# Unit ed State s Co urt of Appeals

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued Mar ch 20, 2018 Dec ided J uly 20, 2018

No. 17-1059

O G L A L A S I O U X T R I B E , P E TI TI O N E R

v.

U.S. N U C L E A R R E G

U L A TO R Y C O M M I S S I O N

A N D U N I TE D S TA TE S O F A M E R I C A , R E S P O N D E

N TS

P O W E R TE C H (USA), I

N C ., I N TE R V E N O R

On Petition for Review of a n Orde r of the United States Nucle ar Reg ulatory Commi ssion

Jeffre y C. Parsons arg ued the cause for petitioner. Wit h him on th e b ri efs was Travis Stills

. Roger Flynn enter ed an appea ranc e.

Jame s E. Adler
, Senior Attorney
, U.S. Nuclea r Reg ulatory Commi ssion, arg ued the cause for responde nts. Wit h him on the brief wer e Jeffrey H. W

ood
, Acting Assistant Attorney Gene ral, U.S. Depa

rt m en t of J ustice, Eric Grant
, Deputy Assistant Attorney Gene ral, Lane N. McFadde n , Attorney
, and Andrew P. Ave rbach , Solicitor, U.S. Nuclear Re g ulatory Commi ssion.

### 2

Christ opher S. Pugsley arg ued the cause for inte rvenor

responde nt. Wi th him on the brief wa s Anthony J. Thompson

.

Be fore : G A R

L A N D , Chief Judge
, and H E N D E R S O N and G R I F F I TH , Circuit Judges

. Opinion for the Court filed by Chief Judge G A R L A N D

.

G A R L A N D , Chief Judge : Powertec h (USA), I nc. applied to the Nuclea

r Reg ulatory Commi ssion for a license to construct a uranium mining projec t in the Bla ck Hills of South Dakota. The Og lala Sioux Tribe, which has historical ti es t o the proposed projec t are a, intervene d in opposition becaus e it fea red the destruction of its cultural, historical, and relig ious sites. The staff of the Commiss ion gr anted the lice nse.

On administrative appea l, the Commi ssion decide d to leave the license in eff

ect -- notwithstanding its own deter mination that there was a signific ant defic iency in its compliance with the National Environmental Policy Ac t

-- pending further ag ency proce edin gs to reme dy the defic iency

. The Commi ssion
gro unded this decision on the Tribe’ s inability to show th at noncompliance with the Act would cause irrepa rable har m

. I n

so doing, the Commi ssion was following what appea rs to be the
ag ency ’s settled pra ctice to r equire such a showing

.

The National Environmental Policy A c t, howeve r, obliga tes

ever y fede ral ag ency to prepa re an ad eq uate environmenta l impact statement before taking any major action, which includes is s u i n g a uranium mining license. The statute does not permit

an ag ency to act fi rs t an d co m ply later. Nor does it permit an ag ency to condition perf

ormanc e of its obliga tion on a showing of irrepa rable harm. T h er e i s n o such exception in the statute.

### 3

I n fac t, such a policy puts the Tribe in a cl as s i c Catch-22. I n order to require the ag ency to complete an adequate survey of the projec t s i t e befor e g ranting a license, the Tribe must show that construction at the site would cau s e irrepa rable harm to cultural or historical resour ces. But without an adequate survey of the cultural and historical resour ces at the site, such a showing may well be impossibl e. Of course , if the projec t does
g o forwa rd and such resour ces are damag ed, the Tribe will then be able t o show irrepa

rable harm. By then, however, it will be too late.

The Commi ssion’s decision to l et the mining projec t p roceed violates the National Environmental Policy Act

. I ndeed, it vitiates the require ments of the Act. We there fore find the decision contra

ry to la w and g rant the petition for revie w in part. The Tribe als o challeng es other aspec ts of the Commi ssion’s order but, as we explain, we lack jurisdiction to consider those ruling s.

I

The Atomic Energ y Act, 4 2 U.S.C. § 2011 et seq. , authorizes the Nuclea

r Reg ulatory Commi ssion (NRC) to issue licenses to qualified applicants to transfe r, deliver, or re ceive

source materia l from in-situ leac h uranium mining (also known

as I SL or I SR mining), a proce ss used to rec over underg round uranium for subsequent use in nuclea r power plants. 42 U.S.C. § 2092; see Va. Uranium, Inc. v. W arren , 848 F.3d 590, 596 (4th Cir. 2017). No one can conduct such activities without an NRC license. 42 U.S.C. § 2092. The Act also cre ates hear ing rig hts. Any one “whose i ntere st may be aff ecte d by [a] proce eding ” to g rant a license has the rig ht to intervene an d prese nt “c ontentions” challeng ing the license. Id. § 2239(a) (1)( A); 1 0 C.F.R. § 2.309(a) , (f)

.

### 4

T h e licensing proce ss involves three rele vant components of the NRC.

The first is the Commi ssion Staff
, which is r esponsible for revie wing a license appl ication, analy zing the environmenta l eff ects and other fea

tures of the proposed projec t, and issuing an initial decision approving or deny ing the application. 10 C.F.R. §§ 2.103, 51.80, 51.102.

The second is an Atomic Safet y and L icensing Boa rd (ASL B)
, a panel that can be d es i gn at ed to preside over a licensing hear ing, at which the Boa rd hear s conte n t i o n s from intervenor s and then issues an init i al decision on those contentions. Id. §§ 2.313(a)
, 2.321, 2.1210. Throug h the Boa rd hear ing p roce ss, intervenor s can challeng e the ag ency ’s compliance with t h e National Environmental Policy Act (NEPA), wh i ch require s fede ral ag encie s to prepa re a detailed Environmental I mpact St atement (EI S) for any “propose d” maj o r fede ral action that “sig nificantly aff ect[s] the quality of the human environment,” 42 U.S .C. § 4332(2)( C), including
g ranting the kind of license at i s sue here
, see 10 C.F.R. § 51.20(b)( 8).

Third is the Commi ssion itself

. On ce the Boa

rd issues an initial decision on the contentions befor e it, parties can seek revie w from the Commi ssion. Id. § 2.341(b). The Commi ssion “may adopt, modify
, or set aside” the Boa rd’s decision. Id. § 2.344(b).

I n 2009, Powertec h applied for an NRC license authorizing it to “construc t and opera te” a uranium mining projec t, ca lled the “De wey -B urdock projec t,” in the southwest corne r of South Dakota. NRC, Record of Dec ision for the Dewe y -B urdock Ura nium I n-Situ Recove ry Project at 1 (2014 ) (“Rec ord of

### 5

De ci s i on”) (J.A. 738). The NRC descr ibed the projec t as follows:

T h e p r o p o s e d f a c i l i t y w i l l e n c o m p a s s approximatel y

. . . 10,580 acr es[,] which consists of
two con tiguous mining units

. . . . Powertec h intends
to rec over uranium and produce y ellowca ke at the Dewe y -B urdock site. Powertec h’s proposed activities include construction, opera tion, a q u if e r r e s to r a ti o n , a nd decommissioning of its I SR fac ility

. I n addition, Powertec h has proposed that liquid wastew ater generated during uranium rec overy be disposed of throug h one of the following methods: (i) deep well disposal via Class V injection wells, (i i ) land application, or (iii) a combination of deep well disposal and land a

pplication.

Id. at 1-2 (J.A. 738-39). The NRC’s chief administrative judge 1 established an Atomic Safety and L i censing Boa rd to preside over Powe rtec h’s licensingproce eding

.

The NRC furt

her expla ined t

he I SR proc es s a s f

ol lo w s: 1

[A] n oxi dan t-ch ar ge d so luti on, ca ll ed a li xiv ia nt, w il l be injec te d into the pro ducti on zo ne aquif er (ura nium or ebo dy ) thro ugh inj ect ion w el ls

. . . . As the li xiv ia nt ci rc ulat es thro ugh the pro ducti on zo ne, it w il l oxi dize and diss ol ve the

m iner al iz ed ura

nium

. . . . The re sult ing u ra n ium

- ri ch

so luti on w il l be dra

w n to re co ve ry wel ls by pumpi ng and then tr ans fe rr ed to a pro ce ss ing fa ci li ty vi a a netw or k of underg ro und pipel ines

. At th e pro ce ss ing fa ci li ty , the

ura nium w il l be r em ov ed fr om

so luti on v ia

io n excha

nge

.

Rec or d of Dec is io n at 2 (J.A. 739).

