## Facts

- The Nuclear Regulatory Commission (NRC) licenses commercial nuclear power plants and addresses environmental impacts of storing spent nuclear fuel generated by those plants.
- A prior D.C. Circuit decision set aside the NRC’s earlier “Waste Confidence” decision and related rule for inadequate NEPA review of (i) the possibility of no permanent repository, (ii) spent-fuel pool leak risks, and (iii) spent-fuel pool fire consequences.
- On remand, the NRC prepared a Generic Environmental Impact Statement (GEIS) on continued storage of spent nuclear fuel and issued a Continued Storage Rule, codified at 10 C.F.R. § 51.23.
- The rule adopts the GEIS’s generic findings for future reactor licensing actions and bars relitigation of those findings in individual proceedings unless a waiver is granted under 10 C.F.R. § 2.335.
- States (led by New York) and environmental organizations petitioned for review, alleging NEPA and Atomic Energy Act violations and that the rule was arbitrary and capricious under the Administrative Procedure Act (APA).
- The NRC’s GEIS analyzed continued storage over short-term, long-term, and indefinite timeframes; evaluated pool leaks, pool fires, seismic risks, and mitigation; and considered alternatives including greater reliance on dry-cask storage.

## Issues

1. Whether the NRC’s GEIS took the required “hard look” at the environmental impacts of continued and potentially indefinite spent-fuel storage under NEPA.
2. Whether the NRC acted arbitrarily and capriciously in analyzing pool fires, leaks (including high-volume leaks), seismic events, and the scenario in which no permanent repository is ever developed.
3. Whether NEPA and the Atomic Energy Act permit the NRC to resolve continued-storage impacts generically by rule and to limit reconsideration in licensing proceedings to a waiver process.

## Decision

- The court denied the petitions for review and upheld the GEIS and Continued Storage Rule.
- The court held that the NRC reasonably addressed the deficiencies identified in the earlier remand and satisfied NEPA’s procedural requirements.
- The court concluded the NRC’s technical judgments on pool fires, leaks, seismic risks, and indefinite storage were within the bounds of reasoned decisionmaking and entitled to deference.
- The court upheld the NRC’s use of a generic EIS and generic rule to address broadly applicable continued-storage impacts, with a waiver mechanism for truly atypical site-specific circumstances.

## Legal Principles

- NEPA is procedural: it requires an agency to identify and evaluate environmental consequences through a “hard look,” but it does not compel a particular substantive outcome.
- An agency may use a programmatic or generic EIS to address nationwide or generally applicable environmental issues and may incorporate those findings into later actions, so long as the analysis is adequate.
- Under the APA, courts review whether the agency reasonably explained its choices and supported them in the record; technical risk assessments receive deference when the agency’s reasoning falls within a range of reasonableness.
- NEPA alternatives analysis requires a reasonable range of alternatives and a rational explanation for the agency’s selection; the agency need not consider every conceivable alternative or adopt the most environmentally protective option.
- Generic determinations may be resolved through rulemaking and applied in adjudicatory settings, with site-specific departures addressed through a lawful waiver process.

## Conclusion

The D.C. Circuit sustained the NRC’s post-remand shift to a Continued Storage framework, holding that the GEIS and Continued Storage Rule satisfied NEPA’s “hard look” obligation and were not arbitrary or capricious, including as to indefinite storage, pool-fire and leak risks, consideration of alternatives, and the agency’s use of generic rulemaking with a waiver path for exceptional cases.


New York v. Nuclear Regul. Comm'n, 824 F.3d 1012 (D.C. Cir. 2016)