holding. First, the “possibility of a terrorist attack
* * * is speculative and simply too far removed from the
natural or expected consequences of agency action to require
a study under NEPA,” which is confined to “manageable”’
16 See id. at 460.
17 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage
Installation), CLI-02-25, 56 NRC 340 (2002); Duke Cogema Stone &
Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),
CLI-02-24, 56 NRC 335 (2002); Dominion Nuclear Connecticut, Inc.
(Millstone Nuclear Power Station, Unit 3), CLI-02-27, 56 NRC 367
(2002); and Duke Energy Corp. (McGuire Nuclear Station, Units 1
and 2; Catawba Nuclear Station, Units 1 and 2), CLI-O02-26, 56 NRC
358 (2002).
EE aaeaeaeEeEeeeeeeeeEeEee
39a
inquiries. Second, the risk of a terrorist attack at a nuclear
facility cannot be adequately determined.!? As a practical
matter, attempts to evaluate that risk even in qualitative
terms are likely to be meaningless and consequently of no
use in the agency's decisionmaking. Third, NEPA does not
require a ‘worst-case’ analysis, which “creates a distorted
picture of a project's impacts and wastes agency resources.” 2
Lastly, NEPA’s public process is not an appropriate forum
for considering sensitive security issues. In this regard we
noted, ‘NEPA does not override [our] concern for making
sure that sensitive security-related information ends up in as
few hands as practicable.”2! For the same reasons, we affirm
the Board’s rejection of SLOMFP’s contention EC-1, the
terrorism-related portions of contentions EC-2 and EC-3, and
the County’s environmental issue.”
18 See Private Fuel Storage, CLI-02-25, 56 NRC at 349 & n.33, citing
Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S.
766, 776 (1983).
19 See Private Fuel Storage, CLI-02-25, 56 NRC at 350-51, and
references cited therein.
2 See id. at 352; see generally id. at 351-54, and references cited
therein.
21 Jd. at 355; see id. at 354-57, and references cited therein.
2 We need not decide the applicability of the rationale for 10 C.F.R.
§ 50.13 to the Commission’s NEPA responsibilities. We note that
“(t]he provision grew out of a policy judgment by the Atomic
Energy Commission that it was our nation’s ‘settled tradition’ to
‘look[] to the military’ for defense against enemy attacks, and that it
was ‘impracticable’ to expect a ‘civilian industry’ to provide the
necessary defense.” Millstone, CLI-02-27, 56 NRC at 369 n.7
(quoting Siegel v. AEC, 400 F.2d 778, 782 (D.C. Cir. 1968)). As in
Private Fuel Storage, Savannah River, Millstone, and McGuire/Catawba,
our decision today “rest[s] on general principles regarding the
scope of NEPA, [and] we do not reach the application of section
50.13 as applied to the terrorism contentions that are raised in [this]
case.” Millstone at 369, n.7.
40a
Our decision today rests entirely on our understanding of
NEPA and of what means are best suited to dealing with
terrorism. Nonetheless, our conclusion comports with the
practical realities of spent fuel storage and the congressional
policy to encourage utilities to provide for spent fuel storage
at reactor sites pending construction of a permanent
repository.” Storage of spent fuel at commercial reactor sites
offers no unusual technological challenges. Indeed, it has
been occurring at Diablo Canyon for many years and will
continue whether or not we license the proposed ISFSI.4
Although we decline to consider terrorism in the context
of NEPA, the Commission is devoting substantial time and
agency resources to combating the potential for terrorism
involving nuclear facilities and materials. The NRC Staff is
conducting a comprehensive review of our security and
safeguards measures, including measures concerning interim
spent fuel storage at power reactor sites. We have also
instituted interim upgrades in security requirements for our
licensees, and we are working with numerous other
government agencies to meet and minimize the threat of
terrorism.
2 See Nuclear Waste Policy Act, 42 U.S.C. §§ 10131 et seq.; Millstone,
CLI-02-27, 56 NRC at 371.
