SAN LUIS OBISPO MOTHERS FOR PEACE; Sаnta Lucia Chapter of the Sierra Club; Peg Pinard, Petitioners, v. NUCLEAR REGULATORY COMMISSION; United States of America, Respondents.
No. 03-74628.
United States Court of Appeals, Ninth Circuit.
June 2, 2006.
Pacific Gas and Electric Company, Intervenor. Argued and Submitted Oct. 17, 2005.
In sum, no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Here, as in Mann, the firearm was not readily accessible to Rios when he would have been involved in drug conspiracy activities for which possession of a gun would be useful. The firearm was unloaded and hidden under a dresser in a drug-free residence that was in another part of town from the locus of the drug activities. The firearm was not locked away, as it was in Bailey and Mann, although it was hidden, somewhat like in Krouse. The firearm, however, was found far from the loсus of drug activities, unlike Krouse. Therefore, the presence of the firearm in Rios‘s residence does not make it any more “strategically located” than the firearm in the trunk of the car in Bailey or the several firearms in the locked safe in the truck in Mann. Furthermore, the presence of a firearm in some proximity to collateral products of a drug crime but far from the locus of drug activities does not establish the requisite nexus.
Were we to subscribe to the government‘s theory that the facts presented here are sufficient, we would render possession in furtherance and mere possession nearly indistinguishable. Any person involved in a drug conspiracy who happens to have a weapon at home, for whatever purpose, could be convicted under
For the foregoing reasons, we REVERSE Rios‘s conviction under
evidence when the defendant was found with 2.3 grams of crack on his person, and an illegally possessed loaded shotgun, scales, and razor blades were found in the house from which the defendant sold drugs); Ceballos-Torres, 218 F.3d at 411, 415 (holding that there was sufficient evidence when, inter alia, the defendant had an illegally possessed handgun lying on his bеd, 569.8 grams of cocaine in a hidden compartment of his closet, $1360 in cash which tested positive for cocaine in the pocket of a leather jacket, and tools for sniffing narcotics in the kitchen).
Diane Curran, Harmon, Curran, Spielberg & Eisenberg, L.L.P., Washington, D.C., for the petitioners.
Charles E. Mullins, United States Nuclear Regulatory Commission, Washington, D.C., for the respondents.
David A. Repka, Winston & Strawn, L.L.P., Washington, D.C., for respondent-intervenor PG & E.
Sheldon L. Trubatch, Esq., Offices of Robert K. Temple, Esq., Chicago, IL, for amicus San Luis Obispo County.
Kevin James, California Department of Justice, Oakland, CA, for amicus States of California, Massachusetts, Utah and Washington.
Before REINHARDT and THOMAS, Circuit Judges, and JANE A. RESTANI,* Chief Judge, United States Court of International Trade.
THOMAS, Circuit Judge.
This case presents the question, inter alia, as to whether the likely environmental consequences of a potential terrorist attack on a nuclear facility must be considered in an environmental review required under the National Environmental Policy Act. The United States Nuclear Regulatory Commission (“NRC“) contends that the possibility of a terrorist attack on a nuclear facility is so remote and speculative that the potential consequences of such an attack need not be considered at аll in such a review. The San Luis Obispo Mothers for Peace and other groups disagree and petition for review of the NRC‘s approval of a proposed Interim Spent Fuel Storage Installation. We grant the petition in part and deny it in part.
I
The NRC is an independent federal agency established by the Energy Reorganization Act of 1974 to regulate the civilian use of nuclear materials. Intervenor Pacific Gas and Electric Company (“PG & E“) filed an application with the NRC under
* The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.
NEPA establishes a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and to promote “the understanding of the ecolоgical systems and natural resources important to” the United States. Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting
Rather than mandating particular results, NEPA imposes on federal agencies procedural requirements that force consideration of the environmental consequences of agency actions. Pub. Citizen, 541 U.S. at 756. At NEPA‘s core is the requirement that federal agencies prepare an environmental impact statement (“EIS“), or:
include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(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.
