STATE OF NEVADA, PETITIONER v. DEPARTMENT OF ENERGY, RESPONDENT
No. 04-1309
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2005 Decided August 8, 2006
Before: HENDERSON and RANDOLPH, Circuit Judges; and EDWARDS, Senior Circuit Judge.
On Petition for Review of an Order of the Department of Energy
John A. Bryson, Attorney, United States Department of Justice, argued the cause for the respondent. Greer S. Goldman and Ronald M. Spritzer, Attorneys, United States Department of Justice were on brief.
Jean V. MacHarg, John C. Martin, Susan M. Mathiascheck, and Michael A. Bauser were on the brief for amicus curiae
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Since scientists split the atom in 1942, nuclear technology has proliferated into many areas of society. No longer limited to the defense of our nation, nuclear technology is used in energy production, medical diagnosis and treatment, food processing and agriculture and sterilization of consumer goods. For all of the advances it has brought, however, those advances have come at a price—the waste that is the inevitable byproduct.
What to do with the waste has plagued scientists and policymakers for decades. As a result of scientific, political and regulatory consultation and comment, the consensus is that the waste should be stored in an underground repository to be located at Yucca Mountain, Nevada (Yucca). The State of Nevada (Nevada), concerned about the storage of nuclear waste within its borders, has vigorously opposed the construction of a nuclear repository at Yucca and, after failing in the political and regulatory arenas, has attacked the statutory and regulatory scheme governing the construction and operation of the Yucca repository. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).
In this petition for review, Nevada asks us to review both the Final Environmental Impact Statement (FEIS) and that portion of the Record of Decision (ROD) the Department of Energy (DOE or Department) issued governing the
I.
The Nuclear Waste Policy Act of 1982 (NWPA),
Pursuant to the NWPA, the DOE Secretary recommended Yucca to the President for development as the nation‘s underground nuclear waste repository. Following the NWPA‘s procedures, the President then recommended Yucca to the Congress. See Nuclear Energy Inst., 373 F.3d at 1261. Nevada objected to the proposed site and submitted a notice of disapproval, to which the Congress responded by passing the Yucca Mountain Development Act, Pub. L. No. 107-200, 116 Stat. 735 (2002), a joint resolution approving the development of a repository at Yucca.
On February 14, 2002, the DOE issued an FEIS for its repository site selection decision. Although much of the FEIS concentrated on the Yucca site, it also analyzed alternatives for, and the “potential environmental consequences” of, transporting nuclear waste from the many production sources throughout the
Under the mostly legal-weight truck scenario, virtually all SNF2 and HLW would be placed in casks3 at the production sources and the casks then shipped by truck directly to Yucca. See FEIS 2-47 (JA 204). Each truck together with each cask would meet legal-weight requirements. The mostly legal-weight truck option would transport approximately 53,000 shipments over 24 years. FEIS 6-4 (JA 247).
The mostly-rail scenario, by contrast, would provide for the shipment of SNF and HLW primarily by rail. FEIS 6-35 (JA 278). There are seventy-two commercial production sources and five DOE generator sources of nuclear waste nationwide. Id. Sixty-six of the commercial production sources and the five DOE generator sources have the capacity to load the waste into large-capacity rail shipping casks. Forty-two of the sixty-six
As noted earlier, because none of Nevada‘s mainline railroads connects to Yucca, the FEIS also considered alternatives for transporting the waste from a mainline railroad to Yucca. The first option was to construct an intermodal transfer station at a point on a mainline railroad, where the rail casks would be transferred from the rail cars to heavy-haul trucks. The trucks would then haul the waste to Yucca on one of Nevada‘s five existing highways to Yucca. The second option was to build a branch rail line from a mainline railroad to Yucca. The DOE identified five alternative “rail corridors“—each approximately one-quarter mile wide—in which to build a branch rail line. While the FEIS analyzed the environmental impact of building a rail line somewhere within each corridor, it did not analyze the impact of specific alternative track locations within each corridor. The DOE did
On April 8, 2004, the DOE issued a ROD for transporting SNF and HLW to Yucca. See Record of Decision on Mode of Transportation and Nevada Rail Corridor for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, NV, 69 Fed. Reg. 18,557 (April 8, 2004) (ROD). The ROD identified the mostly-rail option as the DOE‘s choice for the national transportation plan. Id. at 18,558. The Department also decided to construct a branch rail line from one of Nevada‘s existing mainline railroads to the repository at Yucca and selected the Caliente Corridor for any branch rail line it might decide to build. See id. (“In addition, the Department has decided to select the Caliente rail corridor in which to examine potential alignments within which to construct that rail line. Should the Department select an alignment within that corridor, it will obtain all necessary regulatory approvals before beginning construction.” (footnote omitted)).
