ENVIRONMENTAL LAW AND POLICY CENTER, Bluе Ridge Environmental Defense League, Nuclear Energy Information Service, Nuclear Information and Resource Service, and Public Citizen, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and The United States of America, Respondents, and Exelon Generation Company, LLC, Intervening Respondent.
No. 06-1442.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 5, 2006.
As Amended Dec. 21, 2006.
470 F.3d 676
Argued Sept. 29, 2006.
Jared K. Heck (argued), Washington, DC, Thomas P. Walsh, Office of the United States Attorney, Chicago, IL, for Respondents.
Steven P. Frantz (argued), Morgan, Lewis & Bockius, Washington, D.C., Thomas S. O‘Neill, Exelon Nuclear Associate General Counsel, Warrenville, IL, for Intervenor-Respondent.
Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge.
In January 2004, the Environmental Law аnd Policy Center, Blue Ridge Environmental Defense League, Nuclear Energy Information Service, Nuclear Information and Resource Service, and Public Citizen (collectively “the Environmental Groups“) intervened in Nuclear Regulatory Commission (“NRC“) proceedings regarding an Early Site Permit (“ESP“) for new nuclear power facilities in Clinton, Illinois. The Environmental Groups contended, among other things, that the ESP applicant and the NRC failed to consider various alternative energy sources. After permitting one contentiоn to proceed for further adjudication, the NRC‘s Atomic Safety Licensing Board (“Board“) determined that the applicant‘s consideration of alternative energy sources satisfied the requirements of the
I. Background
Federal Guidelines require any entity commencing construction of a nuclear power plant tо obtain a construction permit and an operating license. Permit applicants must submit information related to the plant‘s design, a safety assessment of the site, and a report that assesses the environmental impact of the plant‘s construction and operation. After reviewing a permit application, the NRC prepares an Environmental Impact Statement (“EIS“) for the construction permit. If an entity is not yet ready to construct a nuclear power plant but desires to seek early approval for a potential construction site, NRC regula-tions
Persons whose interests may be affected by an NRC licensing proceeding may file a request for a hearing and a petition to intervene. The petition must demonstrate the petitioner‘s standing and contain at least one admissible “contention.” An admissible contention is one that provides sufficient information to show that a genuinе dispute exists on a material issue of fact or law.
In this case, Exelon Generation Company (“Exelon“) applied for an ESP, seeking approval for the construction of one or two new nuclear reactors on an existing Clinton nuclear power station site. Exelon is a merchant generator, which means that it sеlls power on the open wholesale market. Unlike a traditional regulated utility, Exelon is not required to supply the energy needs of any particular area. In its ESP application, Exelon stated that it sought to reserve the proposed site for future large-scale, baseload nuclear energy generation; that is, the creation of new energy intended to continuously produce electricity at or near full capacity, with high availability. Exelon intended to sell any new energy it generated on the open wholesale market.
As part of its ESP application, Exelon submitted an environmental report. Although the report did not address the general need for power, it examined a number of alternative energy sources that could generate baseload power. Exelon evaluated alternative sources in terms of their ability to produce a baseload power equivalent to the amount of electricity that the proposed nuclear facility would producе. In its initial report, Exelon evaluated wind power coupled with energy storage mechanisms, solar power coupled with energy storage mechanisms, fuel cells, geothermal power, hydropower, burning wood waste or other biomass, burning municipal solid waste, burning energy crops, oil-fired plants, coal-fired plants, and natural gas-fired plants. The report concluded that several of the alternatives were not viable baseload energy alternatives because, for example, they involved insufficiently matured technology (fuel cells) or the state lacked sufficient available fuel supplies (geothermal power, hydropower, wood waste, and biomass). The report stated that wind and solar power, by themselves, were not reasonable baseload alternatives because they are intermittent energy
After Exelon submitted its environmental report, the Environmental Groups filed a contention alleging several shortcomings in Exelon‘s evaluation of energy alternatives. In particular, the Environmental Groups alleged that Exelon had failed to adequately consider energy efficiency1 or combinations of wind or solar power with fossil fueled plants. The Environmental Groups also claimed that Exelon used flawed information in its evaluation of wind and solar power. The Board rejected the energy efficiency claim, reasoning that energy efficiency is not an alternative generation method that independent power generators like Exelon typically employ. In addition, the Board reasoned, an energy efficiency analysis would essentially consider the need for power, an analysis that may be postponed until Exelon requests an actual construction pеrmit. The Board acknowledged the Environmental Groups’ contention that Exelon had failed to consider combining wind or solar power with fossil fueled facilities and had used potentially flawed and outdated information regarding wind and solar power generation methods (“Contention 3.1“).