### 6

The petitioner here
, the Og lala Sioux Tribe, intervene d to challeng e Powerte ch ’s application. The Tribe’ s Pine Ridge Reserva tion is l ocate d roug hly fifty miles from the projec t site, Powertec h USA, I nc., 81 N.R.C. 618, 656 (2015) (“A SL B I nitial Dec ision”) (J.A. 4 5 5 ), and the projec t lands are within the Tribe’ s traditional territory
, see Trina L one Hill Decl. ¶ 5. A siz able number of cultural, historical, an d arc haeolog ical sites have alre ady been identified in the projec t are a, including burial sites. EI S for Dew ey -B urdock Projec t, NUREG-1910 at 4-159
to -182 (Jan. 2014) (“EI S”) (J.A. 655-78). The Tribe also owns lands near the pro p o s ed projec t, which it has “lea sed for domestic, ag ricultural, water development, conser vation, and other purposes.” Og lala Br

. 4. The T ri be’s primary conce rns reg arding the projec t are prot ecting the Tribe’ s cultural and historical resour ces, as well as p rotec ting g roundwa ter from mining contamination. Id.

Whil e the Boa

rd set the stag e for the Powertec h hear ing, the Commi ssion Staff drew up environmenta l documents for the Dewe y -B urdock projec t, including an EI S, which it published in 2014. See EI S, NUREG-1910 (J.A. 567-737). After publishing 2 the EI S, the Staff g rante d Powertec h’s application and issued the
reque sted license. Re cord of Dec ision at 1 (J .A. 738).

T h e Tribe promptly moved to stay the license. Wi t h o u t assessing the merits of the Tribe’ s contentions, the Boa rd denied

Tec hnica ll y , this w as the Final Supp le m enta l Envi ro nm enta l I m pac t 2 Sta te m ent (FSEI S) fo r the pro ject

. The Sta ff fi rs t publishe d a dra ft supple m enta l EI S, w hich built on the Com m is si on’ s ge ner ic EI S fo r in-s it u le ac h ura

nium m ining fa ci li ti es

. I n 2014
, it is sue d the FSEI S,

w hich is the doc um ent m os t re le van t to this ca se

. The NRC brie f

oc ca si ona ll y re fe rs to the docum ent a s t he “EI S.” See

, e.g. , NRC Br. 49- 52. For

purpos es of

cl ar it y , we w il l do s o co nsis te ntly thro ugho ut this opini on.

### 7

the stay

. I t did so on the g round, inter alia, that th e T ri be’s alleg ations “lac k[ed] the specific ity neede d to demon s t rate a serious, immediate, and irrepa rable harm to cultural and historic

resour ces.” Orde r, Powertec h USA, I nc., No. 40-9075-ML A at 6 (May 20, 2014) (“ ASL B Stay

Denial Or der” ) (J.A. 516).

After deny ing the stay , t h e Boa rd held a hear ing on the merits of t h e contentions pending befor e it. The Boa rd ruled
ag ainst the Tribe, and in favor of the Staff and Powertec h, on the bu l k o f those contentions. Howeve r, on two of the Tribe’ s 3 contentions, Contentions 1A and 1B, the Boa rd ruled in favor of the Tribe. ASL B I nitial Dec ision, 81 N.R.C. at 7 0 8 -10 (J.A. 507-09).

I n Contention 1A, wh i ch is most signific ant for our purposes, the T ribe char g ed that the EI S did not satisfy NEPA beca use it failed to adequately addre ss the environmenta l eff ects of the Dewe y -B urdock proj ect on Native Americ an cultural, relig ious, and his torical resource s. The B oard ag ree d with this char g e, finding that:

[T] he [E I S] in this proce eding does not contain an analy sis of the impacts of the projec t on the cultural, historical, and relig ious sites of the Og lala Sioux Tribe

As re le va nt to the T ribe’s peti ti on in this co urt, the Boa rd rule d 3
ag ai nst the Tribe on : C ontenti on 2, re ga rding the suff

ic ie ncy of bas eline gr oundw at er quali ty info rm at io n; Cont enti on 3, co nce rning the EI S’s ana ly si s of fe at ure s that co uld per

m it gr oundwat er

m ig ra ti on; and Cont enti on 6, re la ti ng to the EI S’s ana ly si s of pro pos ed

m it ig at io n m ea sure s. ASL B I niti al Dec is io n, 81 N.R.C. at 7 0 8- 09 (J.A. 507-08). The ASL B had pre vi ous ly fo und ag ai nst the Tribe on Cont enti on 7
, w it

h re spe ct to the adequac y of a plan for d ispos ing of by pro duct m at er ia l; and Cont enti on 8, reg ar ding t he s co ping pro ce ss

. See Pow er

te ch (USA) , I nc., 84 N.R.C. 219 , 226 (2016) (J.A. 24 3).

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an d t h e majority of the other consulting Native Americ an tribes.

. . . Beca use the cultural, historical, and religious si tes of t he Oglala Sioux T ri b e have not been adequately cata logue d, the [EI S] does not include mitigation m easur es sufficie nt to protec t this Native Americ an tribe’s cultural, historical, and relig ious sites that may be af fec ted by the Powerte ch proje ct.

Acc ording ly
, as to Contention 1A, the Boa rd finds and conclude s that the [ EI S] has not ade quately addre ssed the environmenta l effec t s of the Dewe y -B urdock projec t on Native Americ an cultural, relig ious, and historic resour ces.

. . . NEPA’s hard look require ment has not bee n satisfied.

Id. at 655 (c itations omi tted) (J.A. 454).

I n Contention 1B, the Tribe char g ed that the NRC Staff had failed to fulfill its responsibilities reg arding consultation wi th Native Americ an tribes under the National Historic Preser vation Act (NHPA), 54 U.S.C. § 306108. For a varie ty of rea sons, the Boa rd ag ree d that the consultation proce ss betwee n the NRC Staff and the Tribe was inadequa te to satisfy the statute. ASL B I nitial Decision, 81 N.R.C. at 655-57 (J.A. 454-56).

Despite wh at the Boa

rd conclude d was a “sig nificant defic iency in the NRC Staff’s NEPA revie w,” it did not suspend Powertec h’s previousl y i ssued license. Id. at 658 (J.A. 457). I nstead, it reta ined jurisdiction and direc ted the Staff to cure “the defic iencies in Contentions 1A and 1B.” Id

. I n the interim, i t said, the Tribe “may

. . . petition this Boa rd for a stay of the l icense ’s eff

ectivene ss, as may be nece ssary to halt gro u n d disturbing activities,” but only “if the

. . . Tribe ca n i d en t ify specific cultural, historic, or relig io u s sites that are subject to immediate and irrepa

rable harm by the Powertec h projec t.” Id.

### 9

The action then moved to the Commi ssion. The Tribe, the Staff, and Powertec h all petitioned the C ommissi on for review of the Boa

rd’s decision. The Sta ff an d Powertec h challeng ed the Boa rd’s partial resolution of Contentions 1A and 1B in favor of the Tribe. Wit h respe ct to those same contentions, the Tribe
arg ued that NEP A and the National Historic Preser vation Act “prohibit[ed] the Boa

rd from leaving [P ower

tech’ s] license in place ,” gi v en the projec t’s inadequa te environmenta l revie w. Powertec h (USA), I nc., 84 N.R.C. 219, 245 (201 6 ) (“NRC Orde r”) (J.A. 268). The Tribe also challeng ed the Boa rd’s reje ction of its other conte ntions. Id. at 224-26 (J.A. 240-43).

The Commi ssion g ener ally upheld the Boa rd’s ruling s. Id. I t left in pl ac e t h e finding s that the Staff had failed to comply with NEPA and the National Historic Preser vation Act. See id.
at 248 (J.A. 272). Nonethele ss, it aff irmed the Boa

rd’s decision
to leave the license in ef fe ct beca use the Tribe “has not articula ted any har m o r p rejudice ” from the S taff’ s failure

. Id.
at 245 (J.A. 268). The C o m m i s sion then direc ted that the
proce eding “re main open for the n ar row purpose of resolving the defic iencies identified by the Boa rd.” Id. at 262 (J.A. 292). And it denied the Tribe’ s other challeng es. Id. at 229, 237, 253, 256, 262 (J.A. 246, 258, 279-80, 283, 291-92).

Commi ssioner Bara n dissented on the point that is now at is s u e b efore us: the Commi ssion’s decision to leave Powertec h’s license in eff ect while the Staff attempted to resolve the defic iencies in its NEPA revie w. His dissent sta ted as follows:

[A] core require ment of NEPA i s t h at an ag ency d e c i s i o n m a k e r m u s t c o n s i d e r a n a d e q u a t e environmenta l revie w before makin g a decision on a licensing action. I f the Commi ssion allows a Boa rd to supplement an d cure an inadequa te NEPA document

### 10

after the ag ency has alre ady made a licensing decision, then this fundame ntal purpose of NEPA is frustr ated.

