NJ Dept Env Prot v. NRC ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-31-2009
NJ Dept Env Prot v. NRC
Precedential or Non-Precedential: Precedential
Docket No. 07-2271
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"NJ Dept Env Prot v. NRC" (2009). 2009 Decisions. Paper 1610.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1610
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2271
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Petitioner
v.
UNITED STATES NUCLEAR REGULATORY
COMMISSION; AMERGEN ENERGY COMPANY, LLC
Respondent
Petition for Review of an Order
by the United States Nuclear Regulatory Commission
(NRC-1 : 50-0219-LR)
Argued on December 10, 2008
Before: McKEE, SMITH and ROTH, Circuit Judges
( Opinion filed March 31, 2009)
Anne Milgram, Esquire
Attorney General of New Jersey
Nancy Kaplen, Esquire
Assistant Attorney General of Counsel
Ellen B. Balint, Esquire
Eileen P. Kelly, Esquire (Argued)
Valerie Anne Gray, Esquire
John A. Covino, Esquire
Deputy Attorney Generals
R. J. Hughes Justice Complex
P. O. Box 093
25 Market Street
Trenton, New Jersey 08625
Counsel for Petitioner New Jersey
Department of Environmental Protection
Ronald J. Tenpas, Esquire
Assistant Attorney General
Karen D. Cyr, Esquire
General Counsel
John F. Cordes, Jr., Esquire (Argued)
Solicitor
Charles E. Mullins, Esquire
Senior Attorney
E. Leo Slaggie, Esquire
2
Deputy Solicitor
U. S. Nuclear Regulatory Commission
11555 Rockville Pike
One White Flint North
Rockville, MD 20852-2738
Tamara N. Rountree, Esquire
Environment & Natural Resources Division
P. O. Box 23795
L’Enfant Plaza Station
Washington, D. C. 20026
Counsel for Respondent Nuclear
Regulatory Commission
J. Bradley Fewell, Esquire
Associate General Counsel
Exelon Business Services Company
Brad Fagg, Esquire (Argued)
Kathryn M. Sutton, Esquire
Martin J. O’Neill, Esquire
Morgan, Lewis & Bockius, LLP
1111 Pennsylvania Avenue, N. W.
Washington, D. C. 20004
Counsel for Private Respondent AmerGen
Energy Company, L.L.C.
3
Ellen C. Ginsberg, Esquire
Michael A. Bauser, Esquire
Anne W. Cottingham, Esquire
Nuclear Energy Institute, Inc.
1776 I Street, N.W., Suite 400
Washington, D. C. 20006-3708
Counsel for Amicus Curiae Nuclear
Energy Institute, Inc. for Respondent
Nuclear Regulatory Commission
OPINION
ROTH, Circuit Judge:
The issue presented by this appeal is whether the Nuclear
Regulatory Commission (NRC), when it is reviewing an
application to relicense a nuclear power facility, must examine
the environmental impact of a hypothetical terrorist attack on
that nuclear power facility. The New Jersey Department of
Environmental Protection (NJDEP) contends that the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et
seq, requires the analysis of the impact of such an attack.
NJDEP has petitioned for review of an NRC decision denying
its request to intervene in relicensing proceedings for the Oyster
Creek Nuclear Generating Station (Oyster Creek). The NRC
concluded that terrorist attacks are “too far removed from the
natural or expected consequences of agency action” to require
4
an environmental impact analysis and that, in any event, it had
already addressed the environmental impact of a potential
terrorist act at Oyster Creek through its Generic Environmental
Impact Statement and site-specific Supplemental Environmental
Impact Statement. We agree with the NRC and will deny the
petition.
I. BACKGROUND
A. Statutory and Regulatory Framework
The Atomic Energy Act of 1954 (AEA), as amended, 42
U.S.C. § 2011 et seq., establishes a “comprehensive regulatory
framework for the ongoing review of nuclear power plants
located in the United States.” Sections 103 and 104(b) of the
AEA authorize the NRC to issue licenses to operate commercial
power reactors. 42 U.S.C. §§ 2133, 2134(b). Section 103 limits
licenses to forty-year terms but provides for renewal of nearly-
expired licenses. 42 U.S.C. § 2133. By regulation, the NRC
may renew a license for up to twenty years. See 10 C.F.R. §
54.31.
Two sets of regulatory requirements govern the NRC’s
review of license renewal applications. Under 10 C.F.R. Part
54, the NRC conducts a health and safety review focused on
“the detrimental effects of aging”on the plant. See Nuclear
Power Plant License Renewal: Revisions, 60 Fed. Reg. 22,461,
22,464 (May 8, 1995).