Id. at 757 (quoting
As an alternative to the EIS, an agency may prepare a more limited environmental assessment (“EA“) concluding in a “Finding of No Significant Impact” (“FONSI“), briefly presenting the reasons why the action will not have a significant impact on the human environment. Id. at 757-58 (citing
While NEPA requires the NRC to consider environmental effects of its decisions, the AEA is primarily concerned with setting minimum safety standards for the licensing and operation of nuclear facilities. The NRC does not contest that the two statutes impose independent obligations, so that compliance with the AEA does not excuse the agency from its NEPA obligations. The AEA lays out the process for consideration of the рublic health and safety aspects of nuclear power plant licensing, and requires the NRC to determine whether the licensing and operation of a proposed facility is “in accord with the
The NRC is not, however, required to make this determination without assistance; federal law provides a framework for hearings on material issues that interested persons raise by specific and timely petition.
II
With this general statutory background, we turn to the facts underlying the petition for review. On December 21, 2001, PG & E applied to the NRC pursuant to
PG & E proposes to build a dry cask storage facility. The basic unit of the storage system is the Multi-Purpose Canister (“Canister“), a stainless steel cylinder that is filled with radioactive waste materials and welded shut. The Canisters are loaded into concrete storage overpacks that are designed to permit passive cooling via the circulation of air. The storage casks, or the filled Canisters loaded into overpacks, are then placed on one of seven concrete pads. The Storage Installation would house a total of 140 storage casks, 2 more than the 138 projected to be required for storage of spеnt fuel generated at Diablo Canyon through 2025.
On April 22, 2002, the NRC published a Notice of Opportunity for Hearing. Under the regulatory scheme, interested parties could then request a hearing or petition for leave to intervene.
On July 19, 2002, the San Luis Obispo Mothers for Peace, a non-profit corporation concerned with Diablo Canyon‘s local impact, the Sierra Club, a non-profit corporation concerned with national environmental policy, and Peg Pinard, an indi-
In Licensing Board Proceeding LBP-02-23, 56 NRC 413 (“LBP 02-23“), the Atomic Safety and Licensing Board addressed the admissibility of the July 19 petition‘s five Technical and three Environmental Contentions.2 One Technical Contention, TC-1, dealing with the state of PG & E‘s finances, was deemed admissible; the acceptance of at least one contention meant that the petition was granted. Although the Licensing Board dеemed two Environmental Contentions, EC-1, dealing with the failure to address environmental impacts of terrorist or other acts of malice or insanity, and EC-3, dealing with the failure to evaluate environmental impacts of transportation of radioactive materials3 inadmissible, the Licensing Board nonetheless referred the final ruling as to the admissibility of these two contentions to the NRC, “in light of the Commission‘s ongoing ‘top to bottom’ review of the agency‘s safeguards and physical security programs.” 56 NRC at 448.
In a memorandum and order, CLI-03-1, 57 NRC 1 (“CLI 03-01“), the NRC accepted the Licensing Board‘s referral of its decision to reject the environmental contentions related to terrorism. Although the Commission affirmed the Licensing Board‘s rejection of the contentions, it based its decision on a different rationale. The NRC relied on four prior decisions in which it held that the NEPA does not require a terrorism review.4 These decisions, most particularly Private Fuel Storage, CLI-02-25, 56 NRC 340 (2002), outlined four reasons for this holding: (1) the possibility of terrorist attack is too far removed from the natural or expected consequences of agency action to require study under NEPA; (2) because the risk of a terrorist attack cannot be determined, the analysis is likely to be meaningless; (3) NEPA dоes not require a “worst-case” analysis; and (4) NEPA‘s public process is not an appropriate forum for sensitive security issues. The NRC concluded:
Our decision today rests entirely on our understanding of NEPA and of what means are best suited to dealing with terrorism. Nonetheless, our conclusion
comports with the practical realities of spent fuel storage and the congressional policy to encourage utilities to provide for spent fuel storage at reactor sites pending construction of a permanent repository. Storage of spent fuel at commercial reactor sites offers no unusual technological challenges. Indeed, it has been occurring at Diablo Canyon for many years and will continue whether or not we license the proposed Installation.