I n this case, the B oard f

ound that the Staff’s [EI S] did
not me et the require ments of NEPA beca use the [EI S]

was defic ient with respe ct to the eff ects of the licensing action on Native Americ an cultural, relig io u s , and historic resour ces. Thus, the ag ency d i d n ot have an adequate environmenta l analy sis at the time it decide d whether to issue the license. I n fac t, the defic iencies in the NEPA analy sis rema in unaddre ssed today
, and there fore the Staff still cannot m ake an adequately informed decision on whether to issue the license. The Staff’s licensing decision was based on (and continues
t o rest on) an inadequate environmental review. As a result, the Staff ha s not complied with NEPA.

The Co m m ission should suspend the license until the Staff has

. . . demonstrat[ed] that the [EIS] complies with NEPA . . . .

Id. at 269 (Commissi oner Ba ran, dissenting in part) (citations omitted) (J .A. 301-02).

There afte r, the Tribe filed a petition in this court for revie w of the C o m m i s sion’s order

. I ts principal challeng e is to the NRC’s decision to leave the license in eff ect pending the Staff’s eff ort to cure the NEPA defic iencies. The Tribe also challeng es the disposi t i o n of its other contentions, which are set out in footnote 3, supra

.

### 11

I I

We beg in with our jurisdiction.

A

Under the H o b b s Act, thi s court has jurisdiction to revie w “fina l order s” of the Commi s s i o n. 28 U.S.C. § 2342(4). Gene rally
, a final order is “one t h at disposes of all issues as to al l p arties.” Blue Ridge Envtl. Def. League v. NRC
, 668 F. 3 d 747, 753 (D.C. Cir. 2012) (interna l quotation marks omitted);

see CSX Transp., Inc. v. Surface Transp. Bd

. , 7 7 4 F. 3d 25, 28 (D.C. Cir. 2014). Ty

pically
, an order “re manding a matter to an [admini strative law judge
, or here
, to the ASL B] will not, on its
own, s at i s fy the principle of finality .” Mere dith v. Fed. Mine Safety & Health Rev iew Comm’n
, 177 F.3d 1042
, 1 0 50 (D.C. Cir. 1999).

Apply ing this standard, we conclude that the Commi ssion’s order
, as a whole, is not final. I t did not consummate the
ag ency ’s decisionmaking proce ss as to all issues, but instead left the proceedin g “o p en” while t he S taff attempted t o resolve the defic iencies in NEPA compliance (Contention 1A) and in the National Historic Preser vation Act consultation process (Contention 1B). N RC Order, 84 N.R.C. at 262 (J.A. 292).

I n keeping wi t h this instruction, the Atomic Safety and L icensing Boa

rd has continued to overse e the Staff’s ef forts to

cure the statutory defic i en cies. I n October 2017, the Boa rd
g rante d the Staff’s motion for summary dispositi on reg arding Contention 1B, concl u ding that the Staff’s consultation eff orts

over the intervening two y ear s had sat i s fi ed the National Historic Preser

vation Act. Powertec h USA, I nc

. , 86 N.R.C. 167, 173 (2017) (“A SL B Summary Disposition Orde r”)

. But the Boa rd denied the Staff’s motion to dismiss th e T ri b e’s NEPA

### 12

contention (Contention 1A), and the adjudication of that contention rema ins pending

. Id

. at 173-74. The Boa rd order set

a schedule contemplating resolution of the outstanding NEPA contention on or befor e October 12, 20 1 8
, id. at 210, but the Boa rd has sin ce suspended that schedule without imposing a

new end date, see Orde r Suspending Scheduled Dates, Powertec h USA, I nc., No. 40-9075-ML A at 2-3 (Apr. 12, 2018).

Be cause t h e Commi ssion’s order did not end the ag ency proce eding as to all issues, we do not have jurisdiction to revie w the bulk of the ruling s challeng ed by the Tribe.

B

We do have jurisdiction, howeve r, t o revie w one of the ruli n gs contained in the NRC order : the decision to leave the license in eff

ect -- notwithstandi n g th e N RC’s deter mination that the ag ency is not i n co m p liance with NEPA -- pending further
proce eding s befor e the Atomic Safety and L icensing Boa rd. 4 That ruling falls within the collater al orde r doctrine

. 5

Alt houg h the co ll at er al or der doc tr ine m ig ht al so h ave gi ve n us 4 jurisdi ct io n ov er the NRC’s par al le l ruli ng re ga rding co m plia nce w it h the Nat io nal His to ri c Pre se rv at io n Act
, the ASL B’s subse quent dete rm inat io n that th e S taff ’s co nsult at io n ef

fo rt s sa ti sf ie d that Act
, ASL B Summ ar

y Dis pos it io n Or der , 86 N.R.C. a t 173, m ea

ns that the
ag enc y is no lo nge r goi ng fo rw ar d des pite an ac kno w le dge d NHPA vi ol at io n. Thus, t

he ana ly si s se t fo rt

h be lo w , w

hich bring s the NEPA

co ntent io n wi thin the doc tr ine, a pplie s o nly

to that co ntent io n.

Bec aus e w e fi nd that the ruli ng is re vi ew able as a co ll at er al or der
, w e 5 do n ot dec ide whethe r rev ie w of the ruling w oul d al so fa ll w it hin the

sc ope of this ci rc uit’s “im m edia te ef fe ct iv ene ss ” doctr ine. See Blue Ridge Envtl

. Def

. League
, 668 F.3d at 757; Mass achuse tt s v. NRC
, 924 F.2d 311, 322 (D.C. Cir . 199 1).

### 13

Pursu ant to 28 U.S.C. § 1291, courts of appea ls “have jurisdiction of ap p eals from all final decisions of the district
courts of the United States.” The Supreme Court, howeve r, “has long g iven § 1291 a prac tical rat h er t h an a technica l construction[,]

. . . encompa ss[ ing] not only judgme nts that terminate an action, but also a small cl ass of collater al ruling s that, althoug h t h ey do not end the litigation, are appropr iately deeme d ‘final.’ ” Mohawk Indus., Inc. v. Carpenter
, 558 U.S. 100, 106 (2009) (interna l quotation marks omitted). Be cause the finality require ment of the Hobbs Act “is the counter part to that of 28 U.S.C. § 1291,” we have permitted appea ls from the same small cate g ory of inte rl o cutory ruling s made by administrative
ag encie s. Cmty. Broad. of Boston, Inc. v. FCC
, 546 F.2d 1022, 1024 (D.C. Cir. 1 9 76) (construing the Hobbs Act); see CalPortl and Co. v. Fed. Mine Safety & Health Rev iew Comm’n
, 839 F.3d 1153, 1159- 60 (D.C. Cir. 2016) (c onstruing the Mine Act); Mere dit h
, 177 F.3d at 1050-51 (same)

. I n apply ing the collater al order doctrine, we remain mindful of the Supreme Cou rt ’s admonition that “it must never be allowed to swallow
t h e gen era l rule that a party is entitled to a single appea l, to b e defe rre d u n t i l final judgme nt has been enter ed.” Mohawk Indus
., 558 U.S. at 106 (interna l quotation marks omitted).

To eff ectua te that admonition, the Court has limit ed
appea lable collater al ruling s to a “small cate g ory [t hat] includes only decisions [1] that are conclusive, [2] that resolve important questions s ep ar ate from the merits, and [3] that are eff ectively unrevie wable on appea l from the final j u d gment in the underly ing action.” Id. (quoting S w i nt v. Chambers Cty. Comm’n
, 5 1 4 U. S. 35, 42 (1995))

. Apply ing these conditi ons, we conclude that the ruli ng befor e us , which ex pressly permits

a license to g o forwa

rd despite the ag ency ’s ackn o wledg ment

### 14

that it has not co m p lied with NEPA, is a revie wable collater al order

.
First, that ruling is “a fully consummated decision

. . . that conclusively and fi n all y deter mine[s] ” the eff

ectivene ss of Powertec h’s license for the fore seea ble future. See CalPortl and Co.
, 839 F.3d at 1160 (interna l quotation marks omitted). More important, it conclusively deter mines t he Commi ssion’s interpre tation of what NEPA require s in this circ umstance. The Commi ssion has decide d that a license can rema in eff ective and that construction ca

n g o forwa

rd -- despite t he age ncy ’s failure
to satisfy the require ments of NEPA -- unless the Tribe can show irrepa

rable harm from leaving t h e license in place while the NEPA violation is cure d. There is “no basis to suppose that the [C ommissi on] contemplate[s] any rec onsideration of [t he] decision,” id. (interna l quotation marks omitted), to permit such

a license to rema in effec t i v e unless irrepa rable harm can be shown. See NRC Br

. 33 (stating that the Tribe ca n s ee k a s tay

o n l y i f a “ new development [arises] that could potentiall y support an irrepa

rable harm demons tration”). To the contra ry , the “irre para

ble harm” standard appea rs to be the ag ency ’s settled prac tice. See infra Part I I I .A.

