If You Don’t Like Nukes, Petition Congress: The D.C. Circuit Affirms the NRC’s GEIR On Nuclear Waste Storage

On Friday, the D.C. Circuit Court of Appeals rejected challenges by several states and the NRDC to the Nuclear Regulatory Commission’s Generic Environmental Impact Statement analyzing the impacts of continued on-site storage of spent nuclear fuel.  Yucca MountainThe decision is largely a plain vanilla application of Administrative Procedure Act deference to agency decisionmaking, but there were a few interesting nuggets.

  • The Court agreed with the NRC that the GEIR itself was not a licensing action, and thus did not require that the NRC consider alternatives to licensing.
  • The GEIS discussion of mitigation for pool fires did not violate NEPA’s “rule of reason.”  The Court also noted that site-specific mitigation measures can be addressed in facility-specific licensing decisions.
  • The Court did not require that the NRC utilize “conservative bounding assumptions.  Instead, the Court concluded that the

NRC may generically analyze risks that are ‘essentially common’ to all plants so long as that analysis is ‘thorough and comprehensive.’

  • The NRC’s “qualitative analysis of the likelihood of a failure to site a [permanent] repository” was sufficient.

The decision’s real interest lies in its conclusion, which I’ll reproduce in full:

We acknowledge the political discord surrounding our nation’s evolving nuclear energy policy. But the role of Article III courts in this debate is circumscribed. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” To the extent that the petitioners disagree with the NRC’s current continued storage of spent nuclear fuel, their concerns should be directed to Congress.

To which I can only say, good luck with that.

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