Under 10 C.F.R. Part 51, the NRC completes a NEPA-
based environmental review, focusing on the potential impacts
5
of twenty additional years of operation. NEPA is a procedural
statute that does not mandate particular substantive results.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350–51 (1989). Rather, it is designed “to insure a fully
informed and well-considered decision” in the examination of
potential environmental impacts of a proposed agency action.
Vermont Yankee, 435 U.S. at 558. NEPA “merely prohibits
uninformed—rather than unwise—agency action.” Robertson,
490 U.S. at 351. In addition, NEPA review should be consistent
with NEPA’s “national policy [to] encourage productive and
enjoyable harmony between man and his environment.” 42
U.S.C. § 4321. NEPA’s “twin aims” are to “‘place[] upon an
agency the obligation to consider every significant aspect of the
environmental impact of a proposed action’ [and to] ensur[e]
that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking
process.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97
(1983) (quoting Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 553 (1978)).
By regulation, the NRC has divided the environmental
requirements for license renewal into generic and plant-specific
issues. This division resulted from “a systematic inquiry into
the environmental impacts of refurbishment activities associated
with license renewal and the environmental impacts of
continued operation during the renewal period (up to 20 years
for each licensing action).” Notice of Intent to Prepare an
Environmental Impact Statement for the License Renewal of
Nuclear Power Plants and to Conduct Scoping Process, 68 Fed.
Reg. 332909, 33209 (June 3, 2003). The NRC analyzed “[t]he
significance of environmental impacts . . . for each of nearly 100
6
issues [and] categorized which of these analyses could be
applied to all plants and whether the additional mitigation
measures would be warranted for each environmental issue.” Id.Ultimately, “[o]f the 92 issues analyzed, 69 were resolved
generally, 21 require a further site-specific analysis that
applicants are required to address, and 2 require a site-specific
assessment by the NRC.” Id.The NRC’s “Generic Environmental Impact Statement
for License Renewal of Nuclear Plants,” Final Report, Vol. I
(May 1996) (GEIS), addresses issues that are common to all
nuclear plants. These have been designated “Category 1” issues.
GEIS at 1-5, 1-6. Of particular note here, the GEIS reviews the
risk of sabotage to nuclear power plants. The NRC has
determined from this review that the risk is small and is
provided for in the consideration of internal severe accidents:
The regulatory requirements under 10 CFR part
73 [i.e., “Physical Protection of Plants and
Materials”] provide reasonable assurance that the
risk from sabotage is small. Although the threat
of sabotage events cannot be accurately
quantified, the commission believes that acts of
sabotage are not reasonably expected.
Nonetheless, if such events were to occur, the
commission would expect that resultant core
damage and radiological releases would be no
worse than those expected from internally
initiated events.
7
Based on the above, the commission
concludes that the risk from sabotage is small and
additionally, that the risks f[ro]m other external
events[] are adequately addressed by a generic
consideration of internally initiated severe
accidents.
GEIS at 5-18. The NRC expressly incorporated the GEIS’s
findings related to internal severe accidents into the NRC’s
environmental review regulations. See 10 C.F.R. Part 51 Subpt.
A, App. B, Table B-1.
Environmental impacts not discussed in the GEIS are
designated “Category 2” issues and must be addressed in an
applicant’s environmental report. Id. § 51.53(c)(3)(ii).
Ultimately, NRC staff prepares a site-specific Supplemental
Environmental Impact Statement (SEIS) for each plant. Id. §
51.95(c). The SEIS includes evaluations of site-specific
Category 2 issues—including a consideration of “severe
accident mitigation alternatives” (SAMAs) for those issues that
have not previously been considered—and “new and significant
information” regarding Category 1 issues.
As a part of the relicensing review process, NRC
regulations permit anyone with an “interest” in a licensing
proceeding to obtain a hearing on admissible safety and
environmental “contentions.” See 10 C.F.R. § 2.309(a), (d).
Such a person must file a petition to intervene demonstrating
standing and that “the issue raised . . . is within the scope of the
proceeding.” Id. § 2.309(f)(1)(iii). Unless a party obtains a
8
waiver from the NRC, regulations are not “subject to attack”
during adjudications. Id. § 2.335(a).
B. Factual and Procedural Background
On July 22, 2005, the AmerGen Energy Company, LLC
(AmerGen) applied to the NRC to renew its operating license at
Oyster Creek for an additional twenty years. Oyster Creek is
located adjacent to Barnegat Bay in Lacey and Ocean
Townships, Ocean County, New Jersey. Oyster Creek’s current
license expires in April 2009. On September 15, 2005, the NRC
published a notice of opportunity for hearing in the Federal
Register. See Notice of Opportunity for Hearing Regarding
Renewal of Facility Operating License No. DRP-16 for an Additional
20-Year Period, 70 Fed. Reg. 54,585 (Sept. 15, 2005).