Se c o nd, the order resolves an “important questio n [] s e p a r a te fr om the merits,” Mohawk Indus.
, 558 U.S. at 106 (q u o t i n g Swint
, 514 U.S. at 42). Powertec h now has the righ t to an effective license, despite an ong oing NEPA violation that th e ag ency acknow ledg es. The Commi ssion’s irrepa rable harm standard for vaca

ting the license pending t he conclusion of its administrative adjudication has no bear ing on i t s ultimate resolution of the merits of the T ri be’s multipl e contentions, including whether NEPA actua lly has been (or subsequently will be) satisfied. And the Commi ssion’s resolution of the merits of those questions will not address the validity of that standar d.

### 15

Third, the ruling that permits projec ts to g o forwa rd despite “sig nificant” NEPA violations will be eff ectively unrevie wable if the Tribe is forc ed to wait for the conclusion of t he age ncy ’s adjudication befor e appea ling. I f we do not hear that issue now, the ASL B proce eding s will continue. At the end of that proce ss, the ag ency either will conclude that the Staff has been unable to satisfy NEPA and will there fore (pre sumably) vacate the license,

see NRC Br

. 8, 30, or it will deter mine that the Staff has finally satisfied NEPA and rea ffirm the license. I f it rea ches the former conclusion, there will be nothing left for the Tribe to petition to revie w. I f it rea ches the latter, our prec edent will require denial of the petition on the g round that -- at t h at p o i nt -- a rema nd would be futile. See Friends of the River v. FERC
, 720 F.2d 93, 106-08 (D.C. Cir. 1983) (deny ing as futile a petition for revie w when the ag ency issued a license despite noncom pliance with NEPA, but subsequently complied befor e the petition for revie w

was filed); see also Na t

. R es

. Def. Council v. NRC
, 879 F.3d 1202, 1211-12 (D.C. Cir. 2018) (same, ci t i n g Friends of the River , 720 F.2d 93)

.

I n evalua ting this third condit ion, the Supreme Court has said that “the decisive consideration is whether delay ing revie w until the entry of final ju d gm ent would imperil a substantial public interest or some particula r value of a high o rd er.” Mohawk Indus.
, 5 5 8 U.S

. at 107 (interna l quotation marks omitted). We know that the environmenta l va lues protec ted by NEP A are of a high order -- beca use Congr ess has told us so. 6 We likewise know (as discussed in Part I I I .A below) that Congr ess has direc ted that, to protec t those values, “all ag encie s

See 42 U.S.C. § 4331 (r ecogn izing “the cr it ic al im por ta nce of 6

re st or ing and m ai ntai ning env ir onm enta l quali ty to the ov er al l w el fa re and dev el opm ent of m an,” and dec la ri ng the fe der al gove rnm ent’s

re spo nsibi li ty to “ p re se rv e im por ta nt hist or ic
, cult

ura l, and natur al

as pec ts of our nati ona l her it ag e” ).

### 16

o f the Fe dera l Gover

nment” must prepa

re an environmental impact statement that satisfies NEPA b ef o r e taking an action like g ranting Powertec h’s license. 42 U.S.C. § 4332(2)( C); see 10 C.F.R. § 51.20(b)( 8 ). Delay ing revie w of an action that

conce dedly was not preced ed by a valid EI S would imperil the public interest in requiring that a valid EI S be prepare d befor e the ag ency g rants the l i ce n s e. Moreove r, if revie w is delay ed until fi nal judgme nt, and vulnera ble but as-y et-unidentified historical, cultural, or relig ious sites are damag ed in the interim,
t h e court will be unable to reme dy that injury to the publ i c interest

-- an interest that NEPA’s proce dural mandate was intended to vindicate. See Robertson v. Methow Valley Citi zens Council , 490 U.S. 332, 349-51 (1989).

Fina l ly
, in making the collater al order deter mination, the Court has instr u cted that we “not eng ag e in an individualiz ed jurisdictional inquiry ,” but rather focus on “the entire cate g ory to which a claim belong s.” Mohawk Indus.
, 558 U.S. at 107 (interna l quotation marks omitted)

. “[T] he chanc e that the l i t igation at hand might be speede d, or a particula r injusti c[e]

aver ted, does not provide a basis for

. . . jurisdiction.” Id. (interna l quotation marks omitted). Our conclusion in this case is in acc ord with that direc tion as well. Her e, we focus not only

on the Tribe’ s challeng e to the eff ectivene ss of Powertec h’s license, but rathe r on the entire cate g ory of claims that challeng e (and wi l l ch all eng e) NRC’s leg al position that it may leave a license in full eff

ect despite the ag ency ’s failure to comply with NEPA.

We there fore have jurisdiction to consider whether the NRC
may authorize a licensee to g o ahea d wi t h construction

-- notwithstanding the Commi ssion’s conclusion t hat there has

### 17

been a s ignif

icant deficienc y in its NEPA compliance -- unless an interve nor demonstra tes irre para ble har m. 7

I I I

Our revie w of this matter is g overne d by the Administrative Procedur e Act (APA), 5 U.S.C. § 706(2). See Blue Ridge Envtl. Def. League v. NRC
, 716 F.3d 183, 195 (D.C. Cir. 2013). Under the APA, we m ust hold an ag ency ’s action unlawful if it is “ar bitrary
, capr icious, an abuse of discretion, or otherwise not in

acc ordanc e with law.” 5 U.S.C

. § 706(2)( A).

A

NEPA require s that “all ag enci es of the Fe dera l Gover nment shall

. . . i n clude in ever y rec ommendation or repor t on proposals for

. . . major Feder al actions signific antly af fe ct ing the quality of the human environment, a detailed statement by

the re sponsible official” on:

(i) the environmenta l impact of the proposed action,

We ar e unpers uaded by NRC co unsel ’s sug ge st io n that the Tribe 7 sho uld hav e ra is ed this cha ll eng e w hen the S ta ff fi rs t m ade Pow er te ch’s li ce nse ef

fe ct iv e in 2014

. NRC Br. 33. The Tribe did apply fo r a st ay at that ti m e, and it d id n ot ap p ea l af te r the ASL B denie d it s appli ca

ti on. But the quest io n pos ed at that m om ent w as not the sa me as the one ra is ed her e. When the Tribe fi rs t so ught a st ay , neit her the Com

m is si on nor the Boa

rd had y et ac kno w le dge d the NEPA vi ol at io n and neit

her had rule d that the li ce nse co uld re m ai n in ef fe ct not w it hsta nding the vi ol at io n. See ASL B Sta y Denial O rd er , N o. 40- 9075

- ML A at 8- 9 (J.A. 518-19). Henc e, the Tribe co uld n ot hav e c hall eng ed the ruli ng and pol ic y that it al le ge s here is unlaw ful: le tt in g a p roj ect g o f o r w a r d d e s p i t e t h e C ommis si on ’ s

ac kno w le dgm ent t

hat i t has not s at is fi ed NEPA’s re quire m ents

.

### 18

(ii) any adver se environmenta l eff ects wh i ch cannot be avoide d should the proposal be implemente d,

(iii) alterna tives to the proposed a ction,

(iv) the rela tionship betwe en local short-term uses of man’s environment and the maintenanc e and enhanc ement of long -term pr oductivity , and

(v) any irreve rsible and irretr ievable commitments of

resour ces which would be involved in th e proposed action should it be implemented.

42 U. S .C. § 4332(2)( C); see New Y ork v. NRC
, 681 F.3d 471, 476 (D.C. Cir. 2012)

. There is no dispute that the NRC’s g rant of a uranium mi n i n g license constitutes such a “major Fe dera l action[] signific antly af fecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see NRC B r. 5 (“N RC
reg ulations

. . . require NRC to prepa re an EI S prior to issuing

an in situ rec overy fac ility license.” ); ASL B I nitial Dec ision, 81 N.R.C. at 641 n.123 (J.A. 440) (“I ssuing a license to possess and

use source materia l to a uranium milli ng fac ility is identified as a major f eder al ac tion.”); 10 C.F.R. § 51.20(b)( 8).

This statutory provision require s ag encie s to take a “h ard look” at environmenta l conseque nces befor e undertak ing any such action. Robertson
, 490 U.S. at 350. The environmenta l eff ects that must be assessed include “ae sthetic, historic, cultural, economic, social, or health” eff ects. 40 C.F.R. § 1508.8(b); see 42 U.S.C. § 4 331(b)( 4) (dec laring that “pre serv[ing] important historic, cultural, and natura l aspec ts of

our national heritag e” is an element of nation al en vironmental policy ). And the Commi ssion’s reg ulations expressly require its Staff to include, in an environmenta l impact sta t em en t, “an

### 19

analy sis of signific ant problems and objections raised by

. . . any aff ecte d I ndian Tribes.” 10 C.F.R. § 51.71(b).

