Richard L. BRODSKY, New York State Assemblyman, From the 92nd Assembly District, in His Official and Individual Capacities, Westchester‘s Citizens Awareness Network (Westcan), Sierra Club-Atlantic Chapter (Sierra Club), Plaintiffs-Appellants, Public Health and Sustainable Energy (Phase), Plaintiff, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant-Appellee, Entergy Nuclear Operations, Inc., Defendant.
Docket No. 11-2016-cv.
United States Court of Appeals, Second Circuit.
Argued: May 3, 2012. Decided: Jan. 7, 2013.
704 F.3d 113
Kelly A. Berkell, Office of Assemblywoman Amy R. Paulin, Scarsdale, NY, for Amicus Curiae New York Legislators.
Before: SACK and RAGGI, Circuit Judges, and SWAIN, District Judge.*
REENA RAGGI, Circuit Judge:
On September 28, 2007, defendant United States Nuclear Regulatory Commission (“NRC“) granted defendant Entergy Nuclear Operations, Inc. (“Entergy“), an exemption from compliance with certain fire safety regulations at its Indian Point nuclear power plant operating unit No. 3 (“Indian Point 3“), located in Westchester County, New York. In December 2007, plaintiffs Richard Brodsky, a former member of the New York State Assembly; the Westchester‘s Citizens Awareness Network; and the Sierra Club-Atlantic Chapter, unsuccessfully petitioned the NRC to reopen the exemption proceeding and to hold a public hearing on the merits of Entergy‘s request. This court dismissed plaintiffs’ direct appeal from the NRC‘s denial of that petition for lack of jurisdiction. See Brodsky v. U.S. Nuclear Regulatory Comm‘n, 578 F.3d 175, 180 (2d Cir. 2009). Plaintiffs thereafter commenced the instant action in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge), alleging that the NRC‘s award of the exemption to Entergy violated the Administrative Procedure Act (“APA“), the Atomic Energy Act (“AEA“), and the National Environmental Policy Act (“NEPA“). On this appeal, plaintiffs challenge the district court‘s award of summary judgment in favor of Entergy on these claims. See Brodsky v. U.S. Nuclear Regulatory Comm‘n, 783 F.Supp.2d 448, 450 (S.D.N.Y.2011).
By summary order filed today, we affirm the challenged judgment in all respects but one, which is the subject of this opinion. Specifically, insofar as plaintiffs contend that the NRC granted the challenged exemption in violation of NEPA‘s regulations, which allow for public involvement where appropriate and practicable, see
* Judge Laura Taylor Swain of the United States District Court for the Southern District of New York, sitting by designation.
The Atomic Energy Act of 1954 “establishes a comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States” and vests the Atomic Energy Commission, and its successor agency, the NRC, with broad regulatory power to ensure “that the generation and transmission of nuclear power does not unreasonably threaten the public welfare.” County of Rockland v. U.S. Nuclear Regulatory Comm‘n, 709 F.2d 766, 769 (2d Cir.1983); accord Riverkeeper, Inc. v. Collins, 359 F.3d 156, 168 (2d Cir.2004) (noting NRC‘s mission to “insure adequate protection of public health and safety from risks associated with nuclear plants“). Pursuant to that authority, in 1980, the NRC upgraded its fire safety rules in response to a catastrophic fire at the Browns Ferry power plant near Decatur, Alabama. See Fire Protection Program for Operating Nuclear Power Plants, 45 Fed. Reg. 76,602 (Nov. 19, 1980);
In both 1984 and 1987, Indian Point 3 secured exemptions from fire safety regulations not relevant here. The grant of these exemptions was by no means pro forma. As the district court observed, the NRC has had “a long history of reviewing the [fire safety] regulations at [Indian Point 3] and in most cases has denied requests for exemptions.” Brodsky v. U.S. Nuclear Regulatory Comm‘n, 783 F.Supp.2d at 452 n. 3 (noting that NRC staff recommended granting only eight of twenty-six exemptions requested after regulations took effect).
