Amicus Curiae Brief — Pacific Gas and Electric Co. v. San Luis Obispo Mothers for Peace (No. 06-466)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

No. 06-466

IN THE

Supreme Court of the Anited States

PACIFIC GAS AND ELECTRIC COMPANY

Petitioner.

SAN LUIS OBISPO MOTHERS FOR PEACE, ET AL..

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ROBIN S. CONRAD

AMAR D. SARWAL

Counsel of Record

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

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,” regard-

less 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.

TABLE OF CONTENTS

Page

EIS TIONG PIs ee Sires cncviccrsnevenccesecsnvtrnstetsnsnceiavvrties i

Die CFE FE 0 i iarttcievetpiiccnirnssstincetevsaiuminbonichaniila iv

INTEREST OF THE AMICUS CURIAE .........sccssssssesessseeeees |

CS 5 BRORERTOR RE RD NR tine aden Hive CABRIO Me 2

REASONS FOR GRANTING THE PETITION .................. 3

PATIOS D desvcsiinssnicsssmtianbibicaichanaspvicesniesttasiasiibuabiabondanaditsbioiponic A

I. THIS COURT’S REVIEW IS WARRANTED

TO ENSURE THAT NEPA REVIEW

REMAINS FOCUSED ON ITS

IMPORTANT PURPOSE OF CONFIRMING

THAT AGENCIES CONSIDER THE

ENVIRONMENTAL EFFECTS OF THEIR

DECISIONS AND IS NOT MISUSED TO

DELAY OR DERAIL IMPORTANT

FAIR UA vcticiveviteinciladatieliae cadgesidiamactnsevamunnadianieas 4

A. As a Regulatory Accountability

Statute, NEPA Ensures that Agencies

Consider the Environmental Impacts

Oe RR FR ainhactcnicessnctectnciniciinnisienitedicis 4

B. . Because NEPA Can Be Misused to

Delay or Derail Important Projects,

Courts Must Not Expand The Act’s

Reach Beyond the Scope of

ComsPORBRONNtl TRINIIE asic cece cciccsreetivecicocencnses 6

cS. Because Of NEPA’s Broad Scope, The

Ninth Circuit’s Decision Will Likely

Impose Serious Risks And Delays On

A Wide Variety Of Projects And

PONE Ss crinisies cuss cenidssnbsinnin ecchnaiceiheinibipinidniedatibeit 8

iii

TABLE OF CONTENTS - continued

Page

II. THE COURT SHOULD GRANT REVIEW

TO MAKE CLEAR THAT CRIMINAL

ACTS OF THIRD PARTIES ARE NOT

WITHIN THE PURVIEW OF NEPA..............c0000 10

A. The Ninth Circuit has Departed from

this Court’s Holdings that a Proposed

Agency Action Must be the Legally

Relevant Cause of an Environmental

B. Agencies Should Not be Required to

Address the Environmental Effects of

the Random Criminal Acts of Third

Cc. The Ninth Circuit’s Departure From

the Proper Approach Employed by

Other Circuits Will Undermine

Cooperative Efforts by Businesses and

the Government to Safeguard Critical

Infrastructure from Terrorist Attack............ 14

PATI cindonnccaitehansisnsdiialasieetentnnieebes tihinasadhcsvsaiineies 16

TABLE OF AUTHORITIES

Page(s)

_ CASES:

Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323 (4th

Oe FT TAR fisnisniatabhnatins pd cmmbanesoiea Ly BeBe Rat Ate IB be Up 9

Cady v. Morton, 547 F.2d 786 (9th Cir. 1975).........cscceeeceseees 8

- Dep’t of Transportation v. Public Citizen, 541 U.S. 752

ED scdces cachedsotpsaniaantvachoiacs uiitnignsihiciraieasesssaapsidietliie duet 5

Fuel Safe Washington v. Fed. Energy Reg. Comm'n, 389 F.3d

EES CRO ils POI) vic sesesnicascssasesviuaptotisis sereesctilcsdsiniacile: 9

Glass Packaging Inst., et al. v. Regan, 737 F.2d 1083 (D.C.