57 NRC at 7.
In September of 2002, prior to the NRC‘s decision on the first petition, Petitioners submitted a second petition, this time requesting suspension of the Storage Installation licensing proceeding pending comprehensive review of the adequacy of Diablo Canyon‘s design and operation measures for protection against terrorist attack and other acts of malice or insanity. Unlike the July 19 petition, this one addressed security measures for the entire Diablo Canyon complex, not merely the Storage Installation. Petitioners explained that
In a memorandum and order, CLI-02-23, 56 NRC 230 (“CLI 02-23“), the NRC denied the Sеptember 2002 petition. Because the petition did not, according to the NRC, “fit comfortably in any specific category, [the Commission] treat[ed] it as a general motion brought under the procedural requirements of
In a memorandum and order, CLI-03-12, 58 NRC 185 (2003) (“CLI 03-02“), the NRC denied the petitions for agency review of the Licensing Board‘s decisions
In October of 2003, the Spent Fuel Project Office of the NRC‘s Office of Material Safety and Safeguards released its Environmental Assessment Related to the Construction and Operation of the Diablo Canyon Independent Spent Fuel Storage Installation. The 26-page document contains the NRC‘s conclusion “that the construction, operation, and decommissioning of the Diablo Canyon Installation will not result in significant impact to the environment,” and therefore that “an [EIS] is not warranted for the proposed action, and pursuant to
The EA is not devoid of discussion of terrorist attacks. Indeed, the document contains the Commission‘s response to a comment submitted by the California Energy Commission in response to an earlier draft that “there is no discussion in the EA of the potential destruction of the casks or blockage of air inlet ducts as the result of sabotage or a terrorist attack . . . [nor is there] a description of how decisions are being made regarding the configuration, design and spacing of the casks, the use of berms, and the location of the ISFSI to minimize the vulnerability of the ISFSI to potential attack.” The NRC responded:
In several recent cases, . . . the Commission has determined that an NRC environmental review is not the appropriate forum for the consideration of terrorist acts. The NRC staff considers the security of spent fuel as part of its safety review of each application for an ISFSI license. In addition to reviewing an ISFSI application against the requirements of
10 CFR Part 72 , the NRC staff evaluates the proposed security plans and facility design features to determine whether the requirements in10 CFR Part 73 , “Physical Protection of Plants and Materials,” are met. The details of specific security measures for each facility are Safeguards Information, and as such, can not be released to the public.The NRC has also initiated sеveral actions to further ensure the safety of spent fuel in storage. Additional security measures have been put in place at nuclear facilities, including ISFSIs currently storing spent fuel. These measures include increased security patrols, augmented security forces and weapons, additional security posts, heightened coordination with law enforcement and military authorities, and additional limitations on vehicular access. Also, as part of its comprehensive review of its security program, the NRC is conducting several technical studies to assess potential vulnerabilities of spent fuel storage facilities to a spectrum of terrorist acts. The results of these studies will be used to determine if revisions to the current NRC security requirements are warranted.
Petitioners argue that, in denying their petitions, the NRC violated the AEA, the APA, and NEPA. Although we reject the AEA and APA claims, we agree with Petitioners that the agency has failed to comply with NEPA. We have jurisdiction over those final orders of the NRC made reviewable by
III
We turn first to Petitioners’ AEA argument. Specifically, Petitioners аrgue that the NRC violated its regulations implementing the AEA, as well as the AEA‘s
A
The NRC did not violate the AEA or its implementing regulations when it failed to explain its rejection of Petitioners’ contentions by addressing each of their arguments. Nothing in the regulations or the AEA requires the NRC to provide such an explanation.
Section 189(a) of the AEA grants public hearing rights “upon the request of any person whose interest may be affected” by an NRC licensing proceeding.
Petitioners correctly observe that the NRC, in its decision, did not discuss whether Petitioners satisfied the regulatory standard. They are mistaken, however, in their unsupported contention that this omission amounts to the agency‘s failure to follow its own regulations and thus is “reversible error.” The regulations simply do not require the NRC to explain its decisions in any particular manner. Although the NRC regulations are specific and demanding in what they require of petitioners, they demand far less of the NRC in responding to a petition: the regulations require only a timely “decision.” See
B
The NRC‘s denial of a hearing on whether NEPA requires consideration of the environmental effects of a terrorist attack on the Storage Installation did not violate the AEA‘s hearing provisions.
