KNOWLTON v. STATE OFFICIALS
United States Court of Appeals, First Circuit.
Jan. 4, 2013.
91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)
While the complaint alleges that the state officials conspired with others to deprive Knowlton of a constitutionally protected property interest—i.e., his job with Bankers Life—it fails to allege any racial, or otherwise class-based, invidiously discriminatory animus underlying the state officials’ actions. As the district court properly concluded, the complaint‘s failure to do so dooms Knowlton‘s
CONCLUSION
In the end, we affirm the district court‘s dismissal of Knowlton‘s claims against the state officials.
BEYOND NUCLEAR, Paul Gunter, Director of Reactor Oversight Project; New Hampshire Sierra Club, Kurt Ehrenberg, Field Organizer; Seacoast Anti-Pollution League, Doug Bogen, Executive Director, Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION, Respondent, NextEra Energy Seabrook, LLC; Taunton Municipal Lighting Plant; MA Municipal Wholesale Electric Company; Hudson Light & Power Department, Interested Parties, Intervenors.
No. 12-1561.
United States Court of Appeals, First Circuit.
Jan. 4, 2013.
Jeremy M. Suttenberg, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, with whom Ignacia S. Moreno, Assistant Attorney General, J. David Gunter II, Attorney, Appellate Section, Environmental and Natural Resource Division, U.S. Department of Justice, Marian L. Zobler, Acting General Counsel, and John F. Cordes, Jr., Solicitor, were on brief, for respondent.
Nicholas J. Scobbo, Jr., and Ferriter Scobbo & Rodophele, PC, on brief, for intervenors MA Municipal Wholesale Electric Company, Taunton Municipal Lighting Plant, and Hudson Light & Power Department.
Before LYNCH, Chief Judge, BOUDIN,* Circuit Judge, and WOODLOCK,** District Judge.
LYNCH, Chief Judge.
NextEra Energy Seabrook, LLC, operates the Seabrook, New Hampshire, Unit 1 nuclear power plant, which provides a significant portion of the baseload electric power used in New England. NextEra applied on May 25, 2010, to renew the Seabrook operating license, which will otherwise expire on March 15, 2030. See
As part of that licensing process, the Nuclear Regulatory Commission (“NRC“), on March 8, 2012, issued a decision denying the admission of a contention by Beyond Nuclear, the New Hampshire Sierra Club, and the Seacoast Anti-Pollution League (collectively “BN“), which questioned and sought a hearing on the conclusion in the environmental report by NextEra that offshore wind electric generation was not a reasonable alternative to the extended licensing of Seabrook. In doing so, the NRC reversed the Atomic Safety and Licensing Board‘s (“ASLB“) admission of that contention. The NRC‘s denial of admission of a contention here means that it ruled petitioners were not entitled to have a hearing on the merits about their contention that generation of electricity from offshore wind was a reasonable alternative source of baseload energy to the relicensing of Seabrook.
On petition for review, BN advances two primary challenges to the NRC‘s decision. First, it argues that in formulating its contention-admissibility standard the NRC misapplied case law interpreting the National Environmental Policy Act (“NEPA“),
I.
We give a brief description of the regulatory scheme governing the process for renewal of nuclear power plant operating licenses. The NRC must comply with obligations under two separate statutes, the Atomic Energy Act (“AEA“),
To fulfill the agency‘s obligations under NEPA, the NRC has promulgated a different set of regulations, codified at
The environmental report must include consideration of alternative sources of energy generation to the relicensing,
The AEA also imposes a requirement that the NRC “shall grant a hearing upon the request of any person whose interest may be affected by the proceeding,” such as a license renewal.
(i) Provide a specific statement of the issue of law or fact to be raised or controverted . . . ;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expert opinions which support the requestor‘s/petitioner‘s position on the issue . . . together with references to specific sources and documents on which the requestor/petitioner intends to rely . . . ;
(vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact . . . .
