Brodsky v. United States Nuclear Regulatory Commission
704 F.3d 113
2d Cir.2013Background
- NRC granted Entergy a 2007 exemption from certain fire safety requirements at Indian Point 3; the decision was accompanied by an EA and a FONSI with no accompanying public hearing.
- Plaintiffs petitioned to reopen the exemption proceeding and sought public comment, but the NRC denied and the district court granted summary judgment for NRC and Entergy on APA, AEA, and NEPA claims.
- Plaintiffs challenge NEPA compliance, arguing the NRC failed to provide public notice/input regarding the exemption and thus failed to take a hard look at environmental consequences.
- The district court did not address the NEPA public-participation claim; the court of appeals vacates that part and remands to allow supplementation of the record to justify or modify public participation.
- The court preserves its jurisdiction to decide any further appeal from remand and clarifies the ruling is narrow, providing specific remand instructions under Florida Power & Light Co. v. Lorion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NRC violated NEPA by not providing public participation | Brodsky argues NRC failed to solicit public input | NRC contends NEPA permits discretionary involvement and did not require a hearing | Remand required; record insufficient to decide |
| Whether the administrative record permits review of plaintiffs’ NEPA claim | Record lacks explanation for lack of public input | Record supports no error on public participation | Remand required to supplement the record |
| Appropriate remedy if NEPA error found | Remand to ensure public input would be meaningful | Any remedy must address practicability of public input | Remand to NRC for supplementation or action to resolve public-participation issue |
Key Cases Cited
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (U.S. 1985) (remand when record insufficient for review)
- Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (U.S. 1989) (policy: NEPA information must be available to react to effects in time)
- Pogliani v. U.S. Army Corps of Eng’rs, 306 F.3d 1235 (2d Cir. 2002) (NEPA public involvement considerations; reliance on record)
- Town of Rye v. Skinner, 907 F.2d 23 (2d Cir. 1990) (public involvement discretion under NEPA)
- Friends of Ompompanoosuc v. FERC, 968 F.2d 1549 (2d Cir. 1992) (public input and NEPA obligations; hearing not always required)
- National Audubon Soc’y v. Hoffman, 132 F.3d 7 (2d Cir. 1997) (limits of meaningful NEPA review; record reliance)
- Department of Transp. v. Pub. Citizen, 541 U.S. 752 (U.S. 2004) (NEPA process and public involvement principles)
- Citizens For Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) (NEPA public participation violation when no involvement)