New Jersey Department of Environmental Protection v. United States Nuclear Regulatory Commission

OPINION

The issue presented by this appeal is whether the Nuclear Regulatory Commission (NRC), when it is reviewing an application to relicense a nuclear power facility, must examine the environmental impact of a hypothetical terrorist attack on that nuclear power facility. The New Jersey Department of Environmental Protection (NJDEP) contends that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq, requires the analysis of the impact of such an attack. NJDEP has petitioned for review of an NRC decision denying its request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station (Oyster Creek). The NRC concluded that terrorist attacks are “too far removed from the natural or expected consequences of agency action” to require an environmental impact analysis and that, in any event, it had already addressed the environmental impact of a potential terrorist act at Oyster Creek through its Generic Environmental Impact Statement and site-specific Supplemental Environmental Impact Statement. We agree with the NRC and will deny the petition.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Atomic Energy Act of 1954(AEA), as amended, 42 U.S.C. § 2011 et seq., establishes a “comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States.” Sections 103 and 104(b) of the AEA authorize the NRC to issue licenses to operate commercial power reactors. 42 U.S.C. §§ 2133, 2134(b). Section 103 limits licenses to forty-year terms but provides for renewal of nearly-expired licenses. 42 U.S.C. § 2133. By regulation, the NRC may renew a license for up to twenty years. See 10 C.F.R. § 54.31.

Two sets of regulatory requirements govern the NRC’s review of license renewal applications. Under 10 C.F.R. Part 54, the NRC conducts a health and safety review focused on “the detrimental effects of aging” on the plant. See Nuclear Power Plant License Renewal: Revisions, 60 Fed.Reg. 22,461, 22,464 (May 8, 1995).

Under 10 C.F.R. Part 51, the NRC completes a NEPA-based environmental review, focusing on the potential impacts of twenty additional years of operation. NEPA is a procedural statute that does not mandate particular substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Rather, it is designed “to insure a fully informed and well-considered decision” in the examination of potential environmental impacts of a proposed agency action. Vermont Yan *134 kee, 435 U.S. at 558, 98 S.Ct. 1197. NEPA “merely prohibits uninformed — rather than unwise — agency action.” Robertson, 490 U.S. at 351, 109 S.Ct. 1835. In addition, NEPA review should be consistent with NEPA’s “national policy [to] encourage productive and enjoyable harmony between man and his environment.” 42 U.S.C. § 4321. NEPA’s “twin aims” are to “ ‘placet ] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action’ [and to] ensur[e] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)).

By regulation, the NRC has divided the environmental requirements for license renewal into generic and plant-specific issues. This division resulted from “a systematic inquiry into the environmental impacts of refurbishment activities associated with license renewal and the environmental impacts of continued operation during the renewal period (up to 20 years for each licensing action).” Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process, 68 Fed.Reg. 332909, 33209 (June 3, 2003). The NRC analyzed “[t]he significance of environmental impacts ... for each of nearly 100 issues [and] categorized which of these analyses could be applied to all plants and whether the additional mitigation measures would be warranted for each environmental issue.” Id. Ultimately, “[o]f the 92 issues analyzed, 69 were resolved generally, 21 require a further site-specific analysis that applicants are required to address, and 2 require a site-specific assessment by the NRC.” Id.

The NRC’s “Generic Environmental Impact Statement for License Renewal of Nuclear Plants,” Final Report, Vol. I (May 1996) (GEIS), addresses issues that are common to all nuclear plants. These have been designated “Category 1” issues. GEIS at 1-5,1-6. Of particular note here, the GEIS reviews the risk of sabotage to nuclear power plants. The NRC has determined from this review that the risk is small and is provided for in the consideration of internal severe accidents:

The regulatory requirements under 10 CFR part 73 [i.e., “Physical Protection of Plants and Materials”] provide reasonable assurance that the risk from sabotage is small. Although the threat of sabotage events cannot be accurately quantified, the commission believes that acts of sabotage are not reasonably expected. Nonetheless, if such events were to occur, the commission would expect that resultant core damage and radiological releases would be no worse than those expected from internally initiated events.

Based on the above, the commission concludes that the risk from sabotage is small and additionally, that the risks f[ro]m other external events[] are adequately addressed by a generic consideration of internally initiated severe accidents.

GEIS at 5-18. The NRC expressly incorporated the GEIS’s findings related to internal severe accidents into the NRC’s environmental review regulations. See 10 C.F.R. Part 51 Subpt. A, App. B, Table B-1.