Existing rules contemplate a “defense-in-depth” approach to fire protection with three objectives: (1) “[t]o prevent fires from starting“; (2) “[t]o detect rapidly, control, and extinguish promptly those fires that do occur“; and (3) “[t]o provide protection for structures, systems, and components important to safety so that a fire that is not promptly extinguished by the fire suppression activities will not prevent the safe shutdown of the plant.”
Since at least 1987, Indian Point 3 has relied on a fire barrier called Hemyc, originally rated for one hour of fire protection, to satisfy the third objective of the NRC‘s fire safety regulations. The NRC first began to develop concerns about Hemyc‘s effectiveness in 1999, prompting renewed testing of that material. On April 1, 2005, the NRC informed its licensees that Hemyc and another fire barrier material, MT, did not perform for one hour as designed because of shrinkage of the material during testing. Later that month, NRC staff held a public meeting with licensees and interested members of the public to discuss these concerns.
In May 2005, a number of citizen groups petitioned the NRC pursuant to
In its June 8, 2006 response to this NRC directive, Entergy reported that Indian Point 3 was not in compliance with agency fire safety protocols due to its use of Hemyc. Entergy stated that it had instituted compensatory measures, such as conducting hourly fire-watch tours and ensuring the operability of its fire detection systems. On July 24, 2006, Entergy applied to the NRC for an expansion of its existing exemptions to require only a 30-minute fire resistance rating in two areas of Indian Point 3 protected by Hemyc. By August 16, 2007, however, Entergy had concluded that it could not guarantee satisfaction of a 30-minute resistance rating in one of the areas and sought NRC allowance for a 24-minute rating at that site.
On August 27, 2007, the NRC‘s Fire Protection Branch recommended granting Entergy the requested exemption. On September 24, 2007, the NRC issued a related environmental assessment (“EA“), see
On March 27, 2008, plaintiffs, with the support of New York State as amicus curiae, petitioned this court for review of the NRC‘s denial pursuant to
Plaintiffs commenced the instant action in the district court on December 30, 2009, alleging violations of the APA, AEA, and NEPA. By Opinion and Order dated March 4, 2011, the district court awarded summary judgment to defendants on all claims. See Brodsky v. U.S. Nuclear Regulatory Comm‘n, 783 F.Supp.2d 448. While the district court discussed various of plaintiffs’ challenges, it did not specifically address their argument that the NRC violated their NEPA right, as members of the public, to participate in the exemption process. We consider that claim here.
II. Discussion
A. Standard of Review
NEPA is, at its core, “a procedural statute that mandates a process rather than a particular result.” Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 557 (2d Cir.2003). Thus, judicial “review of administrative choices under NEPA . . . focuses primarily on the procedural regularity of the decision,” rather than on its substance. Sierra Club v. U.S. Army Corps of Eng‘rs, 772 F.2d 1043, 1055 (2d Cir.1985); see Coalition on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 310 (2d Cir.2009) (reiterating that reviewing court‘s role is limited to “insur[ing] that the agency has taken a hard look at environmental consequences . . . of the action to be taken,” rather than evaluating merits of decision (internal quotation marks omitted)).
Because NEPA does not itself provide for judicial review, the APA controls. See Sierra Club v. U.S. Army Corps of Eng‘rs, 772 F.2d at 1050. Pursuant to the APA, courts review contested agency action to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
B. Public Participation in the NEPA Process
NEPA‘s animating purposes and methods of operation have been discussed at length in prior decisions. See, e.g., Department of Transp. v. Pub. Citizen, 541 U.S. 752, 757-58, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (describing NEPA‘s statutory and regulatory scheme); National Audubon Soc‘y v. Hoffman, 132 F.3d at 12. For purposes of this appeal, we focus on those parts of the statute and regulations providing for public disclosure and input regarding the environmental impact of contemplated agency action. See Pogliani v. U.S. Army Corps of Eng‘rs, 306 F.3d 1235, 1237-38 (2d Cir.2002) (recognizing that Congress enacted NEPA “to ensure that federal agencies examine and disclose the potential environmental impacts of projects before allowing them to proceed,” which process “must involve the public“).