The ROD further noted that if the repository at Yucca became operational before a branch line could be completed, the DOE could nonetheless begin shipment of waste. Under this contingency, the waste would be shipped on legal-weight truck casks placed on rail cars which, once they arrived in Nevada, would be transferred to legal-weight trucks at an intermodal transfer station and then continue by truck to Yucca. The DOE did not supplement the FEIS notwithstanding this contingency, noted in the ROD, that it might transport waste in legal-weight truck casks via rail. The ROD alluded to a March 10, 2004 Supplemental Analysis (SA) the DOE had prepared, concluding
Nevada then filed its petition for review of the FEIS and the ROD. Nevada argues that the DOE violated NEPA in several ways, that it exceeded its authority in selecting the Caliente Corridor and that its conditional decision to ship waste in legal-weight truck casks by rail, should the repository at Yucca be operational before completion of a branch rail line, was arbitrary and capricious.
II.
Under the ripeness doctrine, “an
A.
Nevada claims that the DOE‘s adoption of what Nevada calls the “interim transportation plan“—“building an intermodal capability at a rail line in Nevada to take legal-weight truck casks from rail cars and transport them the rest of the way to the repository via highway, should the rail system be unavailable at the time of the opening of the repository,” ROD, 69 Fed. Reg. at 18,561—required the DOE to prepare an SEIS. The DOE is required to prepare an SEIS if, inter alia, it makes “substantial changes in the proposed action that are relevant to environmental concerns.”
The DOE‘s discussion of the interim transportation plan in the ROD does not represent its final determination regarding the plan. As outlined in the ROD, the plan might be implemented at some future time but the DOE‘s language is replete with conditional phrases. See ROD, 69 Fed. Reg. at 18,561 (“The Department would use truck transport where necessary, depending on certain factors such as the timing of the completion of the rail line proposed to be constructed in Nevada. This could include building an intermodal capability at a rail line in Nevada to take legal-weight truck casks from rail cars and transport them the rest of the way to the repository via highway, should the rail system be unavailable at the time of the opening of the repository.” (emphases added)). The DOE‘s uncertainty
B.
Nevada also attacks the interim transportation plan as arbitrary and capricious. The APA requires that we set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Comtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004) (quoting
A claim generally satisfies the first prong of the Abbott Laboratories test—“fitness of the issue[ ] for judicial decision“—if “the issue tendered is a purely legal one.” Abbott Labs., 387 U.S. at 149. Whether an agency decision is arbitrary and capricious is a purely legal question. See Sprint Corp. v. FCC, 331 F.3d 952, 956 (D.C. Cir. 2003) (citing Fox Television
The ROD makes clear that the Department “could” implement the plan, not that it will, and, in any event, that it will do so only “where necessary, depending on certain factors.” ROD, 69 Fed. Reg. at 18,561. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks and citation omitted). In Fourth Branch Associates v. FERC, 253 F.3d 741 (D.C. Cir. 2001), FERC issued a notice of its intent to initiate “surrender” proceedings (used for the implied surrender of a joint license to operate a hydroelectric plan) and Fourth Branch Associates petitioned for review. We dismissed the petition, observing “[t]here is nothing definitive in an agency‘s intending to do something.” Id. at 746. So too here. The ROD, in relevant part, does nothing more than announce the DOE‘s intent to do something if certain conditions obtain. The interim transportation plan “rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300 (internal quotation marks and citation omitted). It is not fit for judicial review because ” ‘further administrative action is needed to clarify the
Nor will Nevada suffer any hardship from delaying review. The ROD‘s discussion of the interim transportation plan results in no “adverse effects of a strictly legal kind“; it “do[es] not command anyone to do anything, or to refrain from doing anything; [it does] not grant, withhold, or modify any formal legal license, power, or authority; [it does] not subject anyone to any civil or criminal liability; and [it] creates no legal rights or obligations.” Ohio Forestry Ass‘n, 523 U.S. at 733. The plan is nothing more than a possible course of action the DOE may take given a possible turn of events. Any injury to Nevada will not occur until the DOE makes a concrete decision. See Toilet Goods Ass‘n v. Gardner, 387 U.S. 158, 164 (1967) (no hardship where “regulation merely state[d] that the Commissioner may authorize inspectors to examine certain processes or formulae” because regulation did not affect petitioner‘s “primary conduct“). Nor does hardship flow from the uncertainty of the DOE‘s implementation of the plan, cf. Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 811 (2003) (rejecting notion that “mere uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness analysis“), nor from the fact that Nevada may have to participate in additional administrative or judicial proceedings, see Nuclear Energy Inst., 373 F.3d at 1313 (“[R]equiring a party to participate in further administrative or judicial proceedings is not a hardship sufficient to outweigh a determination that an issue is unfit for review.“).
