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

IN THE

Supreme Court of the United States

PACIFIC GAS & ELECTRIC Co.,

Petitioner,

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

BRIEF FOR THE NUCLEAR ENERGY INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ELLEN C. GINSBERG SETH P. WAXMAN

MICHAEL A. BAUSER Counsel of Record

NUCLEAR ENERGY EDWARD C. DUMONT

INSTITUTE SAMBHAV N. SANKAR

1776 I Street, N.W. WILMER CUTLER PICKERING

Washington, D.C. 20006 HALE AND DORR LLP

(202) 739-8000 1875 Pennsylvania Ave., N.W.

Washington, D.C. 20037

(202) 663-6000

TABLE OF CONTENTS

Page

See GE AUTOR eB cccecsnssseserersincoevssorssvavsnansecebicsstahiveh ili

INTEREST OF AMICUS CURITAB .....0.......essssscecesecceceressrees 1

INTRODUCTION AND SUMMARY OF ARGU-

SURED GTi siibsarcesiiciceuthnsiibeipiieglilbactaiicaiibnaanbagicliieiadciueihacas telomere 2

STRAIT RITES sthiniinincininnesinicisitiesoestidliabaiissimnteabeinpaiiiiiantia cad 3

I. THIS COURT HAS RECOGNIZED IMPORTANT

LIMITS ON THE SCOPE OF NEPA ANALYSIS...........s00000 3

‘II. ENVIRONMENTAL EFFECTS THAT MIGHT BE

CAUSED BY A TERRORIST ATTACK ON A LI-

CENSED FACILITY ARE NOT ATTRIBUTABLE

TO THE NRC FOR NEPA PURPOSES...........-ecesescesesceeee 4

III. NEPA REVIEW OF THE ENVIRONMENTAL

IMPACTS OF POSSIBLE TERRORIST ATTACKS

WOULD ENHANCE NEITHER THE NRC’S

COMPREHENSIVE REGULATION OF FACILITY

SECURITY NOR ITS CONSIDERATION OF EN-

VERONA T AL, CO i asssicisncicccdncinitsaborehivacsicssobinsieseuis 6

A. The NRC Administers A Stringent Regu-

latory Regime Governing The Steps All

Licensees Must Take To Secure Plants Or

pO, Fae FP UGINOO baiicctisciscknincsiesicspcceansicadbsilcabitasinansicns sy

B. Since September 11, 2001, The NRC And

The Nuclear Industry Have Redoubled

Their Efforts To Secure Licensed Facili-

ties From Terrorist Attack ...........ccccccccscsccccscocceesers 11

C. The NRC’s Licensing Procedures Ensure

Compliance With Security Regulations

And Mandate Consideration Of Reasona-

bly Foreseeable Environmental Impacts............... 12

ii

TABLE OF CONTENTS—Continued

Page

D. Considering Possible Environmental Im-

pacts Of An Attack During Licensing Pro-

ceedings Would Not Improve Plant Secu-

rity Or The NRC’s NEPA AnnalySis ............csssses0e 14

IV. THE COURT SHOULD GRANT CERTIORARI AND

REVERSE BECAUSE THE NINTH CIRCUIT'S

DECISION WILL IMPEDE NUCLEAR LICENS-

BE FE ie CEE Ey Fie i ccsevecevecevscosencenscsensnveevenonsesnnsvoness 16

ais iiacinbintsisiinoniniveonaiimnrrsdinecinnniicinintentts 20

TABLE OF AUTHORITIES

CASES

Page(s)

Aberdeen & Rockfish Railroad Co. v. SCRAP,

Re Sis ee CR Te acs nsecncientccinecentaitncinninpamietiiainniiin 16

Citizens Awareness Network, Inc. v. Nuclear Regu-

latory Commission, 59 F.3d-284 (1st Cir. 1995)............ 13

City of New York v. Department of Transportation,

TES Fe Fee Cr ey Di Ricicctcneccineviiniictionniitianinnsinianiviinans 5

Department of Transportation v. Public Citizen,

541 U.S. 752 (2004)............ seiunipiciheesionepniblieaubahinniapes 3, 4, 6, 16

Glass Packaging Institute v. Regan, 737 F.2d 1083

CS Ps Rae eicintisnciscnintinsecctlialepcacgcniontiedaimsiiedeniepate 5, 16

Limerick Ecology Action v. Nuclear Regulatory

Commission, 869 F.2d 719 (3d Cir. 1989) ..............scccscsseee 5

Metropolitan Edison Co. v. People Against Nu-

clear Energy, 460 U.S. 766 (1983).......csccssssceeceerencereees 3, 5

Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2d Cir.

SD scsiiciceanciivvcsivsisiliianiretciniiieniebiedainiatieaiphitecaiaeguasleibiinas 11,12

Tri Valley Cares v. Department of Energy, No. 04-

17232, 2006 WL 2971651 (9th Cir. Oct. 16, 2006)..... 17, 18

AGENCY DECISIONS

Entergy Nuclear Vermont Yankee & Energy Nu-

clear Operations, Inc., LBP-06-20, Memoran-

dum and Order (NRC Sept. 22, 2006) ............:sssssecsseseees 17

Entergy Nuclear Operations, Nos. 50-003, 50-247, &

OG Cee POG. Tk, i iccctititnnsnninitniiecevcinivncnciecintcnessinnniet 11

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

Fuel Storage Installation), CLI-02-25,

OE BAF OO CI aicccerceseesenintstsnsonncibictancinnsiianes 5, 11,12

Record of Decision for the Construction and Opera-

tion of an ISFSI on the Reservation of the

Skull Valley Band of Goshute Indians in

Tooele County, Utah (BIA Sept. 7, 2006).............ccsceeee 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Request for Admission of Late-Filed Environ-

mental Contention, In re System Energy Re-

sources Inc., No. 52-009-ESP (NRC Oct. 12,

OPT cccicctishitinseciccienlialnte iia heap abaiitduinteiniliiletiiitelotaienees 17

