## Facts

- Exelon Generation Co., LLC applied to the U.S. Nuclear Regulatory Commission (NRC) for an Early Site Permit (ESP) for possible future nuclear facilities at Clinton, Illinois.
- An ESP is a preliminary approval that resolves site-related safety, environmental, and emergency-preparedness matters and may reserve the site for up to 20 years; it does not authorize construction or operation.
- Several environmental organizations intervened, asserting that the NRC’s NEPA review failed to adequately analyze alternatives, including renewable energy and energy-efficiency measures as substitutes for new nuclear baseload capacity.
- The NRC’s Atomic Safety and Licensing Board allowed one NEPA alternatives contention to proceed but granted summary disposition to Exelon, finding the alternatives analysis adequate.
- The NRC affirmed the Board’s decision and issued a final order granting the ESP.
- The environmental organizations petitioned for review in the Seventh Circuit, seeking vacatur of the ESP approval on NEPA and APA grounds.

## Issues

1. Whether the NRC’s alternatives analysis for the ESP satisfied NEPA’s requirement to take a “hard look” at reasonable alternatives.
2. Whether NEPA required the NRC to conduct a need-for-power analysis at the ESP stage.
3. Whether the NRC’s final order was arbitrary, capricious, or otherwise contrary to law under the APA.

## Decision

- The Seventh Circuit denied the petition for review and affirmed the NRC’s grant of the ESP.
- The court held that, given the limited and site-focused nature of an ESP, the NRC reasonably scoped its NEPA review.
- The court upheld the NRC’s range-of-alternatives analysis as sufficient under NEPA’s rule of reason.
- The court held the NRC was not required to perform a need-for-power analysis at the ESP stage and could address such questions at later licensing stages.
- The court deferred to the NRC’s technical judgments where the agency prepared an EIS, explained its reasoning, and followed required procedures.

## Legal Principles

- NEPA requires agencies to take a “hard look” at environmental consequences and reasonable alternatives, assessed under a rule-of-reason standard tied to the specific federal action being approved.
- The scope of an agency’s NEPA alternatives analysis may be limited to the nature and timing of the agency decision; preliminary, staged approvals can support phased environmental review.
- An agency does not act arbitrarily or capriciously by deferring broader demand or system-planning analyses when the approval at issue does not authorize construction or operation.
- Courts reviewing NEPA compliance under the APA do not substitute their judgment for the agency’s where the agency has prepared an EIS and provided a rational explanation for its choices.

## Conclusion

The court upheld the NRC’s early site permit for the Clinton, Illinois location, concluding that NEPA did not require a power-need study or a more expansive efficiency-focused alternatives analysis at the ESP stage and that the NRC’s site-focused EIS and rationale satisfied NEPA and the APA.


Env't Law & Policy Ctr. v. Nuclear Regul. Comm'n, 470 F.3d 676 (7th Cir. 2006)