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Nuclear Energy Practice Impact of Recent Ninth Circuit Decision
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Nuclear Energy Practice
July 2006
A recent decision by the Court of Appeals for the Ninth Circuit in San Luis Obispo Mothers for
Peace, et al. v. Nuclear Regulatory Commission, No. 03-74628 (9th Cir. 2006) (SLOMFP)
addressed a question regarding the environmental review of the Pacific Gas and Electric
Company (PG&E) Diablo Canyon Power Plant site-specific Independent Spent Fuel Storage
Installation (ISFSI) license. The court rejected as unreasonable the NRCs prior determination
that, as a matter of law, the National Environmental Policy Act (NEPA) does not require
consideration of the environmental impacts of terrorist attacks on nuclear facilities because the
possibility of such attacks is remote and speculative. Subsequently, SLOMFP asked the NRC to
issue an injunction prohibiting PG&E from loading spent fuel into the ISFSI until NRC
completes an environmental review of the potential impact of terrorist attacks on the facility.
For the reasons discussed below, it is unlikely that the Ninth Circuit decision will have any
substantial impact on existing general and site-specific licenses, particularly in the short term.
Mandate Has Not Yet Issued
As an initial matter, the mandate for the Courts decision has not yet issued. Under the Federal
Rules of Appellate Procedure, the mandate is the certified copy of the judgment and is, in effect,
the order that makes the decision effective. By rule, the courts mandate will not issue until seven
calendar days after the time for a petition for rehearing expires or an order denying a petition for
rehearing is issued, whichever is later. Fed. R. App. P. 41(b). A timely rehearing petition by the
NRC or PG&E would automatically stay the issuance of the mandate. Fed. R. App. P. 41(d)(1).
The time in which either party may seek rehearing is ordinarily 45 days after entry of judgment.
Moreover, a circuit court can, upon a motion of a party, stay its mandate pending a petition for
certiorari in the Supreme Court. Fed. R. App. P. 41(d)(2).
The NRC and U.S. Department of Justice are considering various appeal options. Because of the
potential significance of the decision not only for NRC activities, but also for non-NRC
government agencies and programs, the NRCsupported by the Department of Justice
recently requested additional time in which to decide how to proceed. In that request, the NRC
noted that the decision appears to be inconsistent with decisions from several other appeal courts,
which rejected claims that NEPA requires a study of the impacts of terrorism. The Ninth Circuit
granted that request for an extension of time in which to seek rehearing. Accordingly, the
mandate in SLOMFP will not issue until at least September 7, 2006. Until the mandate issues,
the remand to the NRC is not effective and there would clearly be no effect on an existing ISFSI
license. Effects of Remand
In the event that the mandate issues, the matter would then be
remanded to the NRC for further consideration. The
following paragraphs briefly discuss the various approaches
that the NRC might take and the implications for existing
ISFSI licenses.
The NRC may elect to treat the Ninth Circuit decision in a
narrow fashion by limiting the holding to the Diablo Canyon
site-specific ISFSI. The Courts remand order does not, in and
of itself, require the NRC Staff or applicants involved in other
prior or pending licensing matters to take any particular
action. In fact, the NRC is addressing the same legal issue on
other dockets (e.g., Private Fuel Storage in the D.C. Circuit)
and may in those cases continue to argue their position that,
as a matter of law, the environmental impact of terrorist
attacks do not need to be considered in a NEPA analysis.
Under this scenario, the Ninth Circuit decision would not
impact existing ISFSIs.
Alternatively, the NRC could opt to treat the remanded issue
as involving the specific and narrow factual issue of whether
a terrorist attack is actually remote and speculative. To
address the issue, the NRC could develop a record to support
its conclusion and then apply its decision in a generic
rulemaking. A rule would necessarily encompass installations
other than Diablo Canyon, including existing ISFSIs. This
would satisfy the Ninth Circuits remand for further process,
and would likely not lead to any new ISFSI requirements
since, having previously satisfied itself regarding ISFSI
physical security under the Atomic Energy Act, there is no
reason to think that the NEPA process would alter the
conclusions of the NRCs previous safety review. No action
would likely be required pending completion of the
rulemaking.
In general, the prior NEPA reviews for site-specific licenses
or Part 72 general licenses are complete and therefore
unaffected by the Ninth Circuit decision. The NEPA review
for each site-specific ISFSI was performed during the initial
licensing review for the facility. The NEPA review for the
general license was performed during the Part 72 general
license rulemaking, as supplemented during the rulemaking
for each individual cask certification. See 55 Fed. Reg.
29181, 29182, Storage of Spent Fuel in NRC-Approved
Storage Casks at Power Reactor Sites: Final Rule (July 18,
1990). In the Environmental Assessment (EA) that
accompanied the Part 72 general license rulemaking, the
Commission specifically determined that there would be no
significant environmental impacts associated with general
licenses or certified cask designs. It based its conclusion on
two considerations: (1) the licensing of the operating reactor
for the site at which the ISFSI will be co-located, for which
an Environmental Impact Statement has been previously
prepared; and (2) the independent certification of spent fuel
storage casks for use at any reactor site. Those reasons are
unaffected by he Ninth Circuit decision. Therefore, the
decision would not necessitate reopening completed
environmental reviews.
Conclusion
While the NRC may ultimately be required to take additional
action to resolve the issue remanded by the Ninth Circuit, the
decision does not dictate any particular action by the NRC Staff
on remand. The decision certainly does not have any
immediate impact on existing general and site-specific
licenses.
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We will continue to monitor developments in this area, including further appeals and generic activities by the NRC.
Please let us know if you have any questions about the potential impacts of the decision on remand or the court's
decision generally.
These materials have been prepared by Winston & Strawn LLP for informational purposes only and are not legal advice. Receipt of this
information does not create an attorney-client relationship. Copyright © 2006. Winston & Strawn LLP.
Washington, D.C.
David R. Repka
drepka@winston.com
(202) 282-5726
Tyson R. Smith
trsmith@winston.com
(202) 282-5756