New York v. U.S. Nuclear Regulatory Commission
423 U.S. App. D.C. 1
| D.C. Cir. | 2016Background
- The NRC promulgated a Continued Storage Rule and a Generic Environmental Impact Statement (GEIS) addressing environmental impacts of continued on-site storage of spent nuclear fuel after reactor licensed life; this followed this Court’s vacatur of the NRC’s prior Waste Confidence Decision in New York I.
- Petitioners (several states, a Native American community, and environmental groups) challenged the Rule and GEIS under NEPA, alleging failures to consider alternatives, mitigation, and accurate impacts/assumptions.
- The NRC contended the Rule is a rulemaking that codifies generic environmental determinations to be applied in future site-specific licensing; the GEIS is intended as a generic analysis, with site-specific issues addressed in licensing proceedings or via waiver petitions.
- Key contested topics included: whether the Rule required full site-specific EIS treatment of licensing alternatives and mitigation; whether the GEIS used conservative/bounding assumptions (population, pool fires/leaks, seismic risks); probability of failing to site a permanent repository; cumulative impacts; short-term high-volume pool leaks; and several long-term storage assumptions (60-year pool removal, 100-year dry cask replacement, perpetual institutional controls).
- The D.C. Circuit reviewed whether the NRC’s GEIS and Rule complied with NEPA and whether the NRC’s technical assumptions were arbitrary or capricious under the Administrative Procedure Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Rule is a licensing action requiring site‑specific alternatives/mitigation in the GEIS | Rule effectively decides licensing; so GEIS must include site-specific alternatives and mitigation | Rule is a generic codification of environmental determinations, not a licensing action; site-specific alternatives/mitigation are addressed in licensing | NRC correct: Rule is a major federal action but not a licensing action; GEIS suffices and site-specific review can address alternatives/mitigation |
| Whether GEIS failed to use conservative/bounding assumptions for common risks (population, seismic, pool fires/leaks) | GEIS relied on limited sites/data and non‑bounding assumptions, understating impacts | GEIS analyzed risks that are essentially common to sites, explained variance and limitations, and was thorough and comprehensive | GEIS met NEPA’s "thorough and comprehensive" rule‑of‑reason; generic analysis appropriate for common risks |
| Whether NRC failed to quantify probability of failing to site a permanent repository and assess consequences | NRC should quantify probability of repository failure and its impacts | NRC need only quantify to the fullest extent practicable and may discuss qualitative factors when quantitative data lack | NRC’s qualitative treatment of repository‑siting failure and its consequences satisfied NEPA requirements |
| Whether GEIS ignored cumulative impacts, short‑term high‑volume leaks, and whether waiver process is illusory | GEIS segmented impacts, downplayed leaks; waiver shifts NEPA burden and is inadequate | GEIS discussed cumulative impacts across reactor lifetime, analyzed leaks, and NRC provides waiver (§2.335) plus site licensing to raise site issues | Court found GEIS adequately addressed cumulative impacts and leaks; waiver/admin avenues are adequate and reviewable in site proceedings |
| Whether key long‑term assumptions (60‑year pool removal; 100‑year dry cask replacement; perpetual institutional controls) are unreasonable | Assumptions are speculative and underestimate risk | Assumptions are supported by regulation, operational experience, cost analysis, and are reasonable predictive judgments | Assumptions are not arbitrary or capricious; NRC’s predictive judgments are entitled to deference |
Key Cases Cited
- New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (vacating NRC’s prior Waste Confidence Decision and Temporary Storage Rule)
- Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) (early remand of NRC’s on-site storage expansion decision)
- In re Aiken County, 645 F.3d 428 (D.C. Cir. 2011) (DOE withdrawal of Yucca Mountain application context)
- Blue Ridge Environmental Defense League v. NRC, 716 F.3d 183 (D.C. Cir. 2013) (deference to NRC technical judgments)
- Motor Vehicle Manufacturers Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983) (arbitrary and capricious standard)
- Theodore Roosevelt Conservation Partnership v. Salazar, 661 F.3d 66 (D.C. Cir. 2011) (rule‑of‑reason in NEPA alternatives analysis)
- Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (mitigation discussion not mandating implementation)
- Kleppe v. Sierra Club, 427 U.S. 390 (1976) (cumulative impact requirement purpose)
- Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989) (discussed on generic vs. site‑specific analysis)
- New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) (deference to agency predictive judgments)
- Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000) (agency technical judgments and petitioner substitution of analysis)
- Public Utilities Commission of California v. FERC, 900 F.2d 269 (D.C. Cir. 1990) (permitting deferral of mitigation specifics to later stages)
- Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991) (site‑specific licensing challenges to NRC decisions)
- York Committee for a Safe Environment v. NRC, 527 F.2d 812 (D.C. Cir. 1975) (review of final NRC licensing decision)