Es FE is ss shbicl sinc seh dacinntsvegniooplelaichaainsiguaniarianeiitass 14

Metropolitan Edison Co. v. People Against Nuclear Energy,

EWE AO A) tas FO CISD eckccascdinssoccapdsbanrceoeabeieisabonen i 2

Private Fuel Storage, L.L.C. (Independent Spent Fuel

Storage Installation), CLI-02-05, 56 N.R.C. 340 (2002) ..2,

Robertson v. Methow Valley Citizens Council, 490 U.S. 343

CEPI ED sissitncdssniousidesavaskdecdeatiateshinibiatantiaatanpatscsvensolabineses 4,5

Rodriguez v. United States, 480 U.S. 522 (1987)...........cc0008- 4

Scientists’ Institute for Public Information, Inc. v. AEC, 481

Pdi SOTSLOG, Oe: BOTY rcrcipetccséicsacvenss SEE SERRE 8

Sierra Club v. Lynn, 502 F.2d 43 (Sth Cir. 1974) .0.......csseeeoee 9

Suffolk Cty. Sec. of the Interior, 562 F.2d 1368 (2d Cir. 1977)

TABLE OF AUTHORITIES — (Cont'd)

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

SERS TPT D ciisicsbnioicdicnmbindaauilccbainidatliagsiinsouiseemssdneannsaedalnants 6

Weinberger v. Catholic Action of Haw., 454 U.S. 139 (1981)

Wilderness Soc'y v. Morton, 479 F.2d 842 (D.C. Cir. 1973) .8

STATUTES, RULES, AND REGULATIONS

Oe er ils: Ses AAO) vicicsirsistiipaincinisiaeitbsaetbuaaaranevceianaaibiesiiiih 8

TD Giclees Wb RUPEE saseicvnicniscerieeenivantebncinnchilaslaaaiatcasanseunail 5

PE i REE cocsernaveccvaidbopuieavonbilesinnetcbebieanitevioinnieriinne 5

BS ai ic s

SEU cake ics: Sb SOMITE cicdisinsactineniipeicdiies eadebiecocintnllatenitescebdanabcnioa 5

I Ar ee OF CA vicinatcoieecieaicevoeieinsninesosiehobennihisniboubiniecinis ll

A ade is Re sisiicsnniatias canines Daan Secession pdnindskpapimbeemioes 5

G3 Fed. Reg. S5045:(Oct. 29, 1996) ...........cvesvscesereessnescecsenes 10

G7 Fed. Rew. 19,600 (Apr. ZZ, ZO0Z) .ccciccceccnesoveosepesomverecsocesens 2

GS Fed. Rag. 4OR9S (Anag. 15, 2003S) oven ccccacscicnnsecnsnsoscressines 9

Exec. Order No. 11991, 3 CFR 123 (1978)..........ccccooccsoscossece 5

Federal Power Act, 16 U.S.C. § 791a et seq. .0............cccceeeeee 9

National Environmental Policy Act of 1969............. .... passim

TABLE OF AUTHORITIES — (Cont’d)

MISCELLANEOUS

Bradley C. Karkkainen, Whither NEPA? 12 N.Y.U. Envtl.

Silks teed aOR sis eis iraidcsaiens Seicatpsehaablladsiahccceninonemtasincdente 7

Daniel Ackman, Highway to Nowhere: NEPA,

Environmental Review and the Westway Case, 21 Colum.

Lik ae Soe, Pon. 525 CA iso in stcereseccn 7

Denis Binder, NEPA, NIMBYs and New Technology, 25 Land

and Water Law Review 11 (1990) .............ccceecceseeeesereeeees 7

Edward Abbey, The Monkey Wrench Gang (1975).............. 7

Frank B. Cross, The Judiciary and Public Choice, 50

SUES 1. 5. FOS CEG ate svecacounstlestabscsnssemncscpotavicenectetieiiieg 6

George W. Bush, The National Strategy for the Physical

Protection of Critical Infrastructures and Key Assets (Feb.