The Atomic Safety and L icensing Boa rd ruled that, to “ful fi ll the ag ency ’s NEPA

. . . responsibilities to protec t and
prese rve cultural, relig ious, and historical sites important to the Native Americ an tribal cult ures in the Powertec h projec t are a, the NRC Staff must conduct a study or survey of tribal cultura l

resour ces befor e g ranting a license.” ASL B I nitial Dec ision, 81 N. R

. C

. at 653 (J.A. 452). As discussed in Part I above, t h e Boa rd found that “the [EI S] in this proce eding does not contain” such an analy sis. Id. at 655 (J.A. 454 ). Moreove r, “[b] eca use the cultural, historical, and religious sites of the Og lala Sioux Tribe have not been adequatel y cata logue d, the [EI S] does not include mitigation meas ures sufficie nt to protec t this Native Americ an tribe’s cultural, historical, and relig ious sites that may be aff ecte d by the Powertec h projec t.” Id. “Ac cording ly ,” the Boa rd conclude d, “NEPA’s hard look require ment has not been satisfied.” Id.

The Boa rd did not f

ind just a technica l violation of NEPA. Rather, it found that “the inadequa te discussion of potential impacts to Sioux cultural, h i storical, or relig ious sites in the [EI S] or Record of Dec ision is a signifi cant deficienc y i n t he NRC Staff

’s NEPA revie w.” Id. at 658 (empha sis a dded) (J.A. 457). And the Com m i s s i o n did not disag ree

. Refusing to “sec ond g uess the Boa rd’s fac t-finding ,” the Commi ssion declined to set asid e the Boa rd’s order and denied the Staff’s petition for revie w with respe ct to the Tribe’ s NEPA contention. NRC Order, 84 N .R.C. at 248 (J .A. 272-73).

For purposes of our

revie w, we a cce pt the Boa rd’s finding

-- undisturbed by the Commi ssion -- that the ag ency did not fulfill its NEPA responsibilities. We do not revie w the merits of that conclusion.

### 20

Notwithstanding t h e Boa rd’s finding
, and in particula r its acknow ledg ment that the Staff “must conduct a study or survey of tribal cultural resour ces before g ranting a license” in order to fulfill the ag ency ’s NEPA responsibilities, ASL B I nitial Dec ision, 81 N.R.C. at 653 (empha sis added) (J.A. 452), the Boa rd ruled that it would not suspend Powertec h’s license unless the Tribe soug ht a s t ay within ten day s and showed that “spec ific cultural, historic, or relig ious sites

. . . are subject to imm ed i at e and irrepa

rable harm.” Id. at 658 (J.A. 457). The Commi ssion likewise ref

used to vacate the license on the g round that more than just a NEPA violation was re quired, stating that there was no need to disturb the license beca use the “Tribe ha[d] not articulate d any harm or prejudice .” NRC Order, 84 N .R.C. at 245 (J.A. 268).

T h e ag ency thus conditioned enfor ceme nt of NEPA o n a

s h owing of irrepa

rable harm by the Tribe. I t did so even 8 though, as Commi ssioner Ba ran explained in dissent, the ag ency lacke d an adequate environmenta l analy s i s when it first issued the l icense and the signific ant NEPA def iciencie s identified by the Boa rd “re main[ed] unaddre ssed” at the time of the

Alt houg h the Com

m is si on’s or der va gue ly re ferr ed to “harm or 8
pre jud ic e,” NRC Orde r, 84 N.R.C. at 245 (J.A. 268), it upheld the Boa rd’s or der re quiri ng a sho w ing of “irr epa ra ble har m ,” ASL B I niti al D eci sion, 8 1 N.R.C. at 658 (J.A. 457). The NRC al so not ed that th e Tribe “did not re quest a st ay of the ef fe ct iv ene ss of the li ce nse ,” NRC Orde r, 8 4 N.R.C. at 245 (J.A. 2 6 8 ), w hich the Boa rd had m ade cl ea

r it w oul d not gr ant unles s the Tribe co uld ident if y sp ec if ic “sit es that

ar e subject to im

m edia te and ir re par able har

m by the Pow er

te ch
pro ject ,” ASL B I niti al Dec is io n, 81 N.R.C. at 658 (J.A. 457). And the NRC brie f li kew is e indic at es that “irr epa ra ble har m ” is the Com m is si on’s ow n st andar d. See N R C B r. 1 (e m phasi zi ng that “ the Tribe dem on st ra te d no ir re par able har

m ”) ; id. at 33 (no ti ng that the Tribe co uld st il l se ek a st ay if “a new dev el opm ent” co uld suppor t “an ir re par able harm

dem ons tr at io n”)

.

### 21

Commi ssion’s decision. Id. at 269 (Commissi oner Ba ran, dissenting in part) (J.A. 301). There fore “[t] he Staff’s licensing decision wa s based on (and c ontinues to rest on) an ina dequate environmenta l review .” Id.

Moreove r, this was not a one-of f decision by the NRC. Rather, it appea

rs to ref lect the ag ency ’s settled pra ct ice. See Strata Energ y , I nc., 83 N.R.C. 566, 595 n.188 (2016) (“I t is well
set t led that parties challeng ing an ag ency ’s NEPA proce ss are

n o t entitled to relief unless they demonstrate harm o r prejudice .”); see also Crow Butte Resource s, I nc., 83 N. R.C. 340, 413-14 (2016) (re ly ing on the Powertech prec edent to keep

a license in eff

ect, notwith standing finding that the NRC staff had not complied with NEPA, and repe ating the “irre para ble injury ” re quirement).

The ag ency ’s decision in this case and its appar ent prac tice

are contra ry to NEPA. The statute’s require ment that a detailed environmenta l impact statemen t be made for a “propose d” action m ak es cl ear that ag encie s must take the require d hard look before taking that action. See, e. g. , Pub. Emps. f or Envtl. Responsibility v. Hopper
, 827 F.3d 1077, 1081 (D.C. Cir. 2016) (holding that an ag ency ’s deci sion to issue a lease for a windpower projec t “w i thout first obtaining sufficie nt sitespecific data

. . . violated” NEPA (internal quotation marks omitted)); New Y

ork
, 681 F.3d at 476 (“U nder NEPA, eac h fede ral agen cy must prepa re an [EI S] befor e taking a ‘major Fe dera l action[] signific antly aff ecting the quality of the human environment.’” (quoting 42 U.S.C. § 4332(2)( C))). Nothing in 9

See also Mars h v. Or. Nat. Res

. Council
, 490 U.S. 360, 371 (1989) 9 (“NEPA ens ure s that the ag enc y w il l not ac t on in comple te info rm at io n, only

to re gr et its dec is io n aft er

it i s t oo la te to co rr ec t.” ); Robert son , 490 U.S. at 349 (explai ning that NEPA “fo cus [e s] the
ag enc y ’s at

te ntio n on the env ir onm enta l cons equenc es of a proposed

### 22

NE P A’s tex t sug g ests that the required environmental analy s i s of a “propose d” action is optional if a party does not prove tha

t “irre para ble har m” would re sult from g oing f orwa rd bef ore the
ag ency completes a

valid EI S.

The nontext ual exception upon which the NRC insists would vitiate the statu t e’ s “‘a ction-for cing ’ purpose.” Robertson
, 490 U.S. at 349. As the Co u rt ex p l ained in Robertson :

The statutory require ment that a fede ral ag ency contemplating a major action prepa re such an environmenta l impact statement serve s NE PA’s “ac tion-forc ing” purpose in two important respe cts.

. . . I t ensure s that the ag ency , in rea ching its decision, will have av ai lable, and will car efully consider, detailed i nformation conce rning signific ant environmental impacts; it also g uara

ntees that the rele v a

n t information will be made available to the larg er audienc e that may also play a role in both the decisionmaking proce ss and the implementation of that dec ision.

id. (empha sis added); see Baltimore Gas & Electric Co. v

. Nat. Res. Def. Council
, 462 U.S. 87, 97 (1983). I f an ag ency fails to complete the require d revie w befor e authorizing a p ro p osed projec t -- whether or not a party is able to presen t evidenc e of

pro ject ” (e m phasi s added) ); Sier

ra Club v. U.S. Army Corps of Eng’rs
, 803 F.3d 31, 37 (D.C. Cir

. 2015 ) (e xplai ning that NEPA re quire s ag enc ie s to ta

ke a “hard lo ok ” at env ir onm enta l conse quence s of
pro pos ed ac ti on s “in adv anc e of dec iding w hethe r and how to pro ce ed” ); 40 C.F.R. § 1500 .1(b) (Co uncil on Envi ro nm enta l Qual it y

re gul at io n pro vi ding that “NEPA pro ce dures m ust [e ]nsur e that

env ir onm enta l info rm at io n i s av ai la ble to public of

fi ci al s and ci ti ze ns bef or e de ci si ons ar e m ade and befo re ac ti ons ar e t ak en” ).