NEPA directs agencies contemplating “major [f]ederal actions significantly affecting the quality of the human environment” to prepare an Environmental Impact Statement (“EIS“) demonstrating agency consideration of the reasonably foreseeable environmental effects.
While NEPA itself does not assign the public any particular role in the aforementioned processes, see generally Hanly v. Kleindienst, 471 F.2d 823, 835 (2d Cir.1972) (recognizing that “[t]here is no statutory requirement” for public hearings under NEPA), implementing regulations identify public scrutiny as an “essential” part of the NEPA process,
As some courts have recognized, these regulations do not clearly define how public involvement requirements might apply where, as here, an agency prepares only an EA (and FONSI) and not an EIS. See Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 861 (D.C.Cir.2006); Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004). Whereas regulations require a draft EIS to be circulated for public comment prior to its adoption, see
C. The Record Is Insufficient To Permit Judicial Review of Plaintiffs’ Public Participation Challenge to the Granted Exemption
In opposing plaintiffs’ NEPA challenge to the exemption granted to Indian Point 3, the NRC maintains that “no hearing was required under the NEPA regulations.” NRC Br. 58. That proposition is not novel, see Friends of Ompompanoosuc v. FERC, 968 F.2d at 1557, but it misses the point of plaintiffs’ argument. Plaintiffs do not contend that the NRC was required to afford a specific type of public participation; rather, they complain that the NRC failed to notify or solicit feedback from the public at all regarding the challenged exemption. See Appellants’ Br. 53.
The NRC cites no case in which a court has held an agency‘s issuance of an EA and FONSI to satisfy NEPA despite a comparable lack of public participation. While we have on two occasions ruled that an agency complied with NEPA despite failing to circulate final versions of its analyses for comment prior to their publication, the agencies had previously held multiple hearings or afforded other opportunities for public input. See Pogliani v. U.S. Army Corps of Eng‘rs, 306 F.3d at 1238; Town of Rye v. Skinner, 907 F.2d at 24. Conversely, in a case in which we held that no public hearing under NEPA was required, we reviewed an administrative record showing that public input in other forms had alerted the agency to the citizenry‘s concerns before the challenged decision was reached. See Friends of Ompompanoosuc, 968 F.2d at 1552 (noting that, in preparing EA, agency had “ob-
Certainly, the record does not demonstrate, nor does the government argue, that exigent circumstances made it impracticable to afford public notice or participation in the fifteen months between Entergy‘s June 2006 application and the NRC‘s September 2007 publication of the EA and FONSI on the same day that it granted the exemption. Nor does the record reveal a basis for the NRC to conclude that notice and opportunity for public comment would not have been appropriate. Indeed, a contrary conclusion finds support in the record evidence of public interest in the question of how nuclear plants satisfied their fire barrier obligations. Once NRC testing raised questions about Hemyc‘s effectiveness, several environmental groups filed petitions with the NRC to modify or suspend the licenses of certain nuclear power plants, including Indian Point 3, relying on Hemyc as a fire barrier. See 71 Fed.Reg. at 3,345. Insofar as the NRC argues that plaintiffs have failed to demonstrate a public controversy in the subject matter of Entergy‘s particular exemption request, we are not inclined to assume in light of these petitions, and in the absence of a more specific agency statement, see National Audubon Soc‘y v. Hoffman, 132 F.3d at 14, that the NRC‘s rationale for not providing notice of the exemption request or an opportunity for public comment represents a reasonable perception of public indifference to the matter, see generally American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1035 (D.C.Cir.2008) (recognizing “Catch-22” in requiring plaintiffs to show public interest in or controversy over agency action that has not been meaningfully disclosed). In fact, events occurring immediately after public disclosure of the exemption caution against any such assumption by this court.
The very day the NRC‘s grant of an exemption to Indian Point 3 was published in the Federal Register, the State of New York lodged objections. Two months later, plaintiffs filed their own petition to
The NRC submits that even if these circumstances show that a public hearing might have been “beneficial,” id., that is not enough to conclude that a hearing was legally required. We do not suggest otherwise. But the record in this case—devoid of any evidence of public input on Entergy‘s exemption request, and with no explanation by the NRC of its decision not to afford public participation of any kind—does not permit us to decide whether the agency nevertheless was capable of “weighing all the factors essential to exercising its judgment in a reasonable manner.” Id.