Petitioners contend that the NRC relied on an improper ground in denying their request for a hearing on whether NEPA requires the Commission to consider the environmental impacts of terrоrism—namely, the ground that it had determined in earlier decisions that NEPA imposes no such obligation. Thus, Petitioners do not challenge the substantive validity or coherence of those earlier opinions in making their AEA claim, but rather the reliance upon a prior determination of the merits in order to reject a petition presenting the same issues. As such, Sierra Club v. NRC, 862 F.2d 222 (9th Cir.1988), on which Petitioners rely, does not apply. In that case, the NRC rejected the petitioners’ contentions as lacking in reasonable specificity, and yet went on to analyze the merits of those supposedly unacceptable contentions. Id. at 228. Here, however, where the agency is rejecting the conten-
C
The NRC‘s denial of a hearing on security measures for Diablo Canyon as a whole also did not violate the AEA. Petitioners argue that the AEA requires the NRC to grant petitioners a hearing on all issues of material fact, including the security of the entire Diablo Canyon complex. Petitioners therefore conclude, citing Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.Cir.1984), that the NRC violated the AEA when it denied a hearing on that issue.
Petitioners’ argument misreads Union of Concerned Scientists, in which the D.C. Circuit held only that the agency cannot by rule presumptively eliminate a material issue from consideration in a hearing petition. Union of Concerned Scientists requires the agency to consider a petition; it does not require that the agency grant it.
The NRC in CLI 02-23 did not deny that security requirements for the entire complex might need to be upgraded, but rather maintained that a licensing proceeding hearing (and one regarding an installation, not the entire complex) was not the correct forum in which to address the issue. The Commission directed Petitioners to participate in a rulemaking or to raise their concerns in a hearing then pending before the Licensing Board. Petitioners contend that these alternative fora are illusory, and that rejection of their petition amounted to the denial of any opportunity to participate in the consideration of post-9/11 security measures for the Diablo Canyon complex.
Petitioners argue “[i]f the NRC were going to resolve Petitioners’ concerns that grossly inadequate security made the Diablo Canyon facility vulnerable to terrorist attacks generically, through a rulemaking, such a rulemaking would have been initiated as a result of the ‘comprehensive security review’ undertaken by the NRC.” Thus, Petitioners argue that it would have been futile to submit a rulemaking petition. This argument must fail, as Petitioners did not use the available procedures for initiating a rulemaking. Petitioners cannot complain that NRC failed to institute a rulemaking they never requested.
Given that rulemaking may have been an avenue for Petitioners’ participation, had they chosen to pursue it, their argument that they had no forum in which to raise their contentions loses its force. However, even were Petitioners correct in their assertion that they were unfairly denied the opportunity to participate in a rulemaking proceeding, the argument that the Licensing Board hearing was similarly illusory would fail. In fact, Petitioners were attempting to use the present Storage Installation licensing proceeding as a means of launching a much broader challenge to the Diablo Canyon complex. The NRC correctly observes that a petition alleging that existing NRC regulations are “grossly inadequate to protect against terrorist attack, and therefore must be supplemented by additional requirements” cannot in fact be raised before the Licens-
D
In short, the NRC did not violate the AEA in denying the petitions for a hearing. Neither the AEA nor its implementing regulations requirеd the NRC to grant Petitioners a hearing on whether NEPA required a consideration of the environmental impact of a terrorist attack on the Storage Installation or the security measures adopted for the entire Diablo Canyon complex.
IV
The NRC‘s reliance on its own prior opinions in its decision in this case does not violate the APA‘s notice and comment provisions. Petitioners argue that the decisions in CLI 03-01 and PFS amount to the announcement “of a general policy of refusing to consider the environmental impacts of terrorist attacks in Environmental Impact Statements.” Petitioners rely on Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1014 (9th Cir.1987) to claim that this policy depends on factual determinations not found subsequent to an evidentiary proceeding, and constitutes a “binding substantive norm,” the promulgation of which, without a public hearing, violates the APA notice and comment provisions contained in
That NEPA does not require consideration of the environmental impacts of terrorism is a legal, and not a factual, conclusion. Cf. Greenpeace Action v. Franklin, 14 F.3d 1324, 1331 (9th Cir.1993) (reasoning that a challenge to the adequacy of an EA turned on factual, not legal, principles where both NEPA‘s applicability and the requirements it imposed were uncontested); see also Alaska Wilderness Recreation & Tourism Ass‘n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995) (noting that although “challenges to agency actions which raise predominantly legal, rather than technical questions, are rare,” the court was there required to address “just such a challenge“). Petitioners’ analysis is therefore inapposite. The agency has the discretion to use adjudication to establish a binding legal norm. See Sec. & Exch. Comm‘n v. Chenery, 332 U.S. 194, 199-203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“[T]he choice made between proceeding by general rule or by individual, ad hoc litigation, is one that lies primarily in the informed discretion of the administrative agency.“). We therefore agree with the NRC‘s char-
V
Although we hold that the agency did not violate the APA when it relied on the prior resolution of a legal issue through adjudication, we come to a different conclusion as to that determination‘s compliance with NEPA. Because the issue whether NEPA requires consideration of the environmental impacts of a terrorist attack is primarily a legal one, we review the NRC‘s determination that it does not for reasonableness. See Alaska Wilderness Recreation & Tourism Ass‘n, 67 F.3d at 727 (reviewing predominately legal issue for reasonableness because “it makes sense to distinguish the strong level of deference we accord an agency in deciding factual or technical matters from that to be accorded in disputes invоlving predominately legal questions“); Ka Makani‘O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 n. 3 (9th Cir.2002) (“Because this case involved primarily legal issues . . . based on undisputed historical facts, we conclude that the ‘reasonableness’ standard should apply to this case.“).