On November 14, 2005, NJDEP filed a petition to
intervene raising three contentions, only one of which it has
raised in the appeal before us.1 NJDEP challenges the NRC’s
failure to prepare an environmental impact statement (EIS) to
study the effects of an aircraft attack on Oyster Creek. NJDEP
contends that such an EIS should have contained, within its
1
New Jersey’s other two contentions involved (1) the
appropriate calculation of metal fatigue for the reactor coolant
pressure boundary and associated components and (2) whether
Oyster Creek had sufficient back-up power to operate during a
blackout.
9
SAMAs analysis, a design basis threat (DBT) analysis2 and an
analysis of mitigation alternatives for core melt sequences likely
to result from an aircraft attack. The claims were reviewed by
the Atomic Safety and Licensing Board (Board), which “held
that terrorism and ‘design basis threat’ reviews, while important
and ongoing, lie outside the scope of NEPA in general and of
license renewal in particular.” See In re Amergen Energy Co.,
65 N.R.C. 124, 128 (2007).
NJDEP appealed this decision to the NRC, which denied
the claim. Id. at 126. The NRC agreed with the Board that
terrorism concerns are security issues, which are not addressed
during license renewal because they do not relate to the aging of
the facility. Id. The NRC also found that NEPA “‘imposes no
legal duty on the NRC to consider intentional malevolent acts’”
because such acts are “‘too far removed from the natural or
expected consequences of agency action.’” Id. at 129 (quoting
the Board decision). Finally, the NRC found that a terrorism
review would be redundant because (1) “the NRC has
undertaken extensive efforts to enhance security at nuclear
facilities,” which it characterized as the best mechanism to
protect the public; id. at 130; (2) the GEIS had concluded that
“the core damage and radiological release from [terrorist] acts
would be no worse than the damage and release to be expected
from internally initiated events”; id. at 131; and (3) in its SEIS
for Oyster Creek, the NRC had performed a site-specific
2
A DBT analysis is “used to design safeguards systems to
protect against acts of radiological sabotage and to prevent the
theft or diversion of special nuclear material.” 10 C.F.R. § 73.1.
10
SAMAs assessment; id. at 132.3
NJDEP filed a petition for review of the NRC’s order.
We have jurisdiction pursuant to 28 U.S.C. § 2342(4).
II. DISCUSSION
NJDEP’s petition suffers from two insurmountable flaws,
each of which independently supports our denial.4
3
The SEIS repeated the GEIS’s conclusion that “resultant
core damage and radiological releases [from sabotage] would be
no worse than those expected from internally initiated events.”
SEIS at 5-3.
4
The parties disagree as to the appropriate standard of
review. The NRC, along with AmerGen, contends that we must
apply the “arbitrary and capricious standard” required by the
Administrative Procedure Act (APA). NJDEP, on the other
hand, argues that we should apply a “reasonableness standard”
because the NRC’s decision was one of law—whether the NRC
was required to perform a NEPA review. Nonetheless, NJDEP
argues that even if we apply an arbitrary and capricious
standard, the NRC’s actions cannot be upheld.
We have maintained a dichotomy in the standard of
review due an agency decision—affording deference to
questions implicating agency expertise and engaging in more
exacting review of legal questions—but we have never
11
employed a “reasonableness” standard. In Patel v. Ashcroft, 294
F.3d 465 (3d Cir. 2002) (superseded by statute on other
grounds), we stated:
We usually afford deference to decisions of
administrative agencies when we are reviewing
the agency’s interpretation of a statute the agency
is charged with administering. This deference
recognizes the agency’s expertise in addressing
issues that often arise when interpreting such
statutes. However, we recognize that legal issues
that turn on a pure question of law not implicating
the agency’s expertise do not raise the same
concerns under Chevron. Accordingly, when we
are called upon to resolve pure questions of law
by statutory interpretation, we decide the issue de
novo without deferring to an administrative
agency that may be involved.
Id. at 467.
Similarly, in the wake of CBS’s broadcast of the Super
Bowl halftime performance featuring Janet Jackson, we stated
that “questions of law not within the agency’s expertise—such
as the FCC’s determination here on [Jackson’s] employment
status—receive less deference under the APA than other agency
conclusions.” CBS Corp. v. FCC, 535 F.3d 167, 195 n.25 (3d
Cir. 2008). On the other hand, we have held that “[o]ur standard
of review of an order granting a nuclear power operating license
. . . is deferential” and generally used the arbitrary and
12
First, NJDEP has not shown that there is a “reasonably close
causal relationship” between the Oyster Creek relicensing
proceeding and the environmental effects of a hypothetical
aircraft attack. Accordingly, such an attack does not warrant
NEPA evaluation. See DOT v. Pub. Citizen, 541 U.S. 752, 767
(2004); Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. 766, 774 (1983). Second, the NRC has already
considered the environmental effects of a hypothetical terrorist
attack on a nuclear plant and found that these effects would be
no worse than those caused by a severe accident. NJDEP has
not provided any evidence to challenge this conclusion and has
not demonstrated that the NRC could undertake a more
meaningful analysis of the specific risks associated with an
aircraft attack on Oyster Creek. See Limerick, 869 F.2d at 744
& n.31.
