Tuesday, January 8, 2013

Brodsky v. U.S. Nuclear Regulatory Commission

Jan 7: In the U.S. Circuit Court of Appeals, Second Circuit, Case No. 11-2016. Appeal from an award of summary judgment by the U.S. District Court for the Southern District of New York. The district court awarded a summary judgment in favor of the U.S. Nuclear Regulatory Commission (NRC) on plaintiffs' challenge to the NRC's grant of an exemption to the Indian Point nuclear power plant from compliance with certain fire safety regulations. The Appeals Court summary indicates, "A summary order filed today affirms the judgment in part as to those of plaintiffs' challenges that we hold to be without merit. This opinion vacates the judgment in part, insofar as the district court rejected plaintiffs' argument that the exemption was granted in violation of the National Environmental Policy Act's public participation regulations, and remands the matter for further proceedings." The decision is affirmed in part, vacated in part, and remanded.
    The Appeals Court explains further, "By summary order filed today, we affirm the challenged judgment in all respects but one, which is the subject of this opinion. Specifically, insofar as plaintiffs contend that the NRC granted the challenged exemption in violation of NEPA's regulations, which allow for public involvement where appropriate and practicable, see 40 C.F.R. §§ 1501.4(b), 1506.6(c), we conclude that the agency record does not permit a reviewing court to determine whether a reasoned basis exists for the NRC's decision not to afford any such public involvement in the exemption decision. We therefore vacate the judgment of the district court, which implicitly rejected this argument, with respect to plaintiffs' NEPA challenge only, and we remand this case to the district court with instructions for it in turn to remand to the NRC so that the agency may (1) supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable, or (2) take such other action as it may deem appropriate to resolve this issue. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ('[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'). This panel will retain jurisdiction for the purpose of ruling, if necessary, on any appeal from a further district court judgment addressing the agency's action on remand."
    Access the complete opinion (click here). [#Energy/Nuclear, #CA2]
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