Here, the NRC decided categorically that NEPA does not require consideration of the environmental effects of potential terrorist attacks. In making this determination, the NRC relied on PFS, where it “consider[ed] in some detail the legal question whether NEPA requires an inquiry into the threat of terrorism at nuclear facilities.” 56 NRC 340, 343 (2002). In that case, intervenor State of Utah filed a contention claiming that the September 11 terrorist attacks “had materially changed the circumstances under which the Board had rejected previously proffered terrorism contentions by showing that a terrorist attack is both more likely and potentially more dangerous than previously thought.” Id. at 345. The NRC concluded that even following the September 11th attacks, NEPA did not impose such a requirement, reasoning:
In our view, an EIS is not an appropriate format to address the challenges of terrorism. The purpose of an EIS is to inform the decisionmaking authority and the public of a broad range of environmental impacts that will result, with a fair degree of likelihood, from a proposed project, rather than to speculate about ‘worst-case’ scenarios and how to prevent them.
Id. at 347.
The NRC determined that four grounds “cut[] against using the NEPA framework” to consider the environmental effects of a terrorist attack: (1) the possibility of a terrorist attack is far too removed from the natural or expected consequences of agency action; (2) because the risk of a terrorist attack cannot be determined, the analysis is likely to be meaningless; (3) NEPA does not require a “worst-case” analysis; and (4) NEPA‘s public process is not an appropriate forum for sensitive security issues. Id. at 348. We review each of these four grounds for reasonableness, and conclude that these grounds, either individually or collectively, do not support the NRC‘s categorical refusal to consider the environmental effects of a terrorist attack.
The Commission relied first on finding that the possibility of a terrorist attack is too far removed from the natural or expected consequences of agency action. Id. at 347. Section 102 of NEPA requires federal agencies to prepare “a detailed statement . . . on the environmental impact” of any proposed major federal action “significantly affecting the quality of the human environment.”
The NRC claims that the appropriate analysis of Section 102 is that employed by the Supreme Court in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). In Metropolitan Edison, the Court noted that “[t]o determine whether Section 102 requires consideration of a particular effect, we must look to the relationship between that effect and the change in the physical environment caused by the major federal action at issue,” looking for “a reasonably close causal relationship . . . like the familiar doctrine of proximate cause from tort law.” 460 U.S. at 774. The Commission claims that its conclusion that the environmental impacts of a possible terrorist attack on an NRC-licensed facility is beyond a “reasonably close causal relationship” was a reasonable application of this “proximate cause” аnalogy.
The problem with the agency‘s argument, however, is that Metropolitan Edison and its proximate cause analogy are inapplicable here. In Metropolitan Edison, the petitioners argued that NEPA required the NRC to consider the potential risk of psychological damage upon reopening the Three Mile Island nuclear facilities to those in the vicinity. Noting that NEPA is an environmental statute, the Supreme Court held that the essential analysis must focus on the “closeness of the relationship between the change in the environment and the ‘effect’ at issue.” 460 U.S. at 772.
