Paul G. Gardephe, of the United States District Court * for the Southern District of New York, sitting by designation. 08-3903-ag New York v. Nuclear Regulatory Commission 1 UNI TEDSTATE S COURT OF APPEALS 2 3 FOR THE SECOND CIRCUI T 4 5 Aug ustTe rm, 20 09 6 7 8 (Ar gue d: Oct obe r 2 3, 200 9 Dec ide d: Dec emb er 21, 20 09) 9 Doc ketNo s. 08-3903-ag (L) , 0 8-4 833 -ag (co n), 08 -55 71- ag( con ) 10 11 12 - - - - - - - - - - - - - - - - - - - - x 13 THE STATE OF NEW YORK; RICHARD BLUMENTHAL, 14 15 Att orn ey Gen era l o f C onn ect icu t; andth e 16 COMMONWEALTHOFMA SSACHU SET TS, 17 Pet iti one rs, 18 19 20 - v .- 21 UNITED STATES NUCLEAR REGULATORY 22 23 COMMISSION; and the UNITED STATES OF AMERICA , 24 25 Res pon den ts, 26 27 28 and 29 30 ENT ERG Y N UCL EAROP ERATIONS INC ., et al. , 31 32 Int erv eno r-Resp ond ent s. 33 34 - - - - - - - - - - - - - - - - - - - - x 35 Bef ore : JAC OBS , C hie f Judg e, KEARSE , C irc uit 36 37 Judge, an d GARD EPH E, Di str ictJu dge . *2 1 2 Petition for review of a decision of the Nuclear 3 Regulatory Commission denying rulemaking petitions filed by 4 Massachusetts and California. As theNu cle ar Reg ula tor y 5 Commis sio n has given due consideration to the relevant 6 studies concerning the rulemaking petitions, we must defer 7 to its expertise in determining the proper risk level 8 associated with the storage of nuclear material in spent 9 fuel pools, and therefore deny the petition to review the 10 Nuclear Regulatory Commission’s decision. 11 JOHN J. SIPOS (Monica Wagner, Andrew 12 M. Cuomo, Barbara D. Underwood, 13 Benjamin N. Gutman, Katherine 14 Kennedy, Janice A. Dean on the 15 brief), State of New York, Albany, 16 NY; Matthew Brock, Martha Coakley, 17 Commonwealth of Massachusetts, 18 Boston, MA; Richard Blumenthal, 19 Robert D. Snook, State of 20 Connecticut, Hartford, CT, for 21 Petitioners. 22 23 JAMES E. ADLER (Stephen G. Burns, 24 John F. Cordes, Jr., Sean D. Croston 25 on the brief), U.S. Nuclear 26 Regulatory Commission, Washington, 27 DC; John E. Arbab, John C. Cruden, 28 Department of Justice, Washington, DC, for Respondents. 29 30 31 Dav id R. Lew is, Pi lls bur y W int hro p, 32 Was hin gto n, DC; CATHE RIN E E . S TET SON 33 (Je ssi ca L. Ell swo rthonth e b rie f), 34 Hog an & H art sonLL P, Was hin gto n, DC; 35 Wil liam C . D enn is, En ter gy Nuc lea r3 1 Ope rat ion s I nc. , Whit e P lai ns, NY , 2 forIn ter ven or- Res pon den ts. 3 4 Jer ry Bon ann o, Ell en C. Gin sbe rg, 5 Mic hae l A . B aus er, An ne W. 6 Cot tin gham, Cou nse l f or Nuc lea r 7 Ene rgyIn sti tut e, Inc ., Was hin gto n, 8 DC, fo r Amic us Cur iaeNu cle ar Ene rgy 9 Ins tit ute , I nc. insu ppo rt of 10 Fed era l Resp ond ent s, Int erv eno r11 Res pon den ts, an d A ffi rma nce . 12 13 EdmundG. Br own , J r., Ke n A lex , 14 Gor donBu rns , S usa n D urb in, Br ianW. 15 Hembac her , A tto rne ys forSt ateof 16 Cal ifo rni a, Los An gel es, CA , f or 17 Ami cus Cu ria e S tat e o f C ali for nia , 18 ex rel . E dmu nd G. Bro wn, Jr ., 19 Att orn ey Gen era l, in sup por t o f 20 Pet iti one rs. 21 22 23 24 PERCU RIAM: 25 26 The States of New York and Connecticut and the 27 Commonwealth of Massachusetts (collectively the “States”) 28 petition for review of a decision of the Nuclear Regulatory 29 Commission (“NRC”) denying rulemaking petitions filed by 30 Massachusetts and California. As theNRC has given due 31 consideration to the relevant studies, we must defer to 32 their expertise in determining the proper risk level 33 associated with the storage of nuclear material in spent 34 fuel pools, and therefore deny the petition for review. 354 1 I 2 Two States filed rulemaking petitions (Massachusetts in 3 2006, and California in 2007) asking the NRC to reverse its 4 1996 Generic Environmental Impact Statement, which found 5 (among other things) that spent fuel pools at nuclear power 6 plants do not create a significant environmental impact 7 within the meaning of the National Environmental Policy Act, 8 42 U.S.C. § 4321 et seq. The NRC consolidated and denied 9 the rulemaking petitions in a 2008 decision. See 42 U.S.C. 10 § 2239(a)(1)(A). United States Courts of Appeal have 11 jurisdiction to review such final orders of the NRC. 28 12 U.S.C. § 2342(4). The States petitioning for review here 13 (New York, Connecticut, and Massachusetts) claim standing on 14 the ground that nuclear power plants are within or near 15 their borders and that an accident at one of these plants 16 could harm their citizens. 