STATUTES AND REGULATIONS |

DUE Be BI evitciinspieilinenltisticscntibinistepitiininiaaiomeniiasiienmocsin 13

Atomic Energy Act of 1954, Pub. L. No. 88-703,

68 Stat. 936 (codified at 42 U.S.C. §§ 2011 et seq.).......:..... 7

Oe Seale We Sr Reciccsesaspstobita thcaiapnecinaiehcletihaatenedebiideliabageabectiomsiiion 7

Se Be re ene vscinsbahapeienhiashcicnhacentctiiniindgesiiesiniianininliptieniantiinn 7

A aia asa IE bpaccccdaciesdatliheesiphcaiebncsiapaestaacbanlsca ata oh 8

ET A ee i iscpniitehanttanecininsneiaeciaiacenirechpesnieaie 7

eR Be esi saesiiciaiivnsciicicepisiibedavcentnnaniuiitiagi eeviay Se

10 C.F.R.

OG Ce Nia sisciiisitesscerinnteitnsticcincssitecininibntieidetibialagemciendies 13

BANE soiindiesincieanspaneahctatacinciacibonavesidasealaneipclestoaisieninaiick 15

Oe cscssteicicsbinadencceaccetaicacimmsnlcsediieUieiacianiceaiiiiaidataiiais 13

ee Oe I inc ccccetiesncnsiuscicnetindiipicsaaiocntdelbdbinipiaasone 13

BU sidiieeissscvnstesenicssebesshobivseedpeitibetiiladaaianin sas conddbaieslalans 13

Bs See soi iaidacinatcinscasdiasininidinaeriseinndicsedatatuaessalisnasiteicadulasinians 13

eee tia ircssonsniinpeibinbitiacsentcatennahanliclaeatainiidiahiganatcas 13

Date siisiiesasinhscinscchcasnah ieaearhhaeebdhicibaiaagpctoapanbdouincnhetiniatestibaclis 13

BP BRAC tie OMA EE EE OT CRN ES 14

AN cccibiiiassnscceahesiahlaciclciglabbivsinsedniitiaiaivacaiceia-sohinili 16

OF AES seca iescsilaesiesastshdibdenebaentinssbtiidiadiannceiahaaceiealasiiucgasa 16

SF IUE as daisedasistainiaditesnbiithdsnitinuittcrsdeicheospduiticbeicimisdsiniansiebesicaslan 19

OF UN aiaspaisicckaniiaseigeiipininsaheininiieciaibeaventebintieonantadicnsetbaae 14

ae ceiinsinechaisctcticimiassieipisisnesleediaaitniaianisantaltdeinites diene 19

OF Ck scebedectesiecsahace inkasescnsanaiibitcalaghcnatipaaeaaitbsadinsladobn tiesccactesaiiusiodaias 16

Sy aI snlissasiinchacdiiantesphiahiohtinidaiacinaianaheaiitveisibatinbunensipinileenstiniinies 9

Tar: sciccshniciceieihachcehliidilnictgichddsseecetiescnaessbitieh detent 9

PIII Ub cnssiahecachcoliacccteasgiih dill cohcoaahaledsiiatiualiga iia 8

BE eic BAIA. Be isccciiicciomineciapiiaicnienipeiscniinincencapsccanipitistinlaiiunsoaiel 9

OF FAIA snuintsicsviacsiesninicssuielipistiisiusiiivitainiondintespipesiinacandpapandebiviiaii 8,9

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

FTIR ivscinceinneiicsaiasa baciasdelcuanisebabeatnlenltehpluigsbbcciatiniasaliaabiotcs 9

FPO ibis iiindbadihdineesabssashicudadiabdcisdivsssbiaibgeavicanasediaisebaioed 9, 10

Final Rule, Requirements for the Physical Protec-

tion of Nuclear Power Reactors, 42 Fed. Reg.

SO CF OR, BO EO ancisetsnsintassctciecetccctenibcprnicdadpstcctiaieiécess 8

National Environmental Policy Act Regulations,

50 Fed. Reg. 32,234 (proposed Aug. 9, 1985)...........000 16

Interim Compensatory Measures Order,

GT Fed. Reg, 0792 (Mar. 4, Z00Z) ....ccccosceresocesponesvosetoneneses 11

Order Modifying Licenses, 67 Fed. Reg. 65,150

Gs eee BED chderdbidouncsuistichecindacmuedivcctntbatsasteagoascpetbonouatationtios 11

Order Modifying Licenses, 67 Fed. Reg. 65,152

RS Ba, EE aicsctcrmssevichctinpsehietbihssrkarnekbiececsabchacastasinighisias 11

Access Authorization Order, 68 Fed. Reg. 1643

SIE Ta OE eiicncdeibanderceiasseloisiandhesincbsindasdhagisiitbisisuimeadbeccculsisebhigi 11

Security Personnel Training and Qualification Re-

quirements Order, 68 Fed. Reg. 24,514 (May 7,

MP iisisilsisikcoidasinihilindrsasiieidtivaseitapiiaatssedaiguadeiebiabcnisaiiaenibvasves 11

Revised Design Basis Threat Order, 68 Fed. Reg.

BADE COMM C5 SN) pskuksteadsiterticadinsvtadinnddapicaosssncsdonennieiiedeces 11

Power Reactor Security Requirements, 71 Fed.

Reg. 62,664 (proposed Oct. 26, 2006)............:ssesseereesreeee 12

OTHER AUTHORITIES

Environmental Assessment Related to the Con-

struction and Operation of the Diablo Canyon

FF Oe Cs SPO) siisiisaclileamlpostanisesitcepbldecsccsuabiatotinioes 14

Mandelker, Daniel R., NEPA Law and Litigation

Fe Ricisidistinncusnsiicssdhnuiasbsoiniondssieaiisnasetmditabiecedent 16

National Energy Policy Development Group, Reli-

able, Affordable, and Environmentally Sound

Energy for America’s Future: Report of the

National Energy Policy Development Group

vi

TABLE OF AUTHORITIES—Continued

North American Electric Reliability Council, 2006

Long-Term Reliability Assessment: The Reli-

ability of the Bulk Power Systems in North

Pena CE, TG asin icicccinniseteide saivecststehecttncoincitcerin

Nuclear Regulatory Commission, Backgrounder on

Force-on-Force Exercises at Nuclear Power

Plants, at http://www.nrc.gov/reading-rm/doc-

collections/fact-sheets/force-on-force.html (last

modified September 12, 2005) ...........csscssecssecssseeeess

Nuclear Regulatory Commission, Frequently Asked

Questions About Force-on-Force Security Ex-

ercises at Nuclear Power Plants, at http://

www.nrec.gov/what-we-do/safeguards/faq-force-

on-force.html (last modified May 8, 2006)..............

