Tuesday, February 21, 2012

Blue Ridge Environmental Defense League v. NRC

Feb 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1112, consolidated with 10-1058. On Petitions for Review of Orders of the Nuclear Regulatory Commission. In December 1974, Tennessee Valley Authority (TVA) received construction permits from the Atomic Energy Commission, the predecessor to the Nuclear Regulatory Commission (the NRC or the Commission), for the Bellefonte Nuclear Plant, Units 1 and 2 (the units). TVA pursued construction under a series of permit extensions through the late 1980s, when, based on its projections of diminished energy demand, it decided to place the units in "deferred status" and establish a maintenance program under the NRC's Policy Statement on Deferred Plants (the Policy Statement). Under the Policy Statement, during a deferral period, a permit holder is required to undertake maintenance and preservation activities but may halt actual construction. In 2005, TVA placed the units in "terminated" status under the Policy Statement. One year later, TVA voluntarily requested that the NRC withdraw the permits. The NRC granted this request.
    In 2008, TVA asked the NRC to reinstate its withdrawn construction permits. Although neither withdrawal nor reinstatement are specifically addressed in the Atomic Energy Act (the AEA or the Act), the NRC granted TVA's reinstatement request in an order issued on March 9, 2009 and published in the Federal Register on March 13, 2009.
On March 30, 2009, the Blue Ridge Environmental Defense League (BREDL or Petitioner) filed a petition with the Appeals Court, purporting to challenge the NRC's decision to reinstate the construction permits. However, the Appeals Court notes that, ". . .in its Statement of Issues To Be Raised, in its Reply Brief, and during oral argument, BREDL insisted that it was not challenging the NRC order that was published in the Federal Register on March 13, 2009. Rather, BREDL asserted that its March 30, 2009 petition for review challenges only a compilation of 'Response Sheets' filed by individual Commissioners in December 2008 and January 2009."
    The Appeals Court said that BREDL contends that the compilation of Commissioners' views resulted in a final order on January 27, 2009. However, the Appeals Court said, "We disagree. After the Commissioners' 'Response Sheets' were assembled, the matter was referred to the NRC staff for evaluation. However, it was not until February 18, 2009 that the NRC authorized the staff to issue an order on behalf of the agency reinstating the construction permits. That order was published in the Federal Register on March 13, 2009. Therefore, BREDL's petition for review challenging an alleged action of the NRC taken on January 27, 2009 does not seek review of a final NRC order."
    The Appeals Court rules, "Under the Hobbs Act, this court has jurisdiction to review only 'final orders' of the NRC. 28 U.S.C. § 2342(4) (2006). The March 30, 2009 and March 8, 2010 petitions filed by BREDL with this court do not seek review of final NRC orders. Therefore, we lack jurisdiction and must dismiss."
    Access the complete opinion (click here). [#Energy/Nuclear, #CADC]
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Shenandoah Valley Network v. J. Capka

Feb 17: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1954. Appealed from the United States District Court for the Western District of Virginia, at Charlottesville. The Appeals Court explains that the Federal Highway Administration (FHWA) and the Virginia Department of Transportation (VDOT) (collectively, the Agencies) are planning improvements to Virginia's Interstate 81 corridor using a tiered review process. Appellants -- a group of environmental and preservation organizations -- challenged the Agencies' execution of the tiered process, alleging various constitutional and statutory violations. The district court rejected these challenges and granted summary judgment in favor of the Agencies.
    On appeal, appellants claim that the Agencies are attempting to foreclose consideration of environmentally friendly alternatives for specific sections of I-81 by choosing a corridor-wide improvement concept in the first stage of the review process. Appellants, however, misapprehend the Agencies' position. As confirmed at oral argument, the Agencies plan to comply with the Stipulation in this case and the National Environmental Policy Act (NEPA), by considering site-specific alternatives to the corridor-wide concept in subsequent stages. The Appeals Court ruled, "Because there is no actual dispute here, and because appellants cannot show any injury or imminent threat of injury, this suit is not justiciable. Accordingly, we must dismiss the appeal."
    The Appeals Court concluded further, "There is simply nothing for this court to adjudicate. NEPA does not permit us to prescribe outcomes either now or in the future, but neither would it allow us to proscribe in the present proceeding even the consideration of future environmental impacts. Either the prescription of outcomes or the proscription of consideration would not only be contrary to the statute, but would raise a live and present controversy between the parties. Neither circumstance being present, there remains nothing to dispute and we are satisfied that no justiciable controversy lingers. Accordingly, the appeal is dismissed."
    Access the complete opinion (click here). [#Transport, #CA4]
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Turtle Island Restoration Network v. Department of State

Feb 17: In the U.S. Court of Appeals, Ninth Circuit, No. 10-17059. Appealed from the United States District Court for the Northern District of California. Turtle Island Restoration Network (TIRN), a non-profit environmental organization, appeals from the district court's dismissal of its claim on res judicata grounds [i.e. once a matter is judicially decided, it is finally decided]. TIRN alleges that the U.S. Department of State failed to satisfy its consultation and environmental assessment obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), in conducting annual certifications of countries exempted from the general ban on shrimp imports.
    Section 609(b) of Public Law 101-162 prohibits the importation of shrimp harvested with technology that may adversely affect sea turtles, except from countries certified to employ a turtle protection program comparable to that of the United States. The Appeals Court said, "We must decide whether TIRN's current lawsuit for NEPA and ESA violations is precluded by its earlier lawsuits challenging the State Department's regulations implementing the section 609(b)(2) certification process."
    The Appeals Court concludes, "Because TIRN's current challenge to the State Department's section 609(b)(2) certification process arises from the same transactional nucleus of facts as its earlier litigation, res judicata bars its claims. Accordingly, we affirm the district court. Although TIRN forfeited its opportunity to challenge the State Department's non-compliance with NEPA and ESA obligations in section 609(b)(2) certifications, our decision doesn't preclude judicial review of this issue. Because the legal question of whether NEPA and ESA apply to section 609(b)(2) has yet to be litigated on the merits, another plaintiff -- not in privity with TIRN -- is still free to bring this challenge."
    Access the complete opinion (click here). [#Wildlife, #CA9]
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