II.
We next address the relevant facts. Seabrook is New England‘s largest nuclear reactor, having a capacity of 1245 megawatts, and provides 8.2% of the actual generation of the Independent System Operator New England (“ISO-NE“), which the environmental report explains “is a regional network that coordinates the movement of wholesale electricity in all or parts of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.”
A. NextEra‘s Environmental Report
NextEra‘s environmental report, among other things, addressed four alternative sources of energy to renewing Seabrook‘s license that it deemed viable, reasonable alternatives: natural gas-fired generation; coal-fired generation; a new nuclear plant; and power purchases.
The report also discussed wind power, of which NextEra is the leading generator in North America, but concluded it was not a reasonable alternative as a source of baseload electricity during the relevant period of time. It is on that point that petitioners sought a full hearing before the Commission.
The environmental report stated that “[f]or the purposes of this environmental report, alternative generating technologies were evaluated to identify candidate technologies that would be capable of replacing Seabrook Station‘s nominal net base-load capacity of 1,245 MWe,” and that it “accounted for the fact that Seabrook Station is a base-load generator and that any feasible alternative to Seabrook Station would also need to be able to generate base-load power.” Thus, any reasonable alternative would need to generate baseload power.3
The NRC published a notice in the Federal Register providing an opportunity for all interested parties to file contentions. See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. NPF-86 for an Additional 20-Year Period; NextEra Energy Seabrook, LLC; Seabrook Station, Unit 1, 75 Fed. Reg. 42,462 (July 21, 2010).
BN filed a hearing petition on October 20, 2010, proposing its one contention and focusing on the potential production of baseload power through either storing wind-produced power or interconnected offshore wind farms. BN attached twenty-one exhibits, including news articles, government reports, and academic articles, which it said supported its contention.
We provide some useful context. BN was not the only entity to file a hearing petition. The NRC has admitted two contentions challenging other aspects of the environmental report and will hold hearings on those contentions.4
B. ASLB Ruling on BN‘s Wind Power Contention
The NRC “appoints [ASLBs] to conduct public hearings and to make intermediate or final decisions in administrative proceedings” relating to licensing decisions. Johnston v. NRC, 766 F.2d 1182, 1188 (7th Cir. 1985). A Board consists of three members, one of whom is qualified in the conduct of administrative proceedings and two of whom have technical or other qualifications the NRC deems appropriate.
The Board determined that BN‘s contention was admissible, limiting its scope solely to offshore wind, and specifically citing to representations made orally by a BN representative at a hearing. The representations were that an exhibit, Ex. 17, University of Maine, “Maine Offshore Wind Plan,” establishes that offshore wind farms would deliver baseload energy by 2015.6 That representation proved to be untrue.
NextEra appealed the Board‘s decision to the Commission, which unanimously reversed the admission. The NRC will reverse the ASLB based on an error of law or abuse of discretion. S.C. Elec. & Gas Co. & S.C. Pub. Serv. Auth., 72 N.R.C. 197, 200 (2010). The NRC correctly stated the standard for admission—that a petitioner must present “sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.”7 See
As a result:
[T]o submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily must provide ‘alleged facts or expert opinion’ sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternate technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power.
Applying that standard, the Commission concluded the Board erred in admitting the contention for four reasons:
- there was no challenge by BN to the fact that storing wind power is too costly to be commercially viable;
- the data submitted by BN did not demonstrate that offshore wind farms would provide timely and feasible baseload power;
- BN‘s own exhibits stated that the lack of “requisite technology is an obvious barrier to establishment of the deepwater wind industry in Maine or elsewhere in the near term,” and that essential infrastructure for installation, transmission, and maintenance does not yet exist; and
- the Board had supplied a basis for BN‘s contention that BN did not itself make, that interconnected offshore wind farms could constitute a single, discrete energy source, but this error was deemed harmless.
III.