Nuclear Regulatory Commission, Reactor License

Renewal, at http//www.nrc.gov/reactors/operating

flicensing/renewal.html (last modified June 8,

Petition for Intervention, Jn re Southern Nuclear

Operating Co. Early Site Permit for Plant

Vogtle ESP Site, No. 52-011 (NRC Dec. 11,

2006), available at http://www.cleanenergy.org/

pdf/V ogtlePetition121106.pdf.............sccscecseceseseeees

Page(s)

voce 18

IN THE

Supreme Court of the United States

No. 06-466

PACIFIC GAS & ELECTRIC Co.,

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

INTEREST OF AMICUS CURIAE

The Nuclear Energy Institute (NEI) represents the

commercial nuclear energy industry on regulatory matters.’

NEI’s members include every entity licensed by the Nuclear

Regulatory Commission to generate electricity at a commer-

cial nuclear power plant or to store used commercial nuclear

fuel in the United States. Members also include nuclear

plant designers, major architecture and engineering firms,

fuel fabrication facilities, and other organizations and indi-

viduals involved in the nuclear energy industry. The Ninth

Circuit’s decision in this case will affect licensing proceed-

ings for every existing and proposed nuclear power plant

and fuel storage facility in the United States. NEI and its

‘ No counsel for a party authored this brief in whole or in part. No

person or entity other than NEI, its members, or its counsel, made any

monetary contribution to the preparation or submission of this brief. Let-

ters from all parties consenting to the filing of this brief have been sub-

mitted to the Clerk.

2

members have an interest in ensuring that the National En-

vironmental Policy Act and the Atomic Energy Act are in-

terpreted and implemented together in a correct and sensi-

ble manner that protects the public and the environment

without pointless delay and expense.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Ninth Circuit has held that the National Environ-

mental Policy Act (NEPA) requires the Nuclear Regulatory

Commission (NRC) to consider the environmental conse-

quences of potential terrorist sabotage before licensing the

construction and operation of an Independent Spent Fuel

Storage Installation (ISFSI) at an existing nuclear power

plant. That decision departs from the approach taken by

this Court and by other courts of appeals in construing the

scope of NEPA. It also defies NEPA’s “rule of reason” by

imposing substantial burdens on the licensing process with-

out improving either the physical security of licensed facili-

ties or the NRC’s consideration of reasonably foreseeable

environmental impacts of license approval.

The NRC already defines stringent security require-

ments for nuclear facilities through other statutory and ad-

ministrative procedures. It enforces those requirements,

and thoroughly considers the reasonably foreseeable envi-

ronmental impacts of licensing decisions, during the process

of licensing any nuclear power plant or ISFSI. The Ninth

Circuit’s decision will add nothing positive to that process.

It will, however, add delay and expense, as is clear from de-

velopments in other proceedings even in the short time since

the court of appeals’ decision. This will burden the efforts of

the nuclear power industry and the federal government to

fill the widening gap between the demand for power and

domestic energy resources. Particularly in light of the criti-

cal importance of nuclear power to the Nation’s long-term

energy security, and the large number of license applications

now pending or expected to be filed with the NRC in the

near future, the Ninth Circuit’s decision warrants review

and reversal by this Court.

3

ARGUMENT

I. THis CourT HAS RECOGNIZED IMPORTANT LimITs ON THE

SCoPE OF NEPA ANALYSIS

As the petition explains (Pet. 9-14), this Court’s deci-

sions in Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983), and Department of Transporta-

tion v. Public Citizen, 541 U.S. 752 (2004), make clear that

NEPA should not be construed to force agencies to consider

environmental impacts for which they cannot reasonably be

held responsible. Nor should NEPA be construed to require

agencies to perform analyses that would not, under the cir-

cumstances, meaningfully inform agency decisions about

whether or how to take a particular action.

In Metropolitan Edison, the Court held that NEPA did

not require the NRC to consider the “severe psychological

distress” that local residents might suffer if a nuclear plant

resumed operations, even though relicensing the plant would

be a “but-for” cause of any such distress. 460 U.S. at 774.

The Court explained that “[t]ime and resources are simply

too limited” for Congress to have intended to extend NEPA

to cover every conceivable impact of an agency’s decision.

Id. at 776. Instead, the Court recognized that NEPA’s un-

derlying policies and Congress’s intent limit the Act’s scope

in a manner it characterized as similar to “the familiar doc-

trine of proximate cause from tort law.” Jd. at 774 & n.7.

Apply:ng that limitation, the Court found the causal rela-

tionshiy between the federal action at issue, an ensuing

change in the physical environment, and the feared distress

of residents “too attenuated” to make the NRC potentially

“responsible for [the feared] effect” in a way that required

NEPA analysis. Id. The residents’ claim “lengthen[ed] the

causal chain beyond the reach of NEPA.” Id. at 775.

In Public Citizen, the Court again recognized common-

sense limitations on the scope of NEPA. The President an-

nounced that he would lift a ban on cross-border operations

by Mexican motor carriers, subject to the promulgation of

safety regulations by the Federal Motor Carrier Safety Ad-

ministration (FMCSA). The FMCSA’s NEPA assessment

4

considered the increased emissions and noise that would re-

sult directly from the inspection regime to be established by

the regulations, but not environmental consequences that

might be caused by the increased cross-border traffic itself.

The agency reasoned that those consequences resulted from

the President’s decision to permit the traffic, not from the

agency’s safety regulations. 541 U.S. at 761.