2003) at

http://www. whitehouse.gov/pcipb/physical_strategy.pdf 15

Homeland Security Advisory Council, Report of the Critical

Infrastructure Task Force (Jan. 2006) at

http://www.dhs.gov/xlibrary/assets/HSAC_CITF_Report_

DE resaniieh crc a cerisiasiinsoe asap adsnecesinsshdigadadaladiaiclnantadiatecniavioaal 15

James Dao, Environmental Groups to File Suit over Missile

Defense, N.Y. Times, Aug. 28, 2001, at A10.......00.0....0. 7

Jeffrey E. Garten, Homeland Security Could Really Shake Up

Business, Business Week, Sept. 2, 2002, at 24 ................ 15

Serge Taylor, Making Bureaucracies Think: The

Environmental! Impact Statement Strategy of

Administrative Reform (1984) .0.0..........ccccccsscssseseceeeeeeseeeees 4

Vii

TABLE OF AUTHORITIES — (Cont’d)

Stark Ackerman, Observations on the Transformation of the

Forest Service: The Effects of the National Environmental

Policy Act on U.S. Forest Service Decision Making, 20

SE Fi FD ye cicrstnteicnchiahescsiseeisnvaenisecaetotenonaions 7

U.S. Government Accountability Office, Critical

Infrastructure Protection: Progress Coordinating

Government and Private Sector Efforts Varies by Sector

Chemrncteristits (OG 200B is covccciiccarsetcinssniccesstsvianicdemmevebcen 15

INTEREST OF THE AMICUS CURIAE

The Chamber of Commerce of the United States of

America (“the Chamber”) is the world’s largest business fed-

eration, representing a membership of nearly three million

businesses and organizations of every size, in every industry

sector and geographical region of the country.’ A central

function of the Chamber is to represent the interests of its

members in important matters before the courts, Congress,

and the Executive Branch. To that end, the Chamber has

filed amicus briefs in numerous cases addressing issues of

vital concern to the Nation’s business community.

The National Environmental Policy Act of 1969

(“NEPA”) requires assessment of the potential environmental

impacts of every major federal agency action, including nu-

merous licensing proceedings and regulatory actions. Repre-

senting a business community which controls 85% of the na-

tion’s critical infrastructure, the Chamber has a substantial

interest in ensuring that NEPA’s scope is not erroneously ex-

tended to require agency analysis of the possible effects of

terrorist attacks, which could not reasonably be attributed to

the agency decisions that NEPA is designed to inform.

If the decision below were left undisturbed, members of

the Chamber would confront NEPA-related red-tape and end-

less litigation as they sought federal approval for, inter alia,

construction projects, subway systems, airports, waste treat-

ment facilities, oil refineries and chemical plants—all of

which could be subject to terrorist attacks. These projects are

' Pursuant to Rule 37.6, amicus states that this brief was not au-

thored in whole or in part by counsel for a party and that no person

or entity, other than the amicus curiae, its members, and its coun-

sel made a monetary contribution to its preparation and submis-

sion. The written consents of the parties to the filing of this brief

have been filed with the clerk.

vitally important to our economy and to.the stability of our

national infrastructure.

STATEMENT

Upon receipt of Petitioner Pacific Gas & Electric Com-

pany’s (“PG&E”) application for a license to store spent nu-

clear fuel in an independent spent fuel storage installation

(“ISFSI’), the Nuclear Regulatory Commission (“NRC”)

published a notice of opportunity for hearing on the applica-

tion. 67 Fed. Reg. 19,600 (Apr. 22, 2002). In petitioning to

intervene, Respondent San Luis Obispo Mothers for Peace

and its coalition (collectively “SLOMFP”) requested that the

Commission address the environmental consequences of a

terrorist attack on the planned storage facility. Pet. App. 69a.

On initial review, the Atomic Safety and Licensing Board

(“Board”) concluded that SLOMFP’s requests represented

improper challenges to the NRC’s security regulations. Ac-

cepting the referral from the Board, the NRC applied an in-

tervening precedent, Private Fuel Storage, L.L.C. (Independ-

ent Spent Fuel Storage Installation), CLI-Q2-05, 56 N.R.C.

340, 348-350 (2002), to the instant case. Pet. App. 42a. In

Private Fuel Storage, the NRC declined to interpret NEPA to

require consideration of a possible terrorist attack, for four

reasons:

e “The causal relationship between approving the

PFS 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.” Pet. App.

55a.

e “The horrors of September 11 notwithstanding, it

remains true that the likelihood of a terrorist at-

tack being directed at a particular nuclear facility

is not quantifiable.” /d.

e “NEPA does not call for a ‘worst-case’ inquiry[.]”

Pet. App. 58a.

e “The public aspect of NEPA processes conflicts

with the need to protect certain sensitive informa-

tion.” Pet. App. 62a.