A. NEPA and the NRC‘s Admissibility Standard
A major argument advanced in BN‘s briefing is that the NRC misused or misapplied NEPA case law in its decision. The argument is wrong.
First, NEPA does not, by its own terms or its intent, alter the Commission‘s hearing procedures, including the requirement that a petitioner provide sufficient information to show a genuine dispute on a material issue of law or fact.
Further, the NEPA requirements are procedural in nature and do not mandate particular results or specific standards. See United States v. Coal. for Buzzards Bay, 644 F.3d 26, 31 (1st Cir. 2011). Rather, NEPA requires an agency to take a “hard look” at environmental consequences. Id. at 31.
BN suggests that by requiring an alternative energy source to provide baseload power, the NRC defined the objectives of the proposed actions so narrowly that it engaged in “outcome-controlled rigging.” See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) (stating agency cannot make objectives so narrow that outcome is a “foreordained formality“).
That is not the case, for reasons both of law and common sense. NEPA requires only consideration of reasonable alternatives. See, e.g., Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972). That means “the concept of alternatives must be bounded by some notion of feasibility,” Vt. Yankee, 435 U.S. at 551, which includes alternatives that are “technically and economically practical or feasible,” Theodore Roosevelt Conservation P‘ship v. Salazar, 661 F.3d 66, 69 (D.C. Cir. 2011) (quoting
NextEra operates a baseload power generator at Seabrook, and despite BN‘s “outcome-controlled rigging” argument, BN‘s own brief concedes it was “permissible” for the NRC to consider the goal of providing baseload electrical power. Thus, BN does not challenge the NRC‘s decision, in considering the feasibility of an alternative energy source, to focus on whether such an alternative source could supply baseload power. Cf. Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676, 684 (7th Cir. 2006) (upholding baseload generation as appropriate goal).
BN then attempts an argument that the NRC was required to consider what alternatives might look like in forty years time.8 Not so. Here again the NRC has taken a sensible course. The NRC stated that “[a]ssessments of future energy alternatives necessarily are of a predictive nature,” and that “the applicant—and the
The NRC acknowledged the need for prediction, and made a rational decision that in most instances the best predictor of viability of an alternative in the distant future is the near term viability of the alternative.9 It did so in compliance with the law. The duty under NEPA is to “study all alternatives that ‘appear reasonable and appropriate for study at the time’ of drafting the EIS.” Roosevelt Campobello Int‘l Park Comm‘n v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (quoting Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1228 (1st Cir. 1979)).10 Forecasting should be based on “existing technology and those developments which can be extrapolated from it.” Natural Res. Def. Council, Inc. v. NRC, 547 F.2d 633, 639-40 (D.C. Cir. 1976), rev‘d on other grounds, Vt. Yankee, 435 U.S. 519 (1978).11 This aspect of the NRC‘s framework does provide a “hard look” at alternatives.
Substantial deference is required when an agency adopts reasonable interpretations of its own regulations, and we must accept the agency‘s position unless it is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)) (internal quotation marks omitted). Because the NRC‘s elaboration of its admissibility standard was generally reasonable and consistent with both
B. The NRC‘s Application of its Admissibility Standard to Facts
Our review is delimited by the Administrative Procedure Act (“APA“), which authorizes the court to reverse the NRC‘s decisions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
“An agency‘s decision is not arbitrary and capricious if that decision was based
BN sounds a theme which has no record support—that the NRC improperly made a determination as to the reasonableness of offshore wind, at the admissibility stage, on the merits. To the contrary, the NRC made it clear that it was not doing that, but examining BN‘s submissions against the admissibility standard. It stated that “[BN] has not provided support for its claim that offshore wind is technically feasible and commercially viable . . . and therefore has not submitted an admissible contention,” and that “[BN‘s] ‘offshore wind’ contention is not sustainable on its face because it lacks a supporting basis,” a result reached “without improperly resolving disputed facts.”