This Court agreed. Although the regulations were nec-

essary to permit the cross-border traffic, and would inevita-

bly trigger any environmental effects of that traffic, that

was “insufficient to make [the FMCSA] responsible for

[those] effect[s] under NEPA.” 541 U.S. at 767. Moreover,

while NEPA aims to ensure that agencies consider informa-

tion about potential environmental effects before deciding

whether and how to take a particular action, and to facilitate

public participation in that consideration, those purposes

also serve to limit the statute’s reach:

[Ijnherent in NEPA and its implementing regula-

tions is a “rule of reason,” which ensures that agen-

cies determine whether and to what extent to pre-

pare an [Environmental Impact Statement (EIS)]

based on the usefulness of any new potential infor-

mation to the decisionmaking process. Where the

preparation of an EIS would serve “no purpose” in

light of NEPA’s regulatory scheme as a whole, no

rule of reason worthy of that title would require an

agency to prepare an EIS.

Id. at 767-768 (citations omitted).

II. ENVIRONMENTAL EFFECTS THAT MIGHT BE CAUSED BY A

TERRORIST ATTACK ON A LICENSED FACILITY ARZ Not AT-

TRIBUTABLE TO THE NRC For NEPA PURPOSES

Public Citizen and Metropolitan Edison recognize that

Congress intended NEPA to require federal agencies to

consider only those environmental impacts for which their

proposed action would be a reasonably proximate cause. In

this case, the Ninth Circuit failed to recognize that, as the

NRC reasonably concluded, environmental harm that might

5

be caused by a terrorist attack on a federally-licensed nu-

clear facility is not the sort of potential environmental effect

that could reasonably be viewed as a proximate result of the

NRC’s licensing decision. See Pet. App. 38a-40a (citing Pri-

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

Installation), CLI-02-25, 56 N.R.C. 340, 349 (2002)); see also

City of New York v. Department of Transp., 715 F.2d 732,

750 (2d Cir. 1983) (“With respect to environmental conse-

quences that are only remote possibilities, an agency must

be given some latitude to decide what sorts of risks it will

assess.”).

Unlike the Ninth Circuit in this case, other courts of ap-

peals have read NEPA to ensure that agencies remain fo-

cused on reasonably direct environmental impacts of pro-

posed actions. For example, when the Bureau of Alcohol,

Tobacco, and Firearms decided to permit the sale of alcohol

in plastic bottles, the D.C. Circuit rejected a claim that

NEPA required the Bureau to consider the human health

effects that might ensue if a malevolent or deranged third

party injected poisons through the plastic. Glass Packaging

Inst. v. Regan, 737 F.2d 1083, 1091 (D.C. Cir. 1984). The

court reasoned even if an agency action might result in “rea-

sonably foreseeable” criminal acts, that is not sufficient to

require the agency to consider the environmental impacts of

those acts under NEPA. Id. The court explained that

stretching NEPA’s scope to such extremes would ultimately

interfere with agencies’ ability to consider the potential envi-

ronmental impacts that are more realistically related to a

proposed action. “The policies served by NEPA are too im-

portant to be diluted” by over-reading its requirements. /d.

(citing Metropolitan Edison, 460 U.S. at 775-776). Similarly,

in City of New York v. Department of Transportation, the

Second Circuit upheld an agency’s determination that the

risk of sabotage directed against highway transportation of

radioactive materials was “too far afield for consideration.”

715 F.2d at 750; see also Limerick Ecology Action v. Nu-

clear Regulatory Comm'n, 869 F.2d 719, 743 (3d Cir. 1989)

6

(NRC did not act arbitrarily and capriciously in deciding not

to evaluate the risk of sabotage in an EIS).

The Ninth Circuit has departed sharply from this ap-

proach by holding that NEPA requires the NRC to consider

the possible environmental effects of a terrorist attack in

deciding whether to license a nuclear facility. The existence

or operation of a facility is no more than a “but-for” cause of

any possible attack upon the facility, and thus of the attack’s

environmental effects. Such “a ‘but for’ causal relationship is

insufficient to make an agency responsible for a particular

effect under NEPA,” Public Citizen, 541 U.S. at 767. The

Ninth Circuit erred in failing to recognize that, for NEPA

purposes, the “legally relevant cause,” id. at 769, of the envi-

ronmental effects of terrorist sabotage at a nuclear facility

would be the acts of the terrorists—not the licensing deci-

sion made by the NRC. The resulting conflict among the

Ninth, Second, and D.C. Circuits in their approach to this

issue warrants resolution by this Court.

Ill. NEPA REVIEW OF THE ENVIRONMENTAL IMPACTS OF POSSI-

BLE TERRORIST ATTACKS WOULD ENHANCE NEITHER THE

NRC’s COMPREHENSIVE REGULATION OF FACILITY SECURITY

NOR ITS CONSIDERATION OF ENVIRONMENTAL CONCERNS

In addition to misinterpreting the scope of impacts that

NEPA requires agencies to consider, the Ninth Circuit’s de-

cision also betrays NEPA’s “rule of reason.” Public Citizen,

541 U.S. at 767. As explained below, Congress and the NRC

have addressed the need for security at nuclear power facili-

ties through comprehensive statutory and regulatory

schemes. The NRC sets security standards based on a care-

ful and sophisticated threat assessment that assumes the

existence of a well-equipped terrorist force. See Part III.A.

It encourages public notice and comment on those standards,

id., and has acted to update them since the attacks of Sep-

tember 11, 2001, see Part III.B. Finally, rigorous review

during the licensing process ensures both that proposed fa-

cilities will comply with the applicable security standards

and that a thorough evaluation of reasonably foreseeable

environmental impacts has been conducted. See Part ITI.C.

7

Because the NRC’s regulations comprehensively ad-

dress security at nuclear power facilities and already require

consideration of the possible environmental impacts of un-

toward events that could cause releases of nuclear material

or radiation, requiring the NRC and licensees to undertake a

separate analysis of the environmental consequences of pos-

sible terrorist attacks will not improve either security or the

NRC’s consideration of environmental impacts proximately

caused by the licensing decision. Under the “rule of reason,”

NEPA does not require the NRC to undertake such a point-

less analysis. See Part III.D.

A. The NRC Administers A Stringent Regulatory Re-

gime Governing The Steps All Licensees Must

Take To Secure Plants Or Spent Fuel Facilities

Under the Atomic Energy Act of 1954 (AEA), Pub. L.

