1 15-1330-cv Brodsky v. United States Nuclear Regulatory Commission UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 2 nd day of June, two thousand sixteen.

PRESENT: ROBE RT D. SACK, REENA RAGGI, Circuit Judges , LAURA TAYLOR SWAIN, District Judge

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---------------------------- ---------------------------- -------------- RICHARD L. BRODSKY, New York State Assemblyman, from the 92nd Assembly District in his official and individual capacities, Plaintiff-Appellant , WESTCHESTER’S CITIZENS’ AWARENESS NETWORK (WESTCAN), PU BLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), and SIERRA CLUB – ATLANTIC CHAP TER (SIERRA CLUB), Plaintiffs , v. No. 15-1330-cv

UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant-Appellee ,

* The Honorable Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation.2 ENTERGY NUCLEAR OPERATIONS, INC., Defendant-Intervenor

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: DANIEL J. KRAMER (Jacqueline P. Rubin, on the brief ), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York.

APPEARING FOR APPELLEE: BENJAMIN H. TORRANCE, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. APPEARING FOR INTERVENOR: AMY C. ROMA (Lisa J. Fried, on the brief ), Hogan Lovells US LLP, New York, New York. FOR AMICI CURIAE NEW YORK CITY COUNCIL MEMBERS: Judith L. Mogul, Morvillo Abramowitz Grand Iason & Anello P.C., New York, New York.

FOR AMICUS CURIAE UNITED STATES CONGRESSMAN SEAN PATRICK MALONEY: Susan E. Brun e, Brune & Richard LLP, New York, New York.

FOR AMICUS CURIAE NUCLEAR ENERGY INSTITUTE, INC.: Ellen C. Gi nsberg, Jonathan M. Rund, Nuclear Energy Institute, Inc., Wa shington, D.C.; David A. Repka, Winston & Strawn LLP, Washington, D.C. Appeal from a judgment of the United St ates District Court for the Southern District of New York (Loretta A. Preska, Chief Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on March 5, 2015, is AFFIRMED.

† The Clerk of Court is directed to amend the caption as set forth above.3 Plaintiff Richard L. Brodsky brought th is action to challenge a decision by defendant United States Nuclear Regulat ory Commission (“NRC”) exempting Indian Point 3, a nuclear power plant operated by in tervenor Entergy Nuclear Operations, Inc., from a federal fire-safety regulation. See 10 C.F.R. pt. 50, App. R. § III.G.2.c. On Brodsky’s initial appeal from a grant of su mmary judgment to the NRC, this panel affirmed in all respects but one, see gene rally Brodsky v. U.S. Nuclear Regulatory Comm’n, 507 F. App’x 48 (2d Cir. 2013 ), remanding the case for further record development on Brodsky’s claim that the agency had failed to comply with the public-participation provision of the Natio nal Environmental Protection Act (“NEPA”), see 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4(b); see generally Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d 113 ( 2d Cir. 2013). The N RC opted instead to reconsider its decision and solicited public comment, which it received and reviewed before deciding not to modify or rescind the challenged exem ption. On appeal from the district court’s renewed award of summary judgment in the agency’s favor, Brodsky argues that, in reissuing the exemption, th e NRC violated NEPA’s public-participation requirement by refusing to consider comment s regarding the environmental consequences of a terrorist attack. We assume the partie s’ familiarity with th e facts and record of prior proceedings, which we reference only as necessary to explain our decision to

affirm. At the outset, we note that the district court, in its initial grant of summary judgment to the NRC, rejected Brodsky’s ar gument that NEPA required consideration of public comments on possible terrorism. Se e Brodsky v. U.S. Nuclear Regulatory4 Comm’n, 783 F. Supp. 2d 448 , 462 n.10 (S.D.N.Y. 2011) (citing New Jersey Dep’t of Envtl. Protection v. U.S. Nuclear Regulat ory Comm’n, 561 F.3d 132, 136–44 (3d Cir. 2009)). Brodsky abandoned th e claim, however, by failing to raise it on his initial appeal. See Van Allen v. Cuomo, 621 F.3d 24 4, 247 n.2 (2d Cir. 2 010) (observing that issues not raised in pro se appe llate brief are d eemed abandoned). 1 Accordingly, the law

