Brodsky v. United States Nuclear Regulatory Commission ( 2016 )

15-1330-cv
Brodsky v. United States Nuclear Regulatory Commission
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 2nd day of June, two thousand sixteen.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
Circuit Judges,
LAURA TAYLOR SWAIN,
District Judge.*
----------------------------------------------------------------------
RICHARD L. BRODSKY, New York State
Assemblyman, from the 92nd Assembly District in his
official and individual capacities,
Plaintiff-Appellant,
WESTCHESTER’S CITIZENS’ AWARENESS
NETWORK (WESTCAN), PUBLIC HEALTH AND
SUSTAINABLE ENERGY (PHASE), and SIERRA
CLUB – ATLANTIC CHAPTER (SIERRA CLUB),
Plaintiffs,
v. No. 15-1330-cv
UNITED STATES NUCLEAR REGULATORY
COMMISSION,
Defendant-Appellee,
*
The Honorable Laura Taylor Swain, of the United States District Court for the
Southern District of New York, sitting by designation.
1
ENTERGY NUCLEAR OPERATIONS, INC.,
Defendant-Intervenor.†
----------------------------------------------------------------------
APPEARING FOR APPELLANT: DANIEL J. KRAMER (Jacqueline P. Rubin, on
the brief), Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, New York.
APPEARING FOR APPELLEE: BENJAMIN H. TORRANCE, Assistant United
States Attorney (Sarah S. Normand, Assistant
United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the
Southern District of New York, New York,
New York.
APPEARING FOR INTERVENOR: AMY C. ROMA (Lisa J. Fried, on the brief),
Hogan Lovells US LLP, New York, New York.
FOR AMICI CURIAE NEW YORK
CITY COUNCIL MEMBERS: Judith L. Mogul, Morvillo Abramowitz Grand
Iason & Anello P.C., New York, New York.
FOR AMICUS CURIAE UNITED
STATES CONGRESSMAN SEAN
PATRICK MALONEY: Susan E. Brune, Brune & Richard LLP, New
York, New York.
FOR AMICUS CURIAE NUCLEAR
ENERGY INSTITUTE, INC.: Ellen C. Ginsberg, Jonathan M. Rund, Nuclear
Energy Institute, Inc., Washington, D.C.; David
A. Repka, Winston & Strawn LLP,
Washington, D.C.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Loretta A. Preska, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on March 5, 2015, is AFFIRMED.
†
The Clerk of Court is directed to amend the caption as set forth above.
2
Plaintiff Richard L. Brodsky brought this action to challenge a decision by
defendant United States Nuclear Regulatory Commission (“NRC”) exempting Indian
Point 3, a nuclear power plant operated by intervenor Entergy Nuclear Operations, Inc.,
from a federal fire-safety regulation. See 10 C.F.R. pt. 50, App. R. § III.G.2.c. On
Brodsky’s initial appeal from a grant of summary judgment to the NRC, this panel
affirmed in all respects but one, see generally Brodsky v. U.S. Nuclear Regulatory
Comm’n, 507 F. App’x 48 (2d Cir. 2013), remanding the case for further record
development on Brodsky’s claim that the agency had failed to comply with the
public-participation provision of the National Environmental Protection Act (“NEPA”),
see 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4(b); see generally Brodsky v. U.S.
Nuclear Regulatory Comm’n, 704 F.3d 113 (2d Cir. 2013). The NRC opted instead to
reconsider its decision and solicited public comment, which it received and reviewed
before deciding not to modify or rescind the challenged exemption. On appeal from the
district court’s renewed award of summary judgment in the agency’s favor, Brodsky
argues that, in reissuing the exemption, the NRC violated NEPA’s public-participation
requirement by refusing to consider comments regarding the environmental consequences
of a terrorist attack. We assume the parties’ familiarity with the facts and record of
prior proceedings, which we reference only as necessary to explain our decision to
affirm.