Rejecting the NRC’s reliance on these sensible considera-

tions, Pet. App. 30a, the Ninth Circuit concluded that NEPA

required the NRC to assess the potential environmental ef-

fects of a terrorist attack on the proposed ISFSI. Relying

principally on NRC’s own ongoing security review of its

regulations and programs, the court concluded that the threat

was not “remote and highly speculative for NEPA purposes,”

Pet. App. 23a [internal quotation marks omitted], and that

“the NRC ha[d] not established that the risk of a terrorist at-

tack [was] unquantifiable.” Pet App. 26a. With respect to

limitations on public participation necessitated by informa-

tion-security requirements, the court found “no support for

the use of security concerns as an excuse from NEPA’s re-

quirements.” Pet App. 29a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit has imposed substantial and unneces-

sary costs on American business and undermined the ongo-

ing collaborative effort between the federal government and

the business community to safeguard critical infrastructure.

The Ninth Circuit misread NEPA’s laudatory objective of

ensuring that agencies consider impacts on the environment

to incorporate threat assessments of attacks on nuclear facili-

ties. That decision introduces significant redtape and the

prospect of endless litigation to a security process which de-

mands flexibility and alacrity. Other Circuits have opted for

a more modest approach which recognizes that NEPA does

not require agencies to address the consequences of random,

criminal behavior by independent actors. Immediate review

is warranted to resolve this split in the courts below.

~ ARGUMENT

I. THIS COURT’S REVIEW IS WARRANTED TO

ENSURE THAT NEPA REVIEW REMAINS FO-

CUSED ON ITS IMPORTANT PURPOSE OF

CONFIRMING THAT AGENCIES CONSIDER

THE ENVIRONMENTAL EFFECTS OF THEIR

DECISIONS AND IS NOT MISUSED TO DELAY

OR DERAIL IMPORTANT PROJECTS —

There is no question that NEPA serves important pur-

poses by requiring federal agencies to take a hard look at

likely environmental effects when deciding whether or how

to take particular actions. Every statute, however, has limita-

tions as well as purposes, and both must be observed in order

to implement Congress’s design. See Rodriguez v. United

States, 480 U.S. 522, 525-526 (1987) (per curiam). Here, the

Ninth Circuit has pushed NEPA well beyond proper limits, in

a ruling that invites just the sort of procedural abuse that has

unfortunately come to characterize much NEPA litigation.

A. As a Regulatory Accountability Statute, NEPA

Ensures that Agencies Consider the Environ-

mental Impacts of Their Actions

NEPA operates by “inject[ing] environmental considera-

tions into [a] federal agency's decisionmaking process.”

Weinberger v. Catholic Action of Haw., 454 U.S. 139, 143

(1981); see Robertson v. Methow Valley Citizens Council,

490 U.S. 343, 349 (1989). In that respect it has been a model

for other regulatory accountability statutes. See Serge Tay-

lor, Making Bureaucracies Think: The Environmental Im-

pact Statement Strategy of Administrative Reform 295

(1984) (describing use of impact statements to analyze infla-

tion, regulatory impact, competition, arms control, and ef-

fects on small business).

The present Council on Environmental Quality regula-

tions addressing NEPA review were issued in response to an

Executive Order directing the Council to “make the environ-

mental impact statement process more useful to decision-

makers and the public; and to reduce paperwork and the ac-

cumulation of extraneous background data, in order to em-

phasize the need to focus on real environmental issues and

alternatives.” Exec. Order No. 11991, 3 CFR 123 (1978)

(emphasis added). Even with that mandate, the CEQ regula-

tions contemplate an often lengthy process. First, the rele-

vant agency must determine whether there is any Categorical

Exclusion that removes the proposed action from the purview

of NEPA. 40 C.F.R. § 1508.4. If not, the agency must pre-

pare an environmental assessment (“EA”), which explores

whether the proposed action is likely to result in a significant

impact on the environment. 40 C.F.R. § 1508.9. If the

agency determines that no such impact will occur, it issues a

finding of no significant impact (“FONSI”). 40 C.F.R. §

1508.13. Otherwise, it must prepare an environmental im-

pact statement (“EIS”). 40 C.F.R. § 1502. To allow for pub-

lic participation, the regulations require a draft, a comment

period, and a final EIS that addresses comments received. 40

C.F.R. § 1502.9.