After the Board recognized Contention 3.1, Exelon provided a report evaluating facilities that combined wind or solar power with fossil fuel. Exelon‘s revised evaluation concluded that coal-fired facilities, gas-fired faсilities, or facilities using a combination of these alternatives were not environmentally preferable to the proposed nuclear facility, because the combination would produce environmental impacts greater than or equal to a new nuclear facility.
After reviewing the submitted information, the NRC issued a draft EIS, which evaluated a wide range of reasonable alternatives to nuclear baseload energy. The draft EIS reached conclusions similar to those reached by Exеlon. Specifically, the draft EIS found that individual wind and solar facilities were not sufficient on their own to generate baseload power. The draft EIS also concluded that, from an environmental standpoint, the nuclear facility would be preferable or equivalent to a combination facility using wind or solar power and fossil fuel. The draft also concluded that a new nuclear unit was preferable in terms of air resources, ecological resources, water resources, and aesthetiсs.
After the NRC issued the draft EIS, Exelon submitted a motion for summary disposition of Contention 3.1. In its motion, Exelon asked the Board to find that Exelon‘s response to the request for additional information cured its alleged failure to consider all reasonable alternatives. After the Board permitted the Environmental Groups to petition to amend Contention 3.1, it concluded that no genuine disputes of material fact remained. As a result, the board granted summary disposition of Contention 3.1 in favor of Exelon and terminated the contested portion of the ESP proceeding. The Environmental Groups then appealed the Board‘s decision to the NRC. The NRC affirmed the Board‘s ruling, and the Environmental Groups appealed.
II. Discussion
We consider three issues on appeal: whether the dismissal of the Environmen-
A. Jurisdiction
As a threshold matter, the NRC argues that this Court should not consider the Environmental Groups’ claims because the NRC‘s decision to dismiss them from its proceedings is not a final order for purposes of
The Environmental Groups, on the other hand, maintain that the NRC‘s ruling was final as it applies to them, because it terminated their participation in the ESP рroceedings. The Environmental Groups liken the NRC‘s order to a denial of a motion to intervene, which is immediately appealable. See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); In re UAL Corp., 408 F.3d 847, 849 (7th Cir.2005) (holding that denial of motion to intervene is appealable immediately because it finally concludes the putative intervenor‘s rights). The Environmental Groups argue that they are entitled to challenge the NRC and Board orders now rather than at some later time, because those orders deprived them of the right to further participate in the proceedings. Additionally, they argue that the agency‘s review of alternatives is essentially complete, because there is no reason to believe that the NRC‘s analysis will change between now and the issuance of the ESP.
We agree with the Environmental Groups. Although the Board initially permitted the Environmental Groups to intervene, the order granting summary disposition in favor of Exelon concluded the intervention. This Court has noted that, in determining the finality of an order, the relevant considerations include “whether the рrocess of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.” See Rosenthal & Co. v. Commodity Futures Trading Comm‘n, 614 F.2d 1121, 1127 (7th Cir.1980) (citing Port of Boston Marine Terminal Ass‘n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)). Although as of the date of oral arguments, the NRC had not yet granted the ESP, the Board‘s order terminated the Environmental Groups’ involvement in the agency proceeding. Therefore, it is clear that the Board‘s order determined the Environmental Groups’ rights and legal consequences flowed from that determination. Moreover, since the final EIS already has been published, our review will not disrupt the process of adjudication. Consequently, the order is final and appealable under
Section 101 of NEPA declares a broad national commitment to protecting and promoting environmental quality.
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man‘s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
See
This Court‘s review of agency action under NEPA is governed by the
The Environmental Groups challenge two aspects of the Board‘s decision to decline consideration of energy efficiency alternatives. First, they contend that the Board unnecessarily excluded reasonable alternatives like energy efficiency measures by adopting Exelon‘s goal of generating baseload energy. In any case, the Environmental Groups argue that the Board should have considered energy efficiency alternatives in a “need for power” analysis—an analysis that the Board refused to conduct altogether.
The Environmental Groups сlaim that the Board‘s rejection of reasonable energy efficiency alternatives is contrary to the “searching inquiry into alternatives” required by NEPA. See Simmons v. U.S. Army Corps of Eng‘rs, 120 F.3d 664, 666 (7th Cir.1997). We have held that blindly adopting the applicant‘s goals is “a losing proposition” because it does not allow for the full consideration of alternatives required by NEPA. Id. at 669. NEPA re-quires an agency to “exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project” and to look at the generаl goal of the project rather than only those alternatives by which a particular applicant can reach its own specific goals. Id.