A. Causation
capriciousness standard in this context. See Limerick Ecology
Action, Inc. v. NRC, 869 F.2d 719, 728 (3d Cir. 1989).
We need not resolve whether de novo, “reasonableness,”
or arbitrary and capriciousness review is appropriate because the
NRC’s actions survive review under any of these standards.
13
In rejecting NJDEP’s contention, the NRC held that
“there simply is no proximate cause link between an NRC
licensing action, such as [in this case] renewing an operating
license, and any altered risk of terrorist attack. Instead, the level
of risk depends upon political, social, and economic factors
external to the NRC licensing process.” See In re AmerGen
Energy Co., 65 N.R.C. at 130. NJDEP, on the other hand,
asserts that the government has a duty to protect against
foreseeable danger, even if that danger comes from intentional
criminal conduct, and that here the risk of environmental harm
caused by terrorists is foreseeable given the September 11, 2001,
attacks on the World Trade Center and Oyster Creek’s proximity
to important urban centers.5 NJDEP also finds significant the
NRC’s efforts to improve security at nuclear facilities, asserting
that these efforts demonstrate the NRC’s recognition that a
terrorist attack is foreseeable.
The Supreme Court has spoken on two occasions
regarding the circumstances in which NEPA requires an agency
to prepare an EIS. The first concerned the resumption of
activity at the Three Mile Island nuclear power plant after a
serious accident caused a shutdown of one of the reactors. See
Metro. Edison Co., 460 U.S. at 768. Though no radiation was
5
NJDEP did not raise Oyster Creek’s proximity to
important urban centers until this appeal; therefore, it should not
be considered. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d
256, 262 (3d Cir. 2006). In any event, it follows from our
discussion that Oyster Creek’s proximity to urban centers is
irrelevant to the causation analysis.
14
released in the accident, it caused widespread concern about the
safety of the plant. Id. at 769. A group of Harrisburg residents,
organized as People Against Nuclear Energy (PANE), argued
that restarting the reactor would “cause both severe
psychological health damage to persons living in the vicinity[]
and serious damage to the stability, cohesiveness, and well-
being of the neighborhood communities.” Id. The NRC
declined to take evidence on this issue, and PANE petitioned for
review, arguing that both NEPA and the AEA required such an
analysis. Id. at 770. The D.C. Circuit agreed as to NEPA,
finding, “NEPA requires agencies to consider effects on health.
An effect on psychological health is an effect on health.
Therefore, NEPA requires agencies to consider the effects on
psychological health . . ..” Id. at 771.
The Supreme Court reversed. 6 First, the Court noted that
“NEPA does not require the agency to assess every impact or
effect of its proposed action, but only the impact or effect on the
environment.” Id. at 772. The Court held that, in order to
determine when NEPA requires consideration of a particular
environmental effect, agencies and reviewing courts “must look
at the relationship between that effect and the change in the
physical environment caused by the major federal action at
issue.” Id. at 773. The Court then explained that NEPA
attaches only when there is a “reasonably close causal
relationship between a change in the physical environment and
6
Only the NEPA issue was before the Supreme Court;
neither party contested the D.C. Circuit’s holding with regard to
the AEA. Id. at 771 n.5.
15
the effect at issue.” The Court likened this relationship to “the
familiar doctrine of proximate cause from tort law.” Id. at 774.
In applying this standard to the case before it, the Court
observed that the renewed operation of the reactor would affect
the environment, particularly in the release of low levels of
radiation, increased fog, the release of warm water into the
Susquehanna River, and the potential results of a nuclear
accident.7 Id. at 775. It then observed that the NRC had
considered all of these effects. The Court, however, found
damage to psychological health caused by the perception of a
risk of a nuclear accident too attenuated: “In a causal chain
from renewed operation . . . to psychological health damage, the
element of risk and its perception by PANE’s members are
necessary middle links. We believe that the element of risk
lengthens the causal chain beyond the reach of NEPA.” Id.
7
With regard to the potential results of a nuclear accident,
the Court indicated that the environmental effects of an accident
arising from the operation of a nuclear facility are direct effects
whereas here the Court was considering the effect of fear of the
risk occurring: “We emphasize that in this case we are
considering effects caused by the risk of an 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 at
[Three Mile Island], is an entirely different case.” Id. at 775 n.9.
