STATE OF NEW YORK, Petitioner, v. NUCLEAR REGULATORY COMMISSION; United States of America, Respondents. PUBLIC CITIZEN; San Luis Obispo Mothers for Peace, Petitioners, v. NUCLEAR REGULATORY COMMISSION, Respondent.
Nos. 07-71868, 07-72555.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 17, 2008. Filed July 24, 2009.
571 F.3d 916
We agree. After Booker and Carty each of which held that any element of a sentencing decision, whether discretionary or not, may be “unreasonable” and therefore unlawful Lowe‘s conclusion that discretionary sentencing decisions are unreviewable on appeal is no longer good law. We conclude that
The order filed March 10, 2009, is hereby VACATED. The government‘s Motion to Dismiss Appeal is DENIED, and its Motion to Toll Briefing Schedule During Pendency of Motion is GRANTED. The parties shall file their briefs within the time set forth in
Adina H. Rosenbaum, Public Citizen Litigation Group, Washington, D.C., for the petitioners.
Steven F. Crockett, Special Counsel, Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, and E. Leo Slaggie, Deputy Solicitor, United States Nuclear Regulatory Commission, Washington, D.C.; Ronald J. Tenpas, Assistant Attorney General, Ronald M. Spritzer, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for the respondents.
David A. Repka, Winston & Strawn, Washington, D.C., for the intervenor-respondent.
Brian Hembacher, Deputy Attorney General, State of California, Los Angeles, CA, for the amici curiae.
Before: CYNTHIA HOLCOMB HALL, THOMAS G. NELSON and SIDNEY R. THOMAS, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge THOMAS.
HALL, Senior Circuit Judge:
Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York,1 and amicus State of California (“Petitioners“) challenge the Nuclear Regulatory Commission‘s (“NRC” or “Commission“) modification of the Design Basis Threat (“DBT“) rule and partial denial of the Committee to Bridge the Gap‘s (“CBG“) petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously
I. Background
A. The History of the Commission and Development of the “Adequate Protection” Standard
To better understand the complicated history of the DBT Rule, we first outline the role of the NRC itself. In 1954, Congress passed the Atomic Energy Act (“Act“).
When licensing nuclear facilities, the Commission is charged with ensuring that the operation of those facilities is “in accord with the common defense and security and will provide adequate protection to the health and safety of the public.”
The adequate protection standard has also acquired meaning through subsequent case law. Union of Concerned Scientists v. NRC, 824 F.2d 108, 117 (D.C.Cir.1987) (Concerned Scientists I), held that while the Commission could not consider costs in determining the level of adequate protection necessary, it could consider other factors, including the nature and extent of the risks involved. The court declined to establish the scope of those factors, however, instead concluding that “the ‘adequate protection’ standard may be given content through case-by-case application of [the Commission‘s] technical judgment rather than by a mechanical verbal formula or set of objective standards” set by either NRC or an interpreting court. Union of Concerned Scientists v. NRC, 880 F.2d 552, 558 (D.C.Cir.1989) (Concerned Scientists II).
Concerned Scientists I also made clear that “adequate protection” does not mean “absolute protection,” and that the standard “permits the acceptance of some level of risk.” 824 F.2d at 114, 118. “Safe is not the equivalent of risk-free.” Id. at 118 (internal quotations omitted). The Commission is authorized to impose additional safety measures on licensees above those required by adequate protection, and in doing so may consider the economic costs of those extra measures. Id. Siegel v. Atomic Energy Commission was the first case to challenge whether adequate protection should extend beyond the original con-gressional
The Siegel case dealt with the Commission‘s decision declining to require licensees to protect against possible missile attacks on nuclear facilities near Cuba. The court upheld the Commission‘s newly created “Enemy of the State” rule, which insulated licensees from the requirement that they protect against the effects of attacks or destructive acts by enemies of the United States (foreign governments or other persons) or that they use or deploy weapons incident to U.S. defense activities.
B. The Origin of the Design Basis Threat Rule
The Commission, wholly of its own accord, decided in 1977 to promulgate the first Design Basis Threat (“DBT“) rule to protect nuclear power reactors from industrial sabotage. 42 Fed.Reg. 10,836 (Feb. 24, 1977). “Design bases” are, generally speaking, applicant or licensee information which identifies the specific functions to be performed by a structure or system.
The regulation initially protected only against industrial sabotage by individuals and groups with possible inside information and hand-held weapons. But, the regulation stated: “[t]he kind and degree of threat and the vulnerabilities to such threats will continue to be reviewed by the Commission . . . . the Commission [will] consider changes to meet the changed conditions.” 42 Fed.Reg. 10,836, 10,836.