of the case doctrine forecloses the challenge here. See Johnson v. Holder, 564 F.3d 95, 99–100 (2d Cir. 2009) (holding that “where an issue was ripe for review at the time of an initial appeal but was nonethel ess foregone, it is considered waived and the law of the case doctrine bars an appellate court in a su bsequent appeal from reopening such issues” absent “cogent and compelling” reasons for doing so (alteration and internal quotation marks omitted)). In urging otherwise, Brodsky argues that because the NRC chose to reconsider the challenged exemption, it engaged in a sepa rate, “independent” NE PA process, which raised new issues of fact (“ the comments regarding terrorism”) and law (“the scope of the NRC’s obligation to consider those public comme nts”) that could not have been resolved in the prior litigation. Appella nt Reply 8, 9. The argument fails because the district

court had ruled that the environmental effects of a possible terrorist attack fell outside the

1 Although Brodsky challenged the NRC’s co mpliance with its own requirement that exemptions from NRC regulations must be “consistent with the common defense and security,” 10 C.F.R. § 50.12 (a)(1), we summarily rejected his claim on the merits. See Brodsky v. U.S. Nuclear Regulatory Comm’ n, 507 F. App’x at 52 (“Plaintiffs’ speculation that a terrorist att ack would disable more firefi ghting personnel than would a significant fire, thus making increased relia nce on manual fire suppression unsafe, is insufficient to demonstrate that the agency’s defense-and-security finding was arbitrary and capricious.”).5 scope of the agency’s NEPA analysis as a ma tter of law. See Brodsky v. U.S. Nuclear Regulatory Comm’n, 783 F. Su pp. 2d at 462 n.10. The NRC was entitled to rely on this unchallenged ruling on remand and thus—for pu rposes of this appeal—was not required

to consider the issue even if public comments raised su ch concerns. See Johnson v. Holder, 564 F.3d at 99. No different re sult is warranted by Br odsky’s effort to

characterize the district cour t’s ruling as dicta, or to limit it to the question whether NEPA compels the NRC sua sponte to cons ider the threat of terrorism; neither characterization has any basis in the district court’s decision. In any event, Brodsky’s argument also fails on the merits because the NRC did

consider the risks from terrorism in determin ing that its exemption decision would have no significant environmental impact. See 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.4(e), 1508.13; Department of Transp . v. Pub. Citizen, 541 U.S. 752, 757–58 (2004). 2 Responding to public comments sugge sting that granting the exemption could heighten the risk that a terrori st attack would cause a severe fire preventing operation of shutdown equipment, the NRC explained that it had already analyzed “plausible threat scenarios” and, as a result, had required plant operators to undertake several protective measures “[t]o provide high a ssurance that a terrorist attack will not lead to significant radiological consequences.” J.A. 29 (citi ng 10 C.F.R. §§ 50.54(hh)(1)–(2), 73.1, 73.55,

2 Accordingly, we need no t—and do not—address the NRC’s argument that because there is no “‘reasonably close causal relati onship’” between granting the exemption and the probability or consequences of terrorism, the agency had no legal duty to consider the possibility of a terrorist att ack in conducting its evaluation under NEPA. Appellee Br. 36 (quoting New Jersey Dep’t of Envtl. Protection v. U.S. Nuclear Regulatory Comm’n, 561 F.3d at 140).6 73.58). The agency further u nderscored that its “independen t safety evaluation” of the facility’s fire-zone configuration provided “reas onable assurance that a severe fire is not plausible” and that “existing fire protection fe atures are adequate,” whether such a fire “result[s] from a terrorist attack or some internally-initiated event.” Id. (citing New York v. U.S. Nuclear Regu latory Comm’n, 589 F.3d 55 1, 554 n.1 (2d Cir. 2009) (concluding that NRC took sufficient account of risk from terrorism “when deciding that the risk of fire at a spent fuel pool wa s uniformly low” (emp hasis added))). This explanation precludes a conclusion that the NRC’s grant of the exemption in question was “arbitrary, capricious, an abuse of discre tion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Natura l Res. Def. Council v. EPA, 658 F.3d 200, 215 (2d Cir. 2011) (observing that agency action is “arbitrary and capricious” if it “entirely failed to consider an important aspect of the problem, offered an explanation for