17 Under the National Environmental Policy Act (“NEPA”), 18 each federal agency must prepare an Environmental Impact 19 Statement (“EIS”) before taking a major action that 20 significantly affects the quality of the “human 21 environment.” 42 U.S.C. § 4332(2)(C). The renewal of a 22 license for a nuclear power plant is a major action5 1 requiring an EIS under NRC regulations. See 10 C.F.R. § 2 51.20. 3 The EIS required for license issuance and renewal at 4 nuclear power plants covers both generic and plant-specific 5 environmental impacts. The NRC has decided that these two 6 kinds of impacts are to be treated separately. Category I 7 impacts are those that: 1) are common to all nuclear power 8 plants; 2) can be assigned a uniform significance level of 9 small, moderate, or large (even if the impact is not 10 precisely the same at each plant); and 3) do not require 11 plant-specific kinds of mitigation. Category II impacts 12 require site-by-site evaluation. Since Category I impacts 13 are common to each license renewal, the NRC has produced a 14 Generic Environmental Impact Statement (“GEIS”) that applies 15 to these common issues. Massachusetts v. United States, 522 16 F.3d 115, 120 (1st Cir. 2008). The GEIS, combined with a 17 site-specific EIS, constitutes the complete EIS required by 18 NEPA for the major federal action of a plant’s license 19 renewal. Id. (noting also that the GEIS was codified as a 20 final rule in Environmental Review for Renewal of Nuclear 21 Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 22 1996)).6 1 The NRC classifies on-site storage of spent fuel in 2 pools as a Category I issue that causes a small 3 environmental impact. Massachusetts and California 4 contended that the information in their rulemaking petitions 5 showed a greater risk of fire from this source than 6 previously appreciated, and that therefore the environmental 7 impact should no longer be discounted as small; they further 8 contended that the risk should be evaluated plant-by-plant 9 (rather than be considered within Category I). New York and 10 Connecticut supported these original petitions. The NRC 11 considered both petitions together, and concluded that its 12 initial determination was correct. After these petitions 13 were denied in August 2008, this petition for review 14 followed. 15 16 II 17 An agency decision to deny a rulemaking petition is 18 subject to judicial review; but that review is “extremely 19 limited and highly deferential.” Massachusetts v. EPA, 549 20 U.S. 497, 527-28 (2007) (internal quotation marks omitted). 21 It “is to be overturned if it is arbitrary, capricious, an 22 abuse of discretion, or otherwise not in accordance with7 1 law”; but this standard is applied “at the high end of the 2 range of deference and an agency refusal is overturned only 3 in the rarest and most compelling of circumstances.” EMR 4 Network v. FCC, 391 F.3d 269, 272-273 (D.C. Cir. 2004) 5 (internal quotation marks and citation omitted). Such 6 compelling circumstances would typically involve “plain 7 errors of law” relating to the agency’s delegated authority. 8 Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 5 (D.C. Cir. 9 1987). 10 This standard has been said to be so high as to be 11 “akin to non-reviewability.” Cellnet Comm’n, Inc. v. FCC, 12 965 F.2d 1106, 1111 (D.C. Cir. 1992). To deny review of a 13 rulemaking petition, a court typically need do no more than 14 assure itself that an agency’s decision was “reasoned,” 15 meaning that it considered the relevant factors. Lyng, 812 16 F.2d at 5 (internal quotation marks omitted). 17 18 III 19 The States’ primary arguments on appeal are that: 1) 20 new information submitted by Massachusetts and California in 21 their petitions (and New York in support of those petitions) 22 show that the risk of a spent fuel pool fire is not soThis opinion need not and does not reach the circuit 1 split as to whether the NRC must take into account acts of terrorism when drafting an EIS about license renewal. Compare N.J. Dep’t of Envtl. Prot. v. U.S. NRC, 561 F.3d 132, 139-40 (3d Cir. 2009) (holding that the NRC does not need to consider the risk of terrorism when preparing an EIS), with San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1031 (9th Cir. 2006) (holding that the NRC does need to consider the risk of terrorism when preparing an EIS). We conclude that the NRC did sufficiently take into account acts of terrorism when deciding that the risk of 8 1 remote that, when considered in light of the potentially 2 devastating effects, on-site storage in pools has a low 3 environmental impact; and 2) the NRC’s decision to deny the 4 rulemaking petitions was arbitrary and capricious because it 5 relied on plant-specific mitigation and security to support 6 a finding that spent fuel pools generically have low 7 environmental impacts. 