24 See Millstone, CLI-02-27, 56 NRC at 371. Cf. McGuire/Catawba, CLI-
02-26, 56 NRC at 365 (‘Particularly in the case of a license renewal
application, where reactor operation will continue for many years
regardless of the Commission's ultimate decision, it is sensible not
to devote resources to the likely impact of terrorism during the
license renewal period, but instead to concentrate on how to
prevent a terrorist attack in the near term at the already licensed
facilities’); Pacific Gas and Electric Co. (Diablo Canyon Nuclear
Power Plant, Units 1 and 2), CLI-02-16, 55 NRC 317, 343 (2002)
(terrorist attacks are neither caused by nor result from the
proposed license transfers).
41a’
Ill. CONCLUSION
We accept the Board’s referral of the terrorism aspects of four
environmental contentions and issues and affirm the Board's
decision to reject consideration of the terrciism issues
presented in this proceeding.
IT ISSO ORDERED.
For the Commission?
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 23d day of January 2003
% Commissioner Dicus was not present for the affirmation of this
Order. If she had been present, she would have approved it.
42a
APPENDIX C
CLI-02-25
Cite as 56 NRC 340 (2002)
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve, Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 72-22-ISFSI
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 18, 2002
MEMORANDUM AND ORDER
On December 13, 2001, the Atomic Safety and Licensing
Board referred to the Commission its decision denying
admission of a late-filed contention of the State of Utah.
Utah’s contention related to the threat of a terrorist attack on
Private Fuel Storage, L.L.C.’s (PFS) proposed independent
spent fuel storage installation (ISFSI).1 We subsequently
accepted review,? and also agreed to review three other cases
1 LBP-01-37, 54 NRC 476 (2001).
2 CLI-02-3, 55 NRC 155 (2002). The Commission accepted review of
the question whether either the Atomic Energy Act (AEA) or the
National Environmental Policy Act (NEPA) requires the NRC to
consider the risk of terrorism in a licensing proceeding. The
Commission declined to review the Board’s ruling that Utah’s
proffered contention met our late-filing criteria. Utah subsequently
43a
raising terrorism-related issues.3 The primary question in
these cases is whether NEPA requires the NRC, in rendering
licensing decisions, to consider the impacts of terrorism. We
hold today that NEPA does not require a terrorism review.‘
I. BACKGROUND
A. Overview .
Below we consider in some detail the legal question
whether NEPA requires an inquiry into the threat of
terrorism at nuclear facilities. At the outset, however, we
stress our determination, in the wake of the horrific
September 11th terrorist attacks, to strengthen security at
facilities we regulate. We currently are engaged in. a
comprehensive review of our security regulations and
programs, acting under our AEA-rooted duty to protect
“public health and safety’ and the “common defense and
security.”5 We are reexamining, and in many cases have
dropped its AEA claim, leaving only its NEPA claim for our
review.
3 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel
Fabrication Facility), CLI-02-4, 55 NRC 158 (2002) (granting petition
for review); Duke Energy Corp. (McGuire Nuclear Station, Units 1
and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-6, 55 NRC
164 (2002) (accepting certified question); Dominion Nuclear
Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-02-
5, 55 NRC 161 (2002) (accepting referred ruling).
4 We reach the same conclusion in the other three companion cases.
See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358
(2002); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power
Station, Unit 3), CLI-02-27, 56 NRC 367 (2002); and Duke Cogema
Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication
Facility), CLI-02-24, 56 NRC 335 (2002).
5 See, e.g., AEA §§ 103(b) & (d), 104(d), 161(b), 182a, 189a(1)(B)(ii) &
(iii), 42 US.C. §§ 2133(b) & (d), 2134(d), 2201(b), 2232(a),
2239(a)(1)(B)(ii) & (iii). See also Florida Power & Light Co. (Turkey
44a
already improved, security and safeguards matters such as
guard force size, physical barriers, access control, detection
systems, alarm stations, response strategies, security
exercises, clearance requirements and _ background
investigations for key employees, and _fitness-for-duty
requirements. More broadly, we are rethinking the NRC's
threat assessment framework and design basis threat. We
also are reviewing our own infrastructure, resources, and
communications.
Our comprehensive review may also yield permanent
rule or policy changes that will apply to the proposed PFS
facility and to other NRC-regulated facilities. The review
process is ongoing and cumulative. It already has resulted in
a number of security-related actions to address terrorism
threats at both active and defunct nuclear facilities.