its decision that runs counter to the evidence before the agen cy, or is so implausible that

it could not be ascribed to a difference in view or the pr oduct of agency expertise” (internal quotation marks omitted)). Brodsky cannot urge otherwise by faulti ng the NRC’s reliance on its independent safety evaluation on the ground that the August 27, 2007 repo rt of its analysis does not

mention the risk of a terrorist attack a nd could not have taken into account public comments submitted between April and June 2013. The alleged report omission is insufficient to demonstrate agen cy neglect in examining releva nt data or in satisfactorily explaining its action, much less the lack of “a rational conn ection between the facts found and the choice made.” Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d at 1197 (internal quotation marks omitted). To the ex tent Brodsky contends that the NRC failed entirely to consider the threat of a terror attack, his contention is defeated by the agency’s response to a comment that Brodsky himself submitted, in which the agency described the enhanced security requirements imposed on plant operators after the September 11, 2001 terror attacks, see 10 C. F.R. §§ 50.54(hh)(1 )–(2), 73.1, 73.55, 73.58, and concluded

that such measures had reduced the environm ental risk from terror ism “to a level that reasonably assures the public health and safety.” J.A. 39–40. Nor is there merit in Brodsky’s claim that the 2007 report rests on certain assumptions—specifically, the absence of mi nimal combustibles and the availability of manual fire suppression—that are “unlikely to ho ld up” in the event of a terrorist attack. Appellant Reply 22–23. Not only does Brodsky fail to prov ide a factual basis for his assertions that (1) “an attacker could eas ily, and would likely, introduce additional combustible material,” or (2) “it is far more likely that personnel responding to the fire will be delayed or prevented from” suppressi ng a fire, id., but also , his argument ignores that various components of the “defense-in-depth” stra tegy promulgated through 10 C.F.R. pt. 50, App. R. § III must be considered in conjunction rather than in isolation. See Brodsky v. U.S. Nuclear Regulatory Comm’ n, 783 F. Supp. 2d at 463 n.11 (noting that “key” to “defense-in-depth” approa ch “is creating multiple independent and redundant layers of defense to compensate for potential human and mechanical failures so that no single layer, no matter how robus t, is exclusively relied upon” (internal quotation marks omitted)); see also, e.g., J.A. 48 (relying on “presence of redundant safe-shutdown trains, minimal fire hazards a nd combustibles, automatic cable tray fire8 suppression system, manual fire suppression fe atures, fire barrier protection, existing Hemyc configuration, and the inst alled smoke detection system”). In sum, Brodsky identifies no shortcoming in the NRC’s consideration of public comments, whether regarding terrorism or othe rwise, that renders arbitrary or capricious its determination that—in light of Entergy’s approach to “defense-in-depth” at Indian Point 3, considered in its entirety and al ongside the agency’s regulatory response to “plausible” threat scenario s—granting the fire-barrier exemption would have no significant impact on the environment. See Natural Res. Def. Council v. EPA, 658 F.3d at 215 (reiterating that appellate courts do no t “substitute [their] judgment for that of the agency” (internal quotation marks omitted)). Thus, even if Brodsky’s sole remaining NEPA claim were not procedurally barred at this stage of the litigation, it nevertheless

fails on the merits.

* * * * We have considered Brodsky’s remaining arguments and conclude that they are without merit. Accordingly, the di strict court’s judgment is AFFIRMED.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court