BEYOND NUCLEAR, Et Al., Plaintiffs, v. U.S. DEPARTMENT OF ENERGY, Et Al., Defendants, 233 F. Supp. 3d 40

Background

DOE planned to accept and transport 6,000 gallons of highly-enriched uranyl nitrate liquid (HEUNL) from Chalk River, Canada to the Savannah River Site (SRS) in South Carolina under its long-standing foreign research reactor acceptance program.
Earlier DOE EISs (1995, 1996, 2000) analyzed transport and management of spent nuclear fuel and target material in solid (oxide/powder) form; DOE issued Supplement Analyses in 2013 and 2015 addressing transport of liquid target material and concluded no supplemental EIS was required.
NRC, DOT, and Canadian regulators certified the transport containers (NAC-LWT/HEUNL configuration) and found them to meet applicable safety standards; DOE considered those approvals in its 2015 SA.
Plaintiffs (seven environmental groups) sued in 2016 claiming DOE violated NEPA by failing to prepare a supplemental or new EIS addressing transportation of liquid target material and raising related statutory and APA claims; DOE paused shipments pending expedited review.
The court reviewed the administrative record, struck plaintiffs’ extra-record expert declarations and a 1972 AEC report (denying supplementation), and granted summary judgment to DOE on all claims, holding DOE did not act arbitrarily or capriciously in declining to prepare a supplemental EIS.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DOE was required to prepare a supplemental EIS for transporting HEUNL (liquid) vs. prior analyses of solid target material	Transporting liquid HEUNL presents significantly different and greater environmental risks than solid material, so a supplement is required	DOE’s 2013 and 2015 Supplement Analyses reasonably concluded risks were not significantly different from prior EISs; regulatory certifications and updated analyses support no supplemental EIS	Held for DOE: no supplemental EIS required—the agency gave a “hard look” and its decision was not arbitrary or capricious
Whether extra-record expert declarations and a 1972 AEC report should be added to the administrative record	Extra-record materials demonstrate factors DOE neglected and provide necessary background; record is incomplete without them	Judicial review is limited to the record before the agency; plaintiffs’ materials were not before DOE and do not meet narrow exceptions for supplementation	Held for DOE: court struck the declarations and denied supplementation of the record
Whether DOE violated NEPA by failing to prepare an Environmental Assessment (EA) before deciding on a supplemental EIS	DOE should have prepared an EA to determine whether a supplemental EIS was required	DOE followed its own procedures by preparing Supplement Analyses per its regulations, so an EA was not required	Held for DOE: plaintiffs conceded and the claim fails on the merits
Whether related statutory and APA claims tied to the NEPA challenge survive if DOE’s NEPA decision stands	DOE’s NEPA failure also violates Atomic Energy Act, DOE Organization Act, and is arbitrary/ capricious under APA	The statutory and APA claims depend on the NEPA determination; if DOE’s NEPA decision is valid, the related claims fail	Held for DOE: because NEPA claim fails, Counts III–V fail as well

Key Cases Cited

Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (agency must take a "hard look" and courts defer to reasoned agency decisions about supplemental EISs)
Kleppe v. Sierra Club, 427 U.S. 390 (NEPA requires agencies to take a hard look at environmental consequences)
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA prescribes procedures, not particular substantive outcomes)
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (agencies not required to adopt procedures beyond those NEPA/CEQ require)
Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (purpose of NEPA procedural requirements clarified)
City of Overton Park v. Volpe, 401 U.S. 402 (judicial review limited to administrative record; court not to substitute its judgment for agency)
Environmental Defense Fund v. Costle, 657 F.2d 275 (presumption of validity for agency record)
Blue Ridge Environmental Defense League v. Nuclear Regulatory Commission, 716 F.3d 183 (rule of reason in supplemental EIS analysis; deference to agency where reasoned)
New York v. Nuclear Regulatory Commission, 824 F.3d 1012 (agency predictive judgments and incomplete data entitled to deference)
American Wildlands v. Kempthorne, 530 F.3d 991 (extra-record evidence allowed only in narrow, identified circumstances)