## Facts

- The Nuclear Regulatory Commission (NRC) treats nuclear power plant operating-license renewals as major federal actions requiring environmental review under NEPA.
- The NRC’s regulations classify environmental impacts of license renewal as either Category I (generic, resolved in a Generic Environmental Impact Statement (GEIS)) or Category II (site-specific analysis).
- In a 1996 GEIS, the NRC classified on-site storage of spent nuclear fuel in spent-fuel pools as a Category I issue and concluded the environmental impact, including spent-fuel-pool fire risk, was “small.”
- In 2006–2007, states submitted rulemaking petitions urging the NRC to reconsider the 1996 spent-fuel-pool findings and reclassify them as Category II based largely on a newer study suggesting higher probability and consequences of a spent-fuel-pool fire, including post–September 11 security concerns.
- The NRC consolidated the petitions and, in 2008, denied them after reviewing the new study and other materials, finding the new study less reliable than prior analyses and concluding the fire risk remained low.
- New York, Connecticut, and Massachusetts petitioned for judicial review, alleging the denial was arbitrary and capricious and inconsistent with NEPA because spent-fuel-pool risk allegedly varies by site and required plant-specific review.

## Issues

1. Whether the NRC’s denial of the rulemaking petitions and retention of Category I (generic) treatment for spent-fuel-pool impacts was arbitrary, capricious, or otherwise contrary to law under the APA and NEPA.
2. Whether the NRC inadequately considered new evidence on spent-fuel-pool fire risk such that NEPA required revisiting or supplementing the prior generic analysis.

## Decision

- The court denied the petition for review and upheld the NRC’s rulemaking denial.
- The court held the NRC gave due consideration to the relevant studies, including the newer study relied on by the states.
- Because the agency considered the evidence and explained its technical judgment, the court deferred to the NRC’s scientific and technical expertise in risk assessment.

## Legal Principles

- Under the APA, an agency action is sustained if the agency examined the relevant data and articulated a reasoned explanation connecting the facts found to the decision made.
- Courts give heightened deference to agency determinations resting on technical and scientific expertise, including nuclear-risk assessment.
- NEPA requires a “hard look” at environmental consequences but permits generic analysis of impacts that are common across facilities and can be assigned a uniform significance level without plant-specific mitigation.
- New information does not automatically require an agency to reopen or revise prior NEPA analysis; the agency must consider the information and may maintain its prior conclusions if it reasonably determines the information does not materially change the risk assessment.
- An agency may rely on data drawn from particular facilities to inform a generic determination, so long as the agency reasonably explains why the impact can be treated generically.

## Conclusion

The Second Circuit upheld the NRC’s refusal to reclassify spent-fuel-pool impacts as site-specific, concluding that the NRC considered the submitted study and other evidence, reasonably explained why the overall risk remained low, and therefore acted within NEPA and the APA under deferential review.


State of New York v. Nuclear Regul. Comm’n, 589 F.3d 551 (2d Cir. 2009)