16
The Supreme Court again discussed NEPA’s causation
requirement in Department of Transportation v. Public Citizen,
541 U.S. 752 (2004). Public Citizen concerned the operation of
Mexican tractor-trailer trucks in the United States. Prior to
1982, these trucks were certified to operate in the United States
by the Interstate Commerce Commission. In 1982, Congress
suspended this certification procedure in light of concerns about
Mexico’s discriminatory treatment of American trucks operating
in Mexico. Id. at 759. The United States agreed, however, as
part of the North American Free Trade Agreement (NAFTA) to
phase out the moratorium. Id.In 1994, the President lifted the moratorium but called for
new regulations related to the certification of Mexican trucks
seeking to operate in the United States. Accordingly, the
Federal Motor Carrier Safety Administration (FMCSA), a
division of the Department of Transportation, published
proposed safety regulations and procedures for the certification
of Mexican trucks. The FMCSA also prepared an
environmental assessment (EA) focusing on the effects of its
proposed regulations. Id. at 760–62. The EA did not consider
the environmental impact of increased Mexican truck traffic
because the FMCSA attributed this increase not to the
regulations but to NAFTA and the President’s decision to lift the
moratorium. Id. at 761. A citizen group petitioned for review,
arguing that NEPA required such an analysis. Id. at 766.
The Supreme Court upheld the FMCSA’s decision. The
Court noted that an EIS is required only for “‘major Federal
actions,’” defined to include “‘actions with effects that may be
17
major and which are potentially subject to Federal control and
responsibility.’” Id. at 763 (quoting 40 C.F.R. § 1508.18)). The
Court then noted that “effects” were limited by regulation to (1)
“[d]irect effects, which are caused by the action and occur at the
same time and place,” and (2) “indirect effects, which are
caused by the action and are later in time or farther removed in
distance, but are still reasonably foreseeable.” Id. at 764(internal quotation marks and citation omitted).
The Court concluded that the increase in Mexican truck
traffic was not an effect of the FMCSA’s action. First, the Court
noted that the FMCSA does not have the authority to exclude
Mexican trucks from the United States. Rather, pursuant to
congressional mandate, the FMCSA must certify every truck
that can meet the FMCSA’s regulations. Id. at 766. Next, the
Court considered the causal relationship between the agency
action and the environmental impact, as required by
Metropolitan Edison. The Court characterized the causation at
issue as “‘but for’ causation, where an agency’s action is
considered a cause of an environmental effect even when the
agency has no authority to prevent the effect.” It declared that
this form of “but for” causation is “insufficient to make an
agency responsible for a particular effect under NEPA.” Id. at
767.
The Public Citizen Court also rejected the petitioner’s
argument under the rule of reason, stating that agencies need not
prepare an EIS when it would serve “no purpose” under NEPA.
Id. It noted NEPA’s twin aims: (1) to force agencies to
18
consider environmental impact as part of its decision making,
and (2) to make information available to the public so that it can
play a role in the decision making process. Because the
FMCSA cannot prevent the entry of Mexican trucks, an EIS
addressing increased traffic would not affect its decision
making. Id. at 768. Moreover, the public information purpose
would not be served since FMCSA could not react to the input
received from the public. Id. at 768–69. Accordingly, the Court
agreed with the FMCSA that “the legally relevant cause of the
entry of the Mexican trucks is not FMCSA’s action, but instead
the actions of the President in lifting the moratorium and those
of Congress in granting the President this authority.” Id. at 769.
NJDEP argues that neither Metropolitan Edison nor
Public Citizen is apposite, asserting that those decisions
involved cause and effect relationships that are far more
attenuated than the one presented here. We disagree. The
Supreme Court has directed that we “draw a manageable line
between those causal changes that may make an actor
responsible for an effect and those that do not.” Id. at 767(quoting Metro. Edison, 460 U.S. at 774 n.7). In the cases, this
line appears to approximate the limits of an agency’s area of
control. For example, in Metropolitan Edison, the NRC could
control the nuclear facility and its operation but not how
individuals perceived the risks of renewed operation and the
possibility of another accident; therefore, these risks were too
remote to require a NEPA analysis. Likewise, in Public Citizen,
the FMCSA controlled the certification process, but it could not
control the admission or volume of Mexican trucks; the
FMCSA’s role was limited to certification.
19
In the instant case, the NRC controls whether equipment
within a facility is suitable for continued operation or could
withstand an accident, but it has no authority over the airspace
above its facilities, which is largely controlled by Congress and
the Federal Aviation Administration (FAA). The NRC has
explicitly noted its limited ability to address airborne threats,
articulating its consistent view that “security from terrorist
attacks on nuclear facilities [i]s best approached by enhancing
aviation security, including intelligence gathering and security
at airports and on airplanes.” Riverkeeper, Inc. v. Collins, 359
F.3d 156, 161 (2d Cir. 2004); cf. Glass Packaging Institute v.