No. 83-703, 68 Stat. 936 (codified at 42 U.S.C. §§ 2011 et seq.),

“no license may be issued to any person within the United

States if, in the opinion of the Commission, the issuance of a

license to such person would be inimical to the common de-

fense and security or to the health and safety of the public.”

42 U.S.C. § 2133(d). As a result, in its licensing decisions the

NRC is required not only to consider public health and

safety, but specifically to ensure the physical security of li-

censed facilities. For example, the Commission is authorized

to:

[Establish by rule, regulation or order, such stan-

dards and instructions to govern the possession and

use of special nuclear material, source material, and

byproduct material as the Commission may deem

necessary or desirable to promote the common de-

fense and security[.]

42 U.S.C. § 2201. Other provisions of the Act require the

NRC to:

e Establish minimum criteria for the issuance of

licenses for the distribution of “special nuclear

material,” 42 U.S.C. § 2014, such as fuel or

spent fuel, depending on the degree of impor-

8

tance to the common defense and security or to

public health and safety.

e Promulgate regulations or issue orders to

“prohibit the unauthorized disclosure of safe-

guards information,” including information

concerning plans, procedures and equipment tc

ensure the security of special nuclear materi-

als. Id. § 2167.

e Prohibit disclosure of information concerning

the location and safeguards of power plant

equipment vital to the safety of special nuclear

material and byproduct materials. Jd.

To comply with the AEA’s requirements, the NRC has

created a sophisticated and continually evolving regulatory

framework to ensure the physical security of nuclear facili-

ties. That framework includes, for example, 10 C.F.R. Part

73, entitled “Physical Protection of Plants and Materials,”

which is exclusively devoted to nuclear security issues, in-

cluding those at licensed installations such as nuclear power

plants and ISFSIs. See Final Rule, Requirements for the

Physical Protection of Nuclear Power Reactors, 42 Fed.

Reg. 10,838 (Feb. 24, 1977).

Part 73 spans 75 pages in the Code of Federal Regula-

tions. It requires licensed operators of power plants,

ISFSIs, and other “fixed sites” to establish and maintain a

comprehensive physical protection system to protect against

sabotage. The NRC’s basic approach is to identify the “de-

sign basis threat” and then to require such facilities to be

protected against that threat. See 10 C.F.R. § 73.1. Al-

though Part 73 does not disclose the non-public assumptions

underlying the design basis threat, it does explain the

threat’s general contours. Nuclear facility licensees gov-

erned by Part 73 must assume that they will suffer “deter-

mined violent external assault, attack by stealth, or decep-

tive actions” by several persons who are “well-trained (in-

cluding military training and skills) and dedicated.” Id.

§ 73.1(a)(1iA). They must expect the attackers will have

inside assistance from “a knowledgeable individual” who

9

will provide information, facilitate entry and exit, disable

alarms and internal communications, and offer violent sup-

port for the attack. Jd. § 73.1(a)(1)(i)(B). The attackers are

assumed to have: “hand-held automatic weapons, equipped

with silencers and having effective long range accuracy”;

“incapacitating agents and explosives” for use in gaining en-

try to or sabotaging the plant or for destroying fuel con-

tainer integrity; and even, in the case of an attack on a

power plant, a “four-wheel drive land vehicle bomb.” Id.

§§ 73.1(a)(1)(iii), 73.1(a)(2)(i)(C)-(E).

To defend against such attacks, Part 73 requires a licen-

see to “establish and maintain an onsite physical protection

system and security organization” to ensure that its opera-

tions “are not inimical to the common defense and security

and do not constitute an unreasonable risk to the public

health and safety.” Id. § 73.55(a).? Section 73.55 goes on to

specify the nature of that system in meticulous detail, re-

quiring that it include, among other things:

¢ A guard force comprised of individuals whose

fitness, marksmanship abilities, armament and

training are the subject of a dedicated 13-page

Appendix to the regulation. Id. App. B.

e Multiple layers of “physical barriers” that cre-

ate illuminated “isolation zones” where people

can be observed and evaluated in the event of

any plant penetration. Id. § 73.55(c).

? Section 73.55 applies to nuclear power plants and, with minor ex-

ceptions, to ISFSIs operating under the “general license” provisions of 10

C.F.R. § 72.212. See 10 C.F.R. § 72.212(b)(5). ISFSIs that operate under a

site-specific: license, such as the one specifically at issue in this case, must

satisfy security requirements specified in 10 C.F.R. § 73.51. See id.

§ 72.182. Section 73.51 similarly requires licensees to “establish and main-

tain a physical protection system” that will ensure that their activities do

not pose an “unreasonable risk to public health and safety,” and contains

detailed requirements concerning physical barriers, illuminated isolation

zones, alarm systems, and guard forces and their qualifications. The

Ninth Circuit’s decision would apply to all NRC licensing proceedings.

10

e Bullet-resistant doors, ceilings, floors, and

walls in crucial control areas. Id.

e Detection systems capable of ferreting out

firearms and explosives, supervised by indi-

viduals in a bullet-resistant observation post.

Id. § 73.55(d).

The NRC does more than just specify required security

measures. To assess security at nuclear power plants, it

conducts “force-on-force” exercises designed to test the ef-

fectiveness of those measures.’ A force-on-force inspection

uses both a table-top drill and a realistically simulated com-

mando-style live attack on the licensee’s facility to probe for

security deficiencies.‘ In the simulation, a mock adversary

force attacks the facility, emulating the behavior of a group

trying to damage the reactor’s core or spent fuel pool and

thereby release radiation to the environment. The attacking

force uses simulated weapons and explosives to ensure the

most rigorous test possible of the licensee’s security meas-

ures. These performance-based inspections—unique among

federal regulatory programs that cover commercial indus-

tries—verify that a power plant’s physical features (such as

fences, walls and other barriers), security devices (such as

alarms and detection equipment), and guard forces can pro-

tect its facilities, and ensure that the possibility of an attack

does not create an unreasonable risk to public health or

safety.

As the NRC has concluded, by virtue of these and other

security arrangements:

>The information in this paragraph is drawn from the NRC’s web-

site: http://www.nrc.gov/what-we-do/safeguards/faq-force-on-force.html,

and _http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/force-on-

force.html.