Environmental impacts not discussed in the GEIS are designated “Category 2” issues and must be addressed in an applicant’s environmental report. Id. § 51.53(c)(3)(ii). Ultimately, NRC staff *135 prepares a site-specific Supplemental Environmental Impact Statement (SEIS) for each plant. Id. § 51.95(c). The SEIS includes evaluations of site-specific Category 2 issues — including a consideration of “severe accident mitigation alternatives” (SAMAs) for those issues that have not previously been considered — and “new and significant information” regarding Category 1 issues.

As a part of the relicensing review process, NRC regulations permit anyone with an “interest” in a licensing proceeding to obtain a hearing on admissible safety and environmental “contentions.” See 10 C.F.R. § 2.309(a), (d). Such a person must file a petition to intervene demonstrating standing and that “the issue raised ... is within the scope of the proceeding.” Id. § 2.309(f)(l)(iii). Unless a party obtains a waiver from the NRC, regulations are not “subject to attack” during adjudications. Id. § 2.335(a).

B. Factual and Procedural Background

On July 22, 2005, the AmerGen Energy Company, LLC (AmerGen) applied to the NRC to renew its operating license at Oyster Creek for an additional twenty years. Oyster Creek is located adjacent to Barnegat Bay in Lacey and Ocean Townships, Ocean County, New Jersey. Oyster Creek’s current license expires in April 2009. On September 15, 2005, the NRC published a notice of opportunity for hearing in the Federal Register. See Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. DRP-16 for an Additional 20-Year Period, 70 Fed.Reg. 54,585 (Sept. 15, 2005).

On November 14, 2005, NJDEP filed a petition to intervene raising three contentions, only one of which it has raised in the appeal before us. 1 NJDEP challenges the NRC’s failure to prepare an environmental impact statement (EIS) to study the effects of an aircraft attack on Oyster Creek. NJDEP contends that such an EIS should have contained, within its SAMAs analysis, a design basis threat (DBT) analysis 2 and an analysis of mitigation alternatives for core melt sequences likely to result from an aircraft attack. The claims were reviewed by the Atomic Safety and Licensing Board (Board), which “held that terrorism and ‘design basis threat’ reviews, while important and ongoing, lie outside the scope of NEPA in general and of license renewal in particular.” See In re Amergen Energy Co., 65 N.R.C. 124, 128 (2007).

NJDEP appealed this decision to the NRC, which denied the claim. Id. at 126. The NRC agreed with the Board that terrorism concerns are security issues, which are not addressed during license renewal because they do not relate to the aging of the facility. Id. The NRC also found that NEPA “ ‘imposes no legal duty on the NRC to consider intentional malevolent acts’ ” because such acts are “ ‘too far removed from the natural or expected consequences of agency action.’ ” Id. at 129 (quoting the Board decision). Finally, the NRC found that a terrorism review would be redundant because (1) “the NRC has undertaken extensive efforts to enhance security at nuclear facili *136 ties,” which it characterized as the best mechanism to protect the public; id. at 130; (2) the GEIS had concluded that “the core damage and radiological release from [terrorist] acts would be no worse than the damage and release to be expected from internally initiated events”; id. at 131; and (3) in its SEIS for Oyster Creek, the NRC had performed a site-specific SAMAs assessment; id. at 132. 3

NJDEP filed a petition for review of the NRC’s order. We have jurisdiction pursuant to 28 U.S.C. § 2342(4).

II. DISCUSSION

NJDEP’s petition suffers from two insurmountable flaws, each of which independently supports our denial. 4 First, NJDEP has not shown that there is a “reasonably close causal relationship” between the Oyster Creek relicensing proceeding and the environmental effects of a hypothetical aircraft attack. Accordingly, such an attack does not warrant NEPA evaluation. See DOT v. Pub. Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). Second, the NRC has already considered the environmental effects of a hypothetical terrorist attack on a nuclear plant and found that these effects would be no worse than those caused by a severe accident. NJDEP has not provided any evidence to challenge this conclusion and has not demonstrated that the NRC could undertake a *137 more meaningful analysis of the specific risks associated with an aircraft attack on Oyster Creek. See Limerick, 869 F.2d at 744 & n. 31.