Reagan, 737 F.2d 1083, 1092 (D.C. Cir. 1984) (“NEPA is meant
to supplement federal agencies’ other nonenvironmental
objectives, not to transplant specific regulatory burdens from
those expert agencies otherwise authorized to redress specific
nonenvironmental problems and pointlessly to reimpose those
objectives on other unqualified agencies.”). This view is shared
by other federal agencies. See Richard A. Meserve, Statement
Submitted by the Nuclear Regulatory Commission to the
Subcomm. on Oversight and Investigations of the H. Comm. on
Energy and Commerce 5 (2003) (noting that when there were
reported threats to the airspace above nuclear facilities, the FAA
and the Department of Defense, rather than the NRC, responded
to protect the airspace).
NRC’s lack of control over airspace supports our holding
that a terrorist aircraft attack lengthens the causal chain beyond
the “reasonably close causal relationship” required by those
cases. Indeed, an aircraft attack on Oyster Creek requires at
20
least two intervening events: (1) the act of a third-party criminal
and (2) the failure of all government agencies specifically
charged with preventing terrorist attacks. We conclude that this
causation chain is too attenuated to require NEPA review.
Moreover, this conclusion is supported by traditional tort law
concepts of causation.8
According to the Restatement (Second) of Torts, the
criminal conduct of a third person is not a superseding cause of
harm unless the original actor “realized or should have realized
the likelihood that [an opportunity for a third person to commit
a crime] might be created, and that a third person might avail
himself of the opportunity.” Restatement (Second) of Torts §
448. The comments to the section clarify the circumstances in
which an actor should anticipate third-party criminal conduct:
(1) situations that “afford[] temptations to which a recognizable
percentage of humanity is likely to yield” and (2) situations
“created at a place where persons of peculiarly vicious type are
likely to be” who might yield to the temptation, even though the
average individual would not do so. Id § 448 cmt. b. NJDEP
has not demonstrated that either condition is present here.
8
The relevant tort law concepts are premised on the idea
that the actor, the NRC in this case, engages in underlying
negligent conduct. Since cases analyzing NEPA have not
focused on negligence, we assume for purposes of this analysis
that NEPA differs from tort law in this regard. See Pub. Citizen,
541 U.S. at 763; Metro. Edison, 460 U.S. at 772.
21
The Restatement also clarifies when “an intervening
force is a superseding cause.” See id. § 442. Section 442 lists
six factors for consideration: (1) whether the third party causes
harm “different in kind from that which would otherwise have
resulted from the actor’s negligence,” (2) whether the event
appears extraordinary in light of circumstances at the time, (3)
whether the intervening force operates “independently of any
situation created by the actor’s negligence,” (4) whether the
intervening act is “due to a third person’s act,” (5) whether the
third person’s act is wrongful and would subject him to liability,
and (6) the “degree of culpability of [the] wrongful act by [the]
third party.” Id. These factors counsel against finding the
NRC’s relicensing of Oyster Creek to be the proximate cause of
environmental harm in a terrorist attack. The first factor cuts
against the NRC because the consequences of a successful
terrorist attack would be similar to the possible consequences of
a severe accident. The remaining five factors, however, are in
the NRC’s favor. Such an attack would certainly be
“extraordinary,” as there has never been an airborne attack on a
nuclear facility, any terrorist would be operating independently
of the NRC, the intervening force would be due to a third-party
terrorist, a terrorist attack is wrongful, and the degree of
culpability of the terrorist would far exceed that of the NRC.
Our decision in Port Authority of New York & New
Jersey v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999), although
decided under state law, further supports our conclusion. Port
Authority arose in the wake of the 1993 World Trade Center
bombing. Id. at 309. The plaintiffs alleged that the defendant
22
fertilizer manufacturers were negligent in the manufacture and
sale of the fertilizer used in the attack. Id. at 310. We held “as
a matter of law that the World Trade Center bombing was not a
natural or probable consequence of any design defect in
defendants’ products. In addition, the terrorists’ actions were
superseding and intervening events breaking the chain of
causation.” Id. at 319; see also Gaines-Tabb v. ICI Explosives,
USA, Inc., 160 F.3d 613, 618 (10th Cir. 1998) (after Oklahoma
City bombing, defendant fertilizer manufacturer held not
responsible for the criminal conduct of bomber in using the
fertilizer to make the bomb). Similarly, here, a terrorist attack
on a nuclear facility would be a superseding cause of the
environmental effects felt after an attack.
The government agencies specifically charged with
preventing an airborne terrorist attack would also serve as
intervening forces. As noted above, the NRC’s sphere of
authority is limited to the facilities themselves and the
equipment within them. A terrorist attack on an NRC-licensed
facility would require, at a minimum, a failure by the FAA and
the Department of Defense to protect and defend the facility.
