896 F.3d 520
D.C. Cir.2018Background
- Powertech sought an NRC license (Dewey-Burdock ISR uranium project) to construct and operate in-situ leach mining on lands within the Oglala Sioux Tribe’s traditional territory; NRC Staff prepared and issued an EIS and the license.
- The Oglala Sioux Tribe intervened, alleging NEPA and NHPA deficiencies, particularly that the EIS failed to catalogue tribal cultural, historical, and religious sites (including burial sites) and thus lacked necessary mitigation.
- An Atomic Safety and Licensing Board (ASLB) found the EIS had a "significant deficiency" under NEPA (Contention 1A) and that NHPA consultation was inadequate (Contention 1B), but declined to suspend the license unless the Tribe showed "immediate and irreparable harm."
- The NRC Commission upheld the ASLB findings of statutory noncompliance but nevertheless left the license in effect, adopting the practice that a license may remain effective unless an intervenor demonstrates irreparable harm from allowing work to proceed during remediation.
- The Tribe petitioned this court challenging, inter alia, the Commission’s decision to leave the license in effect despite acknowledging NEPA noncompliance; the D.C. Circuit held it lacked jurisdiction over most parts of the order but had collateral-order jurisdiction to review the decision to permit the license to remain effective.
- The D.C. Circuit held the Commission’s practice—conditioning enforcement of NEPA on an intervenor’s showing of irreparable harm—contravenes NEPA’s pre-action EIS requirement; the court remanded for further proceedings consistent with that holding (without vacating the license at this time).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NRC may leave a license in effect after acknowledging a "significant" NEPA deficiency unless intervenor shows irreparable harm | Tribe: NEPA requires a valid EIS before major federal action; agency may not permit construction to proceed absent an adequate pre-action EIS; irreparable-harm condition is unlawful | NRC/Staff: agency may consider harmless-error/prejudice and remedial remand without vacatur; require showing of harm to justify a stay | Holding: NRC’s practice is contrary to NEPA; agency may not condition compliance on intervenor showing irreparable harm; remand for further proceedings consistent with NEPA (license left in place for now) |
| Whether the court has jurisdiction to review the Commission’s decision to leave the license effective | Tribe: collateral-order doctrine applies because ruling conclusively determines license effectiveness, raises separate important question, and would be effectively unreviewable after final agency action | NRC: order not final; challenges were premature | Held: collateral-order jurisdiction exists to review the specific ruling permitting the license to remain effective pending remediation |
| Whether the NRC’s harmless-error/harmless-procedure analogies justify leaving license effective | Tribe: error was a "significant deficiency," not a technical or harmless error; placing burden on Tribe to show harm is circular | NRC: relies on prejudicial-error doctrine and court remand-without-vacatur practice under APA and case law | Held: harmless-error analogy inapt; agency lacks statutory authority to forgive NEPA by requiring intervenor prejudice/irreparable harm |
| Whether vacatur/remand remedy parallels justify agency action without conditions | Tribe: vacatur would be appropriate where NEPA procedural protection is at stake; agency gave no protective conditioning here | NRC: argues remand without vacatur often applied to avoid disruption and asserted compliance measures may suffice | Held: court remands; declines to vacate now because of reliance interests and South Dakota permitting constraint representation, but warns Commission may not follow its irreparable-harm practice going forward |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (collateral-order doctrine standards)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA’s action-forcing purpose; pre-decision EIS requirement)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (irreparable-harm standard and NEPA informational role)
- Allied-Signal, Inc. v. NRC, 988 F.2d 146 (vacatur/remand balancing factors)
- Pub. Emps. for Envtl. Responsibility v. Hopper, 827 F.3d 1077 (agency must obtain site-specific data before action)
- Friends of the River v. FERC, 720 F.2d 93 (remand/futility discussion where agency later completed review)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (NEPA prevents action on incomplete information)
- Baltimore Gas & Electric Co. v. Nat. Res. Def. Council, 462 U.S. 87 (NEPA guarantees informed decisionmaking and public disclosure)
- Va. Uranium, Inc. v. Warren, 848 F.3d 590 (NRC licensing context for in-situ leach uranium operations)