Tri-Valley Cares v. U.S. Department of Energy
671 F.3d 1113
| 9th Cir. | 2012Background
- Tri-Valley CAREs challenged DOE's NEPA Environmental Assessment for LLNL's proposed biosafety level-3 facility after a prior remand requiring a hard look at terrorism risks.
- DOE’s 2002 EA, and 2008 Final Revised EA (FREA) found no significant impact; district court later granted summary judgment for DOE.
- On remand, DOE analyzed terrorist threats via three categories (direct attack, outsider theft, insider theft) and adopted an MCE-based bounding approach.
- Ninth Circuit previously remanded for hard look; court ultimately upheld DOE’s site-specific factors and BRTA analysis as adequate under NEPA.
- Court affirmed district court’s denial of Tri-Valley CAREs’ extra-record evidence and concluded DOE adequately addressed terrorist-threat impacts under NEPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA hard look on terrorist risks satisfied? | Tri-Valley CAREs says DOE failed to hard look at human health/safety impacts of an intentional attack. | DOE contends its MCE model and site-specific factors provide a reasonable hard look. | Yes; DOE took a hard look and supported its conclusions with record evidence. |
| Adequacy of FREA and need for EIS? | DOE should supplement/revise to require an EIS due to terrorism concerns. | DOE's revisions and BRTA sufficed; no significant impact requiring EIS. | Yes; DOE complied; no EIS required. |
| Admissibility of extra-record NRC report? | District court should augment record with NRC report on centrifuge models. | Post-decision bar and local rules justify exclusion; NRC report not needed. | District court did not abuse discretion; record augmentation denied. |
| Disclosure of 2005 anthrax shipping incident sufficiency? | DOE failed to disclose incident adequately, depriving public comment. | DOE discussed incident in DREA/FREA and expanded discussion in response to comments. | Adequate NEPA disclosure; discussion satisfied. |
Key Cases Cited
- Northern Plains Resource Council v. United States Surface Transportation Board, 668 F.3d 1067 (9th Cir. 2011) (deference to agency scientific judgments in NEPA review)
- Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800 (9th Cir. 1999) (hard look NEPA standard; need not persuade court of scientific view)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (agency discretion to choose reasonable analyses; deference to experts)
- Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (convincing statement requirement; not empirical data mandatory)