San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission
449 F.3d 1016 (2006)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The National Environmental Policy Act (NEPA) requires a federal agency to consider the potential environmental consequences of a terrorist attack when conducting an environmental review for a major federal action, such as licensing a nuclear facility. An agency cannot categorically refuse to consider such impacts by deeming them too remote and speculative as a matter of law, especially when the agency's own security actions demonstrate it considers the threat to be credible.
Facts:
- Pacific Gas and Electric Company (PG&E) operates the Diablo Canyon Power Plant in San Luis Obispo, California.
- The plant's existing capacity for storing spent nuclear fuel was projected to be full by 2006.
- Without additional storage capacity, the Diablo Canyon reactors would have been forced to cease operations.
- To address this, PG&E proposed to build an on-site Interim Spent Fuel Storage Installation (ISFSI) to store the spent fuel in dry casks.
- The proposed facility would house radioactive waste in stainless steel canisters which are then placed inside large, passively cooled concrete structures called overpacks.
Procedural Posture:
- Pacific Gas and Electric Company (PG&E) applied to the Nuclear Regulatory Commission (NRC) for a license to construct and operate an Interim Spent Fuel Storage Installation (ISFSI).
- San Luis Obispo Mothers for Peace and other groups (Petitioners) petitioned to intervene and requested a hearing before the NRC's Atomic Safety and Licensing Board.
- Petitioners contended that the NRC's environmental review was deficient under NEPA for failing to address the impacts of a potential terrorist attack.
- The Licensing Board deemed the terrorism contention inadmissible but referred the ruling to the full NRC Commission.
- The NRC Commission affirmed the rejection, holding as a matter of law that NEPA does not require a terrorism review.
- The NRC subsequently issued an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI), obviating the need for a full Environmental Impact Statement (EIS).
- San Luis Obispo Mothers for Peace petitioned the United States Court of Appeals for the Ninth Circuit for review of the NRC's final order.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the National Environmental Policy Act (NEPA) require the Nuclear Regulatory Commission (NRC) to consider the potential environmental consequences of a terrorist attack in its environmental review before licensing a new nuclear fuel storage facility?
Opinions:
Majority - Thomas, Circuit Judge
Yes. The National Environmental Policy Act (NEPA) requires the NRC to consider the potential environmental consequences of a terrorist attack. The court found the NRC’s categorical refusal to conduct such an analysis to be unreasonable. The court rejected the NRC’s four primary justifications: 1) The possibility of a terrorist attack is not so 'remote and highly speculative' as to be legally excludable from NEPA review, especially given the government's extensive post-9/11 security efforts which contradict this claim. 2) The argument that the risk is 'unquantifiable' is irrelevant; NEPA does not require a precise numerical probability to analyze a significant risk, and qualitative assessments are permissible. 3) A request to analyze the environmental impacts of an attack is not equivalent to a 'worst-case scenario' analysis, which is no longer required by regulation; rather, it is a request to analyze a range of foreseeable impacts. 4) National security concerns, while legitimate, do not create a waiver for NEPA requirements; they may justify modifying public disclosure procedures, as established in Weinberger v. Catholic Action of Hawaii, but do not excuse the agency from performing the analysis itself.
Analysis:
This decision establishes that, in a post-9/11 legal landscape, federal agencies cannot ignore the foreseeable environmental impacts of terrorism when conducting NEPA reviews for high-risk infrastructure projects. It solidifies the principle that an agency's action, such as licensing a vulnerable facility, can be a legal cause of potential environmental harm from a subsequent terrorist attack, thereby requiring analysis under NEPA. The ruling forces agencies to be consistent, preventing them from treating a threat as credible for internal security purposes while dismissing it as speculative for public environmental review. This precedent necessitates more comprehensive Environmental Impact Statements for critical infrastructure, compelling agencies to confront and analyze the environmental risks posed by intentional, malicious acts.