A. Causation

In rejecting NJDEP’s contention, the NRC held that “there simply is no proximate cause link between an NRC licensing action, such as [in this case] renewing an operating license, and any altered risk of terrorist attack. Instead, the level of risk depends upon political, social, and economic factors external to the NRC licensing process.” See In re AmerGen Energy Co., 65 N.R.C. at 130. NJDEP, on the other hand, asserts that the government has a duty to protect against foreseeable danger, even if that danger comes from intentional criminal conduct, and that here the risk of environmental harm caused by terrorists is foreseeable given the September 11, 2001, attacks on the World Trade Center and Oyster Creek’s proximity to important urban centers. 5 NJDEP also finds significant the NRC’s efforts to improve security at nuclear facilities, asserting that these efforts demonstrate the NRC’s recognition that a terrorist attack is foreseeable.

The Supreme Court has spoken on two occasions regarding the circumstances in which NEPA requires an agency to prepare an EIS. The first concerned the resumption of activity at the Three Mile Island nuclear power plant after a serious accident caused a shutdown of one of the reactors. See Metro. Edison Co., 460 U.S. at 768, 103 S.Ct. 1556. Though no radiation was released in the accident, it caused widespread concern about the safety of the plant. Id. at 769, 103 S.Ct. 1556. A group of Harrisburg residents, organized as People Against Nuclear Energy (PANE), argued that restarting the reactor would “cause both severe psychological health damage to persons living in the vicinity[ ] and serious damage to the stability, cohesiveness, and well-being of the neighborhood communities.” Id. The NRC declined to take evidence on this issue, and PANE petitioned for review, arguing that both NEPA and the AEA required such an analysis. Id. at 770, 103 S.Ct. 1556. The D.C. Circuit agreed as to NEPA, finding, “NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health....” Id. at 771, 103 S.Ct. 1556.

The Supreme Court reversed. 6 First, the Court noted that “NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment.” Id. at 772, 103 S.Ct. 1556. The Court held that, in order to determine when NEPA requires consideration of a particular environmental effect, agencies and reviewing courts “must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue.” Id. at 773, 103 S.Ct. 1556. The Court then explained that NEPA attaches only when there is a “reasonably close causal relationship between a change in the physical environment and the effect at issue.” The Court likened *138 this relationship to “the familiar doctrine of proximate cause from tort law.” Id. at 774, 103 S.Ct. 1556. In applying this standard to the case before it, the Court observed that the renewed operation of the reactor would affect the environment, particularly in the release of low levels of radiation, increased fog, the release of warm water into the Susquehanna River, and the potential results of a nuclear accident. 7 Id. at 775, 103 S.Ct. 1556. It then observed that the NRC had considered all of these effects. The Court, however, found damage to psychological health caused by the perception of a risk of a nuclear accident too attenuated: “In a causal chain from renewed operation ... to psychological health damage, the element of risk and its perception by PANE’S members are necessary middle links. We believe that the element of risk lengthens the causal chain beyond the reach of NEPA.” Id.

The Supreme Court again discussed NEPA’s causation requirement in Department of Transportation v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Public Citizen concerned the operation of Mexican tractor-trailer trucks in the United States. Prior to 1982, these trucks were certified to operate in the United States by the Interstate Commerce Commission. In 1982, Congress suspended this certification procedure in light of concerns about Mexico’s discriminatory treatment of American trucks operating in Mexico. Id. at 759, 124 S.Ct. 2204. The United States agreed, however, as part of the North American Free Trade Agreement (NAFTA) to phase out the moratorium. Id.

In 1994, the President lifted the moratorium but called for new regulations related to the certification of Mexican trucks seeking to operate in the United States. Accordingly, the Federal Motor Carrier Safety Administration (FMCSA), a division of the Department of Transportation, published proposed safety regulations and procedures for the certification of Mexican trucks. The FMCSA also prepared an environmental assessment (EA) focusing on the effects of its proposed regulations. Id. at 760-62, 124 S.Ct. 2204. The EA did not consider the environmental impact of increased Mexican truck traffic because the FMCSA attributed this increase not to the regulations but to NAFTA and the President’s decision to lift the moratorium. Id. at 761, 124 S.Ct. 2204. A citizen group petitioned for review, arguing that NEPA required such an analysis. Id. at 766, 124 S.Ct. 2204.