By requiring agencies to prepare an environmental as-

sessment or impact statement, the Act serves two central pur-

poses:

First, ‘[i]t ensures that the agency, in reaching the

decision, will have available, and will carefully con-

sider, detailed information concerning significant

environmental impacts.’ Second, it ‘guarantees that

the relevant information will be made available to

the larger audience that may also play a role in both

the decisionmaking process and the implementation

of that decision.’

Dep't of Transportation v. Public Citizen, 541 U.S. 752, 768

(2004) (quoting Robertson, 490 U.S. at 349 (1989)).

However, nothing in the statute (or its legislative history)

evidences any congressional intent to require agencies to

consider, in making their own decisions, the possible envi-

ronmental impacts of later criminal actions of third parties.

Nor do those materials evince any intention that NEPA re-

view serve as a vehicle for addressing issues of national secu-

rity or threat assessment.

B. Because NEPA Can Be Misused to Delay or De-

rail Important Projects, Courts Must Not Ex-

pand The Act’s Reach Beyond the Scope of Con-

gressional Intent

NEPA’s requirements are essentially procedural: ‘An

agency must take a “hard look” at potentially significant en-

vironmental effects of its proposed actions, but the Act does

not purport to control the agency’s ultimate choices. See,

e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 558 (1978). That procedural mandate has served

an important role in correcting a situation in which agencies

did not take sufficient account of environmental concerns.

Over time, however, both NEPA’s procedural require-

ments and, in particular, litigation challenging the adequacy

of an agency’s NEPA compliance have also become “noto-

rious for special interest abuse.” . Frank B. Cross, The Judici-

ary and Public Choice, 50 Hastings L. J. 355, 375 (1999).

An expansive judicial view of NEPA’s requirements, which

first shapes action at the administrative level and then plays

out in follow-on litigation, can introduce significant costs and

delay in obtaining agency action—costs and delay that are

too often the only real ends of those who use NEPA to im-

pose them.

One commentator describes the phenomenon as follows:

Delay buys time, which opponents can use to build

popular and political oppositien to the project. New

information may develop, partially through the dis-

closures of the NEPA statement. Inflationary pres-

sures, and other costs, could economically doom the

project during the delay. NEPA thereby became an

important means to the end: stopping the project.

Denis Binder, NEPA, NIMBYs and New Technology, 25 Land

and Water Law Review 11, 17 (1990). See also, e.g., James

Dao, Environmental Groups to File Suit over Missile De-

fense, N.Y. Times, Aug. 28, 2001, at A10 (reporting plain-

tiffs statement that “the hope is that [the NEPA-induced]

delay will lead to cancellation.... That’s what we always

hope for in these suits.”); Daniel Ackman, Highway to No-

where: NEPA, Environmental Review and the Westway

Case, 21 Colum. L.J. & Soc. Probs. 325 (1988). In other

words, NEPA can easily become a tool of those interested in

scuttling a project for any reason.

In this regard, “[t]he monkey wrencher ... places a high

value on NEPA because it affords extraordinary opportuni-

ties to throw up procedural roadblocks that may delay or kill

projects the monkey wrencher opposes.” Bradley C. Kark-

kainen, Whither NEPA? 12 N.Y.U. Envtl. L.J. 333, 339

(2004) (citing Edward Abbey, The Monkey Wrench Gang

(1975)). This misuse of NEPA imposes real costs, not only

on affected private parties but on the very agency decision-

making processes that NEPA was meant to enhance.

“{W]here appeals are brought against entire programs, or

simply to delay decisions, they can cause great time and re-

source drains on the agency and its decision making[.]”

Stark Ackerman, Observations on the Transformation of the

Forest Service: The Effects of the National Environmental

Policy Act on U.S. Forest Service Decision Making, 20 Envtl.

L. 703, 730 (1990).

None of this is an argument for refusing to enforce NEPA

in accordance with its terms. But the reality of NEPA abuse

is a powerful reason for this Court to ensure that judicial de-

cisions do not extend NEPA’s reach beyond what Congress

could ever have contemplated or intended. That is what the

Ninth Circuit has done here.

C. Because Of NEPA’s Broad Scope, The Ninth

Circuit’s Decision Will Likely Impose Serious

Risks And Delays On A Wide Variety Of Pro-

jects And Industries.