### 23

harm at that st ag e -- it runs the risk “that important eff ects will .

. . be overlooke d or undere stimated only to be discovere d afte r

. . . the die [has been] cast.” Robertson
, 490 U.S. at 349;

see W inter v. Nat. Res. Def. Council
, 555 U.S. 7, 23 (2008); Ill. Commerce Comm’n v. IC C
, 848 F.2d 1246, 1259 (D.C. Cir. 1988).

I ndeed, the nature of the ag ency action in this case puts the problem in high relief

. As we have noted, the Tribe “has shown it has the most direc t historical, cultural, and relig ious ties to the [Dewey -B urdock pro

j ect] are a.” ASL B I nitial Dec ision, 81 N.R.C. at 656 (J.A. 455). A signific ant number of cultural, historical, and arc haeolog ical sites have alre ady been identified in the projec t are a, including burial sites. EI S, NUREG-1910 at 4-159 to -182 (J.A. 6 55-78). The Tribe is conce rned that mining, as w ell as t he construc tion and other land disturba nces that prec ede mining, wi l l damag e those resour ces. See Trina L one Hill Dec l. ¶¶ 5, 28. The purpose of an EI S is, in part, to deter mine whet h er t he land contains such resour ces and wher e t h ey are located, so that damag e to them can be avoided o r mitigated. I f the proje ct is pe rmitted to go f orwa rd without the

nece ssary land survey , such dama g e may well be done

.

I n short, the NRC has place d the Tribe in a classic Catch22. I t must s h o w i rr epar able harm to insist that an adequate survey be completed. But it likely cannot show even the risk of

s uch harm unless that survey is completed. Of course , if th e projec t g oes forward and t he burial or ot her sites ar e damag ed, the Tribe wi l l t hen be able to show irrepa rable harm -- but by then, it will be too late to stop it

.

The NRC’s conduct in this case may b e compared

-- unfavor ably -- to that of the I nterstate Commerce Commi ssion in Il l inois Commerce Commission v. ICC
, 848 F.2d 1246. There
, the court declined to rema nd the agency ’s policy of

### 24

publishing an environmenta l assessment afte r publishing notice of proposed abandonme nt o f a railroad li ne. But it did so only beca use the ag ency repr esente d th at, if environmenta l issues

wer e raised, a stay would “automatica l l y be g rante d until the

conce rns are resol v ed by the [age ncy ],” with “no showing of irrepa rable harm or probability of s u cce ss

. . . require d.” Id. at 1260. That proc edure
, we said, “obviate[d] the pos sibili ty that

an ab an d o n m en t wo u l d b e au t h o ri z ed ev en t h o u gh environmenta l questions wer e st ill outstanding.” Id. Nee dless
to say , that proce dure -- providing for an automatic stay without the need to show irrepa

rable harm -- stands in stark co n t rast to t he approa ch the Commi ssion employ ed here

. And fo r t h e

rea sons we have stated, the latter is contrar y to law.

B

I n this subpart, we addre ss the NRC’s defe nse of its ruling

.

1. The just ification upo n wh i ch the C ommissi on relied in its order was an analog y to this court’s trea tment of “har

mless

erro r” when revie wing an ag ency decision. NRC Orde r, 84 N.R.C. at 245 (J.A. 268) (“[F]eder al courts have require d that parties demonstrate harm or prejudice to disturb an age n cy ’s decision.”) . The a

nalog y is inapt.

The “har mless err or” doctrine that this court applies is compelled by a statute, the Administrative Procedur e Act, which provides that “due acc ou n t shall be taken of the rule of prejudicia l e rror ,” 5 U.S.C. § 706; see, e.g. , First Am. Discount Corp. v. Commodity Futures Trading Comm’n
, 222 F.3d 1008, 1015 (D.C. Cir. 2000). As the Co m m i ssion itself notes, h o we ver, “the Boa

rd and Commi ssion are not courts, and s o 5 U.S.C. § 706 does not g overn their choice s of reme dy ” for Staff

err ors. NRC Br

. 34. Nor does NEPA -- or any other statute that has b een called to our attention -- g ive the NRC authority to

### 25

forg ive “har

mless” violations of NEPA. Cf. 38 U. S

. C

. § 7261(b)( 2) (direc ting the United State s C o u rt of Appea ls for Veter ans Claims to “take due account of the rule of prejudicial

er ro r” ); 28 U.S.C. § 2111 (instructing appellate courts to g ive judgme nt “with o ut reg ard to err ors or defe cts which do not aff ect the substantial r ights of the parties” ).

But whether or not tha t e nds the arg ument -- a question we do n ot need to decide -- what the ag ency has done here looks nothing like the harmless err or revie w underta ken by this court.

First, it is true that “[w]e have applied the prejudicia l e rror rule in the NEPA c ontext wher e the pr oposing a g ency eng ag ed in signific ant environmenta l analy sis befor e rea ching a decision but failed to comply precisely with NEPA proce dures.” Nevada

v. Dep’ t of Energy
, 457 F.3d 78, 90 (D.C. Cir. 2006) (empha sis added) ; see, e.g. , Int’l Bhd. of Teamster s v. U.S. Dep’ t of T r ansp. , 724 F.3d 206, 217 (D.C. Cir. 2013) (holding that any “tec hnical err or” in the timing of the rele ase of an environmenta l
assessment was harmless when the ag ency completed th e assessment “bef

ore a uthorizi ng any” opera tions). But the err or here was neither a failure of prec ision nor a technica lity

. Rather,

as the Boa

rd itself said, it was a “sig nificant defic iency ” in the Staff’s NEPA revie w. ASL B I nitial Dec ision, 81 N.R.C. at 658 (J.A. 457). 1 0

This c ir cuit

has al so so m et im es re ga

rde d devi at io ns fr om

NEPA as 1 0 har m le ss w hen an ag enc y subse quently co m plet ed a co m

pre hen sive

env ir onm enta l re vi ew b efo re the m at te r re ac hed our co urt. See Nat. Res

. Def

. Council
, 879 F.3d at 1211

- 12 (r ef using to re m and w her e the
ag enc y “adequat el y augm ente d it s dec is io n bef or e being cha ll eng ed in th[e ] co urt” ); Fri ends of the Riv er , 720 F.2d at 106-08 (de cl ining to

re m and w hen the ag enc y co m plet ed a tho ro ugh
, if bela te d,

env ir onm enta l rev ie w ). I n this ca se , how ev er , the a ge ncy has not y et

co m plet ed a va li d rev ie w

.

### 26

The Commi ssion’s order disparag ed this err o r as mere ly “proc edura l.” NRC Orde r, 84 N.R.C. at 245 (J.A. 268); see NRC Br

. 34, 35. But “NEPA imposes only proce dural require ments.” W

inter
, 555 U.S. at 23. I f even “s i gn i fi cant” defic iencies in NEPA revie ws are forg iven beca use they are

mere ly proce dural, there will be nothing left to the protec tions that Congr es s i n t en ded the Act to provide. Moreove r, in a compar able situation, “[w]e h av e not been hospitable to g overnme nt claim s of harmless err or in case s in which the
g overnme nt violated [t he proce dural req u i rement of APA] § 5 53

. . . by failing to provide notice” of proposed age n cy action. Allina Health Servs. v. Sebelius
, 7 4 6 F.3d 1102, 1109 (D.C. Cir. 2014).

Given the signific ant defic iency at issue in t his case , the h armless err or doctrine cannot justify the ag ency ’s ruling. As we have n o t ed, the Boa

rd found that the EI S “does not contain

an analy sis of the impacts of the projec t on the cultural, historical, and r elig ious sites of t he Og lala Sioux Tribe a nd the majority of the other consulting Native Americ an tribes.” ASL B I nitial Dec ision, 81 N.R.C. at 655 (J.A. 454). As a conseque nce, “the EI S does not include mitigation measure s sufficie nt to protec t this Native Americ an tribe’s cultural, historical, and relig ious sites that may be aff ected by the Powertec h projec t.” Id. That assessment of the risks to the Tribe’ s sites is consistent with the Comm i s s i o n’s g ener ic EI S for these kinds of mining projec ts: “[D]epending on local co n d i tions,” the ag ency has explained, I SL fac ility construction can cause a “lar ge” impact on “ec ologic al, historical, or cultural resource s” because of the “p otential for unidentified resour ces to be altere d or destroy ed during excavation, drilling, and g rading .” Gene ric EI S for I nSitu L eac h Ura

nium Milli ng Fa cilities, NUREG-1910 at x lii (May 2009) (J.A. 531).