An additional factor counsels against finding that the
NRC’s relicensing of the Oyster Creek facility would be the
proximate cause of environmental harm in the event of an
airborne attack. In insisting that we “draw a manageable line”
when imposing NEPA responsibilities, the Metropolitan Edison
Court noted the limited time and resources of federal agencies
and warned that “[t]he scope of the agency’s inquiries must
remain manageable if NEPA’s goal of [ensuring] a fully
23
informed and well considered decision is to be accomplished.”
Id. at 774 n.7, 776 (internal quotation marks omitted). Applied
to the case before it, the Court indicated that, if agencies were
required to assess psychological health damage associated with
increased risk, agencies would “expend considerable resources”
on issues “not otherwise relevant to their congressionally
assigned functions” and “resources may be spread so thin that
agencies are unable adequately to pursue protection of the
physical environment and natural resources.” Id.Similarly, if NEPA required the NRC to analyze the
potential consequences of an airborne attack, the NRC would
spend time and resources assessing security risks over which it
has little control and which would not likely aid its other
assigned functions to assure the safety and security of nuclear
facilities. Moreover, an analysis of the risks of a terrorist attack
on Oyster Creek, as well as NJDEP’s arguments concerning
Oyster Creek’s status as a particularly vulnerable terrorist target,
implicate security concerns that are broader than those at issue
under NEPA. For example, security decisions must be
centralized rather than made on a site-specific basis since those
in charge of each site may have differing ideas over how to
spread limited resources. This policy is reflected in NRC
regulations, which separate its health and safety review,
conducted through rulemaking under the APA, from the
environmental review required by NEPA. See 10 C.F.R. Parts
51, 54; In re AmerGen Energy Co., 65 N.R.C. at 130. Likewise,
security reviews involve analysis of sensitive information not
available to the public, while NEPA requires public participation
and transparency. See In re Private Fuel Storage, CLI-02-023,
24
56 N.R.C. 340 (Dec. 18, 2002).9
In holding that there is no “reasonably close causal
relationship” between a relicensing proceeding and the
environmental effects of an aircraft attack on the licensed
facility, we depart from the reasoning of the Ninth Circuit Court
of Appeals in San Luis Obispo Mothers for Peace v. NRC, 449
F.3d 1016 (9th Cir. 2006). The Mothers for Peace court held
that, given “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.” Id. at 1031. We note, initially,
that Mothers for Peace is distinguishable on the ground that it
9
We do not mean to suggest that the NRC has no
obligation to consider how to strengthen nuclear facilities to
prevent and minimize the effects of a terrorist attack; indeed, the
AEA gives broad discretion over the safety and security of
nuclear facilities. See 42 U.S.C. § 2011 et seq. Though the
sufficiency of its efforts is not before us, we note that the NRC
considered and implemented changes pursuant to the AEA to
address the threats of a terrorist attack following the attacks of
September 11, 2001. See Design Basis Threat, Final Rule, 10
C.F.R. part 73 (2007). In Metropolitan Edison, however, the
Supreme Court made it clear that an agency’s obligations under
NEPA must be more manageable given the limited resources of
federal agencies and the fact that some environmental review
might “not [be] otherwise relevant to their congressionally
assigned functions.” 460 U.S. at 776.
25
involved the proposed construction of a new facility—a change
to the physical environment arguably with a closer causal
relationship to a potential terrorist attack than the mere
relicensing of an existing facility. See id. at 1021. More
centrally, however, we disagree with the rejection of the
“reasonably close causal relationship” test set forth by the
Supreme Court and hold that this standard remains the law in
this Circuit.10 We also note that no other circuit has required a
NEPA analysis of the environmental impact of a hypothetical
10
The Mothers for Peace court attempted, unsuccessfully
in our view, to distinguish Metropolitan Edison by
characterizing that case as involving a three step causal chain:
“(1) a major federal action; (2) a change in the physical
environment, and (3) an effect.” Id. at 1029. According to the
Ninth Circuit, Metropolitan Edison “was concerned with the
relationship between events 2 and 3,” where event two was “the
change in the physical environment, or increased risk of
accident resulting from the renewed operation of a nuclear
reactor” and event three was the “decline in the psychological
health of the human population.” Id. In contrast, the Ninth
Circuit characterized the case before it as involving “the
disputed relationship . . . between events 1 and 2,” where step
one was “the federal act, or the licensing of the Storage
Installation” and event two was the “change in the physical
environment, or the terrorist attack.” Id. at 1030. It therefore
held that the “reasonably close causal relationship” test from
Metropolitan Edison did not apply and, instead, created a test
requiring agencies to consider under NEPA all events not
“remote and highly speculative.” The Ninth Circuit made no
mention of Public Citizen.
26
terrorist attack. See Mid States Coalition for Progress v.