NEPA’s broad scope means that the potential impact of

the Ninth Circuit’s decision extends well beyond the nuclear

industry. NEPA applies by its terms to “major Federal ac-

tions significantly affecting the quality of the human envi-

ronment.” 42 U.S.C. § 4321; 40 C.F.R. § 1500.1(c). “Federal

action” has been defined expansively, to include circum-

stances where an agency acts on its own behalf, or approves a

lease of land on which the action will occur, or grants a per-

mit or license that authorizes the action, or uses federal mon-

ies to fund the action. See, e.g., Scientists’ Institute for Pub-

lic Information, Inc. v. AEC, 481 F.2d 1079, 1088-89 (D.C.

Cir. 1973). Thus, the scope of NEPA's application—and

therefore the impact of the Ninth Circuit's decision—is very

broad: any industry whose construction projects are routinely

subject to federal licensing and permitting, or which are fed-

erally funded, is within reach of this decision. Here are but a

few of countless possible examples:

e Oil, coal, and natural gas companies are affected

by NEPA when, for example, their mining and

exploration efforts occur on federal land or on

federal offshore waters. See, e.g., Cady v. Mor-

ton, 547 F.2d 786 (9th Cir. 1975) (coal); Suffolk

Cty. Sec. of the Interior, 562 F.2d 1368 (2d Cir.

1977) (oil and gas).

e Oil and other pipeline projects are brought within

NEPA to the extent that they require any federal

permits or rights-of-way across federal land. See,

e.g., Wilderness Soc'y v. Morton, 479 F.2d 842

(D.C. Cir. 1973) (describing the environmental

impact staternents filed in connection with the

Trans-Alaska Pipeline).

Natural gas pipeline projects are subject to NEPA

review by 15 U.S.C. § 717f(c)(1)(A), which pro-

hibits construction of most pipelines without first

obtaining a “certificate of public convenience and

necessity” from the Federal Energy Regulatory

Commission, and which therefore renders all such

construction a “federal action” for NEPA pu-

poses. See, e.g., Fuel Safe Washington v. Fed.

Energy Reg. Comm'n, 389 F.3d 1313, 1317-18

(10th Cir. 2004).

Oil, gas, and coal power projects are subject to

NEPA when funded in part by federal programs

such as (for example) the Clean Coal Power Ini-

tiative. See, e.g., Dep't of Energy, Notice of In-

tent to Prepare an Environmental Impact. State-

ment for the Colorado Springs Next-Generation

CFB Coal Generating Unit, Fountain, CO, 68

Fed. Reg. 48893 (Aug. 15, 2003).

Hydroelectric power projects and transmission

lines are subject to NEPA by virtue of the licens-

ing requirements of the Federal Power Act, 16

U.S.C. § 791a et seq.

Construction and infrastructure development

companies are subject to the act whenever their

projects involve the interstate highway system,

including road, bridge, and tunnel projects. See,

e.g., Arlington Coalition on Transp. v. Volpe, 458

F.2d 1323 (4th Cir. 1972).

Real estate developers and builders are affected

by the act through their involvement in projects

involving HUD or other federal financing, or

when they construct federal buildings. See, e.g.,

Sierra Club v. Lynn, 502 F.2d 43 (Sth Cir. 1974).

To be sure, there are some exceptions to the NEPA re-

gime. For example, agency actions pursuant to the Clean Air

Act, are by statute deemed not to constitute “major federal

actions” for NEPA purposes, 15 U.S.C. § 793(c)(1), although

the Environmental Protection Agency maintains a policy of

conducting “voluntary” NEPA reviews in some circum-

stances. See Notice of Policy and Procedures for Voluntary

Preparation of Nation Environmental Policy Act (NEPA)

Documents, 63 Fed. Reg. 58045 (Oct. 29, 1998).)

Even considering such exceptions, however, the broad

scope of federal funding, licensing, and permitting activity

brings within the NEPA framework an enormous number of

projects and industries that are potentially affected by the

Ninth Circuit’s decision.

Il. THE COURT SHOULD GRANT REVIEW TO

MAKE CLEAR THAT CRIMINAL ACTS OF

THIRD PARTIES ARE NOT WITHIN THE PUR-

VIEW OF NEPA

NEPA is intended to require agencies to think about the

foreseeable environmental consequences of their actions. It

was never intended to require them to consider the remotely

conceivable consequences of possible later actions by crimi-

nal third parties—or to turn agency environmental assess-

ments into terrorist threat assessments or assessments of the

nature or adequacy of national security arrangements. This

Court should grant review to rein in the Ninth Circuit’s de-

parture from the restrained approach to NEPA’s scope

adopted by this Court and other circuits and to avoid under-

mining the substantial existing collaboration between the

business community and the government that is designed to

protect the nation’s critical infrastructure through more ap-

propriate means.