The Supreme Court upheld the FMCSA’s decision. The Court noted that an EIS is required only for “ ‘major Federal actions,’ ” defined to include “ ‘actions with effects that may be major and which are potentially subject to Federal control and responsibility.’ ” Id. at 763, 124 S.Ct. 2204 (quoting 40 C.F.R. § 1508.18). The Court then noted that “effects” were limited by regulation to (1) “[djireet effects, which are caused by the action and occur at the same time and place,” and (2) “indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foresee *139 able.” Id. at 764, 124 S.Ct. 2204 (internal quotation marks and citation omitted).

The Court concluded that the increase in Mexican truck traffic was not an effect of the FMCSA’s action. First, the Court noted that the FMCSA does not have the authority to exclude Mexican trucks from the United States. Rather, pursuant to congressional mandate, the FMCSA must certify every truck that can meet the FMCSA’s regulations. Id. at 766, 124 S.Ct. 2204. Next, the Court considered the causal relationship between the agency action and the environmental impact, as required by Metropolitan Edison. The Court characterized the causation at issue as “ ‘but for’ causation, where an agency’s action is considered a cause of an environmental effect even when the agency has no authority to prevent the effect.” It declared that this form of “but for” causation is “insufficient to make an agency responsible for a particular effect under NEPA.” Id. at 767, 103 S.Ct. 1556.

The Public Citizen Court also rejected the petitioner’s argument under the rule of reason, stating that agencies need not prepare an EIS when it would serve “no purpose” under NEPA. Id. It noted NEPA’s twin aims: (1) to force agencies to consider environmental impact as part of its decision making, and (2) to make information available to the public so that it can play a role in the decision making process. Because the FMCSA cannot prevent the entry of Mexican trucks, an EIS addressing increased traffic would not affect its decision making. Id. at 768, 124 S.Ct. 2204. Moreover, the public information purpose would not be served since FMCSA could not react to the input received from the public. Id. at 768-69, 124 S.Ct. 2204. Accordingly, the Court agreed with the FMCSA that “the legally relevant cause of the entry of the Mexican trucks is not FMCSA’s action, but instead the actions of the President in lifting the moratorium and those of Congress in granting the President this authority.” Id. at 769, 124 S.Ct. 2204.

NJDEP argues that neither Metropolitan Edison nor Public Citizen is apposite, asserting that those decisions involved cause and effect relationships that are far more attenuated than the one presented here. We disagree. The Supreme Court has directed that we “draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Id. at 767, 124 S.Ct. 2204 (quoting Metro. Edison, 460 U.S. at 774 n. 7, 103 S.Ct. 1556). In the cases, this line appears to approximate the limits of an agency’s area of control. For example, in Metropolitan Edison, the NRC could control the nuclear facility and its operation but not how individuals perceived the risks of renewed operation and the possibility of another accident; therefore, these risks were too remote to require a NEPA analysis. Likewise, in Public Citizen, the FMCSA controlled the certification process, but it could not control the admission or volume of Mexican trucks; the FMCSA’s role was limited to certification.

In the instant case, the NRC controls whether equipment within a facility is suitable for continued operation or could withstand an accident, but it has no authority over the airspace above its facilities, which is largely controlled by Congress and the Federal Aviation Administration (FAA). The NRC has explicitly noted its limited ability to address airborne threats, articulating its consistent view that “security from terrorist attacks on nuclear facilities [i]s best approached by enhancing aviation security, including intelligence gathering and security at airports and on airplanes.” Riverkeeper, Inc. v. Collins, 359 F.3d 156, 161 (2d Cir.2004); cf. Glass Packaging In *140 stitute v. Regan, 737 F.2d 1083, 1092 (D.C.Cir.1984) (“NEPA is meant to supplement federal agencies’ other nonenviron-mental objectives, not to transplant specific regulatory burdens from those expert agencies otherwise authorized to redress specific nonenvironmental problems and pointlessly to reimpose those objectives on other unqualified agencies.”). This view is shared by other federal agencies. See Richard A. Meserve, Statement Submitted by the Nuclear Regulatory Commission to the Subcomm. on Oversight and Investigations of the H. Comm, on Energy and Commerce 5 (2003) (noting that when there were reported threats to the airspace above nuclear facilities, the FAA and the Department of Defense, rather than the NRC, responded to protect the airspace).