* A table-top drill is a meeting where representatives from relevant

facility operations and security divisions explain and test their institu-

tional reactions to threat scenarios proposed by regulatory personnel.

11

[N]uclear power plants are among the most hard-

ened and secure industrial facilities in our nation.

The many layers of protection offered by robust

plant design features, sophisticated surveillance

equipment, physical security protective features,

professional security forces, access authorization

requirements, and NRC regulatory oversight pro-

. vide an effective deterrence against potential ter-

rorist activities that could target equipment vital to

nuclear safety.

Riverkeeper, Inc. v. Collins, 359 F.3d 156, 160 (2d Cir. 2004)

(quoting Entergy Nuclear Operations, Nos. 50-003, 50-247,

& 50-286, at 5 (NRC Nov. 18, 2002)).

B. Since September 11, 2001, The NRC And The Nu-

clear Industry Have Redouble] Their Efforts To

Secure Licensed Facilities From Terrorist Attack

Since September 11, 2001, the NRC has thoroughly re-

viewed its security regulations in concert with officials from

the Department of Homeland Security, the Federal Bureau

of Investigation, and the Departments of Transportation and

Energy. See Riverkeeper, 359 F.3d at 160-161, 168-169; Pri-

vate Fuel Storage, 56 N.R.C. at 343-345, 356-357. It has re-

defined the “design basis threat” used as the basis for secu-

rity measures and testing at nuclear power plants. See p. 8,

supra; Revised Design Basis Threat Order, 68 Fed. Reg.

24,517 (May 7, 2003). Aid it has ordered licensees to imple-

ment new and more stringent anti-terror measures at their

facilities. See Order Modifying Licenses, 67 Fed. Reg. 65,150

(Oct. 23, 2002); Order. Modifying Licenses, 67 Fed. Reg.

65,152 (Oct. 23, 2002); Interim Compensatory Measures Or-

der, 67 Fed. Reg. 9792 (Mar. 4, 2002); Access Authorization

Order, 68 Fed. Reg. 1643 (Jan. 3, 2003); Security Personnel

Training and Qualification Requirements Order, 68 Fed.

Reg. 24,514 (May 7, 2003). While the specifics of those

changes are not all public, the new measures generally in-

clude additional physical barriers, patrols, security posts,

12

and training.’ In addition, the NRC has established the Of-

fice of Nuclear Security and Incident Response to work with

law enforcement agencies and the Department of Homeland

Security to ensure immediate operational security and de-

velop long-term security policy. See Riverkeeper, 359 F.3d.

at 344-345.

For their part, NRC licensees have made extraordinary

investments to fulfill their own obligations under the AEA

to ensure that nuclear facilities are protected against terror-

ist attack. See Riverkeeper, 359 F.3d at 168-169; Private

Fuel Storage, 56 N.R.C. at 344. Since September 11, NEI’s

industry members have spent more than $1 billion to imple-

ment the NRC’s orders and respond to the revised design

basis threat. That money has gone to hire and train more

security personnel at power plants and fuel storage facilities,

and to add security patrols, security posts, and physical and

vehicle barriers. See 56 N.R.C. at 344. NEI members have

added measures to guard adjacent waterways and additional

land areas. See id. They have evaluated potential facility

vulnerabilities, and developed plans for responding to events

that could cause damage to their plants. See 359 F.3d at 161.

And they have improved their coordination with law en-

forcement and military authorities and imposed additional

restrictions on site access. See 56 N.R.C. at 344.

C. The NRC’s Licensing Procedures Ensure Compli-

ance With Security Regulations And Mandate

Consideration Of Reasonably Foreseeable Envi-

ronmental Impacts

The NRC applies these regulations to licensees through

a rigorous licensing process. When an applicant files a re-

quest for a facility-specific license from the NRC, the AEA

requires the NRC to hold a formal hearing and to afford any

>The NRC recently initiated a rulemaking to incorporate into its

regulations the security requirements prescribed previously by individual

orders. See Power Reactor Security Requirements, 71 Fed. Reg. 62,664

(proposed Oct. 26, 2006).

|

13

person “whose interest may be affected by the proceeding,”

- 42 U.S.C. § 2239(a)(1)(A), the right to be heard. The NRC

has promulgated procedural regulations, embodied in 10

C.F.R. Part 2, Subpart L, to govern the conduct of such pro-

ceedings for major facilities, including nuclear power plants.

See 10 C.F.R. §§ 2.1200 et seq. °

Subpart L proceedings are adjudicatory hearings that

comply with the procedural requirements of 5 U.S.C. §§ 554-

557. See Citizens Awareness Network, Inc. v. Nuclear

Regulatory Comm’n, 59 F.3d 284 (ist Cir. 1995). Accord-

ingly, they allow for even more public participation than no-

tice-and-comment rulemakings. The NRC makes available a

public hearing file containing the licensee’s application, the

NRC’s environmental impact reports, and any other NRC

report or correspondence relating to the proposed action. 10

C.F.R. § 2.1203. It then holds public hearings on written

submissions from interested parties, and may also hold oral

hearings in which the parties may submit questions and,

where appropriate, request the right to cross-examine wit-

nesses themselves. /d. §§ 2.1204, 2.1207. The outcome of a

licensing hearing is subject to review by the full Commis-

sion, id. §§ 2.341, 2.1212, and the Commission’s decision is

subject to judicial review, see 42 U.S.C. § 2239.

The NRC’s regulations also require detailed considera-

tion, during licensing proceedings, of the potential environ-

mental impacts of a licensing decision. Any proceeding that

requires a hearing under AEA Section 189(a) also includes

NEPA review:

Any party to a proceeding may take a position and

offer evidence on the aspects of the proposed action

within the scope of NEPA and this subpart in ac-

cordance with the provisions of part 2 of this chap-

° Although the licensing proceedings for the ISFSI at issue in this

case occurred under the NRC’s subpart K “hybrid” hearing procedures,

the Ninth Circuit’s holding will apply with equal force to more broadly

applicable Subpart L proceedings.

14

ter applicable to that proceeding or in accordance

with the terms of the notice of hearing.