C.
Nevada next claims that the DOE selected the Caliente Corridor in which to build the branch rail line without the
This challenge is also unripe because it is speculative. The STB‘s jurisdiction comes into play only if the DOE decides to operate the branch rail line as a common carrier. See
III.
We now turn to the State‘s five remaining claims, all of which are brought under NEPA. NEPA‘s mandate “is essentially procedural,” Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); the statute requires each agency to assess the environmental consequences of “major [f]ederal actions” by following certain procedures during the decision-making process,
Again, we apply the APA‘s arbitrary and capricious standard to a NEPA challenge. See, e.g., Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002). We apply this standard to review both the agency‘s procedural compliance with NEPA and the adequacy of an EIS. See id. (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989)). Under NEPA, the “role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Id. (citing Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983)).
A.
Before the issuance of an EIS, the responsible official “shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.”
Nevada contends that the DOE violated
administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure references to matters that “ought to be” considered and then, after failing to do more to bring the matter to the agency‘s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.”
Vt. Yankee, 435 U.S. at 553-54.
B.
Nevada next contends that the DOE violated NEPA by failing to consult with the Nevada State Engineer. Under NEPA, an agency‘s duty to obtain the comments of state and local agencies differs from its duty with respect to federal agencies. NEPA imposes a duty on the agency to consult with and obtain written comments from the appropriate federal agencies. See
By contrast, NEPA itself is silent regarding an agency‘s duty to obtain comments from state and local agencies. The CEQ regulations, however, require the proposing agency to “[r]equest the comments of [a]ppropriate State and local agencies which are authorized to develop and enforce environmental standards.”
Here, the DOE submitted a copy of the draft EIS, with a cover letter inviting comment, to Michael Turnipseed, the Nevada State Engineer. Thus, it “request[ed]” the comments of the “[a]ppropriate State . . . agenc[y].” See
C.
We need not dissect the regulation because we believe that even if the DOE violated section 1502.14(e), the violation was harmless error. The APA provides that, in reviewing agency action, the court “shall” take account of “the rule of prejudicial error,”
Similarly, we see no purpose in declaring the FEIS inadequate because of the DOE‘s failure to identify the Caliente Corridor as its preferred alternative therein. PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“If the agency‘s mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.“). NEPA‘s goal of ensuring that relevant information is available to those participating in agency decision-making was not frustrated by the absence of language designating the Caliente Corridor as the DOE‘s preferred alternative. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.“). The many comments submitted in response to the FEIS manifest that the public had sufficient information to comment on the five
D.
Nevada also challenges the FEIS for failing to address rail corridor selection—i.e., in which corridor to build a branch rail line—and rail corridor alignment—i.e., where in the preferred corridor to place the tracks—in a single EIS. It argues that corridor selection and alignment selection are “closely related” actions requiring evaluation in a single EIS under
We have characterized a programmatic EIS as follows:
A programmatic EIS reflects the broad environmental consequences attendant upon a wide-ranging federal program. The thesis underlying programmatic EISs is that a systematic program is likely to generate disparate yet related impacts . . . . Whereas the programmatic EIS looks ahead and assimilates “broad issues” relevant to [the program], the site-specific EIS addresses more particularized considerations . . . .