In 1994, the Commission revised the DBT rule in response to an intrusion at a nuclear power plant, the 1993 vehicle bomb attack on the World Trade Center, and intelligence that showed “a conspiracy with ties to the Middle East extremists clearly demonstrated the capability and motivation to organize, plan, and successfully conduct a major vehicle bomb attack,” 59 Fed.Reg. 38,889, 38,891 (Aug. 1, 1994). The revised DBT incorporated the threat of adversaries utilizing “a four-wheel drive land vehicle used for transporting personnel and their hand-carried equipment,” and “a four-wheel drive land vehicle bomb.” Id. The Commission explicitly denied that these changes were necessary to meet the adequate protection standard. Instead, the changes were issued under
To partially implement the 1994 DBT change, the Commission also revised
In that cost-benefit analysis, the Commission explicitly rejected the argument from the nuclear industry that the Enemy of the State rule insulated them from these measures. The Commission reasoned “[t]here is a significant difference in the practicality of defending against a missile attack and constructing a vehicle barrier,” and that the scope of the Enemy of the State rule was to “relieve applicants of the need to provide protective measures that are the assigned responsibility of the nation‘s defense establishment.” 59 Fed.Reg. 38,889, 38,893. The Commission further explained that the Enemy of the State rule “recogniz[es] that it [is] not practical for the licensees of civilian nuclear power reactors to provide design features that could protect against the full range of the modern arsenal of weapons.” Id.
C. Post 9/11 and the Commission‘s Response
Following 9/11, the Commission again determined a change to the DBT rule was necessary. Many studies were conducted by both private and government entities, independently and at the behest of the NRC, which showed that nuclear facilities were not designed to withstand the impact of a commercial jet plane. The studies showed that while “many of [the] safety-related systems are well protected within hardened structures . . . some are not.” In the worst case, an aircraft crash had the potential to set off an accident sequence resulting in “serious damage if not total meltdown” of the core, but such a sequence would “require[] the occurrence of multiple failures, many of which are strongly plant-dependent.” Additionally, many intelligence agencies, and the NRC itself, closely monitored and acknowledged the credible threat of a terrorist attack on nuclear facilities.
The Commission responded to this information by issuing emergency orders to licensees on February 25, 2002, January 7, 2003, and April 29, 2003. These orders, though non-public and protected as “safeguards information” pursuant to
The NRC also increased coordination efforts with other government agencies. “[I]n early March 2006, the NRC hosted an Interagency Aircraft Attack Tabletop Exercise at NRC Headquarters . . . reconfirm[ing] the respective responsibilities of the participating organizations (NRC, DHS [Department of Homeland Security], DOD [Department of Defense], and FBI) in the event of a nuclear plant aircraft attack and clarif[ying] protocols for response-related interagency communication and coordination.” 72 Fed.Reg. 12,705, 12,710. The NRC and DHS also “worked together to develop and improve EP [Emergency Planning] for a terrorist attack through federal initiatives such as comprehensive review programs and integrated response planning efforts” including “State/local/tribal response capabilities.” 72 Fed.Reg. 12,705, 12,712. Those efforts “include[d] prearranged plans with local law enforcement and emergency planning coordination.” 72 Fed.Reg. 12,705, 12,714.
In June 2004, the Commission announced a proposed amendment to the DBT rule “to incorporate the Commission actions taken as a result of September 11, 2001,” making “review and revisions as appropriate.” 69 Fed.Reg. 38,635, 38,636 (June 28, 2004). In July 2004, the Commission received a rulemaking petition from Committee to Bridge the Gap, PRM-73-12, which requested, inter alia: amending the DBT to “encompass attacking forces equal to those of 9/11” including attacks by boat and by air; amending the DBT enabling regulations to mandate security plans, systems, inspections, and force-on-force exercises; and requiring construction of “beamhenge” shields2 to protect against air attack.3 Finally, as part of the Energy Policy Act of 2005, Congress directed the Commission to initiate or complete rulemaking to revise the design basis threats.