### 27

I n this context, t h e agenc y may not proper ly conclude that its failure to comply with NEPA is harmless simply beca use the Tribe cannot point to specific historical sites t h at are at risk. I ndeed, p l ac ing the burden on the Tribe to show harm was espec ially inappropria t e b ecause the inadequa te EI S may well make doing so impossibl e. See W i n t er , 555 U.S. at 23 (“[W] ithout [ an EI S]
, there may be littl e if any information about prospec tive environmenta l harms and potential mitigating

measure s.”); cf. Pub. Emps. for Envtl. Responsibility
, 827 F.3d
at 1082 (re fusing to “excuse the [age n cy ] from its NEPA obliga tion to g ather data about the seaf loor” befo re i ssuing a lease for a wind turbine projec t beca use “[w]i th o u t adequate
g eolog ical survey s, the [age ncy ] cannot ensure that the seaf loor [wil l be] able to support wind turbines ” (interna l quotation marks omitted)).

Second, the point at issue here is not simply forg iveness of

a single err or. As we have explained, it appea rs to be the NRC’s settled prac t i ce t o keep licenses in eff ect, notwithstanding signific ant NEPA defic ienci es, unless an intervenor shows irrepa rable harm. See supra Part I I I .A. That does not re prese nt t h e application of a harmless err or exception to a statuto ry violation. I t repre sents a wholesa le re write of N EPA.

Third, the standa

rd of r eview the Commi ssion approved is
not just a “har

mless” err or standard -- it is an “irre para ble harm” standard. See supra note 8. The harmless err or standard of the APA mere ly require s a showing of prejudice

. That s t an dard does n o t “im pose a

. . . particula rly onerous require ment.” Shinseki v. Sanders
, 556 U.S. 396, 410 (2009); see Jicarilla Apache Nation v. U. S

. Dep’ t of Interior
, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (“I f prejudice is obvious to the court, the party challeng ing ag ency action need not demonstrate any thing further .”).

### 28

The irrepa

rable harm standard applied by th e Board, in
contra st, derive s from the standard courts must apply in g ranting injunctive relief

. See Monsanto C o

. v. Gee rtson Seed Farms
, 5 6 1 U. S. 139, 156-57 (2010); W inter
, 555 U.S. at 20, 22. I t is
not the standard for the “less drastic” AP A reme dy of vacatur,

see Monsanto
, 561 U.S. at 165-66, nor is it the standard applied under the AP A’ s harmless err or provision, see Shinseki
, 556 U.S. at 410. Rather, it re quires a substantially highe r showing

. See C haplaincy of Full Gospel C hurches v. England
, 454 F.3d 2 9 0
, 297-98 (D.C. Cir. 2006). Her e, it require s a well-nigh impossibl e one. How, afte r al l, can the Tribe show that Powertec h’s projec t will irrepa rably damag e its cultural artifa cts if there has not been a survey adequate to deter mine wher e those artifa cts are located?

2. NRC counsel -- but not the Commi ssion it self -- also analog ize the Commi ssion’s trea tment of t h e err oneous Staff decision to the ana l y s i s this court applies when considering whether to vac at e or mere ly rema nd err oneous ag ency actions. NRC Br

. 3 4 -3 9

. As counsel corr ectly note, “[t] his Court has lon g h eld when considering reme dies under § 706 that the ‘dec ision whether to vacate depends on the seriousness of the orde r’ s defic iencies (and thus the extent of doubt whether the
ag ency chose corr ectl y ) and the disruptive conseque nces of an interim chang e that may itself be chang ed.’” Id. at 34 (quoting
, inter alia, Allied-Signal, Inc. v. NRC
, 9 8 8 F.2d 146, 150-51 (D.C. Cir. 1993)); see Allina Health Servs.
, 746 F.3d at 1110-11.

Be cause the NRC order appealed here does not rely upon t h i s rea soning, see NRC Orde r, 84 N.R.C. at 245 (J.A. 268), neither can we. SEC v. Chenery Corp.
, 3 1 8 U.S. 80, 87-88 (1943) (“The g rounds upon which an administrative order must be j u d ged are those upon which the rec ord discloses that its action was based.” ); see NLRB. v. CNN Am., Inc.
, 865 F.3d 740, 751 (D

. C

. Cir. 2017). I n any event, this arg ument-by -ana logy

### 29

has flaws that are simil ar to those of the Commi ssion’s harmless

err or ar g ument.

As is true o f t h i s court’s “har mless err or” analy sis, our

rema nd pract i ce is informed by the APA. Compare 5 U.S.C. § 706(2)( A) (“[T]he revie wing court shall

. . . hold unlawful and
set aside ag ency action

. . . found to be

. . . not i n ac co rd an ce with law

. . . .”), with id. § 702 (“N othing here in . . . affe cts . . . the power or du t y of the court to

. . . deny relief on any other
appropr iate

. . . equitable g round

. . . .”). But once ag ain, the
ag ency fails to identify any statute that authoriz es i t not to comply with NEPA on equitable g rounds.

Wit hout resolving whether the absenc e o f statutory authority is sufficie nt to reje ct the analog y to judicial rema n d

without-vaca tur, what the ag ency has done here does not mirror the cour t’s decisionmaking proce ss in that reg ard.

As the above quotation from A l l i ed-Signal indicates, in deciding whether vacatur is requ i re d
, we first consider the “ser i o usness of the order ’s defic iencies.” 988 F.2d at 150. Her e, the NRC acknow ledg ed a “sig nificant defic iency in the NRC Staff’s NEPA revie w.” ASL B I nitial Dec ision, 81 N.R.C.
at 658 (J.A. 457). I t nonetheless left the license in place
, in part beca use it r eg arde d the failure to c omply with N EPA as mere ly a “pr ocedur al deficienc[y ].” NRC Br

. 34; see id. at 37. B ut as

we have just underlined, NEPA is a p u re l y proce dural statute and taking such an approa ch would vitiate it. Nor is it true, as counsel claim, that this court rout inely rema nds (without

vaca tur) violations of proce dural require ments. See NRC Br

. 37. To the contrary , in the compar able circ umstance of the APA’s
proce dural requireme nts, we have held t hat “deficient noti ce is

a ‘funda mental flaw’ that almost alway s requ i re s vaca tur.” Allina Health Servs
., 746 F.3d at 1110 (quoting Heartland Reg’l Med. Ctr. v. Se belius , 566 F.3d 193, 199 ( D.C. Cir. 2009)).

### 30

The seriousness of the NEPA defic iency is particula rly clea r here beca use the point of NEPA is to re q u i re an adequate EI S befor e a projec t g oes forwa rd, so t h at construction does not beg in w ithout knowledge of the a ffe cted c ultural and historical sites. “ Part of the harm NEPA attempts to preve nt in requiring

an EI S is that, without one, there may be littl e if any information about prospective environmenta l harms and potential mitigating

measure s

. ” W

i n t er , 555 U.S. at 23 (empha sis added)

. As the ASL B acknow ledg ed, “[b] eca use the cultural, historical, and relig ious sites of the Og lala Sioux Tri b e h ave not been adequa tely cata logue d, the [EI S] does not include mit i gation

measure s sufficie nt to protec t this Native Americ an tri b e’s cultural, historical, and religious sites that may be aff ecte d by the Powertec h projec t.” ASL B I nitial De ci s i o n, 81 N.R.C. at 655 (J.A. 454). I ndeed, even when we ha ve re manded without

v aca tur, we have considere d this kind of conce rn an d conditioned the rema

nd acc ording ly

. Cf. Pub. Emps. for Env tl. Responsibility
, 827 F.3d at 1084 (dec lining to vacate a wi ndpower projec t owner ’s lease for a defic ient EI S, b u t

vaca ting the ag ency ’s impact st at em ent and requiring it “to

s upplement [t he impact statement] with adequate g eolog i ca l
survey s befor e [t he projec t] may beg in construction”)