In arguing otherwise, the NRC submits that its rationale for not granting plaintiffs’ petition to reopen may reasonably be discerned from the fact that “[t]he EA here shows NRC found no risk of environmental effect at all,” and therefore no possible “substantial environmental controversy.” NRC 28(j) Letter 2. We are not persuaded. The NRC‘s own conclusion that the fire safety exemption grant to Entergy “will not have a significant effect on the quality of the human environment,” 72 Fed.Reg. at 55,254; see
The NRC argues additionally that any failure to afford public participation before granting the exemption in this case was harmless because plaintiffs were free to initiate a citizen petition to challenge the exemption after the fact. See
In ordering remand, we are mindful that the Ninth Circuit has held that a “complete failure to involve or even inform the public about an agency‘s preparation of an EA and a FONSI” violates NEPA‘s public participation regulations. Citizens For Better Forestry v. U.S. Dep‘t of Agric., 341 F.3d 961, 970 (9th Cir.2003) (identifying violation despite fact that draft rule was published and public meetings held); cf. Bering Strait Citizens v. U.S. Army Corps of Eng‘rs, 524 F.3d 938, 953 (9th Cir.2008) (holding that, on facts presented, agency had satisfied its NEPA obligation when preparing EA to “provide the public with sufficient environmental information, considered in the totality of circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process“). This court, however, has previously suggested otherwise with respect to the right of advance public access to these particular analyses. See Pogliani v. U.S. Army Corps of Eng‘rs, 306 F.3d at 1238. Thus, we deem it premature to consider any categorical rule until after the agency has had the opportunity on remand to supplement the record as provided in the next section of this opinion.
* * *
D. Procedure on Remand
Our decision today is narrow. We pronounce no rule as to the degree or form of public participation required before the NRC can grant exemptions from its protocols. Nor do we hold that agencies always need to explain their decisions as to how much public participation to afford pursuant to NEPA. We conclude only that, on the record presented in this case, we cannot conduct even deferential judicial review of plaintiffs’ claim that the NRC granted the challenged exemption in violation of NEPA‘s public participation provisions.
We therefore vacate the judgment of the district court with respect to plaintiffs’ NEPA challenge only, and we remand the matter to the district court with instructions for it in turn to remand to the NRC so that the agency may: (1) supplement the administrative record to provide an explanation, with supporting affidavits or findings of fact, as to why affording public input into the exemption request was inappropriate or impracticable; or (2) take other such action as it may deem appropriate to resolve this issue. See Florida Power & Light Co. v. Lorion, 470 U.S. at 744, 105 S.Ct. 1598; National Audubon Soc‘y v. Hoffman, 132 F.3d at 14.
If plaintiffs conclude that the agency‘s response fails to allay their NEPA concerns, they should timely seek further review in the district court, which shall take whatever steps it deems appropriate under the circumstances to dispose of plaintiffs’ renewed NEPA claim. This panel will retain jurisdiction for the purpose of ruling, if necessary, on any timely appeal from the district court‘s final judgment. See United States v. Jacobson, 15 F.3d at 22. On a
III. Conclusion
To summarize, we conclude that plaintiffs’ challenges to the NRC‘s grant of an exemption to Entergy from certain fire safety regulations in the operation of its Indian Point 3 nuclear power plant are generally without merit. In one respect, however—i.e., plaintiffs’ claim that the NRC awarded the challenged exemption in violation of NEPA‘s public participation provisions—the administrative record is insufficient to permit meaningful judicial review. Thus, remand is necessary to allow the agency to supplement its decision.
The judgment of the district court is AFFIRMED IN PART in accordance with the summary order filed today and VACATED IN PART in accordance with this opinion, and the case is REMANDED for further proceedings consistent with this opinion, which proceedings are to be concluded within 120 days of the issuance of the mandate or such further time as this court shall authorize.