10 C.F.R. § 51.104(a)(2).

NEPA analyses prepared in connection with NRC li-

censing proceedings typically consider a wide range of po-

tential accident scenarios. For example, the environiiental

assessment prepared in connection with the Diablo Canyon

ISFSI at issue in this case evaluates the impact of relatively

minor accidents such as the loss of external electric power or

dropping a fuel storage cask from an elevated position. En-

vironmental Assessment Related to the Construction and

Operation of the Diablo Canyon ISFSI 19 (Oct. 2003). It

also considers the potential impact of more severe events

such as “design basis” earthquakes and tornados, and con-

cludes that any radiation release resulting from such fore-

seeable events would fall within permissible limits. /d.; see

also 10 C.F.R. §§ 20.1001 et seq.

D. Considering Possible Environmental Impacts Of

An Attack During Licensing Proceedings Would

Not Improve Plant Security Or The NRC’s NEPA

Analysis

In light of the NRC’s comprehensive security regula-

tions and rigorous licensing procedures, requiring the

agency and its licensees to examine the environmental im-

pacts of a possible terrorist attack would violate NEPA’s

rule of reason by requiring costly and time-consuming analy-

ses that would not improve security, improve consideration

of environmental impacts, or affect licensing decisions.

As detailed in Part III.A, the NRC has developed its

security regulations based on sophisticated threat assess-

ments and applies the regulations uniformly to all fixed fa-

cilities. The NRC deems any facility that meets the security

requirements to be adequately protected from attack. Ac-

cordingly, requiring a NEPA analysis of the environmental

consequences of a terrorist attack on a given facility during

licensing proceedings would not alter the agency’s conclu-

sions regarding the adequacy of that facility’s security

15

measures. This becomes even more apparent once one con-

siders the proper scope of NRC licensing proceedings. As

explained above, those proceedings give interested parties

access to public information about a given licensee’s compli-

ance with the NRC’s security requirements, and provide

them a forum in which to test or challenge that compliance.

They do not, however, provide an avenue for parties to de-

bate or propose modifications to the security requirements

themselves, which apply uniformly to all fixed facilities. See

10 C.F.R. § 2.335 (parties may not challenge NRC rules in

licensing proceedings). As a result, the NRC could not use

the results of an analysis of environmental impacts of a ter-

rorist attack at a licensee facility to demand site-specific

modifications of security requirements for that facility.

Similarly, with respect to concerns about environmental _-

impacts, the NRC’s license adjudication process already con-

siders the possible environmental impacts of events at nu-

clear facilities. Licensees must analyze and mitigate the risk

of those impacts, including any that might result from a re-

lease of nuclear material or radiation. Adding terrorist at-

tack to the list of possible causes of such a release would not

enhance NRC’s understanding of the potential environ-

mental impact of granting a given operating license. Nor

would it lead to different mitigation efforts, because by com-

plying with the NRC’s extensive security requirements the

licensee has already taken all the steps the Commission has

determined are reasonably required to address the risk of a

terrorist attack.

In short, requiring licensees and the NRC to undertake

specific NEPA evaluation of the possible environmental ef-

fects of a terrorist attack will neither improve analysis nor

change results.’ NEPA does not require the NRC to under-

’ Indeed, requiring an environmental analysis of terrorism threats

might well degrade the NEPA process, much as once happened with for-

mer NEPA regulations that required agencies to address “worst case”

environmental scenarios whenever the real risk of harm was impossible to

ascertain. The Council on Environmental Quality abandoned that ap-

16

take such pointless efforts. See Public Citizen, 541 U.S. at

767-769; cf. Aberdeen & Rockfish R. Co. v. SCRAP, 422 US.

289, 325 (1975) (declining to require agency to evaiuate issue

under NEPA when it “was already doing so in a more ap-

propriate proceeding”); Glass Packaging Inst., 737 F.2d at

1092 (NEPA did not require Bureau of Alcohol, Tobacco, and

Firearms to analyze food-security concerns more properly

addressed by Food and Drug Administration).

IV. THE COURT SHOULD GRANT CERTIORARI AND REVERSE BE-

CAUSE THE NINTH CIRCUIT'S DECISION WILL IMPEDE NU-

CLEAR LICENSING AT A CRITICAL TIME

While the Ninth Circuit’s decision will not enhance the

NRC’s decisionmaking or the public’s ability to participate in

those proceedings, it will increase the time and expense in-

volved in licensing a wide array of nuclear facilities.* That

prospect is not hypothetical. In the short time since the

court of appeals issued its opinion, the court’s analysis has

already been applied in other cases and agency decisions,

and invoked in a number of additional proceedings where

private parties have requested consideration of terrorism

risks under NEPA. For example:

e In evaluating a proposed lease of land for an

ISFSI at an Indian reservation, the Bureau of

Indian Affairs recently claimed that “uncer-

tainty surrounding [NEPA analysis of sabo-

tage] highlighted by the San Luis Obispo deci-

proach when it recognized that requiring “worst case” analysis led agen-

cies to devote “substantial time and resources” to environmental analyses

that did not aid decisionmaking but instead “divert[ed] the EIS process

from its intended purpose.” National Environmental Policy Act Regula-

tions, 50 Fed. Reg. 32,234, 32,236 (proposed Aug. 9, 1985); see also Daniel

R. Mandelker, NEPA Law and Litigation § 10:22, at 10-52 (2006).

* The NRC issues licenses not only for power plants and used fuel

storage facilities but also for other nuclear facilities, including those for

radioactive waste disposal, e.g., 10 C.F.R. § 61.1 et seq., irradiators used in

food preservation and to sterilize medical supplies and equipment, id.

§ 36.13, and university research reactors, id. § 50.21. The decision below

will make all these proceedings more burdensome.

17

sion counsels disapproval.” Record of Decision

for the Construction and Operation of an IS-

FSI on the Reservation of the Skull Valley

Band of Goshute Indians in Tooele County,

Utah 21 (B.LA. Sept. 7, 2006).

Parties have raised as-yet-unadjudicated con-

tentions regarding the environmental impacts

of terrorist sabotage during licensing hearings

for the Pilgrim Nuclear Power Station in Mas-

sachusetts and the Palisades Nuclear Plant in

Michigan.

