New York v. Nuclear Regulatory Commission, No. 08-3903 (2d Cir. 2009)

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08-3903-ag New York v. Nuclear Regulatory Commission 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: October 23, 2009 Decided: December 21, 2009) Docket Nos. 08-3903-ag (L), 08-4833-ag(con), 08-5571-ag(con) - - - - - - - - - - - - - - - - - - - -x THE STATE OF NEW YORK; RICHARD BLUMENTHAL, Attorney General of Connecticut; and the COMMONWEALTH OF MASSACHUSETTS, Petitioners, - v.UNITED STATES NUCLEAR REGULATORY COMMISSION; and the UNITED STATES OF AMERICA , Respondents, and ENTERGY NUCLEAR OPERATIONS INC., et al., Intervenor-Respondents. - - - - - - - - - - - - - - - - - - - -x Before: * JACOBS, Chief Judge, KEARSE, Circuit Judge, and GARDEPHE,* District Judge. Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. 1 2 Petition for review of a decision of the Nuclear 3 Regulatory Commission denying rulemaking petitions filed by 4 Massachusetts and California. 5 Commission has given due consideration to the relevant 6 studies concerning the rulemaking petitions, we must defer 7 to its expertise in determining the proper risk level 8 associated with the storage of nuclear material in spent 9 fuel pools, and therefore deny the petition to review the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 As the Nuclear Regulatory Nuclear Regulatory Commission s decision. JOHN J. SIPOS (Monica Wagner, Andrew M. Cuomo, Barbara D. Underwood, Benjamin N. Gutman, Katherine Kennedy, Janice A. Dean on the brief), State of New York, Albany, NY; Matthew Brock, Martha Coakley, Commonwealth of Massachusetts, Boston, MA; Richard Blumenthal, Robert D. Snook, State of Connecticut, Hartford, CT, for Petitioners. JAMES E. ADLER (Stephen G. Burns, John F. Cordes, Jr., Sean D. Croston on the brief), U.S. Nuclear Regulatory Commission, Washington, DC; John E. Arbab, John C. Cruden, Department of Justice, Washington, DC, for Respondents. David R. Lewis, Pillsbury Winthrop, Washington, DC; CATHERINE E. STETSON (Jessica L. Ellsworth on the brief), Hogan & Hartson LLP, Washington, DC; William C. Dennis, Entergy Nuclear 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Operations Inc., White Plains, NY, for Intervenor-Respondents. Jerry Bonanno, Ellen C. Ginsberg, Michael A. Bauser, Anne W. Cottingham, Counsel for Nuclear Energy Institute, Inc., Washington, DC, for Amicus Curiae Nuclear Energy Institute, Inc. in support of Federal Respondents, IntervenorRespondents, and Affirmance. Edmund G. Brown, Jr., Ken Alex, Gordon Burns, Susan Durbin, Brian W. Hembacher, Attorneys for State of California, Los Angeles, CA, for Amicus Curiae State of California, ex rel. Edmund G. Brown, Jr., Attorney General, in support of Petitioners. PER CURIAM: The States of New York and Connecticut and the 27 Commonwealth of Massachusetts (collectively the States ) 28 petition for review of a decision of the Nuclear Regulatory 29 Commission ( NRC ) denying rulemaking petitions filed by 30 Massachusetts and California. 31 consideration to the relevant studies, we must defer to 32 their expertise in determining the proper risk level 33 associated with the storage of nuclear material in spent 34 fuel pools, and therefore deny the petition for review. As the NRC has given due 35 3 1 2 I Two States filed rulemaking petitions (Massachusetts in 3 2006, and California in 2007) asking the NRC to reverse its 4 1996 Generic Environmental Impact Statement, which found 5 (among other things) that spent fuel pools at nuclear power 6 plants do not create a significant environmental impact 7 within the meaning of the National Environmental Policy Act, 8 42 U.S.C. § 4321 et seq. 9 the rulemaking petitions in a 2008 decision. The NRC consolidated and denied See 42 U.S.C. 10 § 2239(a)(1)(A). 11 jurisdiction to review such final orders of the NRC. 12 U.S.C. § 2342(4). 13 (New York, Connecticut, and Massachusetts) claim standing on 14 the ground that nuclear power plants are within or near 15 their borders and that an accident at one of these plants 16 could harm their citizens. 17 United States Courts of Appeal have 28 The States petitioning for review here Under the National Environmental Policy Act ( NEPA ), 18 each federal agency must prepare an Environmental Impact 19 Statement ( EIS ) before taking a major action that 20 significantly affects the quality of the human 21 environment. 