Found. on Econ. Trends v. Heckler, 756 F.2d 143, 159 (D.C. Cir. 1985) (quoting Nat‘l Wildlife Fed‘n v. Appalachian Reg‘l Comm‘n, 677 F.2d 883, 888 (D.C. Cir. 1981)) (alterations in original). Under the CEQ regulations a programmatic EIS should be prepared if actions are “connected,” “cumulative,” or sufficiently “similar” that a programmatic EIS is “the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions.”
The decision whether to prepare a programmatic EIS is committed to the agency‘s discretion. See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 374 n.73 (D.C. Cir. 1981) (“Even when the proposal is one of a series of closely related proposals, the decision whether to prepare a programmatic impact statement is committed to the agency‘s discretion.“). Only if the decision is arbitrary and capricious will we overturn it. See Kleppe, 427 U.S. at 412 (“Respondents conceded at oral argument that to prevail they must show that petitioners have acted arbitrarily in refusing to prepare one comprehensive statement on this entire region, and we agree.“). The DOE prepared a programmatic FEIS for the entire Yucca project as authorized by
E.
Nevada‘s final claim is that the DOE did not take the requisite “hard look” at the environmental impacts of the DOE‘s rail corridor selection. See Comtys. Against Runway Expansion, 355 F.3d at 685 (“We review the EIS to ensure that the agency took a ‘hard look’ at the environmental consequences of its decision to go forward with the project . . . .” (internal quotation marks omitted)). Specifically, Nevada contends that the FEIS inadequately and incompletely analyzed the environmental effects of placing a branch rail line within each of the five alternative corridors under consideration. Although the contours of the “hard look” doctrine may be imprecise, our task is “simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Balt. Gas & Elec. Co., 462 U.S. at 97-98. We have recognized that a “rule of reason” applies both to an agency‘s identification of the available alternatives and to its examination of their relative merits. Citizens Against Burlington, Inc., 938 F.2d at 196-97. We must ensure that “the statement contains sufficient discussion of the relevant issues and opposing viewpoints” and that the agency‘s decision is “fully informed” and “well-considered.” NRDC v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988); see also Robertson, 490 U.S. at 350 (agency must assure that “the adverse environmental effects of the proposed action are adequately identified and evaluated” (quotation omitted));
We conclude that the DOE‘s analysis of the environmental impacts of rail corridor selection in its FEIS is adequate. Fully one-third—more than 80 pages—of the FEIS‘s analysis of transportation issues addressed rail corridor impacts. ROD, 69
Nevada points to a handful of alleged inadequacies in the FEIS related to environmental impacts on cultural resources and flood plains as well as archaeological and historic impacts. Pt‘r‘s Br. 53-54. It is well settled that the court will not “flyspeck” an agency‘s environmental analysis, looking for any deficiency no matter how minor. See Fuel Safe Wash. v. FERC, 389 F.3d 1313, 1323 (10th Cir. 2004) (describing inquiry as “deciding whether claimed deficiencies in a FEIS are merely flyspecks, or are significant enough to defeat the goals of informed decision making and informed public comment.” (internal quotation marks and citation omitted)); Half Moon Bay Fishermans’ Mktg. Ass‘n v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988) (“The reviewing court may not ‘flyspeck’ an EIS.“). Moreover, as noted earlier, the FEIS is a programmatic EIS and the DOE, consistent with the CEQ‘s “tiering” regulations, is preparing a site-specific EIS on rail corridor alignment. Resp‘t‘s Br. 56. While the “tiering” regulations do not relieve the DOE from taking a “hard look” at the environmental impacts, including those included in a programmatic EIS, we do not think that the inadequacies to which Nevada points make the FEIS inadequate. The DOE‘s selection of the Caliente Corridor therefore was not arbitrary or capricious.
For the foregoing reasons, we deny Nevada‘s petition for review of the Department of Energy‘s Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada (February 12, 2002) and its
So ordered.
Notes
“Tiering” refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:
The CEQ regulations encourage “tiering” for certain proposed actions.(a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.
(b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe.