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."

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WildEarth Guardians v. US Forest Service

Jul 24: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1089. The appellant, Mountain Coal Company (MCC), owns and operates the West Elk Mine, a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado. After the United States Forest Service approved plans for venting methane gas from the mine, WildEarth Guardians brought suit against the Forest Service, the Department of Interior, and several of their officials under the Administrative Procedure Act, contending that the approval violated the National Environmental Policy Act (NEPA). MCC moved to intervene under Federal Rule of Civil Procedure 24.

The district court denied the motion and MCC appealed. Because “[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action,” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (Coalition). The Appeals Court concluded that MCC is entitled to intervene as of right, and accordingly reversed the district court’s decision and remanded the case with instructions to grant MCC’s motion to intervene.

The Appeals Court ruled, "We are convinced that MCC has established a possibility of inadequate representation. . . the government has multiple objectives and could well decide to embrace some of the environmental goals of WildEarth. Therefore, MCC should not be required to rely on the defendants to represent its interests."

Access the complete opinion (click here).