22 license for a nuclear power plant is a major action 42 U.S.C. § 4332(2)(C). 4 The renewal of a 1 requiring an EIS under NRC regulations. 2 51.20. 3 See 10 C.F.R. § The EIS required for license issuance and renewal at 4 nuclear power plants covers both generic and plant-specific 5 environmental impacts. 6 kinds of impacts are to be treated separately. 7 impacts are those that: 1) are common to all nuclear power 8 plants; 2) can be assigned a uniform significance level of 9 small, moderate, or large (even if the impact is not The NRC has decided that these two Category I 10 precisely the same at each plant); and 3) do not require 11 plant-specific kinds of mitigation. 12 require site-by-site evaluation. 13 are common to each license renewal, the NRC has produced a 14 Generic Environmental Impact Statement ( GEIS ) that applies 15 to these common issues. 16 F.3d 115, 120 (1st Cir. 2008). 17 site-specific EIS, constitutes the complete EIS required by 18 NEPA for the major federal action of a plant s license 19 renewal. 20 final rule in Environmental Review for Renewal of Nuclear 21 Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 22 1996)). Category II impacts Since Category I impacts Massachusetts v. United States, 522 The GEIS, combined with a Id. (noting also that the GEIS was codified as a 5 1 The NRC classifies on-site storage of spent fuel in 2 pools as a Category I issue that causes a small 3 environmental impact. 4 contended that the information in their rulemaking petitions 5 showed a greater risk of fire from this source than 6 previously appreciated, and that therefore the environmental 7 impact should no longer be discounted as small; they further 8 contended that the risk should be evaluated plant-by-plant 9 (rather than be considered within Category I). 10 Connecticut supported these original petitions. 11 considered both petitions together, and concluded that its 12 initial determination was correct. 13 were denied in August 2008, this petition for review 14 followed. Massachusetts and California New York and The NRC After these petitions 15 16 II 17 An agency decision to deny a rulemaking petition is 18 subject to judicial review; but that review is extremely 19 limited and highly deferential. 20 U.S. 497, 527-28 (2007) (internal quotation marks omitted). 21 It is to be overturned if it is arbitrary, capricious, an 22 abuse of discretion, or otherwise not in accordance with 6 Massachusetts v. EPA, 549 1 law ; but this standard is applied at the high end of the 2 range of deference and an agency refusal is overturned only 3 in the rarest and most compelling of circumstances. 4 Network v. FCC, 391 F.3d 269, 272-273 (D.C. Cir. 2004) 5 (internal quotation marks and citation omitted). 6 compelling circumstances would typically involve plain 7 errors of law relating to the agency s delegated authority. 8 Am. Horse Prot. Ass n v. Lyng, 812 F.2d 1, 5 (D.C. Cir. 9 1987). 10 EMR Such This standard has been said to be so high as to be 11 akin to non-reviewability. 12 965 F.2d 1106, 1111 (D.C. Cir. 1992). 13 rulemaking petition, a court typically need do no more than 14 assure itself that an agency s decision was reasoned, 15 meaning that it considered the relevant factors. 16 F.2d at 5 (internal quotation marks omitted). Cellnet Comm n, Inc. v. FCC, To deny review of a Lyng, 812 17 18 19 III The States primary arguments on appeal are that: 1) 20 new information submitted by Massachusetts and California in 21 their petitions (and New York in support of those petitions) 22 show that the risk of a spent fuel pool fire is not so 7 1 remote that, when considered in light of the potentially 2 devastating effects, on-site storage in pools has a low 3 environmental impact; and 2) the NRC s decision to deny the 4 rulemaking petitions was arbitrary and capricious because it 5 relied on plant-specific mitigation and security to support 6 a finding that spent fuel pools generically have low 7 environmental impacts. 8 9 A 10 The risks posed by keeping nuclear fuel on site in 11 spent fuel pools--including the risk of fire--have been 12 considered in studies prepared over the past four decades. 