A. The Ninth Circuit has Departed from _ this

Court’s Holdings that a Proposed Agency Action

Must be the Legally Relevant Cause of an Envi-

ronmental Effect in Order to Require NEPA Re-

view

The CEQ’s regulations articulate an important distinction

that has been adopted and clarified in this Court’s decisions.

Those regulations define the “effects” an agency must con-

sider under NEPA as follows:

‘Effects’ include:

(a) Direct effects, which are caused by the action

and occur at the same time and place.

(b) Indirect effects, which are caused by the action

and are later in time or farther removed in distance,

but are still reasonably foreseeable. Indirect effects

may include growth inducing effects and other ef-

fects related to induced changes in the pattern of

land use, population density or growth rate, and re-

lated effects on air and water and other natural sys-

tems, including ecosystems.

40 C.F.R. § 1508.8. Whether an effect is direct or indirect,

an agency must address it only if it would be “caused by” the

agency’s proposed action.

In Metropolitan Edison Co. v. People Against Nuclear

Energy, et al., 460 U.S. 766 (1983), and Public Citizen, this

Court emphasized that this causation test imposes real limits

on NEPA’s scope. In Metropolitan Edison, plaintiffs resid-

ing near a nuclear facility contended that NEPA required

consideration of their psychological harm caused by their

perception of the risk of a nuclear accident. Concerned that

recognizing such a claim “might [cause NEPA to] embrace

virtually any consequence of a governmental action[,]” 460

U.S. at 772, this Court held:

Our understanding of the congressional concerns

that led to the enactment of NEPA suggests that the

terms “environmental effect” and “environmental

impact” in § 102 be read to include a requirement of

a reasonably close causal relationship between a

change in the physical environment and the effect at

issue. This requirement is like the familiar doctrine

of proximate cause from tort law.

460 U.S. at 774 (emphasis added).

Two decades later, the Court returned to the principles of

legal causation in Public Citizen. In that case, the NEPA

process was invoked to require the Department of Transpor-

tation to evaluate whether its action to issue licenses for

cross-border trucking would lead to increased traffic from

Mexican truckers even though the decision to permit such

cross-border traffic had been made by the President in a prior

executive order enforcing commitments made pursuant to the

North American Free Trade Agreement. Reaffirming the ap-

proach outlined in Metropolitan Edison, this Court indicated

that

courts must look to the underlying policies or legis-

lative intent in order to draw a manageable line be-

tween those causal changes that may make an actor

responsible for an effect and those that do not.

541 U.S. at 767 (emphasis added) (quoting Metropolitan

Edison, 460 U.S. at 774 n.7). The Court then confirmed that,

“where an agency has no ability to prevent a certain effect

due to its limited statutory authority[,]” it cannot be “consid-

ered a legally relevant ‘cause’ of the effect.” 541 U.S. at

770.

In light of Metropolitan Edison and Public Citizen, this

Court should grant review to correct the Ninth Circuit’s erro-

neous holding that a federal agency’s action in licensing a

facility, or approving some other public or private project,

would be the “legally relevant cause” of environmental ef-

fects resulting from some later terrorist attack on the facility

or project.

B. Agencies Should Not be Required to Address the

Environmental Effects of the Random Criminal

Acts of Third Parties

Requiring an agency to make current decisions as though

it would be responsible for such remotely possible effects,

moreover, will not further NEPA’s purpose of requiring con-

sideration of the reasonably foreseeable environmental ef-

fects of the agency’s actions.

This point was made persuasively in the Nuclear Regula-

tory Commission’s Private Fuel Storage decision—the deci-

sion whose reasoning was rejected by the Ninth Circuit.

There, the NRC explained why it accounted for natural disas-

ters but declined to do so for the hypothetical terrorist attack:

The Commission evaluates the impacts of accidents

precipitated by natural events such as earthquakes,

hurricanes, and other severe storms. Unlike acts of

terrorism, such events are closely linked to the natu-

ral environment of the area within which a facility

will be located and are reasonably predictable by

examining weather patterns and geological data for

that region. We do not know of similar principles

that would permit reasonable prediction of an act of

terrorism against a particular facility. Terrorism is a

global issue, involving stochastic criminal behavior,

independent of the planned facility.