The appropriate analysis is instead that developed by this court in No GWEN Alliance v. Aldridge, 855 F.2d 1380 (9th Cir.1988). In No GWEN, the plaintiffs argued that NEPA required the Air Force to consider the threat of nuclear war in the implementation of the Ground Wave Emergency Network (“GWEN“). We held “that the nexus between construction of GWEN and nuclear war is too attenuated to require discussion of the environmental impacts of nuclear war in an [EA] or [EIS].” 855 F.2d at 1386.
The events at issue here, as well as in Metropolitan Edison and No GWEN, form a chain of three events: (1) a major federal action; (2) a change in the physical environment; and (3) an effect. Metropolitan Edison was concerned with the relationship between events 2 and 3 (the change in the physical environment, or increased risk of accident resulting from the renewed operation of a nuclear reactor, and the effect, or the decline in the psychological health of the human population). The Court in Metropolitan Edison explicitly distinguished the case where the disputed relationship is between events 1 and 2: “we emphasize that in this case we are considering effects caused by the risk of accident. The situation where an agency is asked to consider effects that will occur if a risk is realized, for example, if an accident occurs . . . is an entirely different case.” Id. at 775 n. 9. In No GWEN, we followed the Court‘s admonition and, in addressing the relationship between events 1 and 2, we held that the Metropolitan Edison analysis did not apply “because it discusse[d] a different type of causation than that at issue in this case . . . [which] require[d] us to examine the relationship between the agency action and a potential impact on the environment.” Id. at 1386. No GWEN relied on our decision in Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1026 (9th Cir.1980), which held that “an impact statement need not discuss remote and highly speculative consequences.” Applying that standard to the plaintiffs’ claims that the military GWEN system‘s installation would “increase the probability of nuclear war,” and “that GWEN would be a primary target in a nuclear war,” we held both propositions to be “remote and highly speculative,” and, therefore, NEPA did not require their consideration.
In the present case, as in No GWEN, the disputed relationship is between events 1 and 2 (the federal act, or the licensing of the Storage Installation, and the change in the physical environment, or the terrorist attack). The appropriate inquiry is therefore whether such attacks are so “remote and highly speculative” that NEPA‘s mandate does not include consideration of their potential environmental effects.
The NRC responds by simply declaring without support that, as a matter of law, “the possibility of a terrorist attack . . . is speculative and simply too far removed from the natural or expected consequences of agency action to require a study under NEPA.” 56 NRC at 349. In doing so, the NRC failed to address Petitioners’ factual contentions that licensing the Storage Installation would lead to or increase the risk of a terrorist attack because (1) the presence of the Storage Installation would increase the probability of a terrorist attack on the Diablo Canyon nuclear facility, and (2) the Storage Installation itself would be a primary target for a terrorist attack. We conclude that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on the Storage Installation and on the entire Diablo Canyon facility as too “remote and highly speculative” to warrant consideration under NEPA.
In so concluding, we also recognize that the NRC‘s position that terrorist attacks are “remote and highly speculative,” as a matter of law, is inconsistent with the government‘s efforts and expenditures to combat this type of terrorist attack against nuclear facilities. In the PFS opinion, the NRC emphasized the agency‘s own post-September 11th efforts against the threat of terrorism:
At the outset, however, we stress our determination, in the wake of the horrific September 11th terrorist attacks, to strengthen security at facilities we regulate. We currently are engaged in a comprehensive review of our security regulations and programs, acting under our AEA-rooted duty to protect “public health and safety” and the “common defense and security.” We are reexamining, and in may cases have already improved, security and safeguards matters such as guаrd force size, physical security exercises, clearance requirements and background investigations for key employees, and fitness-for-duty requirements. More broadly, we are rethinking the NRC‘s threat assessment framework and design basis threat. We also are reviewing our own infrastructure, resources, and communications.
Our comprehensive review may also yield permanent rule or policy changes that will apply to the proposed PFS facility and to other NRC-related facilities. The review process is ongoing and cumulative. It has already resulted in a number of security-related actions to address terrorism threats at both active and defunct nuclear facilities.
56 NRC at 343. Among these actions is the establishment of an Office of Nuclear Security and Incident Response, “responsi-
We find it difficult to reconcile the Commission‘s conclusion that, as a matter of law, the possibility of a terrorist attack on a nuclear facility is “remote and speculative,” with its stated efforts to undertake a “top to bottom” security review against this same threat. Under the NRC‘s own formulation of the rule of reasonableness, it is required to make determinations that are consistent with its policy statements and procedures. Here, it appears as though the NRC is attempting, as a matter of policy, to insist on its preparedness and the seriousness with which it is responding to the post-September 11th terrorist threat, while concluding, as a matter of law, that all terrorist threats are “remote and highly speculative” for NEPA purposes.8
In sum, in considering the policy goals of NEPA and the rule of reasonableness that governs its application, the possibility of terrorist attack is not so “remote and highly speculative” as to be beyond NEPA‘s requirements.