13 The studies relied on by the NRC all found that the risk of 14 a fire was low. 15 since September 2001) consider the risk of fire precipitated 16 by a terrorist attack, and classify that risk as low. 1 These studies (including those conducted 1 This opinion need not and does not reach the circuit split as to whether the NRC must take into account acts of terrorism when drafting an EIS about license renewal. Compare N.J. Dep t of Envtl. Prot. v. U.S. NRC, 561 F.3d 132, 139-40 (3d Cir. 2009) (holding that the NRC does not need to consider the risk of terrorism when preparing an EIS), with San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1031 (9th Cir. 2006) (holding that the NRC does need to consider the risk of terrorism when preparing an EIS). We conclude that the NRC did sufficiently take into account acts of terrorism when deciding that the risk of 8 1 The NRC had already analyzed most of the studies 2 submitted in connection with Massachusetts and California s 3 petitions; the petitioners simply disagree with the NRC s 4 interpretation of those studies. 5 California did submit one study that the NRC had not 6 previously considered; but the NRC--having examined this 7 study in considering whether to grant the petitions-- 8 concluded that it was not as accurate as the studies on 9 which the NRC had previously relied. 10 Massachusetts and These are technical and scientific studies. Courts 11 should be particularly reluctant to second-guess agency 12 choices involving scientific disputes that are in the 13 agency s province of expertise. 14 Browning-Ferris Indus. of South Jersey, Inc. v. Muszynski, 15 899 F.2d 151, 160 (2d Cir. 1990), limited on other grounds 16 by Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 93 17 (1998). 18 question within the area of competence of an administrative 19 agency created by Congress, and when resolution of that 20 question depends on engineering and scientific Deference is desirable. Particularly when we consider a purely factual fire at a spent fuel pool was uniformly low, and therefore we need not decide whether the NRC could have avoided considering this issue. 9 1 considerations, we recognize the relevant agency s technical 2 expertise and experience, and defer to its analysis unless 3 it is without substantial basis in fact. 4 v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972). 5 relevant studies cited by the NRC in this case constitute a 6 sufficient substantial basis in fact for its conclusion 7 that the overall risk is low. 8 conclude the NRC s decision was not an abuse of its 9 discretion. See Id. Fed. Power Comm n The We therefore 10 11 12 B The States on appeal contend that the risk of a spent 13 fuel pool fire must be a Category II rather than a Category 14 I risk, because the risk is affected by mitigation that 15 varies from plant to plant. 16 in part upon mitigation at nuclear power plants--including 17 various coolant sprays and makeup water systems in case of 18 pool drainage--to conclude that the risk of an accidental or 19 terrorist-caused fire in the pools is uniformly low. 20 However, the NRC has mandated that these mitigation tactics 21 be implemented at all nuclear power plants. 22 decision states that the agency has approved license It is true that the NRC relies 10 The NRC 1 amendments and issued safety evaluations to incorporate 2 these [mitigation] strategies into the plant licensing bases 3 of all operating nuclear power plants in the United States. 4 The NRC also requires heightened security at all plants as 5 part of its licensing process in the wake of the September 6 11, 2001 attacks. 7 Security Requirements, 74 Fed. Reg. 13,975 (Mar. 27, 2009). 8 An agency may take into account attempts to mitigate an 9 environmental impact when determining that an environmental 10 impact is small enough to not require an EIS, so long as the 11 effectiveness of the mitigation is demonstrated by 12 substantial evidence. 13 F.3d 7, 17 (2d Cir. 1997). 14 studies detailing the effectiveness of its required 15 mitigation measures; these studies constitute substantial 16 evidence. See 10 C.F.R. § 50.54(hh); Power Reactor Nat l Audubon Soc y v. Hoffman, 132 The NRC relies on numerous 17 18 CONCLUSION 19 We conclude that the NRC s decision denying the 20 rulemaking petitions was reasoned; it considered the 21 relevant studies, and it took account of the relevant 22 factors. We therefore must conclude that the agency acted 11 1 within its broad discretion. 2 arguments to be without merit. 3 review the NRC s denial of the rulemaking petitions is 4 denied. We find the States other 12 The States petition to

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