Monday, June 5, 2006
Court Says Environmental Report for Nuclear Facility Must Assess Possibility of Terrorist Attack
By a MetNews Staff Writer
The builder of a proposed nuclear facility must include the likely environmental consequences of a potential terrorist attack in their environmental review required under the National Environmental Policy Act, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court ordered the U.S. Nuclear Regulatory Commission to reconsider its approval of a proposed spent fuel storage installation at Pacific Gas and Electric Company’s Diablo Canyon nuclear power plant in San Luis Obispo.
“We conclude that it was unreasonable for the NRC to
categorically dismiss the possibility of terrorist attack on the Storage Installation and on the entire Diablo Canyon facility as too ‘remote and highly speculative’ to warrant consideration under NEPA,” Judge Sidney Thomas, writing for the court, said.
In 2001 PG& E applied to the NRC for a license to construct and operate the storage installation, which would permit the storage of spent fuel from two nuclear reactors at the site, the record showed. PG& E expects to fill its existing spent fuel storage capacity at the site this year. The proposed storage installation would enable the storage of expected spent fuel from the reactors through 2025.
The group San Luis Obispo Mothers for Peace and others challenged PG& E’s application on the grounds that the NRC environmental review of the proposed project failed to include the effects of a possible terrorist attack. After the NRC rejected the group’s contentions, they petitioned the Ninth Circuit to review the NRC’s decisions.
Thomas noted that the NRC’s position that the possibility of a terrorist attack is “remote and speculative” is contradicted by the federal government’s “efforts and expenditures” to prevent such an attack against nuclear facilities, and the NRC’s own post-9/11 “top to bottom” security review against the same threat.
Thomas also rejected the NRC’s argument that no environmental impact analysis is necessary because the probability of a nuclear attack is unquantifiable.
“No provision of NEPA, or any other authority cited by
the Commission, allows the NRC to eliminate a possible environmental consequence from analysis by labeling the risk as ‘unquantifiable,’” he said. “If the risk of a terrorist attack is not insignificant, then NEPA obligates the NRC to take a ‘hard look’ at the environmental consequences of that risk.”
The NRC’s claim that national security concerns excused it from analyzing possible terrorist attacks was also rejected by the judge. Noting that “there is no ‘national defense’ exception to NEPA,” Thomas said:
“We are also mindful that the issues raised by the petition may involve questions of national security, requiring sensitive treatment on remand. However, the NRC has dealt with our nation’s most sensitive nuclear secrets for many decades, and is well-suited to analyze the questions raised by the petition in an appropriate manner consistent with national security.”
The judge rejected petitioners’ claims that the NRC violated the Atomic Energy Act when it denied petitioners’ requests for hearings on whether NEPA required a consideration of the environmental impact of a terrorist attack or the security measures adopted for the entire Diablo Canyon complex.
Thomas also rejected the petitioners’ claim that the NRC’s reliance on its own prior opinions in its decision in the case violated the Administrative Procedure Act’s notice and comment provisions.
Thomas’ opinion was joined by Judge Stephen Reinhardt and Chief Judge Jane Restani of the Court of International Trade, sitting by designation.
The attorney for the petitioners said the action is not designed to shutter the facility.
“The whole purpose of this lawsuit,” Diane Curran told The Associated Press, “[is] before they build a facility, they would have to protect it, they would have to look at ways they could protect it from potential attack.”
The case is San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 03-74628.
Copyright 2006, Metropolitan News Company