Pet. App. 49a-50a n.18.

That reasonable approach is consistent with this Court’s

decisions. Licensing of a particular nuclear facility will not

increase the general incidence of terrorism, which finds its

source in ideological struggles far afield from Diablo Can-

yon. Like the Department of Transportation in Public Citi-

zen, which did not have authority to prevent increased border

traffic, the NRC does not control, and cannot influence, the

terrorism variable. Moreover, addressing terrorist threats, or

appropriate countervailing security measures, as part of an

agency’s NEPA process would require that process to stray

well outside the proper bounds of NEPA analysis. and into

areas covered by other processes, other statutes, or other

agencies. That approach, embraced by the Ninth Circuit, dis-

torts NEPA past all recognition. As the D.C. Circuit put it in

Glass Packaging Inst., et al. v. Regan, it is most unlikely that

“Congress fashioned NEPA as an administrative incarnation

of the policeman’s squad car, roving the streets in search of

sporadic criminal activity which may occasionally occur in

the aftermath of an agency action, there to arrest the criminal

in the name of ‘environmental protection.’” 737 F.2d 1083,

1092 (D.C. Cir. 1984)

C. The Ninth Circuit’s Departure From the Proper

Approach Employed by Other Circuits Will Un-

dermine Cooperative Efforts by Businesses and

the Government to Safeguard Critical Infra-

structure from Terrorist Attack

The petition demonstrates how the Ninth Circuit’s deci-

sion in this case conflicts with the decisions of other circuits.

Pet. 9-18, 21-24. Those courts have deferred to reasonable

agency decisions that give NEPA full effect, but within

proper bounds. That more modest approach allows agencies

to proceed with a wide range of decisions affecting public or

private projects that could be subject to terrorist attack, with-

out becoming entangled in administrative consideration of

extraneous and speculative questions, and without having

those same questions then made the subject of burdensome

NEPA litigation. This Court should grant review to address

the conflict in the decisions and restore agencies’ ability to

act without undue delay or expense on projects of all types

throughout the Ninth Circuit.

This Court’s review is especially important in light of the

many cooperative efforts by government and business since

September 11, 2001, to minimize the risk of, and potential

harm from, further terrorist attacks. See, e.g., George W.

Bush, The National Strategy for the Physical Protection of

Critical Infrastructures and Key Assets (Feb. 2003) at

http://www. whitehouse.gov/pcipb/physical_strategy.pdf;

Homeland Security Advisory Council, Report of the Critical

Infrastructure Task Force (Jan. 2006) at

http://www.dhs.gov/xlibrary/assets/HSAC CITF_Report_v2.

pdf. With private enterprise controlling roughly 85% of the

nation’s critical infrastructure, see U.S. Government Ac-

countability Office, Critical Infrastructure Protection: Pro-

' gress Coordinating Government and Private Sector Efforts

Varies by Sector Characteristics (Oct. 2006), this cooperation

is essential. See Jeffrey E. Garten, Homeland Security Could

Really Shake Up Business, Business Week, Sept. 2, 2002, at

24 (explaining that current “challenge ... require[s] a level of

public-private cooperation not seen for decades”). By im-

properly introducing additional NEPA-related costs and de-

lay into the process of making agency decisions relating to

any activity or project potentially subject to terrorist attack,

the Ninth Circuit’s decision will interfere with that collabora-

tive effort throughout the court’s jurisdiction—and perhaps

in other Circuits, where the decision will be cited as new and

persuasive authority. As explained above, moreover, that

decision will likely affect an enormous number of building

and other projects and many different industries.

The Chamber fully supports proper enforcement of

NEPA’s requirement that federal agencies consider the rea-

sonably foreseeable environmental impacts of agency ac-

tions. The Ninth Circuit’s decision however, strays well be-

yond the proper bounds of NEPA, requiring consideration of

remotely possible effects of later criminal actions by third

parties. That requirement will do nothing to advance

NEPA’s real purposes, but it will add delay, expense, and

litigation to agency decision-making that is critical to effec-

tive public-private cooperation not only in the nuclear power

field but in many other areas in which the Chamber’s mem-

bers operate. This Court should grant review and reverse.

CONCLUSION

The Petition for a-Writ of Certiorari should be granted.

Respectfully submitted.