New Jersey DEP v. U.S. Nuclear Regulatory Commission

Mar 31: In the U.S. Court of Appeals, Third Circuit, Case No. 07-2271. As explained by the Appeals Court, the issue presented by the 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) requires the analysis of the impact of such an attack.

NJDEP 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 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 [GEIS] and site-specific Supplemental Environmental Impact Statement [SEIS]. The Appeals Court agreed with the NRC and denied the petition for review.

The Third Circuit explained its decision further saying, ". . .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. . . 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 the NRC could evaluate risks more meaningfully than it has already done. . . NJDEP has not met its burden here.

"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."

Access the complete opinion (click here).