Opponents have challenged licensing proceed-

ings at the Vermont Yankee Nuclear Power

Station, see Entergy Nuclear Vermont Yankee

& Energy Nuclear Operations, Inc., LBP-06-

20, at 17-30 (NRC Sept. 22, 2006).

The Nuclear Information and Resource Ser-

vice, Public Citizen, and Sierra Club have re-

lied on the decision below to attack an EIS

prepared for an Early Site Permit for the

Grand Gulf Nuclear Station in Mississippi. See

Request for Admission of Late-Filed. Environ-

mental Contention, In re System Energy Re-

sources Inc., No. 52-009-ESP (NRC Oct. 12,

2006).

In Tri Valley Cares v. Department of Energy,

No. 04-17232, 2006 WL 2971651 (9th Cir. Oct.

16, 2006), the Ninth Circuit rejected an

agency’s NEPA review of a planned biological

weapons laboratory, even though it agreed that

the agency had taken a “hard look” at environ-

mental concerns and that its analysis was “fully

informed and well-considered.” Jd. at *1 (in-

ternal quotations omitted). The court relied

solely on the decision below in this case to hold

that the agency had to examine whether “the

18

threat of terrorist activity” necessitated fur-

ther study. Jd. at *2.

¢ On December 11, a coalition of groups opposing

Southern Nuclear Operating Company’s early

site permit application for new reactors at the

Plant Vogtle site in Waynesboro, Georgia, filed

a petition explicitly requesting the NRC to ap-

ply the Ninth Circuit’s decision in this case.’

Nuclear power facilities are massively expensive and

time-consuming to license and to construct. By erecting a

new procedural hurdle in the licensing process, the Ninth

Circuit’s decision threatens to discourage the substantial

capital investment necessary to bring such facilities on-line

to meet the Nation’s energy needs. This is all the more true

because NEPA procedural requirements create fertile

ground for litigation, which, in turn, would yield even fur-

ther delay and expense.

Such obstacles place pointless burdens on the nuclear li-

censing process at a time when there is a significant need for

nuclear power facilities. Without a substantial boost in do-

mestic supplies, U.S. energy consumption will increasingly

outpace production.’ Over the next 10 years, the utility in-

dustry expects demand to increase by almost 20%, while

“committed capacity resources” are expected to increase

only 6%.'' The challenge to increase production is com-

pounded by the problems associated with fossil-fuel energy

sources. Reliance on imported oil threatens our national se-

* See http://www.cleanenergy.org/pdf/V ogtlePetition 121 106.pdf.

'© See National Energy Policy Development Group, Reliable, Af-

fordable, and Environmentally Sound Energy for America’s Future: Re-

port of the National Energy Policy Development Group viii-ix (May 2001)

(“National Energy Policy”).

'' North American Electric Reliability Council, 2006 Long-Term Re-

liability Assessment: The Reliability of the Bulk Power Systems in North

America 6 (Oct. 2006). “Committed capacity resources” is defined as gen-

erating capacity that is “existing, under construction, or planned” and

expected to be available. /d. at 11.

19

curity, and tapping domestic fossil-fuel reserves will in-

crease the release of air pollutants such as nitrogen oxides,

sulfur dioxide, and mercury, as well as greenhouse gases."

Nuclear energy can reduce dependence on foreign oil, with-

out emission of the greenhouse gases and other pollutants

associated with fossil fuels.’ Thus, nuclear power is a cru-

cial component of any long-term strategy to meet the Na-

tion’s energy needs in ways that are reliable, affordable, and

environmentally sound.

Currently, there are 103 nuclear power plants operating

in the United States, providing 20% of the Nation’s electric-

ity demands." As these plants continue to operate, they

generate used fuel that must be stored in specially-designed

facilities like the Diablo Canyon ISFSI. The NRC has al-

ready issued licenses for 34 spent fuel storage facilities, in-

cluding the one at Diablo Canyon. But meeting the Nation’s

current and future need for nuclear power will require the

NRC to license more. NEI expects seven additional fuel

storage sites to be added in 2007 alone.

The NRC expects increased licensing activity for nu-

clear power plants as well. Power plant licenses are nor-

mally valid for an initial period not to exceed 40 years, see 10

C.F.R. § 50.51(a), and can be renewed for an additional 20

years of operating life, 10 C.F.R. § 54.31(b). Thus far, the

NRC has renewed 47 licenses for nuclear power plants, and

has pending before it renewal applications for 11 additional

plants. NEI members have announced-that they will seek at

least 24 more renewal licenses for existing p!ants, and more

are expected.'* Even more importantly, NEI members ex-

pect to seek licenses from the NRC for a significant number

'2 National Energy Policy xiii, 1-6.

'3 Id. at xiii, 1-5 to 1-6.

'* Id. at 5-15.

'S Information concerning power plant license renewals is available

on the NRC website at http://www.nrc.gov/reactors/operating/licensing/

renewal.html.

20

of additional nuclear power plants in the coming years.

Thirteen consortia and companies involving NEI members

are preparing 20 applications for as many as 31 new plants.

NEI members are also prosecuting four early site permit

applications, which are used to “bank” sites for future nu-

clear power plants.

As even this brief discussion makes clear, the court of

_ appeals’ decision will have a broad negative impact at a criti-

cal time. Yet, the expense and delay caused by the court’s

serious misapprehension of NEPA’s proper sphere of appli-

cation will do nothing to enhance agency decision-making,

improve public participation in the nuclear licensing process,

or protect the environment. The Ninth Circuit’s decision

warrants review and reversal by this Court.

CONCLUSION :

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELLEN C. GINSBERG SETH P. WAXMAN

MICHAEL A. BAUSER Counsel of Record

NUCLEAR ENERGY EDWARD C. DUMONT

INSTITUTE SAMBHAV N. SANKAR

1776 I Street, N.W. WILMER CUTLER PICKERING

Washington, D.C. 20006 HALE AND DORR LLP

(202) 739-8000 1875 Pennsylvania Ave., N.W.

Washington, D.C. 20037

(202) 663-6000

DECEMBER 2006