This theme by BN is a backdoor challenge to the decision made by the NRC in 1989, at the prompting of Congress, to toughen the standards for getting a hearing on contentions. See Rules of Practice for Domestic Licensing Proceedings—Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (imposing requirement that to be admissible a contention must provide “sufficient information . . . to show that a genuine dispute exists“); see also
We hold that the NRC‘s decision to deny admissibility to BN‘s contention constituted reasoned decisionmaking and was not arbitrary or capricious. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (requiring agency adjudications to be subject to requirement of reasoned decisionmaking). That decision is reasonable because BN: (1) failed to even argue that the baseload requirement was inappropriate; and (2) its exhibits did not raise a genuine dispute as to the viability and feasibility of offshore wind to meet baseload requirements by 2030.
First, BN‘s contention did not respond to the requirement that a reasonable alternative must provide baseload power. BN did not supply information to dispute NextEra‘s conclusion that energy storage devices are too costly and baseload power generation by wind power would require such devices. The relevant exhibit only discussed storage potential, but not cost. Ex. 3, National Renewable Energy Laboratory, “Creating Baseload Wind Power Systems Using Advanced Compressed Air Energy Storage Concepts,” (Oct. 2006). That failure by BN alone is fatal to their
The exhibit relied upon by BN before the ASLB to support their representation—that wind power off Maine‘s coast would provide baseload power by 2015—does not support BN‘s representation. The exhibit does not make any suggestion about baseload power, let alone in the 2015 time period. The one-page exhibit,13 an illustrative chart, calls for the deployment of one 3-5 megawatt prototype turbine in 2012-2014 and five turbines capable of producing 25 megawatts, combined, in 2014-2016, which cannot provide baseload power, much less power on the scale of Seabrook.14
Moreover, the NRC reasonably concluded that BN‘s exhibits did not raise a genuine dispute as to the technical feasibility or commercial viability of offshore wind farms in the relevant time period.15 In fact, two of BN‘s own exhibits undercut its position. A report of the Maine Energy Task Force to then-Governor Baldacci stated that:
[T]echnologies that would enable the placement of wind turbines on floating platforms or other structures in greater depths needed to tap the world-class deep-water wind resources in Maine‘s coastal waters or in adjoining federal waters are under development. . . . Lack of the requisite technology is an obvious barrier to establishment of the deep-water wind industry in Maine or elsewhere in the near term.
Ex. 14, “Final Report of the Ocean Energy Task Force to Governor John E. Baldacci” (Dec. 2009) 27 (emphasis added).
Other evidence supports the NRC‘s conclusion. A 2010 predecisional draft report by the U.S. Department of Energy submitted by BN also stated that: “significant challenges . . . need to be overcome“; uncertainty exists as to potential project power production and turbine and array designs; the implications of adding large amounts of offshore wind generation to the
BN argues that Exhibit 14 stated that shallow offshore wind power is viable today (because of its use in Europe) and points to Exhibit 11, European Wind Energy Association, “Oceans of Opportunity,” (Sept. 2009), discussing the growth of offshore wind in Europe. As the NRC correctly noted, another of BN‘s exhibits, Ex. 19, U.S. Department of Energy, “20% Wind Energy by 2030” (July 2008) 57, stated that such European shallow-water technology is too expensive and too difficult to site in U.S. waters. And, both exhibits are silent on the critical issue of baseload generation.17
The NRC‘s decision was not arbitrary or capricious and there is no basis in law to set it aside.
IV.
If new information about the technical and economic feasibility of offshore wind as a source of baseload power, which differs materially from that which was available when the contention at issue was filed, becomes available prior to Seabrook‘s license renewal, NRC regulations would permit the filing of a new contention, if timely submitted.
The petition for review is denied.
Michael Francis MURRAY, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
Nos. 12-1051, 12-1350.
United States Court of Appeals, First Circuit.
Jan. 4, 2013.