. The Commi ssion did not do t hat her e. 1 1

NRC co unsel m ai ntai n that the Boa rd “dete rm ined that va ca

ti ng the 1 1 li ce nse w oul d not pre ve nt pot enti al har m to the Tribe ’s cult

ura l

re sou rc es.” NRC Br. 35. The Boa rd did co nclude
, m or e than tw o y ea rs befor e the or der at is sue her e, that a st ay w oul d be of onl y “lim it ed and inco m

plet e ef fe ct. ” ASL B Sta

y Deni al Orde r, No. 40- 9075

- ML A at 7- 8 (J.A. 517-18). But that 2014 or der w as bas ed on an

as se ss m ent of gr ound- dist urbing w or

k expec te d onl y “fo r the next fe w

m ont hs,” id. at 7 (J.A. 517), an d there is no re as on to beli ev e it s

re as oni ng re m ai ned re le va nt to th e stat

us of co nstr

ucti on in 2016

. I ndeed, tha t exp la

nati on w as not re pea te d in ei ther the Boa rd’s 2015 dec is io n or the 2016 Com m is si on or der that upheld the 2015 dec is io n and is now under re vi ew

. We ar e ther ef or e unable to eva luat e it s

### 31

As A l lied-Signal further indicates, we also evalua te th e “disruptive conseque nces of an interim chang e.” Allied-Signal
, 988 F.2d at 150-51 (int er n al quotation marks omitted). But here
, neither the Commi ssion’s nor the Boa rd’s order examined what the conseque nces would be for Powertec h wer e its license

vaca ted or suspended until the NR C compl eted its NEPA revie w. See NR C Or d er, 84 N.R.C. at 245 (J.A. 268); ASL B I nitial Dec i s i o n, 81 N.R.C. at 657-58 (J.A. 456-57). Nor did those order s examine the potential conseque nces for the Tribe. 1 2

Finally
, once ag ai n t h e issue here is not just what to do about a single ag ency err or, but what to do about the validity of

an NRC prac tice that permits NEPA-def icient licenses to rema in in place unless an intervenor can show i rr ep ara ble harm. We have n ever turned merely to a remand remedy when an ag ency ref used to adher e to a statutory command in such an acr oss-theboard f ashion.

va li dity
, wh ic h re af

fi rm s the w is dom of adher ing to Chener y ’s rule that the so undn es s of

an ag enc y ’s dec is io n m

ust re st on the re as oni ng

co nta ined ther ei n, and not on any pos t hoc justif ic at io ns of

fe re d by

co unsel

. Chener

y Corp.
, 318 U

. S

. at 87- 88; se e NLRB v. CNN Am., Inc

. , 865 F.3d at

751

.

The NRC brie f posit s that “the Com m is si on re as ona

bly le ft the 1 2 li ce nse in plac e

- - ther eby ens uring NRC’s co ntinued abil it y to enf or ce the cult ura l- re so urc e pro te ct io ns the li cen se al re ady im pos es on Pow er te ch

- - w hile al lo w ing the ag enc y to addre ss the pro ce dural def ic ie ncie s ident if

ie d by the Boa

rd.” NRC Br. 35 (c it ing
, by ana lo gy , Ctr

. for Biologic al Div er si ty v. EPA
, 861 F. 3 d 1 7 4
, 188 (D.C. Cir

. 2017 ))

. The or der m ak es no m enti on of this co nside ra ti on, and w e ar e unable to ev al uate it s va li dity

. The Tribe

- - w hich has the m os t dire ct inte re st in cult

ura l re so urc es pro te ct io n and y et ca ll s fo r va ca tur of the li ce nse

- - obv io usly fe el s that the si te is bett er pro te cted w it hout the li ce nse than w it

h w hate ve r li m it ed pro te ct io ns it m ay im pos e. This
ag ai n show s t

he w is dom

of adher ing to Chener

y ’s rule

.

### 32

3. NRC counsel make two further arg uments that are also
not ref lected in the Commi ssion’s order

. Even if they wer e meritorious, Chenery would rende r them insufficient to uphold the orde r.

First, NRC counsel m aintain that the ASL B’ s decision to leave the license in place was justified beca use it was “base d in part on the Tribe’ s own actions making the NHPA consultation
proce ss unnece ssarily difficult.” NR C Br. 35. But the Commi ssion’s order did not rely on this justification and instead noted that “the Boa

rd acknow ledg ed that it cou l d not definitively deter

mine whether the Staff or the Tribe bore responsibility for what the Boa rd considere d a brea

k d o wn in consultation.” NRC Order , 84 N.R.C. at 244 (J .A. 266-67).

Second, counsel ar gue that the ag ency ’s “adjudica tory hear ing proce ss, which led to the ident i fi cation of defic iencies in NRC’s compliance with NEPA

. . . , did not arise from th[ at] statute[]
, but, rathe r, from the Atomic Energ y Act.” NR C Br

. 38. Whether the Commission could have deleg ated to its S taff the final authority to resolve NEPA issues without appea l to the Commi ssion is a question that we need not answe r t oday

. T h e fac t is that the Commi ssion did not do so, and thus must explain wh y it permitted the projec t to g o forwa rd despite i t s o wn deter mination that the Staff had failed to co m p l y with NEPA. As we have explained, the Commi ssion has failed to o ff er a justification that is consistent with i ts statutory responsibility

.

C

To be clea

r, today we hold only that, once t h e NR C deter mines there is a signific ant def i ci ency in its NEPA compliance
, it may not permit a projec t to continue in a manner that puts at risk the values NEPA protec ts simply beca use no intervenor can show irrepa rable harm. We do not decide that the

### 33

Commi ssion may never leave in place a licens e that its Staff previously issued but that t h e Commi ssion later finds NEPAdefic ient. That is, we do not decide that there is no version of a harmless err or rule that the Commi ssion may apply

. Nor do we decide that there are no protective conditions the Commi ssion might impose that would justify leaving a license in place during an adminis trative remand int ended to cure a NEPA defic iency

. Cf. Pub. Utils. Comm’ n v. FERC
, 900 F.2d 269, 282 (D.C. Cir. 1990) (holding that NEPA did not prec lude FERC from issuing

an approva l that was “expressly not to be eff ective until [ an ] environmenta l hear ing w as complete d”).

Reg ardle ss of whether one of those options m i ght pass muster, the Commissi on did not follow such a cour se her e.

I V

Be cause the standard that the Commi ssion applied in permitting Powertec h’s license to rema in in eff ect is inconsi s tent wi th NEPA, we rema

nd this matter to the ag ency for furthe r considera tion consistent with this opinion. We do not, howeve r,

vaca te the ag ency ’s ruling

. As we rec ounted above, an appellate court’s decision reg arding whether to vacate or mere ly rema nd “depe nds on the seriousness of the order ’s defic iencies (and thus the extent of doubt whether the ag ency chose corr ectly ) and the disruptive conseque nces of an interim chang e that may itself be chang ed.” Allied-Signal
, 988 F.2d at 150-51 (interna l quotation marks omitted).

We have no doubt about the seriousness of the order ’s defic iencies. But we have not been g iven any rea son to expect that the ag ency will be unable to c orre ct those defic iencies, and

we are conce rned about the disruptive conseque nces of vacating the l i ce n s e while the ag ency proce eds to satisfy NEPA. Powertec h rea sonably relied on the NRC’s ruling and settled

### 34

prac tice that permitted the continued eff ectivene ss of the license the Staff issued. And it has repr esente d to the court that its stock price “would plummet” if the license wer e “suspende d, vacated,

or re voked.” O ral Ar g . Tr. 30.

More importa nt, it appea rs that the Tribe will not suffe r harm -- irrepa

rable or otherwise -- from a dispositi on that leave s the license in eff

ect for now

. Powertec h has further repr esente d that a South Dakota permitting require ment independe ntly bars i t fr om moving forwa

rd with construction on the site until t h e NRC completes its compliance with NEPA. Ora l Arg

. Tr. 32- 35. We note that the Tribe doubts this repr esenta tion. Id. at 37. But for now, we rely on it. I f the repr esenta tion turns out not to be corr ect, the T ri be will have g rounds to seek further redr ess from this cour t

. C

f

. Pub. Empls. for Env. Responsibility
, 827 F.3d at 1084 (re q u iring the ag ency “to supplement [t he impact statement] with adequate g eolog ical survey s befor e [t he projec t]
may beg in construction”)

.

V

The Nuclea

r Reg ulatory Commi ssion’s Dec ember 2016 order is not entirely final, and as a conseque nce we do not ha ve jurisdiction over the bulk of the ruling s challeng ed by the Og lala Sioux Tribe. Under the collater al order doctrine, howeve r, we do have juris d i ct i o n to revie w the Commi ssion’s decision to leave Powertec h’s license in place -- notwithstanding the NRC’s acknow ledg ment that it has not y et complied with the Na tional Environmental Policy Act -- on the g round that the Tribe failed
to show irrepa

rable harm. Be cause that decision is contra ry to law, we g rant the petition for revie w in part and rema nd the case to the C ommissi on for further procee dings cons i stent with this opinion.

So ordered.