At the outset, we note that the district court, in its initial grant of summary
judgment to the NRC, rejected Brodsky’s argument that NEPA required consideration of
public comments on possible terrorism. See Brodsky v. U.S. Nuclear Regulatory
3
Comm’n, 783 F. Supp. 2d 448, 462 n.10 (S.D.N.Y. 2011) (citing New Jersey Dep’t of
Envtl. Protection v. U.S. Nuclear Regulatory Comm’n, 561 F.3d 132, 136–44 (3d Cir.
2009)). Brodsky abandoned the claim, however, by failing to raise it on his initial
appeal. See Van Allen v. Cuomo, 621 F.3d 244, 247 n.2 (2d Cir. 2010) (observing that
issues not raised in pro se appellate brief are deemed abandoned).1 Accordingly, the law
of the case doctrine forecloses the challenge here. See Johnson v. Holder, 564 F.3d 95,
99–100 (2d Cir. 2009) (holding that “where an issue was ripe for review at the time of an
initial appeal but was nonetheless foregone, it is considered waived and the law of the
case doctrine bars an appellate court in a subsequent appeal from reopening such issues”
absent “cogent and compelling” reasons for doing so (alteration and internal quotation
marks omitted)).
In urging otherwise, Brodsky argues that because the NRC chose to reconsider the
challenged exemption, it engaged in a separate, “independent” NEPA process, which
raised new issues of fact (“the comments regarding terrorism”) and law (“the scope of the
NRC’s obligation to consider those public comments”) that could not have been resolved
in the prior litigation. Appellant Reply 8, 9. The argument fails because the district
court had ruled that the environmental effects of a possible terrorist attack fell outside the
1
Although Brodsky challenged the NRC’s compliance with its own requirement that
exemptions from NRC regulations must be “consistent with the common defense and
security,” 10 C.F.R. § 50.12(a)(1), we summarily rejected his claim on the merits. See
Brodsky v. U.S. Nuclear Regulatory Comm’n, 507 F. App’x at 52 (“Plaintiffs’
speculation that a terrorist attack would disable more firefighting personnel than would a
significant fire, thus making increased reliance on manual fire suppression unsafe, is
insufficient to demonstrate that the agency’s defense-and-security finding was arbitrary
and capricious.”).
4
scope of the agency’s NEPA analysis as a matter of law. See Brodsky v. U.S. Nuclear
Regulatory Comm’n, 783 F. Supp. 2d at 462 n.10. The NRC was entitled to rely on this
unchallenged ruling on remand and thus—for purposes of this appeal—was not required
to consider the issue even if public comments raised such concerns. See Johnson v.
Holder, 564 F.3d at 99. No different result is warranted by Brodsky’s effort to
characterize the district court’s ruling as dicta, or to limit it to the question whether
NEPA compels the NRC sua sponte to consider the threat of terrorism; neither
characterization has any basis in the district court’s decision.
In any event, Brodsky’s argument also fails on the merits because the NRC did
consider the risks from terrorism in determining that its exemption decision would have
no significant environmental impact. See 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§§ 1501.4(e), 1508.13; Department of Transp. v. Pub. Citizen, 541 U.S. 752, 757–58
(2004).2 Responding to public comments suggesting that granting the exemption could
heighten the risk that a terrorist attack would cause a severe fire preventing operation of
shutdown equipment, the NRC explained that it had already analyzed “plausible threat
scenarios” and, as a result, had required plant operators to undertake several protective
measures “[t]o provide high assurance that a terrorist attack will not lead to significant
radiological consequences.” J.A. 29 (citing 10 C.F.R. §§ 50.54(hh)(1)–(2), 73.1, 73.55,
2
Accordingly, we need not—and do not—address the NRC’s argument that because
there is no “‘reasonably close causal relationship’” between granting the exemption and
the probability or consequences of terrorism, the agency had no legal duty to consider the
possibility of a terrorist attack in conducting its evaluation under NEPA. Appellee Br.