B
The NRC‘s reliance upon the second PFS factor, that the Risk of a Ter-
rorist Attack Cannot be Adequately Determined, 56 NRC at 350, is also not reasonable. First, the NRC‘s dismissal of the risk of terrorist attacks as “unquantifiable” misses the point. The numeric probability of a specific attack is not required in order to assess likely modes of attack, weapons, and vulnerabilities of a facility, and the possible impact of each of these on the physical environment, including the assessment of various release scenarios. Indeed, this is precisely what the NRC already analyzes in different contexts. It is therefore possible to conduct a low probability-high consequence analysis without quantifying the precise probability of risk. The NRC itself has recognized that consideration of uncertain risks may take a form other than quantitative “probabilistic” assessment. In its “Proposed Policy Statement on Severe Accidents and Related Views on Nuclear Reactor Regulation,” 48 Fed. Reg. 16,014 (1983), the Commission stated that:
In addressing potential accident initiators (including earthquakes, sabotage, and multiple human errors) where empirical data are limited and residual uncertainty is large, the use of conceptual modeling and scenario assumptions in Safety Analysis Reports will be helpful. They should be based on the best qualified judgments of experts, either in the form of subjective numerical probability estimates or qualitative assessments of initiating events and casual [sic] linkages in accident sequences.
48 Fed. Reg. at 16,020 (emphasis added).
Even if we accept the agency‘s argument, the agency fails to adequately show that the risk of a terrorist act is unquantifiable. The agency merely offers the following analysis as to the quantifiability of a potential terrorist attack:
The horrors of September 11 notwithstanding, it remains true that the likelihood of a terrorist attack being directed at a particular nuclear facility is not quantifiable. Any attempt at quantification or even qualitative assessment would be highly speculative. In fact, the likelihood of attack cannot be ascertained with confidence by any state-of-the-art methodology. That being the case, we have no means to assess, usefully, the risks of terrorism at the PFS facility.
56 NRC at 350. The agency nonetheless has simultaneously shown the ability to conduct a “top to bottom” terrorism review. This leaves the Commission in the tenuous position of insisting on the impossibility of a meaningful, i.e. quantifiable, assessment of terrorist attacks, while claiming to have undertaken precisely such an assessment in other contexts. Further, as we have noted, the NRC has required site-specific analysis of such threats, involving numerous recognized scenarios.9
Thus, we conclude that precise quantification of a risk is not necessary to trigger NEPA‘s requirements, and even if it were, the NRC has not established that the risk of a terrorist attack is unquantifiable.
C
The NRC‘s third ground, that it is not required to conduct a “worst-case” analysis, is a non sequitur. Although it is a true statement of the law, the agency errs in equating an assessment of the environmental impact of terrorist attack with a demand for a worst-case analysis.
The Council on Environmental Quality (“CEQ“) regulations,
The Commission is therefore correct when it argues that NEPA does not require a worst-case analysis. It is mistaken, however, when it claims that “Petitioners’ request for an analysis of [the environmental effects of] a successful terrorist attack at the Diablo Canyon ISFSI approximates a request for a ‘worst-case’ analysis that has long since been discarded by the CEQ regulations . . . and discredited by the Federal courts.” According to the NRC, “[m]aking the various assumptions required by [P]etitioners’ scenario requires the NRC to venture into the realm of ‘pure conjecture.‘” We disagree.
An indication of what CEQ envisioned when it imposed the worst-case analysis requirement can be gleaned from a 1981 CEQ memorandum, Forty Most Asked Questions Concerning CEQ‘s National Environmental Policy Act Regulations, reprinted at 46 FR 18026-01 (March 23, 1981). CEQ answered one of those questions, “[w]hat is the purposе of a worst-case analysis? How is it formulated and what is the scope of the analysis?” with the following:
The purpose of the analysis is to . . . cause agencies to consider th[ ]e potential consequences [of agency decisions] when acting on the basis of scientific uncertainties or gaps in available information. The analysis is formulated on the basis of available information, using reasonable projections of the worst possible consequences of a proposed action.
