Tuesday, July 28, 2009

Public Citizen v. Nuclear Regulatory Commission

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71868 & 07-72555. Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York, and amicus State of California (Petitioners) challenge the Nuclear Regulatory Commission’s (NRC or Commission) modification of the Design Basis Threat (DBT) rule and partial denial of the Committee to Bridge the Gap’s (CBG) petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. Petitioners also claim NRC violated the National Environmental Policy Act (NEPA) by not considering the risk of an airborne terrorist attack in its Environmental Assessment (EA), and that this risk creates a potentially significant impact on the environment necessitating a full Environmental Impact Statement (EIS). In a split, 2-1 decision, the Appeals Court denied the petition.

In denying the petition, the majority said in part, "Because the Commission acted within its discretion in concluding that air-based threats were beyond the scope of the DBT rule, however, it was unnecessary for the Commission to consider that decision as an alternative course within the scope of the rule. The Commission’s determination that air-based threats were outside the scope of the DBT rule distinguishes this case from a case like Center for Biological Diversity [538 F.3d at 1215], where we held an agency must consider a broad range of alternative actions within the scope of the rule at issue, beyond those alternatives the agency seriously considered. We decline to extend that holding to create a rule that ignores reasonable boundaries in the scope of an EA alternative action analysis. The Commission did not merely select among a range of options, but instead determined air-based threats were not properly addressed by the DBT rule. As noted above, this decision was within the Commission’s discretion and it need not include an analysis of airbased threats within the EA alternative action section."

The dissenting opinion states in conclusion, "Although we owe the NRC considerable deference, the NRC owes the public a rational and reasonable explanation why it would exclude from its rule consideration of terrorist air attacks on nuclear facilities. In the face of near-uniform scientific studies warning of serious risk, bare assurances by the NRC that we are safe do not satisfy this minimal agency burden."

Access the complete opinion (
click here).

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