## Facts

- AmerGen Energy Co., LLC sought renewal of the operating license for the Oyster Creek Nuclear Generating Station for an additional 20 years.
- The Nuclear Regulatory Commission (NRC) conducted an environmental review for license renewal under NEPA and its regulations, relying on a Generic Environmental Impact Statement (GEIS) and a site-specific Supplemental Environmental Impact Statement (SEIS).
- The New Jersey Department of Environmental Protection (NJDEP) sought to intervene in the NRC relicensing proceeding.
- NJDEP contended that, after September 11, 2001, NEPA required the NRC to evaluate the environmental consequences of a hypothetical terrorist attack—specifically an aircraft attack—on Oyster Creek.
- The NRC rejected the contention and denied intervention, reasoning that (1) a terrorist attack was too remote from the NRC’s relicensing decision to be an “effect” requiring NEPA analysis, and (2) the GEIS/SEIS already addressed the environmental consequences of severe accidents and radiological releases such that a separate terrorism analysis was unnecessary.
- NJDEP petitioned for review in the Third Circuit under the Hobbs Act.

## Issues

1. Whether NEPA requires the NRC, during nuclear power plant license renewal, to analyze the environmental impacts of a hypothetical terrorist attack on the facility.
2. Whether a terrorist attack is sufficiently foreseeable and causally connected to the license-renewal decision to qualify as an environmental “effect” of the federal action under NEPA.
3. Whether the NRC’s existing GEIS and site-specific SEIS adequately covered the relevant environmental consequences such that NJDEP’s contention was properly excluded.

## Decision

- The Third Circuit denied the petition for review and upheld the NRC’s denial of NJDEP’s intervention request.
- The court agreed that a terrorist attack is too far removed from the natural or expected consequences of license renewal to require a separate NEPA analysis.
- The court also accepted the NRC’s determination that its GEIS and SEIS already analyzed the environmental consequences of severe accidents and radiological releases and that those consequences would not materially differ for NEPA purposes based on whether the initiating event was accidental or intentional.
- The court concluded the NRC’s decision was not arbitrary or capricious.

## Legal Principles

- NEPA is procedural; it requires agencies to take a hard look at environmental consequences but does not compel particular substantive outcomes.
- NEPA review is limited by a proximate-cause requirement: the agency must analyze effects that bear a reasonably close causal relationship to the federal action, not effects dependent on independent third-party criminal conduct too attenuated from the action.
- Where an agency reasonably concludes that the environmental consequences of a posited scenario do not differ materially from consequences already analyzed in existing environmental impact statements, NEPA does not require duplicative, scenario-specific analysis.
- Courts generally afford deference to an agency’s reasoned application of NEPA within its regulatory framework when the agency explains its decision and relies on an established environmental review record.

## Conclusion

The Third Circuit held that, in an NRC license-renewal proceeding, NEPA does not require a separate analysis of the environmental impacts of a hypothetical terrorist attack because such an attack is not a reasonably foreseeable effect of license renewal and, in any event, the NRC’s existing environmental impact analyses of severe accidents sufficiently addressed the relevant environmental consequences.


N.J. Dep’t of Env’t Prot. v. Nuclear Regul. Comm’n, 561 F.3d 132 (3d Cir. 2009)