New York v. Nuclear Regulatory Commission
401 U.S. App. D.C. 140
| D.C. Cir. | 2012Background
- States and environmental groups challenge NRC's 2010 Waste Confidence Update and Temporary Storage Rule regarding SNF storage and future permanent disposal.
- NRC revised Finding 2 to state a permanent repository will be available when necessary and updated Finding 4 to extend safe on-site storage to 60 years beyond plant life.
- WCD Update serves as a basis for licensing decisions and has been argued to constitute a major federal action under NEPA.
- Petitioners argue NEPA requires either an EIS or a robust FONSI addressing environmental impacts, including failure to establish a repository and site-specific storage risks.
- Court holds WCD is a major federal action and that NRC's analysis is defective for failing to assess consequences of repository nonestablishment and for not adequately evaluating on-site storage risks.
- Case is remanded with instructions to vacate the WCD Update and TSR and to conduct a proper environmental analysis on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the WCD constitute a major federal action under NEPA? | Petitioners contend WCD is major action affecting licensing. | NRC argues WCD is not major and is merely an EA supporting §51.23(a) revision. | Yes; WCD is major action requiring EIS or FONSI. |
| Must NRC address environmental consequences of failure to establish a repository? | WCD's 'when necessary' finding ignores failure consequences. | NRC contends CANNOT require repository-specific failure analysis by NEPA. | WCD must be vacated for failing to analyze failure consequences; require EIS or adequate EA. |
| Is NRC's on-site storage extension to 60 years adequately analyzed for environmental impact? | Generic, site-wide analysis insufficient; must be site-specific and forward-looking. | EA found no significant impact based on generalized studies and past data. | Not adequately supported; remand for true, forward-looking analysis including consequences. |
| Did NRC properly address non-health environmental impacts and procedural raising of issues? | Non-health impacts (e.g., impacts on Prairie Island community, property values) require consideration. | Non-health issues were not properly raised in the rulemaking and thus waived. | Non-health issues were not properly raised; remand allows future consideration. |
Key Cases Cited
- Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983) (generic NEPA analysis can be appropriate; need hard look for EIS/EA)
- Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) (addressed need for repository availability by license termination)
- Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971) (NEPA issues to be considered at every stage of decision-making)
- Public Citizen v. Dept. of Transportation, 541 U.S. 752 (2004) (CEQ interpretations entitled to deference; agency must justify FONSI)
- Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989) (requirement to consider consequences when assessing risk)
- Carolina Environmental Study Group v. United States, 510 F.2d 796 (2d Cir. 1975) (weighing probability against consequences in NEPA analysis)
- City of New York v. Dep't of Transportation, 715 F.2d 732 (2d Cir. 1983) (overall risk requires considering both probability and consequences)
- Public Utility Comm'n v. NRC, None (None) (included for NEPA context reference in opinion (omit if not cited) )
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (U.S. 1978) (NEPA and major federal action considerations in nuclear contexts)