Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission
879 F.3d 1202
D.C. Cir.2018Background
- NRC granted Strata Energy a license in 2014 to conduct in situ leach (ISL) uranium mining at the Ross Project in the Lance District (Crook County, WY). The Councils (NRDC and Powder River Basin Resource Council) intervened and were granted a hearing.
- The licensing process involved an Environmental Impact Statement (EIS): staff issued a Draft EIS, received comments, then issued a Final EIS (FEIS) and a Record of Decision; the license issued while adjudicatory proceedings continued.
- The Councils advanced several contentions: Contention No. 2 (inadequate analysis of impacts if groundwater must be restored to an alternate concentration limit — ACL), Contention No. 3 (inadequate hydrological information and excursion risk, partly due to unfilled boreholes), Contention No. 4/5A (inadequate cumulative impacts analysis), and proposed Contention No. 6 (failure to consider mining of the entire Lance District).
- The Atomic Safety and Licensing Board admitted some contentions, declined to migrate Contention No. 4/5A to the Draft EIS, rejected Contention No. 6 as untimely, and found the FEIS lacking only in comparative data about ACL restorations at other sites — a defect it deemed cured by staff testimony in the hearing record.
- The NRC Commission affirmed the Board (with a partial dissent raising NEPA timing concerns). The Councils petitioned this court under the APA and NEPA challenging procedural and substantive aspects of the licensing/EIS decisions. The D.C. Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Refusal to migrate Contention No. 4/5A | Councils: Board should have migrated or amended Contention No. 4/5A because the Draft EIS’s cumulative impacts discussion was sufficiently similar and evidence of good cause existed in the record. | NRC/Board: Migration requires the license-app and Draft EIS analyses be substantially the same; Councils didn’t timely seek amendment or show good cause. | Court: Affirmed Board — migration/amendment procedures were properly applied; court won’t hunt the record for arguments the Councils did not make. |
| Denial of Contention No. 6 (timeliness and "connected" projects) | Councils: Ross Project is intended as part of larger Lance District development and thus should be treated as connected/cumulative. | NRC/Board: Information supporting a Lance-wide argument was available earlier (untimely); Ross Project has independent utility and is not "connected" as defined by NEPA. | Court: Affirmed — Contention No. 6 untimely; Ross Project shown to have independent utility, so not a "connected" action. |
| Post-license supplementation of FEIS (NEPA timing) | Councils: FEIS was inadequate at issuance; supplementing the FEIS via hearing testimony after issuance violates NEPA’s requirement that decisionmakers/public have info before actions are taken. | NRC: License was provisional and subject to amendment; the Board and Commission publicly augmented the FEIS before judicial review, so supplementation cured the defect; remand would be futile. | Court: Affirmed — supplementation in the public adjudicatory record cured the deficiency; aligned with precedent allowing post-decision augmentation where the agency later publicly explains and relies on the supplemental analysis. |
| Substance: aquifer restoration & excursion risk (Contentions 2 and 3) | Councils: FEIS failed to analyze environmental impacts if mined aquifer must be restored only to an ACL; unfilled boreholes increase excursion risk and staff relied improperly on circular reasoning and the aquifer’s "exempt" status. | NRC/Board: Board properly supplemented FEIS re: ACLs; exempt status and license conditions/supporting staff analysis show likely impacts are not "large"; license conditions, monitoring, and enforcement reduce excursion risk; contrary expert testimony was considered but discounted. | Court: Affirmed — supplementation resolved ACL-data gap; Board’s conclusion that impacts wouldn’t be "clearly noticeable" or destabilizing was rational; reliance on license conditions and staff analysis was permissible; expert disagreements do not render the decision arbitrary. |
Key Cases Cited
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (NEPA requires agencies to consider and disclose significant environmental impacts)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA is an information-forcing statute; agencies must take a "hard look")
- Friends of the River v. FERC, 720 F.2d 93 (D.C. Cir.) (post-decision supplementation may be permissible where agency subsequently provides a public, adequate explanation and remand would be futile)
- Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir.) (distinguishes cases where required data were never gathered or publicly adopted)