San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission

United States Court of Appeals for the Ninth Circuit · Administrative Law

Administrative LawNEPAAtomic Energy ActFOIANRC procedureNEPAAEAFOIA exemptions

Facts

The NRC considered whether a proposed interim spent fuel storage installation at Diablo Canyon required a full EIS and, on remand, prepared a Supplemental Environmental Assessment addressing the likelihood and consequences of terrorist attacks. In that process, the NRC relied in part on sensitive security information, including threat scenarios and related analysis, that it treated as exempt from disclosure under FOIA. SLOMFP sought access to that information through a protected or closed hearing and also argued that the SEA was inadequate because the NRC improperly selected and screened attack scenarios. The NRC refused to provide a closed hearing, admitted only limited contentions, and ultimately concluded that the SEA satisfied NEPA and that no EIS was required.

Issue

Must the NRC, in NEPA proceedings concerning terrorism-related environmental risks, provide parties a closed hearing and access to FOIA-exempt security information? Also, did the NRC act arbitrarily or abuse its discretion in rejecting SLOMFP's contentions and concluding in the SEA that no EIS was necessary?

Rule

NEPA's procedural requirements are limited to those stated in the statute, and NEPA contains no hearing requirement and does not require disclosure of information exempt under FOIA. AEA Section 189(a) grants an opportunity for a hearing but does not prescribe the hearing's content or manner, and its general hearing right does not override specific NEPA/FOIA-based nondisclosure limits. Where no statute or regulation requires a closed hearing, the NRC may, consistent with its duty to protect national security information, decline to provide one so long as its decision is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Federal Materials Safety Board is preparing an environmental assessment for a radioactive-waste transfer facility outside Toledo, Ohio. Community group Lake Erie Neighbors asks a federal court to order the Board to hold a special closed evidentiary hearing for cleared counsel because some terrorism-risk studies used in the assessment are properly withheld under FOIA.

How should the court rule on the request for a closed hearing?

Explanation. The majority held that courts may not impose additional NEPA procedures beyond those required by Congress. NEPA contains no hearing requirement, and it does not require disclosure of information properly exempt under FOIA. So a court should not compel a special closed hearing simply because the agency used FOIA-exempt security information in its NEPA analysis.