The Commission issued the final revised DBT rule in March 2007. See 72 Fed.Reg. 12,705. The rule significantly increased the range of threats included within the DBT scope and incorporated most of the factors Congress listed in
The revised DBT rule elaborates on the purpose and scope of the DBT rule, which the Commission explained was premised upon “adversary characteristics against which a private security force can reasonably be expected to defend.” 72 Fed.Reg. 12,705, 12,713. Relying on this “reasonable expectation” standard, the Commission determined that the threat of an air-based attack was beyond the scope of the DBT rule. The Commission reasoned that “the responsibility for actively protecting against the threat lies with other organizations of the Federal government, as it does for any U.S. commercial infrastructures.” 72 Fed.Reg. 12,705, 12,710 (emphasis added). The Commission explained that the public health and safety was adequately protected, however, because of: 1) the active protection of other Federal agencies, with whom the NRC continues to coordinate; and 2) mitigative measures implemented by the licensees that would limit the effect of an aircraft strike. 72 Fed.Reg. 12,705, 12,711. Because the NRC determined both that air-based threats were beyond the scope of the DBT rule and that the adequate protection standard was satisfied, CBG‘s petition for rulemaking, as it pertained to the beamhenge concept, was denied. Id.5
As in 1994, the Commission again rejected the argument that the Enemy of the State rule insulated the industry from meeting the requirements of the revised DBT rule. The Commission emphasized that “the DBT rule does not focus on the identity, sponsorship, or nationality of the adversaries,” but rather a “range of attacks and capabilities” against which private facilities can be “reasonably expected to defend . . . regardless of whether it would or would not be deemed an ‘enemy of the state.’ ” 72 Fed.Reg. 12,705, 12,714-715.
II. Standard of Review
Under the Administrative Procedure Act (“APA“), agency decisions may be set aside only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006) (quoting
“[A]n agency‘s interpretation of its own regulations is ‘controlling’ unless ‘plainly erroneous’ or inconsistent with ‘the regulations being interpreted.’ ” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S.Ct. 2339, 2349, 168 L.Ed.2d 54 (2007) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)).
This court is limited to a review of the reasoning the agency relied upon in making its decision. Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir.2007) (citing SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). “We will, however, uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “Where . . . the agency‘s course of action indicates that the interpretation of its own regulation reflects its considered views [rather than merely post hoc rationalization] . . . we have accepted that interpretation as the agency‘s own, even if the agency set those views forth in a legal brief.” Coke, 127 S.Ct. at 2349; see also Global Crossing Telecomm., Inc. v. Metrophones, 550 U.S. 45, 127 S.Ct. 1513, 1525, 167 L.Ed.2d 422 (2007) (noting that even if agency action is inadequately reasoned initially, context and history of position can make agency‘s rationale obvious).
III. Discussion
A. The Scope of the DBT Rule and the Reasonable Expectation Standard
Petitioners first argue that the Commission‘s explanation of the scope of the DBT rule—as reaching only those threats which a private force can reasonably be expected to defend against—is a new standard which conflicts with and departs from the Commission‘s prior interpretations of the DBT rule, and therefore represents an abuse of discretion. See, e.g., W. States Petroleum Ass‘n v. EPA, 87 F.3d 280, 285(9th Cir.1996).
Here, however, the Commission is not departing from an established standard, but is merely elaborating on the interpre-
In both the 1977 and 1994 DBT rules, the Commission evaluated the “kind and degree of threat” at issue in determining the scope of the DBT, illustrating that a threat must be credible before it is included. See 42 Fed.Reg. 10,836, 10,836; see also 59 Fed.Reg. 38,889, 38,891. This is also consistent with NRC‘s decision to revise the DBT rule in light of the changed threat environment created by the events of 9/11. See 72 Fed.Reg. 12,705, 12,705.
In rejecting the Enemy of the State rule in both its 1994 and 2007 revisions when it was “practical” or “reasonable” for private forces to defend against the included threats, the Commission illustrated that a concept of reasonableness animates both the DBT and the Enemy of the State rules. See 59 Fed.Reg. 38,889, 38,893; 72 Fed.Reg. 12,705, 12,714-715; see also Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C.Cir.1968) (noting Commission‘s “recognition that reactor design features to protect against the full range of the modern arsenal of weapons are simply not practicable . . . .“). Both rules have also been influenced by the reasonable division of nuclear defense responsibilities between private and government forces. See Siegel, 400 F.2d at 783 (discussing defense and internal security capabilities in creation of Enemy of the State Rule); 59 Fed.Reg. 38,889, 38,893 (discussing that some protective measures are the assigned responsibility of the nation‘s defense establishment).