NRC’s lack of control over airspace supports our holding that a terrorist aircraft attack lengthens the causal chain beyond the “reasonably close causal relationship” required by those cases. Indeed, an aircraft attack on Oyster Creek requires at least two intervening events: (1) the act of a third-party criminal and (2) the failure of all government agencies specifically charged with preventing terrorist attacks. We conclude that this causation chain is too attenuated to require NEPA review. Moreover, this conclusion is supported by traditional tort law concepts of causation. 8

According to the Restatement (Second) of Torts, the criminal conduct of a third person is not a superseding cause of harm unless the original actor “realized or should have realized the likelihood that [an opportunity for a third person to commit a crime] might be created, and that a third person might avail himself of the opportunity.” Restatement (Second) of Torts § 448. The comments to the section clarify the circumstances in which an actor should anticipate third-party criminal conduct: (1) situations that “afford[ ] temptations to which a recognizable percentage of humanity is likely to yield” and (2) situations “created at a place where persons of peculiarly vicious type are likely to be” who might yield to the temptation, even though the average individual would not do so. Id § 448 cmt. b. NJDEP has not demonstrated that either condition is present here.

The Restatement also clarifies when “an intervening force is a superseding cause.” See id. § 442. Section 442 lists six factors for consideration: (1) whether the third party causes harm “different in kind from that which would otherwise have resulted from the actor’s negligence,” (2) whether the event appears extraordinary in light of circumstances at the time, (3) whether the intervening force operates “independently of any situation created by the actor’s negligence,” (4) whether the intervening act is “due to a third person’s act,” (5) whether the third person’s act is wrongful and would subject him to liability, and (6) the “degree of culpability of [the] wrongful act by [the] third party.” Id. These factors counsel against finding the NRC’s relicensing of Oyster Creek to be the proximate cause of environmental harm in a terrorist attack. The first factor cuts against the NRC because the consequences of a successful terrorist attack would be similar to the possible consequences of a severe accident. The remaining five factors, however, are in the NRC’s favor. Such an attack would certainly be *141 “extraordinary,” as there has never been an airborne attack on a nuclear facility, any terrorist would be operating independently of the NRC, the intervening force would be due to a third-party terrorist, a terrorist attack is wrongful, and the degree of culpability of the terrorist would far exceed that of the NRC.

Our decision in Port Authority of New York & New Jersey v. Arcadian Corp., 189 F.3d 305 (3d Cir.1999), although decided under state law, further supports our conclusion. Port Authority arose in the wake of the 1993 World Trade Center bombing. Id. at 309. The plaintiffs alleged that the defendant fertilizer manufacturers were negligent in the manufacture and sale of the fertilizer used in the attack. Id. at 310. We held “as a matter of law that the World Trade Center bombing was not a natural or probable consequence of any design defect in defendants’ products. In addition, the terrorists’ actions were superseding and intervening events breaking the chain of causation.” Id. at 319; see also Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 618 (10th Cir.1998) (after Oklahoma City bombing, defendant fertilizer manufacturer held not responsible for the criminal conduct of bomber in using the fertilizer to make the bomb). Similarly, here, a terrorist attack on a nuclear facility would be a superseding cause of the environmental effects felt after an attack.

The government agencies specifically charged with preventing an airborne terrorist attack would also serve as intervening forces. As noted above, the NRC’s sphere of authority is limited to the facilities themselves and the equipment within them. A terrorist attack on an NRC-licensed facility would require, at a minimum, a failure by the FAA and the Department of Defense to protect and defend the facility.

An additional factor counsels against finding that the NRC’s relicensing of the Oyster Creek facility would be the proximate cause of environmental harm in the event of an airborne attack. In insisting that we “draw a manageable line” when imposing NEPA responsibilities, the Metropolitan Edison Court noted the limited time and resources of federal agencies and warned that “[t]he scope of the agency’s inquiries must remain manageable if NEPA’s goal of [ensuring] a fully informed and well considered decision is to be accomplished.” Id. at 774 n. 7, 776, 103 S.Ct. 1556 (internal quotation marks omitted). Applied to the case before it, the Court indicated that, if agencies were required to assess psychological health damage associated with increased risk, agencies would “expend considerable resources” on issues “not otherwise relevant to their congres-sionally assigned functions” and “resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources.” Id.

Similarly, if NEPA required the NRC to analyze the potential consequences of an airborne attack, the NRC would spend time and resources assessing security risks over which it has little control and which would not likely aid its other assigned functions to assure the safety and security of nuclear facilities. Moreover, an analysis of the risks of a terrorist attack on Oyster Creek, as well as NJDEP’s arguments concerning