In Simmons, the City of Marion, Illinois sought to build a new water reservoir to address its need for water. Id. at 666. Marion and the Army Corps of Engineers defined the project‘s purpose as “supplying two users ... from a single source—namely a new lake.” Id. at 667. Accordingly, when the Corps prepared an EIS, it confined its analysis of reasonable alternatives under NEPA to single-source alternаtives. Id. at 667-68. The Court determined that the Corps and Marion had defined the project‘s purpose too narrowly. Id. The common problem faced by Marion and a neighboring district was “a thirst for water.” Id. at 667. As such, the goal of the project was to quench that thirst, and it was error for the Corps to look into only single-source alternatives. Id. Therefore, we held, the procedures undertaken by the Corps did not satisfy NEPA because the EIS did not examine the full range of reasonable alternatives, i.e., multiple-source altеrnatives. Id. The Environmental Groups argue that the instant case is analogous to Simmons because the Board “stacked the deck” against reasonable alternatives by adopting Exelon‘s limited business purpose of generating baseload power. According to the Environmental Groups, this purpose favors Exelon‘s proposed new nuclear plant by rendering energy efficiency alternatives inconsistent with the project‘s goal.
Exelon and the NRC attempt to distinguish Simmons. They claim Simmons stands for the simple proposition that the purpose of a рroject cannot be so narrow as to define reasonable alternatives out of existence. In any case, they contend, Simmons does not require an agency to disregard a private applicant‘s purpose for a project if that purpose is sufficiently broad to allow consideration of reasonable alternatives. In affirming the Board‘s decision, the NRC held that it had not violated Simmons because Exelon considered numerous alternatives to meet the project‘s general goals:
It would be as if in Simmons the Seventh Circuit ordered the Army not only to consider alternate ways to supply more water but also to examine whether Marion and the water district could reduce their need for water by prohibiting lawn-watering or requiring low-flow toilets. Nothing in Simmons requires a NEPA inquiry so far afield from the original proposal.
Exelon Generation Co., LLC, Nuclear Reg. Rep. 31,493, 2005 WL 4131579 at *4 (Dec. 12, 2005). In other words, according to the NRC, just as Simmons did not require the Army Corps to reconsider the town‘s “need for water,” it did not require the Board to consider alternatives to generating new energy. The NRC found such an inquiry particularly useless given that Exelon dealt only in the sale of wholesale power and had neither the authority nor the incentive to implement energy efficiency measures.
The Board‘s decision relied on case law supporting the proposition that a reviewing agency can take an applicant‘s goals for a project into account. For example, in Citizens Against Burlington, Inc. v. Busey, the court noted that an agency‘s evaluation of reasonable alternatives is
We are persuaded by the Board‘s analysis. Because Exelon was a private company engaged in generating energy for the wholesale market, the Board‘s adoption of baseload energy generation as the purpose behind the ESP was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. See
Under NRC regulations, an applicant may defer an analysis of the need for power until a combined license application, when construction will be authorized. See
The final claim that the Environmental Groups advance is that the Board should not have granted summary dispоsition in favor of Exelon regarding Contention 3.1. The Environmental Groups argue that the NRC should have held a full evidentiary hearing in order to conduct a rigorous exploration and objective evaluation of clean energy alternatives and should have considered the comparative costs of the nuclear plant and the clean energy alternatives. They also claim that the NRC violated NEPA by distorting the combinations of clean energy alternatives.
It is true that NEPA requires an agency to “rigorously еxplore and objectively evaluate all reasonable alternatives,”
The Board‘s 57-page memorandum and order granting summary disposition in favor of Exelon demonstrates that the board rigorously explored all reasonable alternatives and took a hard look at the environmental impacts of the proposed action. See Exelon Generation Co., LLC, No. 52-007-ESP (Atomic Safety and Licensing Bd. Jul. 28, 2005). The Board addressed the Environmental Groups’ concerns point by point, carefully considering each issue and providing reаsons for each decision it made. It is unnecessary to repeat the Board‘s analysis here. Whether or not this court would have made the same substantive judgment is irrelevant so long as the decision is not arbitrary. It is clear that the Board satisfied NEPA‘s procedural requirements and rendered a decision that thoughtfully considered all reasonable alternatives. We therefore affirm the decisions of the Board and the NRC.
III. Conclusion
For the foregoing reasons, we AFFIRM the NRC and its Board on all matters.