Previous adversary characteristics have only been included within the scope of the DBT rule if they represented a class of threat that private forces could actively engage, such as militant individuals or vehicles. See
Applying this standard of reasonable expectation, the agency did not act arbitrarily nor capriciously in concluding that air-based threats were beyond the scope of the DBT rule. An airplane attack is different in kind than attacks by militant
B. Adequate Protection from Air-Based Threats
Petitioners contend that the NRC‘s decision to define the scope of the DBT rule on what a private force can reasonably be expected to defend against, which excludes air-based threats, does not ensure adequate protection of the public health and safety. But, the Commission has an “overall statutory mandate to provide adequate protection to nuclear plants,” which is not abdicated by its failure to fully protect against the threat of air-based attacks through an individual regulatory decision. Riverkeeper, Inc. v. Collins, 359 F.3d 156, 169 (2d Cir.2004). Here, while the NRC determined that air-based threats were beyond the scope of the DBT rule, the Commission provided two primary grounds to support its determination that adequate protection was met: 1) active protection against airborne threats by other Federal agencies, and 2) the ability of mitigative measures to limit the effects of an aircraft strike. 72 Fed.Reg. 12,705, 12,711. In its briefing, the NRC further explained that its judgment was also informed by: “threat analyses, by experience in the enforcement of DBT orders, by knowledge about the robustness of nuclear power plants, by a knowledge that nuclear power plants are better guarded than any other private critical infrastructure, and the guard forces subject to more oversight than any other civilian industry security force, by new studies of how plants might respond to an air crash, and by a knowledge of actions that other Federal agencies have taken since 2001 to protect against air threat.” Brief for Respondents at p. 46(internal citations omitted). Though set forth in its briefing, this reasoning is consistent with the reasoning included in the Commission‘s final ruling and we accept it as the NRC‘s considered views. See Coke, 127 S.Ct. at 2349. Adequate protection may be given content through a case-by-case application of the Commission‘s technical judgment, including its knowledge of actions that other Federal agencies have taken since 2001 and its active coordination with many of those agencies. See Concerned Scientists II, 880 F.2d at 558.8
“[T]he NRC‘s considered conclusion—right or wrong—that [air-based threats were] being adequately addressed by other agencies of government and its consequent decision to leave the matter to those agencies cannot amount to an ‘abdication’ of its statutory duty under the AEA to insure that the public health and safety is adequately protected. Relying on other governmental bodies to address a risk is not equivalent to ignoring the risk.” Riverkeeper, 359 F.3d at 170;9 see also
Petitioners’ argument that the NRC‘s inclusion of passive measures to protect against vehicle threats in the 1994 revision necessitates the inclusion of passive measures against airborne threats now, is unavailing. In the 1994 DBT rule, the Commission explicitly stated that its decision to include passive barriers against vehicle intrusions and explosions was not based on adequate protection, but as a “matter of prudence” to provide a “substantial increase in protection.” 59 Fed.Reg. 38,889, 38,891, 896. Thus, it cannot be said here that the Commission is obligated to find, based on prior decisions, that passive measures are necessary to provide adequate protection.10 And, as discussed above, the Commission was consistent in including within the scope of the DBT rule only those threats a private force can reasonably be expected to defend against. The NRC‘s determination that private forces can reasonably defend against vehicle and water-based attacks does not require the Commission to come to the same conclusion regarding airborne threats. Once the Commission determined that adequate protection was met, it was under no obligation to further consider the beamhenge concept outlined in the CBG petition.
C. Compliance with Congress‘s Directives in 42 U.S.C. § 2210e
Petitioners also contend that the Commission‘s final rule is contrary to law because the Commission failed to comply with Congress‘s directive to “consider” “the potential for water-based and air-based threats.”
Petitioner‘s argument that air-based threats must necessarily be within the scope of the DBT rule simply because they were included as a
D. Reliance on Non-Public Information
Petitioners next argue that the Commission improperly relied on non-public information when engaging in the DBT rulemaking. The cases relied upon by Petitioners, however, involve cases where an agency relies on general factual information not provided to the public, and do not govern this case. See, e.g., Kern County Farm Bur. v. Allen, 450 F.3d 1072, 1076 (9th Cir.2006). Here, the AEA specifically allows the Commission to maintain “safeguards information” that is not available to the public.
We hold the Commission acted neither arbitrarily or capriciously in excluding the threat of air-based attacks from the scope of the DBT rule, nor contrary to law in finding that adequate protection was satisfied without incorporating passive protective measures against air-based attacks in the DBT rule.
E. NEPA Analysis
Petitioners also challenge the sufficiency of the EA provided by the Commission, arguing that the NRC should have analyzed its decision to exclude air-based threats from the DBT rule and included that environmental analysis in the alternative action portion of the EA. They argue that the decision to exclude air-based threats is an agency action that “increases the risk of a successful terrorist attack,” and that that decision produces its own adverse environmental affects. Petitioners rely on this court‘s decisions in Center for Biological Diversity v. NHTSA, 538 F.3d 1172, 1216 (9th Cir.2008), and San Luis Obispo Mothers for Peace v. NRC (Mothers for Peace), 449 F.3d 1016 (9th Cir. 2006).