36 (quoting New Jersey Dep’t of Envtl. Protection v. U.S. Nuclear Regulatory Comm’n,
561 F.3d at 140).
5
73.58). The agency further underscored that its “independent safety evaluation” of the
facility’s fire-zone configuration provided “reasonable assurance that a severe fire is not
plausible” and that “existing fire protection features are adequate,” whether such a fire
“result[s] from a terrorist attack or some internally-initiated event.” Id. (citing New
York v. U.S. Nuclear Regulatory Comm’n, 589 F.3d 551, 554 n.1 (2d Cir. 2009)
(concluding that NRC took sufficient account of risk from terrorism “when deciding that
the risk of fire at a spent fuel pool was uniformly low” (emphasis added))). This
explanation precludes a conclusion that the NRC’s grant of the exemption in question
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Natural Res. Def. Council v. EPA, 658 F.3d 200,
215 (2d Cir. 2011) (observing that agency action is “arbitrary and capricious” if it
“entirely failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so implausible that
it could not be ascribed to a difference in view or the product of agency expertise”
(internal quotation marks omitted)).
Brodsky cannot urge otherwise by faulting the NRC’s reliance on its independent
safety evaluation on the ground that the August 27, 2007 report of its analysis does not
mention the risk of a terrorist attack and could not have taken into account public
comments submitted between April and June 2013. The alleged report omission is
insufficient to demonstrate agency neglect in examining relevant data or in satisfactorily
explaining its action, much less the lack of “a rational connection between the facts found
and the choice made.” Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d at 119
6
(internal quotation marks omitted). To the extent Brodsky contends that the NRC failed
entirely to consider the threat of a terror attack, his contention is defeated by the agency’s
response to a comment that Brodsky himself submitted, in which the agency described
the enhanced security requirements imposed on plant operators after the September 11,
2001 terror attacks, see 10 C.F.R. §§ 50.54(hh)(1)–(2), 73.1, 73.55, 73.58, and concluded
that such measures had reduced the environmental risk from terrorism “to a level that
reasonably assures the public health and safety.” J.A. 39–40.
Nor is there merit in Brodsky’s claim that the 2007 report rests on certain
assumptions—specifically, the absence of minimal combustibles and the availability of
manual fire suppression—that are “unlikely to hold up” in the event of a terrorist attack.
Appellant Reply 22–23. Not only does Brodsky fail to provide a factual basis for his
assertions that (1) “an attacker could easily, and would likely, introduce additional
combustible material,” or (2) “it is far more likely that personnel responding to the fire
will be delayed or prevented from” suppressing a fire, id., but also, his argument ignores
that various components of the “defense-in-depth” strategy promulgated through 10
C.F.R. pt. 50, App. R. § III must be considered in conjunction rather than in isolation.
See Brodsky v. U.S. Nuclear Regulatory Comm’n, 783 F. Supp. 2d at 463 n.11 (noting
that “key” to “defense-in-depth” approach “is creating multiple independent and
redundant layers of defense to compensate for potential human and mechanical failures
so that no single layer, no matter how robust, is exclusively relied upon” (internal
quotation marks omitted)); see also, e.g., J.A. 48 (relying on “presence of redundant
safe-shutdown trains, minimal fire hazards and combustibles, automatic cable tray fire
7
suppression system, manual fire suppression features, fire barrier protection, existing
Hemyc configuration, and the installed smoke detection system”).
In sum, Brodsky identifies no shortcoming in the NRC’s consideration of public
comments, whether regarding terrorism or otherwise, that renders arbitrary or capricious
its determination that—in light of Entergy’s approach to “defense-in-depth” at Indian
Point 3, considered in its entirety and alongside the agency’s regulatory response to
“plausible” threat scenarios—granting the fire-barrier exemption would have no
significant impact on the environment. See Natural Res. Def. Council v. EPA, 658 F.3d
at 215 (reiterating that appellate courts do not “substitute [their] judgment for that of the
agency” (internal quotation marks omitted)). Thus, even if Brodsky’s sole remaining
NEPA claim were not procedurally barred at this stage of the litigation, it nevertheless
fails on the merits.
* * * *
We have considered Brodsky’s remaining arguments and conclude that they are
without merit. Accordingly, the district court’s judgment is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
8