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 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2009

6

7

8 (Argued: October 23, 2009 Decided: December 21, 2009)

9

10 Docket Nos. 08-3903-ag(L), 08-4833-ag(con), 08-5571-ag(con)

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 THE STATE OF NEW YORK; RICHARD BLUMENTHAL,

15 Attorney General of Connecticut; and the

16 COMMONWEALTH OF MASSACHUSETTS,

17

18 Petitioners,

19

20 - v.-

21

22 UNITED STATES NUCLEAR REGULATORY 

23 COMMISSION; and the UNITED STATES OF 

24 AMERICA,

25

26 Respondents,

27

28 and

29

30 ENTERGY NUCLEAR OPERATIONS INC., et al.,

31

32 Intervenor-Respondents.

33

34 - - - - - - - - - - - - - - - - - - - -x

35

36 Before: JACOBS, Chief Judge, KEARSE, Circuit

37 Judge, and GARDEPHE, District Judge.

*
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 the Nuclear Regulatory

5 Commission 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,

29 DC, for Respondents.

30

31 David R. Lewis, Pillsbury Winthrop,

32 Washington, DC; CATHERINE E. STETSON

33 (Jessica L. Ellsworth on the brief),

34 Hogan & Hartson LLP, Washington, DC;

35 William C. Dennis, Entergy Nuclear
3

1 Operations Inc., White Plains, NY,

2 for Intervenor-Respondents.

3

4 Jerry Bonanno, Ellen C. Ginsberg,

5 Michael A. Bauser, Anne W.

6 Cottingham, Counsel for Nuclear

7 Energy Institute, Inc., Washington,

8 DC, for Amicus Curiae Nuclear Energy

9 Institute, Inc. in support of

10 Federal Respondents, Intervenor11 Respondents, and Affirmance.

12

13 Edmund G. Brown, Jr., Ken Alex,

14 Gordon Burns, Susan Durbin, Brian W.

15 Hembacher, Attorneys for State of

16 California, Los Angeles, CA, for

17 Amicus Curiae State of California,

18 ex rel. Edmund G. Brown, Jr.,

19 Attorney General, in support of

20 Petitioners.

21

22

23

24 PER CURIAM:

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 the NRC 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.

35
4

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 action
5

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 with
7

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 so
 This 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. 

1
fire 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 license
11

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 conclude that the NRC’s decision denying the

20 rulemaking petitions was reasoned; it considered the

21 relevant studies, and it took account of the relevant

22 factors. We therefore must conclude that the agency acted
12

1 within its broad discretion. We find the States’ other

2 arguments to be without merit. The States’ petition to

3 review the NRC’s denial of the rulemaking petitions is

4 denied.