“An EA shall include brief discussions of the need for the proposal and the environmental impacts of the proposed action and alternatives.” Center for Biological Diversity, 538 F.3d at 1215 (quoting
By only highlighting one potential deficiency in the EA that could impact the environment, petitioners implicitly agree with the Commission‘s argument that the rule was otherwise only beneficial to the environment, because it reduced the threat of a terrorist attack. Therefore, we do not address whether the NRC violated this court‘s holding in Mothers for Peace, or whether the effects of an air-based attack (rather than the possibility of a terrorist attack) were too speculative to necessitate their inclusion in the EA. See Mothers for Peace, 449 F.3d at 1033-1034. Because Petitioners have identified no effect of the revised DBT rule that “may cause significant degradation of some human environmental factor,” no EIS was necessary. Center for Biological Diversity, 538 F.3d at 1219 (quoting Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998)); see also Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.1995) (“[A]n EA or an EIS is not necessary for federal actions that conserve the environment.“).
PETITION DENIED.
THOMAS, Circuit Judge, concurring in part and dissenting in part:
I join the majority in holding that the Nuclear Regulatory Commission‘s (“NRC“) use of a “reasonable expectation” standard as a proxy for the division of responsibility between public and private forces is not arbitrary and capricious, that the NRC did not improperly withhold safeguarded information, and that the NRC did not violate the National Environmental Policy Act. However, I would grant the petition for review as to whether the NRC acted arbitrarily and capriciously in excluding air-based threats from the Design Basis Threat (“DBT“) rule.
No one disputes that there is a credible threat of terrorists using commercial aircraft to attack nuclear power plants. Nevertheless, the NRC concludes it was not necessary to include air-based threats in its DBT rule because: (1) other federal agencies will largely prevent such attacks in the first instance, and (2) the effects of any successful attack will be minimal, or at least minimized.
The NRC claims it conducted “detailed, site-specific engineering studies” that “confirm the low likelihood of [an airplane attack] both damaging the reactor core and releasing radioactivity that could affect public health and safety.” Unfortunately, this comforting conclusion directly contradicts the unanimous findings of the studies available in the administrative record—some commissioned by the NRC itself—that some of our nuclear facilities may not be able to withstand the impact of a commercial jet airplane.
One study found that an aircraft strike could cause radioactive leakage along with “[e]xtensive destruction of [the] reactor building.”1 One cautioned that a core meltdown could result from even a light aircraft striking a nuclear plant‘s control building,2 and another similarly concluded
Of course, we must defer to an agency‘s expertise in weighing evidence. However, there is no sign in this record that the agency conducted that exercise here. Not only did the NRC fail to rebut the multitude of studies that conflicted with its own assessment, but it failed to even mention the contrary studies. This failure alone is grounds to grant the petition. See Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (noting that an agency‘s failure to offer an explanation for its decision that runs counter to the evidence before it is arbitrary and capricious); Islander E. Pipeline Co. v. State of Connecticut, 467 F.3d 295, 313 (2d Cir.2006) (observing that an agency‘s failure to mention contrary scientific studies renders its conclusions arbitrary and capricious).
Moreover, the NRC‘s determination that nuclear plants can successfully withstand airplane strikes contradicts the agency‘s own analysis. In its previous DBT rule, the NRC found that truck bombs can inflict severe damage on nuclear power plants. See Nuclear Regulatory Commission, Protection Against Malevolent Use of Vehicles at Nuclear Power Plants, 59 Fed.Reg. 38,889, 38,891 (August 1, 1994) (stating that such bombs’ “contribution to [nuclear] core damage frequency could be high“). The NRC provides no explanation as to why we should fear the effects of a truck bomb attack, but not those of a commercial airliner strike. Nor does the NRC explain why the construction of passive structural barriers is a critical component of defense against truck bomb attacks, while it is completely unnecessary for the NRC even to consider the installation of passive barrier defenses (such as beamhenges) to attacks by air. The distinction the agency draws between the risk of truck bombs and hijacked airliner attacks is inconsistent with our nation‘s recent tragic experiences and common sense.
Although we owe the NRC considerable deference, the NRC owes the public a rational and reasonable explanation why it would exclude from its rule consideration of terrorist air attacks on nuclear facilities. In the face of near-uniform scientific studies warning of serious risk, bare assurances by the NRC that we are safe do not satisfy this minimal agency burden.