For instance, just after the September 11th terrorist
attacks, we issued Threat Advisories to all licensees of
nuclear power plants, nonpower reactors, nuclear fuel
facilities, gaseous diffusion plants, and decommissioning
reactors. The Advisories indicated that these facilities should
go to the highest level of security. As a result of our initial
Advisories, nuclear power plant licensees increased patrols,
augmented security forces and capabilities, added security
posts, installed additional physical barriers, increased the
standoff distance for vehicle checks, enhanced coordination
with law enforcement and military authorities, and imposed
more restrictive site access controls for all personnel. We
Point Nuclear Generating Plant, Units 3 and 4), 4 AEC 9, 12
(Commission 1967) (these two statutory phrases ‘are fundamental
to a delineation of the Commission’s licensing authority and
responsibility for [nuclear power plant] facilities’), aff'd sub nom.
Siegel v. AEC, 400 F.2d 778 (D.C. Cir. 1968).
6 The standoff distance between a barrier and the nuclear plant is
the distance between vital plant equipment and the closest exterior
point of the vehicle barrier system.
45a
continue to provide updates to the licensees regarding our
original Threat Advisories, having so far issued more than
thirty such updates. NRC security specialists have
performed numerous onsite physical security vulnerability
assessments at licensed facilities to evaluate the effectiveness
of our licensees’ enhanced security measures.
On February 25, 2002, after further security reviews, we
took the additional step of issuing. orders to all 104 power
reactor licensees requiring them to take interim
compensatory security measures over and above those
required by our regulations. The orders formalized steps
that those licensees had voluntarily taken in response to our
Threat Advisories, and also included additional measures to
further protect nuclear power plants. The newly required
safeguards measures (whose details are not available to the
public) include more patrols, more security personnel, and
physical and vehicle barrier modifications. The orders also
require additional security measures pertaining to
waterways and owner-controlled land outside the plants’
protected areas. The NRC Staff has confirmed that, as of
August 31st, all nuclear power plant licensees are in
compliance with the requirements set forth in these orders. In
addition, the Staff is conducting independent inspections at
licensee sites.
We have subsequently issued similar security-driven
orders to Honeywell International, Inc., for its uranium
conversion facility in Metropolis, Illinois, on March 25th; to
General Electric Company for its wet storage facility in
Morris, Illinois, on May 23d; to twelve nuclear plants that are
being decommissioned also May 23d; to two enriched
uranium fuel fabricators (BWX Technologies, Inc. and
Nuclear Fuel Services) on August 22d; and to independent
spent fuel storage facilities using dry cask storage on October
23d.
46a
This set of orders will remain in effect until either the
threat environment changes or we determine that additional
orders or rules are needed.
In a related action, in January we increased the full-time
staffing at the NRC Headquarters Operations Center, which
takes in fast-breaking security and safety information. In
April, we established a new Office of Nuclear Security and
Incident Response. The new office is responsible for
immediate operational security and safeguards issues as well
as for long-term policy development. It works closely with
law enforcement agencies and the Office of Homeland
Security. It also coordinates the NRC's ongoing
comprehensive security review, including (for example) a
major research effort to evaluate the vulnerabilities and
potential effects of a large commercial aircraft crashing into a
nuclear facility or into storage and transportation casks —
issues raised in this proceeding.
B. Facts and Procedural Posture of This Case
PFS seeks a license to operate an ISFSI on the Skull Valley .
Goshute Indian Reservation in Utah. During the course of
this litigation and prior to September 11, 2001, the Licensing
Board admitted numerous issues for hearing, many of which
await final merits resolution. But the Board rejected various
contentions relating to the risks of terrorism or sabotage at
the proposed facility, finding each to be inadmissible.’
In response to the terrorist attacks of September 11, 2001,
Intervenor Utah asked the Board to admit its late-filed
contention Utah RR, Suicide Mission Terrorism and
Sabotage, which claimed violations of both the AEA and
NEPA. Utah contended that the events of September 11 had
materially changed the circumstances under which the Board
? See LBP-98-13, 47 NRC 360, 372 (1998); LBP-98-10, 47 NRC 288,
296 (1998); LBP-98-7, 47 NRC 142, 186, 199, 216, 226, 233-34, aff'd on
other grounds, CLI-98-13, 48 NRC 26 (1998).