For example, if there are scientific uncertainty and gaps in the available information concerning the numbers of juvenile fish that would be entrained in a cooling water facility, the responsible agency must disclose and consider the possibility of the loss of the commercial or sport fishery. In addition to an analysis of a low probability/catastrophic impact event, the worst-case analysis should also include a spectrum of events of higher probability but less drastic impact.
46 FR 18026, 18032. While it is true that the agency is not required to consider consequences that are “speculative,”10 the reach the agency‘s characterization of the possibility of terrorist attack as “speculative.”
D
The NRC‘s reliance on the fourth PFS factor, that it cannot comply with its NEPA mandate because of security risks, is also unreasonable. There is no support for the use of security concerns as an excuse from NEPA‘s requirements. While it is true, as the agency claims, that NEPA‘s requirements are not absolute, and are to be implemented consistent with other programs and requirements, this has never been interpreted by the Supreme Court as excusing NEPA‘s application to a particularly sensitive issue. See Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981) (holding that the Navy was required to perform a NEPA review and to factor its results into decisionmaking even where the sensitivity of the information involved meant that the NEPA results could not be publicized or adjudicated). Weinberger can support only the proposition that security considerations may permit or require modification of some of the NEPA procedures, not the Commission‘s argument that sensitive security issues result in some kind of NEPA waiver.
The application of NEPA‘s requirements, under the rule of reason relied on by the NRC, is to be considered in light of the two purposes of the statute: first, ensuring that the agency will have and will consider detailed information concerning significant environmental impacts; and, second, ensuring that the public can both сontribute to that body of information, and can access the information that is made public. Pub. Citizen, 541 U.S. at 768. To the extent that, as the NRC argues, certain information cannot be publicized, as in Weinberger, other statutory purposes continue to mandate NEPA‘s application. For example, that the public cannot access the resulting information does not explain the NRC‘s determination to prevent the public from contributing information to the decisionmaking process. The NRC simply does not explain its unwillingness to hear and consider the information that Petitioners seek to contribute to the process, which would fulfill both the information-gathering and the public participation functions of NEPA. These arguments explain why a Weinberger-style limited proceeding might be appropriate, but cannot support the
We note, however, that this characterization stands out as contrary to the vigilant stance that Americans are encouraged to take by the Department of Homeland Security. See www.dhs.gov/dhspublic/display?theme=29 (urging that “[a]ll Americans should continue to be vigilant” and noting that “[t]he country remains at an elevated risk . . . for terrorist attack.“)
E
In sum, none of the four factors upon which the NRC relies to eschew consideration of the environmental effects of a terrorist attack satisfies the standard of reasonableness. We must therefore grant the petition in part and remand for the agency to fulfill its responsibilities under NEPA.
Our identification of the inadequacies in the agency‘s NEPA analysis should not be construed as constraining the NRC‘s consideration of the merits on remand, or circumscribing the procedures that the NRC must employ in conducting its analysis. There remain open to the agency a wide variety of actions it may take on remand, consistent with its statutory and regulatory requirements. We do not prejudge those alternatives. Nor do we prejudge the merits of the inquiry. We hold only that the NRC‘s stated reasons for categorically refusing to consider the possibility of terrorist attacks cannot withstand appellate review based on the record before us.
We are also mindful that the issues raised by the petition may involve questions of national security, requiring sensitive treatment on remand. However, the NRC has dealt with our nation‘s most sensitive nuclear secrets for many decades, and is well-suited to analyze the questions raised by the petition in an appropriate manner consistent with national security.
VI
We deny the petition as to the claims under the AEA and the APA. However, because we conclude that the NRC‘s determination that NEPA does not require a consideration of the environmental impact of terrorist attacks does not satisfy reasonableness review, we hold that the EA prepared in reliance on that determination is inadequate and fails to comply with NEPA‘s mandate. We grant the petition as to that issue and remand for further proceedings consistent with this opinion.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
Notes
Thus, the NRC—even before the terrorist attacks of 9/11—did not consider such attacks too “remote and speculative” to be considered in agency planning. To the contrary, the agency has long required analysis of means and methods of hypothetical attacks against specific facilities, with the goal of establishing effective counter-measures.