Surface Transp. Bd., 345 F.3d 520, 544 (8th Cir. 2003) (holding
that agency did not err in declining to reopen record for
construction of new rail lines in light of terrorist attacks of
September 11, 2001); Limerick Ecology Action v. NRC, 869
F.2d 719, 743–44 (3d Cir. 1989) (upholding NRC decision not
to analyze risks of sabotage under NEPA where petitioner did
not propose a meaningful way to analyze the risk); Glass
Packaging Inst., 737 F.2d at 1091 (upholding agency decision
not to consider possibility that a “deranged criminal” might
tamper with bottles); City of New York v. Dep’t of Transp., 715
F.2d 732, 750 (1983) (deferring to agency’s conclusion that
risks of sabotage “were too far afield for consideration” in the
NEPA analysis of regulation governing highway shipment of
radioactive material).
Finally, NJDEP’s argument concerning the relevance of
the NRC’s other efforts to prevent terrorist attacks is misplaced.
As the NRC notes, even the Ninth Circuit Court of Appeals has
held that precautionary actions to guard against a particular risk
do not trigger a duty to perform a NEPA analysis. See Ground
Zero Ctr. for Non-Violent Action v. Dep’t of the Navy, 383 F.3d
1082, 1090–91 (9th Cir. 2004) (fact that the Navy took potential
Trident missile accident into account when planning base layout
did not mean, in and of itself, that Navy had to prepare NEPA
review outlining effects of that potential accident).
In sum, the NRC correctly concluded that the relicensing
of Oyster Creek does not have a “reasonably close causal
relationship” with the environmental effects that would be
27
caused in the event of a terrorist attack.
B. The NRC’S Prior Analysis of the Terrorism
Threat
Even if NEPA required an assessment of the
environmental effects of a hypothetical terrorist attack on a
nuclear facility, the NRC has already made this assessment. As
described above, the GEIS addresses the risks associated with a
terrorist attack, stating that “estimates of risk from sabotage” are
impossible to quantify but nonetheless characterizing the risks
as “small.” GEIS at 5-18. The GEIS goes on to say that, should
the unlikely event occur, the effects would be “no worse than
those expected from internally initiated events.” Id. The NRC
rules codify these generic findings, and by regulation, license
renewal applicants are excused from discussing generic issues
in their environmental reports. See 10 C.F.R. § 51.53(c)(3)(i);
id. Part 51 Subpt. A, App. B, Table B.
Generic analysis “is clearly an appropriate method of
conducting the hard look required by NEPA.” Baltimore Gas,
462 U.S. at 101 (internal quotation marks omitted). Indeed, it
is “hornbook administrative law that an agency need
not—indeed should not—entertain a challenge to a regulation”
in an individual adjudication. Tribune Co. v. FCC, 133 F.3d 61,
68 (D.C. Cir. 1998). NJDEP’s contention challenges the NRC’s
generic findings, essentially arguing that certain characteristics
of Oyster Creek make the risk of a terrorist attack more than
“small” and the environmental effects of a terrorist attack
28
somehow different from “those expected from internally
initiated events.” These arguments thus amount to collateral
attacks on the licensing renewal regulations, and the proper way
to raise them would have been in a petition for rulemaking or a
petition for a waiver based on “special circumstances.” See 10
C.F.R. §§ 2.335, 2.802.11
Moreover, the NRC prepared a SEIS that analyzed
alternatives at Oyster Creek to mitigate severe accidents. See
SEIS at 5-3 through 5-12. Accordingly, the GEIS and SEIS
together provide both generic and site-specific analyses of
potential environmental impacts at Oyster Creek arising from
terrorist attacks. New Jersey has never explained how or why
an aircraft attack on Oyster Creek would produce impacts that
are different from severe accidents and has not provided any
evidence that the NRC could engage in a meaningful analysis of
the risks of an attack. Instead, NJDEP argues, quoting our
decision in Limerick Ecology Action v. NRC, that the NRC’s
“mere assertion of unquantifiability” does not immunize it from
having to conduct a NEPA analysis. See 869 F.2d at 744 n.31.
This is a true statement of the law, but it ignores our holding in
Limerick that the burden is on the petitioner to demonstrate that
11
A recurring theme running through NJDEP’s arguments
is its concern that Oyster Creek’s design increases the risk of
any harm resulting from a terrorist attack. If NJDEP had
wished, however, to pursue a position that the Oyster Creek
plant is obsolete, NJDEP should have sought a waiver of the
usual licensing procedures, as set out above, so that this
complaint could be made.
29
the NRC could evaluate risks more meaningfully than it has
already done. See id. at 744 n.31. NJDEP has not met its
burden here.
III. CONCLUSION
Because NJDEP did not present an admissible contention
before the NRC, concerning the environmental effects of a
hypothetical aircraft attack on Oyster Creek, we will deny the
petition for review.
30