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had_ rejected previously proffered terrorism related
contentions by showing that a terrorist attack is both more
likely and potentially more dangerous than previously
thought.
Utah’s new AEA “terrorism” clair. argued that PFS’s
Safety Analysis Report and the Staff's Safety Evaluation
Report failed to identify and adequately evaluate external
man-induced events such as suicide mission terrorism and
sabotage, “based on the current state of knowledge about
such events,” as required by an NRC rule. The Board found
this argument an impermissible attack on NRC rules because,
in promulgating security rules applicable to ISFSIs, the
Commission had specifically considered and _ rejected
requiring protection against the malevolent use of an
airborne vehicle.°
Utah’s new NEPA “terrorism” claim argued that PFS’s
Environmental Report and the NRC _ Staff's draft
Environmental Impact Statement (EIS)!° were deficient in
failing to consider the environmental consequences of
terrorists flying a fully loaded commercial jumbo jet into the
PFS facility. Relying on a 1973 Appeal Board decision in the
Shoreham proceeding," the Board found that the rationale for
excluding acts of war in our safety analysis — that this is the
responsibility of the national defense establishment —
applies equally to a NEPA analysis. Therefore, the Board
8 See 10 C.F.R. § 72.94.
9 LBP-01-37, 54 NRC at 485-86. See Final Rule, “Physical Protection
for Spent Nuclear Fuel and High-Level Radioactive Waste,” 63 Fed.
Reg. 26,955-56 (May 15, 1998).
10 The Final Environmental Impact Statement, dated December
2001, was not yet available at the time Utah submitted its
contention and the Board made its ruling.
11 Long Island Lighting Co. (Shoreham Nuclear Power Siation),
ALAB-156, 6 AEC 831, 851 (1973).
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held that the NRC’s NEPA responsibilities did not include
considering the effects of terrorism.!2_ The Board also cited a
1989 Third Circuit decision, Limerick Ecology Action v. NRC,13
which found that NRC had no duty to perform a
“probabilistic risk assessment’ of the risk of sabotage in an
EIS because the petitioners had failed to show that such an
assessment was possible.4 Noting, however, that the
extraordinary events of September 11 may have changed
what can be said to be “reasonably foreseeable,” the Board
referred its terrorism ruling for immediate Commission
review. 15
We accepted review, asking parties to address all issues
“‘the parties determine are relevant,” and in addition the
question: ““What is an agency’s responsibility under NEPA to
consider intentional malevolent acts, such as those directed
at the United States on September 11, 2001?” 16
On review, Utah has abandoned its AEA-terrorism claim
and focused on its NEPA-terrorism claim.!” Its NEPA claim
does not ask that the NRC Staff inquire into or predict the
12 LBP-01-37, 54 NRC at 487. See 10 C.F.R. § 50.13, “Attacks and
destructive acts by enemies of the United States; and defense
activities.” This provision relieves reactor license applicants from
providing for design features that protect against ‘“enemies of the
United States.” By its terms, section 50.13 applies to production
and utilization facilities only. It therefore does not apply directly to
ISFSIs such as the one at issue in this proceeding.
13 869 F.2d 719, 743-44 (3d Cir. 1989).
14 LBP-01-37, 54 NRC at 487.
15 See id. at 487-88.
16 CLI-02-3, 55 NRC at 162.
17 See State of Utah's Brief in Response to CLI-02-03 and in Support
of Utah’s Request for Admission of Late-Filed Contention Utah RR
(Suicide Mission Terrorism and Sabotage), dated Feb. 27, 2002, at 3
n.2.
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likelihood of a September 11-style terrorist attack on the
proposed ISFSI, but argues that the mere fact that these
attacks occurred at other U.S. targets makes such an attack a
reasonably foreseeable environmental impact of erecting this
facility, requiring a NEPA review. Utah asks the
Commission simply to assume an attack and go straight to
analyzing its consequences. Both PFS and the NRC Staff,
citing the Shoreham and Limerick Ecology Action decisions,
maintain that terrorism and other intervening malevolent
acts lie outside NEPA and need no
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