8 9 A 10 The risks posed by keeping nuclear fuel on site in 11 spent fuel pools--including the risk of fire--have been 12 considered in studies prepared over the past four decades. 13 The studies relied on by the NRC all found that the risk of 14 a fire was low. These studies (including those conducted 15 since September 2001) consider the risk of fire precipitated 16 by a terrorist attack, and classify that risk as low. 1fire at a spent fuel pool was uniformly low, and therefore

we need not decide whether the NRC could have avoided considering this issue. 9 1 The NRC had already analyzed most of the studies 2 submitted in connection with Massachusetts and California’s 3 petitions; the petitioners simply disagree with the NRC’s 4 interpretation of those studies. Massachusetts and 5 California did submit one study that the NRC had not 6 previously considered; but the NRC--having examined this 7 study in considering whether to grant the petitions-- 8 concluded that it was not as accurate as the studies on 9 which the NRC had previously relied. 10 These are technical and scientific studies. “Courts 11 should be particularly reluctant to second-guess agency 12 choices involving scientific disputes that are in the 13 agency’s province of expertise. Deference is desirable.” 14 Browning-Ferris Indus. of South Jersey, Inc. v. Muszynski, 15 899 F.2d 151, 160 (2d Cir. 1990), limited on other grounds 16 by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93 17 (1998). “Particularly when we consider a purely factual 18 question within the area of competence of an administrative 19 agency created by Congress, and when resolution of that 20 question depends on ‘engineering and scientific’10 1 considerations, we recognize the relevant agency’s technical 2 expertise and experience, and defer to its analysis unless 3 it is without substantial basis in fact.” Fed. Power Comm’n 4 v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972). The 5 relevant studies cited by the NRC in this case constitute a 6 sufficient “substantial basis in fact” for its conclusion 7 that the overall risk is low. See Id. We therefore 8 conclude the NRC’s decision was not an abuse of its 9 discretion. 10 11 B 12 The States on appeal contend that the risk of a spent 13 fuel pool fire must be a Category II rather than a Category 14 I risk, because the risk is affected by mitigation that 15 varies from plant to plant. It is true that the NRC relies 16 in part upon mitigation at nuclear power plants--including 17 various coolant sprays and makeup water systems in case of 18 pool drainage--to conclude that the risk of an accidental or 19 terrorist-caused fire in the pools is uniformly low. 20 However, the NRC has mandated that these mitigation tactics 21 be implemented at all nuclear power plants. The NRC 22 decision states that the agency has “approved license11 1 amendments and issued safety evaluations to incorporate 2 these [mitigation] strategies into the plant licensing bases 3 of all operating nuclear power plants in the United States.” 4 The NRC also requires heightened security at all plants as 5 part of its licensing process in the wake of the September 6 11, 2001 attacks. See 10 C.F.R. § 50.54(hh); Power Reactor 7 Security Requirements, 74 Fed. Reg. 13,975 (Mar. 27, 2009). 8 An agency may take into account attempts to mitigate an 9 environmental impact when determining that an environmental 10 impact is small enough to not require an EIS, so long as the 11 effectiveness of the mitigation is demonstrated by 12 substantial evidence. Nat’l Audubon Soc’y v. Hoffman, 132 13 F.3d 7, 17 (2d Cir. 1997). The NRC relies on numerous 14 studies detailing the effectiveness of its required 15 mitigation measures; these studies constitute substantial 16 evidence. 17 18 CONCLUSION 19 We con clu de tha t t he NRC ’s dec isi on den yin g t he 20 rul ema kin g p eti tio ns was re aso ned ; i t c ons ide redth e 21 rel eva nt stu die s, anditto ok acc oun t o f t he rel eva nt 22 fac tor s. Weth ere for e mustco ncl udeth at theag enc y a cte d12 1 wit hinit s b roa d d isc ret ion . We fin d t he Sta tes ’ o the r 2 arg ume nts tobewi tho ut mer it. T he Sta tes ’ p eti tio n t o 3 rev iewth e N RC’ s d eni al of theru lemaki ng pet iti ons is 4 den ied .